Is the Federal Government preparing to undermine our whistleblowing system – again?
By DAVID HUTTON
A successor to Joe Friday must be appointed who will be motivated to protect the public, not to shield the government from embarrassment
Canada’s system for protecting government whistleblowers has earned international notoriety as the worst in the world according to a recent study by the International Bar Association and the Government Accountability Project. Canada`s Public Servants Disclosure Protection Act(PSDPA) is riddled with loopholes. In 15 years of operation at a cost of more than $100 million, successive Public Sector Integrity Commissioners (PSICs) who administer the law have uncovered only 18 relatively minor cases of wrongdoing out of 1,500 cases reported. And remarkably, not one of the 500 whistleblowers who have reported reprisals has been protected.
While a complete failure in protecting whistleblowers, it has done a splendid job of protecting governments from embarrassment by burying evidence of wrongdoing and destroying the lives of those who dare to speak out.
How could it happen that Canada's whistleblowing system, which Pierre Poilievre promised when he introduced the PSDPA in 2006 would provide 'ironclad' protection for government employees, turned out to protect wrongdoers instead?
This outcome is no accident. The current system functions as a powerful, finely tuned offensive weapon, used against whistleblowers, effectively protecting those suspected of wrongdoing. It lures whistleblowers into a trap with promises of protection which turn out to be false, obtains their valuable information about suspected wrongdoing and buries most of it forever, and places them on a treadmill of legalistic, bureaucratic, rigged processes which will tie them up for years and ruin them financially, yet offer no real prospect of justice.
This could only have happened with the active support of the Privy Council Office (PCO), the Prime Minister's own department – by choosing carefully-selected Integrity Commissioners who could be trusted to protect the bureaucracy, no matter what – and PCO has maintained this strategy for 15 years. Here are some of the facts that demonstrate this.
In 2001, prior to the PSDPA, the federal government had created the position of Public Service Integrity Officer (PSIO) with no legislative mandate and reporting to the Prime Minister, not Parliament. This position was filled for 4 years by Dr Edward Keyserlingk, a respected academic, who did a splendid job given his limited power and independence, and who used his position to argue strongly for a more independent body, reporting to Parliament, with a secure, legislated mandate and with strong investigative powers. His efforts contributed to the passage of our current law, which created a new officer of Parliament, the Public Sector Integrity Commissioner (PSIC).
As Keyserlingk stepped down to make way for his successor, the first Integrity Commissioner, he strongly advised PCO to appoint only candidates from outside the bureaucracy, to ensure their independence and willingness to conduct investigations. According to a letter that he later wrote in December 2010 to a Parliamentary committee, PCO agreed wholeheartedly – and then did the exact opposite.
As Dr Keyserlingk wrote about PCO “I was assured that they were convinced by my case for nominating a high profile and qualified person from outside the public service… I did encourage two senior and highly respected people to apply, both of whom I judged to be excellent candidates… their applications were not even acknowledged.”
PCO's first search for candidates turned up no-one that PCO considered suitable, and so a second search was hurriedly launched, which homed in on a little-known executive -- Christiane Ouimet, a young and relatively inexperienced assistant deputy minister.
Her appointment was in Keyserlingk's words a “cursory, rushed… rubber stamping exercise” with no proper vetting and no scrutiny by the relevant Parliamentary committees. And her behaviour in office was exactly as Keyserlingk had predicted of any career bureaucrat – she was very reluctant to investigate others within the bureaucracy.
Ouimet’s 3-year term was a disaster from every perspective: a catastrophic blow to PSIC’s reputation, a huge embarrassment to the government, a traumatic experience for the staff who served under her, and a nightmare for the hundreds of whistleblowers who approached her office.
PCO was fully aware for at least 18 months that Ouimet was not doing her job, and apparently began negotiations regarding her eventual departure, but kept her in office as long as possible – until finally the news leaked out that the Auditor General was investigating her. Within days Ouimet was retired – with a ‘separation agreement’ worth $500,000 which also forbad her from criticizing the government. She had already received another little sweetener from PCO -- a pay raise backdated for 14 months.
Within weeks of Ouimet’s departure, another career bureaucrat, Mario Dion, was appointed as interim Commissioner, without even the pretense of a competition or proper vetting – being retired, he had just stepped forward and offered his services. In a startling violation of conflict-of-interest rules, he was subsequently given the permanent 7-year position, after 12 months of service as interim that apparently proved his worth to PCO – he had conducted a superficial paper review of the 221 files closed by Ouimet and reburied most of them.
Since 2007 we have seen the same pattern repeated: PCO selecting Integrity Commissioners who have no credibility as investigators of the government – most recently Joe Friday, the longest-serving and most-promoted member of PSIC. Friday was Christiane Ouimet’s right-hand man. He testified to the Finance Committee in 2010 that, remarkably, while working alongside Ouimet for 2 years in a tiny 32-person office suite, he had never seen any sign of her egregious misconduct that had staff leaving in droves.
The Integrity Commissioners who followed Ouimet have engaged in a catalogue of misconduct, repeatedly exposed by audits and judicial reviews, showing them blatantly defying their mandate, committing ‘gross mismanagement’ by losing the files associated with sensitive cases, refusing to conduct investigations (except occasionally into minor cases), and treating whistleblowers with contempt by violating their rights, breaching procedural fairness, and blocking nearly all of them from access to the Tribunal, the only body that can compensate them for reprisals.
The lesson is simple and obvious: the bureaucracy cannot investigate itself effectively, and career civil servants can rationalize inaction to avoid incurring the displeasure of the senior leadership – even if this means turning a blind eye to serious misconduct within government and helping to crush and silence honest employees who are trying to protect the public.
It appears that the government likes things as they are. The PCO has decided recently to replace the current commissioner, releasing a call for applicants which seems designed to achieve the same result again. Under the points system typically used to rate such applications, the knowledge requirements strongly favour another career bureaucrat -- especially someone from within PSIC, that graveyard for whistleblowers. Capable outsiders who would meet Keyserlingk’s suggested criteria will be left in the dust – if PCO will even acknowledge their applications.
This cannot be allowed to happen. MPs and the public need to watch the appointment process like hawks and refuse to accept another end-run around Parliament by PCO. Otherwise we will have another seven years just like the past 15 – more Sponsorship-stylescandals, more Phoenix-like disasters, more Duffygates, more We charity scams, more SNC Lavalin cover-ups, more ArriveCan boondoggles… governments of all stripes abusing their power with impunity, with no effective checks on incompetence or corruption.
Let’s resolve not to let this happen. It is unacceptable for Canada not to protect the decent, honest truth-tellers who put themselves at risk to protect us. Surely, they deserve far better.
David Hutton is a Senior Fellow with the Centre for Free Expression at Toronto Municipal University.
CFE operates a free confidential helpline for whistleblowers.
This story was first published by The Hill Times on November 14, 2022, and is republished here with the author's and The Hill Times' permission.