By DAVID HUTTON
A rare and notable event took place recently in Parliament, when the Office of the Public Sector Integrity Commissioner (PSIC) tabled a report revealing that it had found a case of wrongdoing within the federal public sector. These reports are as rare as sightings of Bigfoot.
Regrettably the content of these reports is invariably ho-hum, fingering seemingly isolated cases of bad apples engaged in relatively minor wrongdoing -- minor compared with the government scandals that frequently grace our headlines. The reports usually appear years after the wrongdoing was reported (since PSIC investigations seem to take forever) and there is no assurance that anything will be done as a result – PSIC can only issue recommendations and the departments in question typically respond with non-committal assurances that they will look into it.
This report is somewhat different in just one respect. For the first time ever PSIC has found a Deputy Minister to have engaged in wrongdoing – classified as ‘gross mismanagement’. Their sin was failing to take action for years regarding a known serial harasser, and then promoting them.
However this development only highlights one of the absurdities of the legislation – the implicit assumption that Deputy Ministers are always blameless. When the DM is identified a wrongdoer, there is no mechanism for corrective action to be ordered by anyone more senior. In this case the DM, Ms. Marta Morgan, is the primary recipient of the report describing her own wrongdoing. The corrective action she has promised includes a ‘disciplinary process’ for the harasser. But what is the corrective action for her own offence of gross mismanagement? Should she initiate disciplinary action against herself? The question is moot as she has retired, with congratulations and thanks from the Prime Minister “for her dedication and service to Canadians throughout her career.”
This report is just another reminder that our federal whistleblowing system, overseen by Integrity Commissioner Joe Friday, is a charade. It doesn’t protect whistleblowers: it persecutes them.
This is not a surprise. When the Public Servants Disclosure Protection Act (PSDPA) was being debated in Parliament in 2006, one lawmaker described it as ‘an Act, not to protect whistleblowers, but to protect Deputy Ministers from whistleblowers’, and this is exactly what it has proven to be.
Consider the appalling shortcomings of the law.
- Our own research has revealed no less than 40 serious shortcomings written into the PSDPA, many of them certainly fatal to the whistleblower’s prospects.
- In 2021, an expert study of national whistleblower protection laws in about 50 countries concluded that Canada’s was the worst in the world – dead last – with a score of 1 out of 20. Several of our peers – the USA, Ireland and Australia – were top performers with scores in the range 15-16. The PSDPA is devoid of the best practices that are becoming the norm elsewhere.
Consider the absence of results.
- Although it is responsible for overseeing the entire Federal Public Sector with its approximately 400,000 employees spending about $1 billion per day, PSIC rarely finds anything amiss. It has found only 18 cases of wrongdoing in its 15 years of operation, in spite of receiving more than 1500 disclosures of wrongdoing from whistleblowers.
- Although 500 whistleblowers have submitted formal complaints of reprisal, no one has ever been protected by the Tribunal created by the PSDPA, the only body that can provide compensation for the harassment they have received.
When Pierre Poilievre introduced the legislation in 2006, he claimed repeatedly that it would offer ‘ironclad’ protection, and indeed it does – but for the wrongdoers, not for whistleblowers or the public.
After studying this system closely for the past 15 years, I have come to believe that it was never intended to protect whistleblowers. It does not look like a regrettable accident resulting in an ineffective system. In reality, it functions as a highly effective, finely tuned offensive weapon against whistleblowers. It lures them into a trap, where their disclosures of wrongdoing are disregarded and buried forever, the promises of protection made to them prove to be false, and their efforts to obtain justice place them on a treadmill of endless, costly and ultimately fruitless rigged processes.
It's time for our political leaders to end this charade, which is unbecoming to a progressive democracy and contrary to our values as Canadians, and to do what they have repeatedly promised: to protect the public by protecting whistleblowers. If our peers can do this, why can’t we?
David Hutton is a senior fellow at the Centre for Free Expression at Toronto Metropolitan University and former executive director of FAIR.