OGGO hearing confirms: our government continues to persecute whistleblowers rather than protect them - The Hill Times
The Liberals need to put in place a system that truly protects whistleblowers and the Canadian public. Perhaps then we can begin to restore our national image and rejoin the ranks of truly clean and well-governed democracies.
BY DAVID HUTTON
A recent meeting of the House Government Operations Committee with Public Sector Integrity Commissioner Harriet Solloway provided a fresh window into the Alice-In-Wonderland world of whistleblower protection in Canada. The meeting’s main focus was PSIC’s ridiculously inadequate budget and the fruitlessness of her efforts thus far to correct this.
As expected, and as her role requires, Solloway presented her agency’s work in the best possible light, and focused on the resulting lack of resources as her main problem. But the elephant in the room—the dysfunctional whistleblowing law that provides her mandate—was scarcely mentioned. Also not mentioned was the appalling track record of our federal whistleblower protection system, of which her agency is a key component. Without correcting these problems, pouring more resources into this system is like loading defective cannons that blow up our own troops half of the time. Our whistleblowers are the victims.
It didn’t help the discussion that OGGO is filled with fresh faces, most of whom have no knowledge of the committee’s long involvement in whistleblower protection, and its valiant efforts over many years to get the law improved.
Conservative MP Kelly Block did ask innocently about the fate of whistleblowers suffering reprisals, specifically how many had been “reinstated.” The answer is zero. In fact, after 18 years of operation and more than 500 public servants submitting formal complaints of reprisal, not a single whistleblower has been awarded any kind of compensation by the tribunal created for this purpose. This remarkable statistic is not an accident, but a predictable consequence of the law—the Public Servants Disclosure Protection Act (PSDPA)—which seems purposefully designed as a weapon to silence and punish whistleblowers.
Treasury Board still mum on PSDPA Task Force
Since the PSDPA was first brought before Parliament in 2006, numerous experts have pointed out the major flaws in this law, but to no avail. The Senate passed 16 amendments that would have dramatically improved it, but these were all rejected. In 2017, 10 years after it came into force, OGGO carried out—at the request of the government—what was understood to be the legally required five-year review of the law. OGGO did an excellent, thorough job, interviewing 52 witnesses including experts from three other jurisdictions, and its unanimous report recommended numerous amendments. Not one of these has been implemented.
In 2022, a new Bloc MP Jean-Denis Garon, who was disturbed by the number of whistleblowers coming to his office, put forward a private member’s bill, C-290, which proposed a number of useful amendments, partly modelled on the 2017 OGGO report. This bill was slow-walked in committee, and then allowed to die on the Order Paper when this year’s election was called. Treasury Board’s response to Bill C-290 was to quickly announce the formation of a ‘PSDPA Task Force’ to review the law. We at the Centre for Free Expression said at the time that this looked like just another delaying tactic. Apparently, we were right: three years on there is still no sign of a report or even any communication from the Task Force.
And Treasury Board remains silent regarding what exactly the 2017 OGGO study was if not the legislative five-year review? Was this just an expensive make-work project, or even a diversion? At the time, some committee members believed the intent was to distract OGGO from a breaking scandal. The government had forced 235 public servants to sign lifetime gag orders regarding a questionable procurement process—sole-source negotiations with Boeing for 18 Super Hornet jets— effectively blocking OGGO’s investigation into this highly controversial matter.
Solloway’s mantra is “due process,” which sounds eminently reasonable—except that the due process for whistleblowers prescribed by the PSDPA is a sham: a treadmill of useless processes that may take years and exhaust the whistleblower financially and emotionally, with no prospect of a successful outcome at the Tribunal. Rather than protecting, it persecutes and re-victimizes public servants who are already being crushed by life-changing, career-ending reprisals inflicted by their bosses.
Public sector integrity commissioner wears many hats
We have met with Solloway a few times and found her to be refreshingly different from her three predecessors—all of whom were Ottawa-based career bureaucrats with every reason to remain loyal and avoid embarrassing the bureaucracy. However, regardless of her evident commitment to the public interest, Solloway has a mountain to climb to make her agency effective. In committee, she acknowledged frankly that she is “uncomfortable” at how little she can do to protect whistleblowers (virtually nothing), and apparently no one in power wants to give her the resources or the legal tools that she needs to do her job.
Our main concern about Solloway’s principled approach is her reluctance to critique the PSDPA in any meaningful way on the basis that, as a kind of judge, she needs to remain ‘neutral.’ She says she is waiting to hear what the Task Force has to say about the law. This sounds like waiting for Godot.
The reality is that Solloway wears multiple hats. Besides handing down quasi-judicial decisions, where she has to remain neutral, she is also responsible for the operations of an anti-corruption force responsible for conducting investigations into alleged wrongdoing—and in this role, a forceful and skeptical attitude is essential. No one would have confidence in a police force that claimed to be ‘neutral’ in its dealings with both suspected mobsters and witnesses subject to death threats. Similarly, neutrality is not an appropriate guiding principle when dealing with whistleblowing situations, where there is an overwhelming imbalance of power and career-ending reprisals are commonplace. Witnesses to serious wrongdoing need to be protected from those who can destroy them on a whim. There is no such protection for our public servants, and this is written into the law, yet Solloway has remained silent about that.
Fortunately, there are solutions at hand—if anyone in government cares to reach for them. The PSDPA’s many specific failings, and recommendations for fixing them, have been clearly set out in an extensive, detailed report published recently by the Centre for Free Expression at Toronto Metropolitan University and available on the CFE website. This report is the culmination of three years of work by Dr. Ian Bron who has studied the whistleblowing laws of all Canadian provinces as well as our federal law, looking both at the provisions on paper and how they have been implemented in practice.
This research’s thoroughness and credibility is underpinned by CFE’s Evaluation Criteria for Protection of Whistleblowers. This sets out in plain language the internationally accepted best practices for whistleblower laws based on decades of experience in other leading jurisdictions.
PM’s reputation will be made by his response to scandals
Why should the current Liberal government pay any attention to this issue when it is beset by other existential problems? There are several reasons.
First, there is pure partisan self-interest. Every change of government in the past several decades has resulted in part because voters became disillusioned by scandals, and regardless of who was to blame, the government of the day is held responsible. The Trudeau government was about to fall disastrously, largely for this very reason, before it was rescued by United States President Donald Trump’s re-election. As dozens of other countries have realized, preventing scandals is vital to maintaining public confidence, and whistleblower protection is by far the most effective (and cost-effective) single tool for accomplishing this.
The usual knee-jerk response—trying to maintain public confidence by denying and covering up wrongdoing—leads to an ever-expanding swamp of sleaze and incompetence. Like his predecessors, Mark Carney’s reputation (and his longevity as prime minister) will be influenced by the nature and frequency of the scandals that erupt on his watch, and how he deals with them.
Second, there is operational efficiency and effectiveness. As we see in many regimes abroad, unchecked corruption results in massive waste of resources and inability to deliver services because the focus of bad actors is not on serving the public, but on individual advancement and self-enrichment. We have seen plenty of examples of this recently in Canada, such as the decades-long procurement scam ArriveCan, and the ongoing Phoenix pay disaster. Scandals like these suggest that the federal bureaucracy has become incapable of combatting systemic corruption within its ranks, and this looks like a worsening trend.
Third, Canada’s standing and influence in the world is heavily dependent upon our reputation as good guys: willing to help out, and being ethical and trustworthy. But this reputation has been eroding for years as demonstrated by our dramatic slide in the Corruption Perceptions Index published annually by Transparency International. It doesn’t help when foreigners see our government officials protecting accused criminals and abusers within their ranks, and attacking the witnesses. Even Canadians have less reason today to believe in the clean image that has been our national brand for decades, and less reason to trust the institutions that sustain our democracy.
For 18 years, Canadian governments of all stripes have been punishing efforts to expose wrongdoing—to their own cost and ours. The Liberals can end this nightmare—and help protect their own reputation—by waking up, facing reality, and finally putting in place a system that truly protects whistleblowers and the Canadian public. Perhaps then we can begin to restore our national image and rejoin the ranks of truly clean and well-governed democracies.
David Hutton is a senior fellow at the Centre for Free Expression at the Toronto Metropolitan University.