By DAVID HUTTON
The Treasury Board’s track record has repeatedly proven it lacks not only the expertise to produce an effective whistleblowing law, but also any intention of doing so.
Given recent publicity about public servants’ mistrust of the government’s whistleblower protection regime and subsequent questions in Parliament, it is no surprise Treasury Board President Mona Fortier has suddenly announced a hurriedly-assembled “external task force” to review this dysfunctional system.
However, the really big question is: why set up a task force at all when the legislated five-year review of the law, the Public Servants Disclosure Protection Act (PSDPA), has already been completed? This review was carried out fully and thoroughly in 2017 by the House Government Operations and Estimates Committee at the request of the current government. The committee did an outstanding job, calling 52 witnesses over five months, including internationally-recognized experts from other countries. It produced a unanimous report with precise, detailed recommendations for sweeping reforms to the law.
Since then, the government and successive Treasury Board presidents (the department responsible for whistleblower protection) have declined for five years to act on any of the recommendations, which are as valid today as when they were written.
Having studied and followed the PSDPA closely for more than 15 years since it became law, I cannot see this new task force as a good-faith initiative. Rather, it looks like yet another delaying tactic, perpetuating a discredited system that systematically crushes and silences government whistleblowers daily while keeping reports of suspected wrongdoing conveniently under wraps – over 1,500 such reports to date.
Regrettably, such an underhanded strategy would be entirely consistent with Treasury Board’s track record on this file since it has repeatedly acted (or failed to act) in ways that disadvantage whistleblowers and undermine the public interest.
1) The Treasury Board introduced this appalling law in 2004, knowing surely that it would never protect any whistleblower or expose any serious wrongdoing.
In 15 years of operation, at the cost of more than $100-million, not a single whistleblower has been protected out of more than 500 who have reported reprisals. In reality, the law functions as a highly efficient offensive weapon against whistleblowers. It lures them with bogus promises of protection, takes their valuable information about suspected wrongdoing, and buries it forever, usually without any investigation. When whistleblowers suffer reprisals, they are placed on a treadmill of costly, rigged bureaucratic processes that drag on for years and ruin them without the slightest prospect of justice. Unsurprisingly, when international experts reviewed the national whistleblowing laws of about 40 countries in 2021, Canada was rated among the worst on the planet – tied for last place.
2) The Treasury Board Secretariat (TBS) hamstrung the whistleblowing system for five years by failing to produce the required new code of conduct (the Values and Ethics Code for the Public Sector).
This code of conduct is an important, integral part of the PSDPA, defining the most commonly-observed types of wrongdoing. But because TBS failed to produce this, all reports of code-of-conduct violations were rejected from 2007 to 2012.
3) In 2012, when the whistleblowing charity FAIR published a report identifying 40 serious shortcomings in the PSDPA, showing that it was not fit for purpose, TBS ignored these findings.
4) In 2012, TBS decided, without any announcement or explanation, to ignore the five-year review required by its own law, and delayed this indefinitely, leaving critics of the law in the dark and the review process in limbo. The review was finally launched in 2017–five years late– and assigned to the House Government Operations Committee (OGGO).
5) In 2013, TBS allowed then-Public Sector Integrity Commissioner Mario Dion to emasculate his mandate by altering his strategic plan, so it no longer called for the role to “detect wrongdoing.” With this objective removed, observers wondered: what purpose does the integrity commissioner now serve, if any?
6) Since the PSDPA’s coming into force in 2007, TBS has neglected to undertake its oversight responsibilities to ensure that the departmental investigations were being conducted properly.
The law requires only a few rather meaningless numbers to be reported by each department once a year, but TBS apparently did not even scrutinize these, thus allowing large departments and Crown corporations for years to ignore their responsibilities under the law.
7) In 2017, during the long-delayed five-year review, TBS vigorously defended its broken system with often disingenuous and misleading testimony. For example, insisting it had a “robust oversight system” for the departments when there was essentially none.
8) When the OGGO committee produced a unanimous report calling for sweeping changes to the PSDPA, TBS and the government ignored these recommendations.
9) In 2021, the International Bar Association and the Government Accountability Project — two impeccably-qualified expert organizations – published their report ranking Canada dead last among about 40 countries, but TBS simply ignored this report, apparently trashing it privately.
Why would we believe that TBS is now suddenly acting in good faith when its actions over the years have consistently blocked and undermined the protection of whistleblowers and hence the protection of the public?
The sad reality is that Canada’s law is a laughing stock internationally, public servants rightly do not trust this system, and TBS has lost all credibility on this file. One wonders whether Fortier is aware of her department’s track record and whether she approves of such behaviour continuing? Meanwhile, the government is losing its legitimacy by allowing this charade to continue.
After more than 15 years of stonewalling and obfuscation, our leaders must take action to protect the public by fixing the PSDPA without further delay. The action required is very simple: order immediate implementation of the 2017 OGGO committee’s solid and well-researched recommendations. And the members of this latest task force should preserve their integrity by graciously stepping down, and acknowledging that the job they were asked to do has already been done.
David Hutton is a Senior Fellow with the Centre for Free Expression at Toronto Municipal University.