OTTAWA — As they look for ways to oversee the government’s COVID-19 response, MPs may consider giving themselves the power to hear from and protect whistleblowers.
“When you have a crisis like this, where hundreds of billions of dollars are being distributed throughout the country and [there are] no critical oversight measures, without any real accountability internally, that’s a problem,” NDP MP Matthew Green told HuffPost Canada.
“[But] if we provide people with the protection to bring [matters] to the public interest without having retaliation against them, then I think Canadians would be better served,” he said.
Canada’s whistleblowing law allows public servants to go public with concerns about wrongdoing in rare circumstances. They can speak up only if there is no time to disclose the matter internally or [go] to the Public Sector Integrity Commissioner (PSIC) and a “serious offence” is being committed, or there is “an imminent risk of a substantial and specific danger” to life or safety of people or the environment.
Otherwise, they can be fired for doing so.
Conservative MP Kelly McCauley said he’s heard from whistleblowers who wanted to come forward with their concerns. One person sought to disclose that “information had been doctored in order to protect [some public servants’] bonuses,” he said.
“But the word came back as ‘just destroy the evidence, be quiet, or your job will be destroyed and your career is gone.’ And that’s that’s what we have to fight against,” he said.
The person ended up being advised by a lawyer not to speak out, so McCauley said he was never able to ascertain if the documents were legitimate or if the allegation had merit.
It isn’t rare that public servants want to blow the whistle but don’t feel safe working through internal channels for fear of reprisal, the Edmonton MP said, summing up a 2017 Commons’ committee study into the many problems of the Public Servants Disclosure Protection Act.
Even though that Liberal-dominated committee recommended several changes to the law — and former Treasury Board president Scott Brison agreed the act needed to be improved — the government ignored the recommendations.
McCauley said he is absolutely open to the idea of making broader changes to the act to allow whistleblowers to come forward to parliamentary committees, while still being able to lodge official complaints with the PSIC and be protected from reprisals.
“Yes, yes,” he responded.
“We need laws where people bringing forward information that protects the public from … danger, or health issues, or negligence, or tax issues, or waste issues can be protected for doing the right thing,” he added. “We don’t have that right now.”
HuffPost asked Prime Minister Justin Trudeau this week if his government was prepared to amend a law that even his MPs believe should be changed. Trudeau praised the “extremely important role” whistleblowers play, but sidestepped the question, twice.
“We’ve taken significant measures to strengthen processes and procedures in supporting anyone who comes forward with concerns,” he said Tuesday in response to the question.
David Hutton, a senior fellow at Ryerson University’s Centre for Free Expression and a longtime advocate for whistleblower protection, told HuffPost that the government’s assertion that the system is working “is clearly false advertising.”
He thinks it’s “a great idea for MPs to be able to field complaints from whistleblowers or disclosures of wrongdoing — as long as it is safe for the whistleblower.”
Protection for the whistleblowers
Just as former U.S. president Donald Trump’s first impeachment proceedings were instigated by a detailed complaint from a whistleblower, Hutton said he thinks disclosures to MPs would “raise their awareness a great deal about what is actually going on.”
The real challenge will be to ensure protection for the whistleblowers. “It’s really quite hard to protect people effectively,” he noted.
The identity of the American intelligence official who wrote the whistleblower complaint in 2019 outlining how Trump improperly pressured the president of Ukraine to investigate his political rivals was never publicly disclosed. But last year, Trump fired Michael Atkinson, the intelligence community inspector general who warned Congress about the complaint. In a statement after his firing, Atkinson said he fulfilled his legal responsibility.
“Those of us who vowed to protect a whistleblower’s right to safely be heard must, to the end, do what we promised to do, no matter how difficult and no matter the personal consequences,” he wrote.
Atkinson went on to tell government employees and contractors who believe they have learned or observed unethical, wasteful or illegal behaviour that the American people were counting on them to use authorized channels to bravely speak up. “There is no disgrace in doing so…. Our government benefits when individuals are encouraged to report suspected fraud, waste, and abuse,” he wrote. “Please do not allow recent events to silence your voices.”
Watch: Trudeau says Liberals trying for ‘balance’ on transparency
In Canada, complaints about wrongdoing and reprisals are supposed to be investigated by the PSIC. But when it comes to reprisals, the commissioner has no power to force the disclosure of documents or to compel people to respond to questions — another gap in a law full of loopholes, according to Hutton.
Despite not having inquiry powers to verify allegations independently, the commissioner is charged with deciding whether public servants alleging a reprisal will get their day in court — at the Public Servants Disclosure Protection Tribunal. As HuffPost has outlined, PSIC has received 392 allegations of reprisals since 2007. Only two cases have been heard by the Tribunal. It has never ruled in the complainant’s favour.
Hutton told HuffPost he hopes the COVID-19 pandemic makes people realize the necessity and importance of whistleblower protection.
“Lives are being lost, money is being wasted, and [there are] people who would like to blow the whistle — and there are many people blowing the whistle even at great personal risk themselves,” he said.
“There are so many aspects of this [crisis] where we know there is misconduct, and we know there are errors in oversight and bad judgment and so on. And yet, it is very difficult for that information to come out … so the problems are not being addressed promptly.”
Private sector employees also need protection
While MPs focus on changing the federal law, Hutton notes that the private sector also deserves attention. Currently, very few laws protect whistleblowers in private workplaces.
Speaking out too often comes at a high price.
Ashley Jenkins, a nurse in Hamilton, feared more people would die if she didn’t blow the whistle on the problems she witnessed at the Rosslyn Retirement Residence in September 2020. She was fired. Two weeks after she spoke out, the home’s licence was revoked.
“People like Ashley are so scarce on the ground because, you know, she’s on welfare now. She can’t get another job,” Hutton said.
Liberal MP Francis Drouin said he wishes he could hear from whistleblowers first-hand but understands why many are afraid their identities will become known.
As a legislator, he said, he has little idea what’s going on within departments in the federal public service unless people speak up.
“We fly at 10,000 feet… I don’t know everything that’s going on within the department, including ministers. Ministers don’t know either, right?
If public servants who make allegations of wrongdoing become victims of reprisals, MPs would want to know that too, he said.
“But if they don’t speak up, I don’t know, and I’ll never know.”
While House committees don’t have the same powers as congressional committees in the United States, Drouin said he’s open to the idea of giving MPs more power to hear from whistleblowers or to investigate their complaints.
“Is it an avenue that could be welcomed? I’d have to hear from those who represent public servants. I’d love to hear what PSAC [the Public Service Alliance of Canada, a union representing 200,000 public servants] thinks about that,” he said. “It is something that might be worthwhile pursuing.”
“I just don’t know if we would have the power to do anything after we’ve heard something,” he added.
As a first step, McCauley told HuffPost, he plans to speak to Green, his NDP colleague, about retabling the 2017 committee recommendations as a way of forcing the Liberal government to respond.
“The bill needs to be changed now,” the Tory MP said.
“This government is not going to be in power forever. There will be, eventually, a Conservative government. There might even be, eventually, one day, an NDP government. [This bill] should tie the hands of all governments for the benefit of Canadians and whistleblowers, not for the benefit of bureaucrats or the government of the time,” he added.
This is part of a series on whistleblowing in Canada.
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