Proposed law fails to protect whistleblowers: ombudsman

Proposed whistleblower protection laws could do more harm than good if they are not strengthened, according to Yukon's ombudsman.

Proposed whistleblower protection laws could do more harm than good if they are not strengthened, according to Yukon’s ombudsman.

“I don’t feel that the legislation that’s being proposed is strong enough to protect whistleblowers from reprisal,” said Diane McLeod-McKay in an interview Tuesday. She released a document outlining her concerns last week.

As ombudsman, Diane McLeod-McKay would likely be the person appointed to investigate claims of wrongdoing brought forward by whistleblowers under the proposed new rules.

But the discussion document put forward by the government last month suggests that the ombudsman would only have the power to recommend a remedy if she finds that a whistleblower has been fired or suffered another consequence for coming forward.

“My powers are limited to the power to recommend, with the final decision resting with the employer, of whom I just found engaged in reprisal,” said McLeod-McKay. “I find that very problematic, and I think that it will prevent people from coming forward and actually reporting wrongdoing.”

Without the power to enforce protections, the system designed to help whistleblowers “ends up being a trap for people who think they’re being protected,” said McLeod-McKay, citing a study out of the European Union that said just as much.

“It creates a real risk for individuals who are willing to come forward.”

In her comments to the government McLeod-McKay outlines a number of alternatives that would give more teeth to the proposed legislation.

The ombudsman could be given the authority to apply to the Yukon Supreme Court to make a decision about the remedy, where a whistleblower has been punished for coming forward.

Or, the ombudsman could have the power to retain an adjudicator for that purpose.

Finally, the ombudsman could have the authority to order the remedy herself. This approach is consistent with what was recommended by the Yukon Legislative Assembly’s select committee on the protection of whistleblowers.

In the legislature Tuesday, NDP Opposition Leader Liz Hanson asked why this key recommendation had not been followed.

Currie Dixon, the minister responsible for the Public Service Commission, responded that gathering this sort of feedback is the reason the government goes out for consultation.

He said that the ombudsman’s comments would be taken into consideration.

A national advocacy group has also criticized Yukon’s proposed new rules.

“They’re copying legislation that’s not working,” said David Hutton, executive director of the Federal Accountability Initiative for Reform, last month.

Across Canada, the whistleblower legislation that exists has not worked to expose wrongdoing or protect whistleblowers, he said.

Hutton’s group is currently working on a report reviewing the effectiveness of whistleblowing legislation in the provinces.

Six Canadian provinces currently have whistleblower legislation. Between them there are 19 annual reports from the offices set up to deal with whistleblower complaints. While those offices have received 170 formal disclosures of wrongdoing, they have not concluded that wrongdoing occurred in a single case.

And the group has never heard of a case where an employer has been penalized for firing or otherwise sanctioning a whistleblower for speaking out, he said.

A major problem with the current legislation is that it only gives one or two narrow channels for whistleblowers to have their complaints dealt with.

“It just becomes a black hole where whistleblowers go and their allegations die, and they die with them,” said Hutton.

Canada’s whistleblowing legislation does not protect whistleblowers when they take their concerns to the media, except under specific and controlled circumstances.

But the threat of going public is important, because it puts pressure on organizations to deal with complaints internally, he said.

The comment period on the proposed rules ended April 16.

The government aims to table legislation this fall, Dixon said.

Contact Jacqueline Ronson at

jronson@yukon-news.com

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