The Yukon government has tabled long-awaited whistleblower legislation, but it still needs some tweaking, says the territory’s ombudsman.
Diane McLeod-McKay released her comments on the law this week.
The Public Interest Disclosure of Wrongdoing Act is supposed to protect Yukon government employees who speak out against corruption and wrongdoing in the public service.
An earlier discussion document suggested that the commissioner responsible for investigating allegations would only have the power to make recommendations to the public body where the wrongdoing took place.
If, for example, a public servant was fired for exposing a corrupt boss, the commissioner would only have the power to suggest to that same boss that the employer get her job back and be compensated for the lost work.
That wasn’t good enough, McLeod-McKay said earlier this year.
And indeed the government has made changes in the tabled legislation so that binding orders are possible.
If the public entity does not agree with the commissioner’s recommendation, then the commission can refer the matter to an arbitrator. That arbitrator would then investigate and have the power to make a binding order.
“That should at least give public service employees some comfort knowing that if they do make a wrongdoing disclosure and they are reprised against, that they will have a binding order if necessary,” said McLeod-McKay in an interview Tuesday.
But an issue remains.
In its current form, the law gives no time limit for the government to implement the commissioner’s recommendations, after it has agreed to them.
It must only follow through “as soon as is reasonably practicable,” according to the act.
“I think that’s a bit of a loose end,” said McLeod-McKay.
Remedying a situation where an employee has been wrongfully punished is “very serious,” and there should be a deadline to comply, she said. Further, the commissioner must have the power to refer to an arbitrator if that deadline is not met.
Another issue with the act are the strict limitations on going public with a concern, said McLeod-McKay.
“It makes it nearly impossible for an individual to be able to publicly disclose in the event of an imminent risk of harm.”
Not only must there be a specific and immediate threat that makes it impossible to disclose to a supervisor first, but the employee must disclose to the appropriate law enforcement agency, and that disclosure is not protected if the employees breaks any law in doing so.
Asking an employee to ensure that no law is broken is unreasonable in an urgent situation of potential danger, said McLeod-McKay.
“I don’t think an individual would actually go forward with that kind of a disclosure because the consequences are, if you get it wrong, you’re not protected by the act.”
The wording should be changed so that an employee should not knowingly break any laws when making a disclosure, she said.
Further, the law as tabled allows for future regulations to limit the commissioner’s power to investigate.
“I don’t think that should be allowed,” said McLeod-McKay.
That could impede a proper investigation, and those powers should be set by law, she said.
It remains to be seen if this sort of legislation will accomplish its goals, not only in the Yukon but across the country, the ombudsman said.
But the Federal Accountability Initiative for Reform (FAIR), an organization that has advocated for Canadian whistleblowers since 1998, said this country’s whistleblower protection laws are not only ineffective but harmful.
The laws are structured to silence whistleblowers, not protect them, said David Hutton, the group’s executive director, in an interview with the News earlier this year.
“It just becomes a black hole where whistleblowers go and their allegations die, and they die with them,” he said.
“Whistleblowers in Canada today are significantly worse off than 10-15 years ago: their common law rights have been narrowed and the whistleblower laws that are claimed to protect them do the opposite, forcing them into secretive administrative procedures that deny them due process, facilitate rather than prevent reprisals, and seem designed to keep damaging disclosures hidden from public view,” Hutton wrote in a 2013 report produced for an Alberta think tank.
Contact Jacqueline Ronson at
jronson@yukon-news.com