Whistleblowing laws don’t work: advocate

Copying whistleblowing laws from the provinces won't do anything to protect people who speak out in the public interest, according to a national group that advocates for the protection of whistleblowers.

Copying whistleblowing laws from the provinces won’t do anything to protect people who speak out in the public interest, according to a national group that advocates for the protection of whistleblowers.

The Yukon has recently begun public consultation for its proposed whistleblower protection laws. A document describes what is being done in other Canadian jurisdictions and how Yukon intends to follow suit.

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

We usually think about a whistleblower as someone who speaks out in the media about corruption, shady deals, mismanagement of funds or other unethical behaviour.

But that’s not the sort of whistleblower Canadian laws are intended to protect.

In fact, Yukon’s discussion document has a section that strictly limits the ability for whistleblowers to get information to the public.

It says they can only do so in an urgent matter of public health and safety, and only after telling the police or chief medical officer of health, and their disclosure must follow the instructions of that authority.

Instead, Canadian whistleblower laws set up a very narrow process for dealing with complaints.

Typically, people must first go through internal processes, and only if that doesn’t work can they go to an ombudsman or special office set up to deal with complaints.

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

Only one or two per cent of whistleblowers ever go public with their concerns, according to the group’s research, said Hutton. Usually, they just want the issue dealt with as quietly as possible.

But the threat of going public is important, since it puts pressure on agencies to resolve the issue internally, he said.

“Whistleblowers should be able to go basically anywhere that they think they’ve got a good chance of getting the issue dealt with,” said Hutton.

“They go to the media as a last resort. If they don’t have that last resort, then there’s absolutely no pressure on the agencies or the departments to do anything.”

Some jurisdictions in Australia have a clause in their legislation that permits whistleblowers to take their complaint public if it is not being effectively dealt with internally.

Perhaps surprisingly, this has led to stronger and more effective internal processes to deal with complaints, said Hutton.

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.

That doesn’t mean that no wrongdoing occurred, said Hutton, just that the language of the legislation is not strong enough to account for it.

He mentioned the case of Linda Merk of Saskatchewan, who called out her union bosses for double-claiming expenses and was fired for it. When she took it to court, lawyers for the union argued that no wrongdoing occurred because there was no explicit policy against double dipping.

Hutton mentioned also the Maid of the Mist scandal, where an untendered 25-year contract was quietly awarded to a Niagara Falls tour operator. After a whistleblower took the matter to the media the decision was overturned and the contract put out to tender, resulting in $300 million in additional revenue for the Ontario government over the life of the contract.

That case did go before Ontario’s integrity commissioner, but no wrongdoing was found, as there was no explicit policy requiring the contract to be open for public tender.

So the laws don’t work to expose wrongdoing, and they also do not protect whistleblowers, said Hutton.

“It’s almost unheard of for a whistleblower to be protected in Canada.”

He has personally taken calls from more than 350 whistleblowers, and almost every one of them has lost their job or suffered some other sanction for speaking out, he said.

The laws typically offer protection by threatening fines or sanctions against people who punish whistleblowers for speaking out.

But it’s an empty threat, since it is almost never used, said Hutton. His group has never heard of a single incident where someone has been penalized for a reprisal against a whistleblower, he said.

Yukon’s discussion document on public interest disclosure of wrongdoing is available at www.psc.gov.yk.ca. The Public Service Commission will accept comments by mail or email through April 16.

Contact Jacqueline Ronson at

jronson@yukon-news.com

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