Former RCMP officer Robert Read's prolonged attempt for justice was dealt a blow last week when the Supreme Court of Canada refused to hear his appeal. A 26-year veteran of the force, Read blew the whistle on allegations of corruption and cover-up involving the Canadian High Commission in Hong Kong in 1999.
Media reports stated that after Read's superiors urged him to turn a blind eye to the findings of his investigation, he decided to go public. He was later found guilty of disgraceful conduct by an internal adjudication board for breaking his oath of secrecy and was fired.
Although an external review committee in 2003 vindicated Read's right to go public and ordered him reinstated, the RCMP refused. Read took his case to the Federal Court of Canada, only to be condemned by Judge Sean Harrington in 2005 for "a lack of loyalty to the government." Harrington reaffirmed his dismissal, so Read appealed all the way to the Supreme Court.
"It's very disheartening to see that the Supreme Court of Canada will not hear this case," says former MP David Kilgour. "The work Read was doing with Operation Sidewinder was very good and very courageous, and from all indications he was doing something to make Canadians proud of the RCMP."
What recourse is Read left with now? According to Kilgour, the whistleblower legislation which became effective April 15 would be of no help to Read because it requires RCMP officers to go through an exhaustive internal process before taking any other action.
"All other public servants can approach the Integrity Commissioner directly if they wish, but RCMP must first exhaust the force's internal processes, which is under the control of the RCMP Commissioner. RCMP officers get even less protection under the new law."
Kilgour, along with David Hutton and Joanna Gualtieri provided testimony to a Senate committee regarding the Public Servants Disclosure Protection Act (PSDPA), the whistleblower segment of the Accountability Act.
While the Senate made numerous recommendations, Gualtieri, herself a whistleblower, says the legislation now in place fails in many ways to provide adequate protection to public sector workers who blow the whistle.
A lawyer and an expert in whistleblower law, Gualtieri founded Federal Accountability for Initiative Reform (FAIR) in 1998. One big drawback with the new legislation, she says, is that it doesn't support people who go public with their accusations, which is "one of the most effective ways of blowing the whistle."
"If somebody wants to blow the whistle it [the PSDPA] obliges the whistleblower to follow a very precise regime set out by the government," says Gualtieri. "In other words, it doesn't empower the whistleblower to blow the whistle in the way that they think is most appropriate, which may include going to the media."
One of the most glaring shortcomings, says Gualtieri, is that the internal administration process created by the Act forces whistleblowers to place their fate exclusively in the hands of the Integrity Commissioner and denies them access to the normal public court system.
Acting Integrity Commissioner Pierre Martel says that while whistleblowers would have access to a judicial review, it is "a fairly limited process." But he points out that the provisions built into the legislation bypass the need for resorting to the courts.
"Parliament has provided a mechanism for someone to come forward and disclose their information to the Public Service Integrity Commissioner," says Martel. "If the Commissioner decides to investigate, he will apply the provisions of the Act, conduct a fair investigation, and come to a conclusion. There's no need to go to the courts."
The PSDPA includes specific penalties for those who impede investigations into wrongdoing, and has created the position of an independent Integrity Commissioner who is obliged to report directly to Parliament.
All public sector employees and Crown corporations are covered under the Act, but because of security concerns, the Canadian Forces, CSIS, and the Communications Security Establishment are not. And while non-public sector workers can also report wrongdoing, the mechanisms to protect them from potential reprisal "are not as well defined in the legislation," says Martel. Because many whistleblowers face retaliation from their employers, the PSDPA created an independent Public Servants Disclosure Protection Tribunal, consisting of judges, who decide whether reprisal occurred. The judges have the power to order remedial action and mete out discipline to those who took reprisal. Gualtieri says she can't think of any case in Canada where a whistleblower was praised for speaking out upon observing wrongdoing. Instead, whistleblowers are often scorned by their bosses and co-workers, have their reputation smeared, and lose their employment and livelihood.
In her own case, in the early 1990s Gualtieri exposed lavish extravagance and gross violations in the rules for housing Canadian diplomatic staff abroad, which she believed had cost Canadian taxpayers vast sums over the course of a decade. Although both the Inspector General and Auditor General later supported her allegations, Gualtieri was ostracized by her bosses, shunned by her colleagues, and was eventually forced to take leave without pay.
Gualtieri took the "proactive approach" of suing the government for damages, and 10 years later the case is still slowly working its way through the courts.
"It's been a devastating experience…half a million in legal bills. It's an experience I'd never want to repeat."
Gualtieri believes that since whistleblowers are the "eyewitnesses to the birthplace of scandal," they should be lauded and recognized, and the wrongdoing nipped in the bud. FAIR wants the "duty of loyalty" clause—which in the Act mentions that public servants owe a duty of loyalty to their employer—amended to reflect that government employees owe an equal duty of loyalty to the Canadian people.
"It's the public ultimately who's at risk," says Gualtieri.
Former diplomat Brian McAdam's 30 year career in the Foreign Service came to a halt suddenly in 1992 after he exposed corruption at the Canadian Consulate in Hong Kong and the infiltration of Chinese organized crime members and spies into Canada. McAdam was put under such severe pressure at work as a result of blowing the whistle that he quit his job. He later suffered a physical and mental breakdown.
The United States has strong legislation in place to protect whistleblowers, says Gualtieri. After the Challenger Shuttle crashed in 1986, news surfaced that three NASA engineers had tried unsuccessfully to draw attention to safety problems with the shuttle. Their warnings were ignored by NASA senior management, which resulted in the deaths of seven astronauts. This led to the Whistleblower Protection Act in 1989.
More recently, corporate scandals have prompted the creation of the Corporate Accountability Act in the U.S. Now, it seems, whistleblowers are even beginning to be seen as heroes; three women who blew the whistle at Enron, Worldcom and the FBI were named Women of the Year by Time Magazine in 2002.
But Martel believes that Canada's legislation is "a step forward," especially because it includes an independent Officer of Parliament.
"There are other legislated whistleblower regimes around the world, but as far as we know Canada probably has the most comprehensive and certainly one of the most protective pieces of legislation," says Martel.
Regarding Read's case, Kilgour says the acting RCMP Commissioner, Bev Busson, should "do the right thing" and reinstate him.
Gualtieri believes it would have been in the national public interest for the Supreme Court to hear Read's case, given that the RCMP has been "under fire lately because of what happened with the pension fund and what we're learning about their inadequacies with Air India."
"Robert [Read] paid a very heavy price for acting on his conscience. He went public and he was persecuted for it. It's utterly shameful that Canada, which holds itself up as a leader in human rights, allows this to happen to people."
