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 Whistleblowers Need Protection


Time for some bold leadership in Public Sector Integrity Commissioner's office

For the second year running, the office has uncovered not one single case of wrongdoing in the entire Canadian public service. This defies belief.
By David Hutton and David Kilgour, Hill Times
May 18, 2009

Canada's Public Sector Integrity Commissioner Christane Ouimet – the federal watchdog responsible for protecting government whistleblowers and investigating their allegations – recently submitted her second annual report to Parliament. For anyone concerned about accountability, the report is hugely disappointing – and eerily reminiscent of her first report.

The Commissioner’s jurisdiction is substantial: a federal system with 400,000 employees that consumes about half a billion dollars daily. She has access to substantial resources including more than 30 staff and an annual budget of $6.5 million. Yet for the second year running, her office has uncovered not one single case of wrongdoing in the entire Canadian public service. This defies belief.

When it comes to protecting whistleblowers, it’s worth noting that in surveys of public service employees, more than 1 in 5 report having been harassed, mainly by their bosses. After the UK implemented its whistleblower law, over 150 cases of alleged reprisal were referred to a tribunal during the first three years. The Canadian tribunal has never sat: in her first two years our Commissioner has not found a single case of reprisal against any public servant.

The Commissioner appears unfazed by the perception that her office may not be serving any useful purpose. She says that it is far too soon to judge and that she needs at least three years of operation before any conclusions can be drawn. Yet her approach has already failed.

Although the Act that establishes her mandate has serious flaws, the Commissioner did have a chance to make a go of this job: by using her considerable investigative powers to expose some examples of wrongdoing, and by engaging the tribunal to discipline anyone found guilty of reprisals. Such action would have helped her to establish credibility and garner the trust of conscientious public servants.

Such action would also have served notice to Deputy Ministers that they need do more than pay simply lip service to the need for departmental integrity and whistleblower protection, or risk scrutiny and potentially onerous consequences from her office.

However, the Commissioner has gone in exactly the opposite direction. According to our reading of the Act, conducting investigations is one of her main responsibilities; but she has dismissed investigations as a ‘reactive, complaints-driven’ approach that will not work. Instead she has focused on ‘prevention’ which, her report explains, means meetings with senior bureaucrats, conferences, communications and awareness sessions – all in an effort to convince everyone in the departments of the importance of integrity. We thought that this was the job of the department heads.

Even worse, she is perceived by whistleblowers to be hostile to their cause. For example, in spite of her protestations to the contrary, she has for two years avoided virtually any meaningful interaction with the only organizations that exist solely to represent Canadian whistleblowers, even excluding us from her first major conference in Ottawa.

By failing to win the trust of ordinary public servants, the Commissioner can expect even fewer disclosures. Unlike the Auditor General, she cannot launch investigations on her own initiative or according to a schedule: she can only investigate allegations brought to her. So her office is now caught in an irreversible cycle of failure: more and more ‘prevention’ activities; fewer and fewer disclosures; and zero demonstrable results. This is process without outcomes: the very definition of useless bureaucracy.

After only 2 years Canada’s shiny new whistleblower protection regime is looking distinctly tarnished. When it was introduced, then-Treasury Board president John Baird told the Senate this was the “Mount Everest” of whistleblower legislation – a unique made-in-Canada solution that dwarfed others’ efforts. We were told repeatedly that it offered “ironclad protection” to whistleblowers. These expansive claims now seem patently ludicrous.

Canada is a latecomer to this type of reform. The USA passed its first federal “whistleblower” legislation more than 30 years ago – and we seem to have learned little from their experience. Surely we can do better than this.

What should be done? We see two essential steps.
1) The first step is an acknowledgement by the politicians that this system isn’t working. The legislation needs to be re-written, this time paying closer attention to expert advice – and the experience of other jurisdictions.

2) As for the Commissioner, it’s difficult to see how she can now succeed. By her actions she has forfeited any chance of winning the trust of those she is supposed to protect. And while her ‘don’t rock the boat’ strategy may be comforting to senior bureaucrats in Ottawa, it is a betrayal of Canadian citizens and especially federal public servants. She should be replaced.

This is the time for leadership and bold ideas. Rather than a career bureaucrat, we need a seasoned, credible champion for public service integrity – someone who is prepared to investigate without fear or favour and whose actions will win the trust of the public and its servants. This cannot happen too soon, and Canadians deserve no less.

David Hutton is executive director of the Federal Accountability Initiative for Reform (FAIR). David Kilgour is a former federal secretary of state and a member of the FAIR Advisory Board.

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