It passed in the nick of time, three days before the wobbly Liberal government toppled in a no-confidence motion. So, in a way, it is almost a miracle that the federal whistleblower legislation is now the law of this election-fraught land. The product of last-minute compromise and lingering misgivings, the act's flaws are apparent even in its clumsy bureaucratic moniker: "An Act to establish a procedure for the disclosure of wrongdoings in the public sector, including the protection of persons who disclose the wrongdoings." As it stands, it is a heavily restrictive 20-page plod outlining a process that may or may not encourage timid public servants to come forward with tales of nefarious doings in their departments.

 

And now, mere weeks after the legislation passed, its decidedly mixed merits have become a focus of controversy on the campaign trail. For Paul Martin's Liberals, the whistleblower law is an achievement they cite while attacking Conservative "hypocrisy on accountability." For the Conservatives, the law is a deeply flawed effort that does not extend protection to political staffers or enforce compliance.

 

The New Democrats seem to ignore the law's very existence: Leader Jack Layton recently vowed to work for "strong whistleblower legislation." The sad truth lies somewhere amid those extremes. The law is a merely modest accomplishment, arriving 16 years after the United States enacted such protection and seven years after Britain did so. Its lapses and holes are enormous.

 

The Liberals first raised the notion of whistleblower legislation in the fall of 2003. By early 2004, after the release of the Auditor-General's report on the sponsorship scandal, the pressure to pass such protection escalated, especially after Canadians learned about the ill-fated careers of those civil servants who had tried to blow the whistle on that scandal.

 

The first bill died on the order paper with the 2004 election.

 

Over the next year, MPs from all parties struggled to clarify and strengthen it. The final version, which received royal assent on Nov. 25, represented an immense improvement over the original, although many MPs were still unsatisfied. Whistleblowers will deal with a new, independent "public sector integrity commissioner," not the Public Service Commission, and that commissioner will report to Parliament, not to the Prime Minister. As Ottawa-based Democracy Watch declared, the law "establishes a more effective but still very flawed system for protecting government employees." The flaws are troubling. There is no protection for political aides, who are just as likely as public servants to witness evidence of wrongdoing. Their jobs have little security already; few would be inclined to crawl out on such a tentative limb, contacting the integrity commissioner. Worse, although the commissioner does have the power to compel the production of information and summon witnesses, and may ask executives to provide reports on action taken in response to a complaint, and may go directly to a minister to raise issues, he (or she) cannot compel anyone to act. And, although the commissioner must report annually to Parliament, he cannot provide details of individual investigations. In fact, the head of a government institution may refuse to disclose information related to any investigation for five years.

 

In effect, although the whistleblower protection is law, it remains a work in progress -- if only because it has barely commenced operation.

 

University of Ottawa law professor Penny Collenette, a global expert on the process, is concerned that Ottawa's bill is too ponderous, too laden with bureaucratic parsing, to give real confidence to civil servants. No one knows whether the public-service culture itself will accept the process. As she has noted, "the law is written in very heavy language, with complex internal procedures that would make any sane person think twice before speaking up. Nevertheless, the process is there." And that is a start. A provision in the bill calls for an independent review of the administration and operation of the act after five years. And the responsible minister must table that report in Parliament.

 

Why wait? After this month's election, politicians should begin paying attention to how the law is working -- or not working. And then, if only to fix its already evident flaws, they should strengthen it.

 

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