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 Whistleblowers Need Protection

 

Whistleblowers sold down the river by Parliamentarians who publicly pledged to protect them, Senate rams it through

by Joanna Gualtieri

The Hill Times

December 12, 2005


In a play of pure political expediency and a bid to take public credit for having implemented whistleblower protection, Conservative Senators adopted the position of ‘get the bill passed and fix it later.’ This isn’t right.

 

Whistleblowers have become accustomed to being betrayed by their employers.

Being sold down the river by parliamentarians who publicly pledged to protect them was, however, something that very few saw coming.

 

When Bill C-11-- the government's excuse for a whistleblower protection law -- passed the House of Commons, the whistle-blowing community hoped that the Senate would stand true to its charter of being a chamber of sober second thought.

 

Many were waiting anxiously to testify before the Senate National Finance Committee regarding the personal devastation experienced as a result of blowing the whistle. All trusted the Senate would take the time necessary to listen to experts and public-interest lawyers, something that the Commons Committee failed to do.

 

Nobody imagined the Senate would rubber-stamp the bill, which should be dubbed the "Whistleblower Management and Dismissal Act." It was therefore dismaying to learn that the Senate was prepared to pass the bill without hearing from a single witness except the government's exponents whose job it was to “deposit” the bill with the committee.

 

Beyond the obvious mockery and snubbing of our democratic process, such conduct made a laughingstock of the Red Chamber, which has recently claimed that it doesn't get the respect it deserves. But the real injury was the stinging slap in the face to all courageous public servants who have suffered deeply for their crime of "committing the truth."

 

Apparently it didn’t matter that a certain senator had given assurances that whistleblowers would be heard.

 

Had the Senate learned nothing from the candid testimony of Allan Cutler at the Gomery Commission, including that the threats and punishment levelled against employees who seek to expose wrongdoing are palpable, real and swift? Maybe the senate thought that the show issue was rather simple - employees exercising their constitutional right to speak out about wrongdoing. But the reality is that powerful institutions - be they public or private - are inclined to quash to dissent and engage in cover-up.

 

Just as the state employs attorneys-general to go after corporate thieves, the public counts on public servants to act as private attorneys-general, signalling the alarm and calling to account those who seek to harm the public interest. But, unlike public attorney-generals, whistleblowers are almost always alone, lack resources and face great threats from powerful institutions. In order to be effective and, in fact to even exist, whistleblowers require solid legal protection.

 

Much has been said that  C-11 became vastly improved with the amendment to establish an independent commissioner to investigate the wrongdoing and report directly to parliament. While this certainly appears to improve the investigatory phase, it does nothing to protect the whistleblower.  Indeed C-11 has ignored the legal requirements necessary to protect the individual including the right to access our courts of justice, the rights to legal counsel and three right to compensatory, aggravated and punitive damages. While its essential to fully and independently investigate the wrongdoing, it is equally important to fully protect the whistleblower since without protection there will be no disclosures to investigate. Why did the senate overlook this truism?

 

Moreover, in what appears to be a play of pure political expediency and a bid to take public credit for having implemented whistleblower protection, conservative senators adopted the position of “get the bill passed and fix it later.” From a legal perspective this is short sighted but far more damaging is that vulnerable public servants will be misled into thinking that C-11 affords them protection. It does just the opposite. How many public servants will be destroyed as a result of misplaced trust in C-11?

 

It is fitting that on the same day the Senate moved to pass C-11, the Supreme Court of Canada delivered a historic decision upholding the rights of Linda Merk, who so courageously blew the whistle against her corrupt union bosses more than five years ago. She received justice because of the right to pursue her legal remedy right up to the nation's highest court.

 

Under C-11, 350,000 public servants are relegated to second-class citizenship because the government has stripped them of their right to bring an action in court. Instead, public servants will be forced to rely exclusively on an impotent government board subject to government bias and without the power to confer proper redress.

 

Forget whistleblower; “martyr” will be the new designation for truth-telling public workers. In a Canada which is struggling to regain its reputation as caring and just society, it boggles the mind that the senate would pass C-11 without committee meetings and the opportunity to hear witness testimony. How can the senate possibly understand what a whistleblower faces without hearing from the whistleblowers? How can they presume to understand what legal protection is required without hearing from human rights lawyers and public advocates? How can a chamber of sober second thoughts fulfill its function when it declines to hear any evidence on which to reflect?

 

Let there be no misunderstanding. By passing C-11 the senate has betrayed Canada’s public servants and the public whom they serve. By passing the bill with such haste and bypassing the democratic committee process the senate has done much to reinforce public cynicism and contempt for our entire political process. As for tax dollar waste which C-11 is supposed to combat, the true legacy will be millions of dollars spent on a fake government response that no public servant can trust.

 

Joanna Gualtieri is with the Federal Accountability Initiative for Reform (FAIR) in Ottawa.

 

 

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