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Don't Shoot the Whistleblower

Our early warning system for scandals fails because sounding alarms is too risky. Let's change that.

By Mitchell Anderson 1 Mar 2004 | TheTyee.ca
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Rex Murphy fumes, Paul Martin sputters. Things are hopping in Ottawa. The shocking abuse of public money in the federal sponsorship program may be the biggest news to hit Bytown in years.

The question now on many lips is: If tens of millions dollars of public money was brazenly dispensed to political chums in a way that would make Tony Soprano blush, why did no one spill the beans? Why didn't an informed public servant "blow the whistle" on the biggest scandal in years?

The short answer is that without legal protection for whistleblowers, they would have been crazy to. In this ballooning scandal it is certain that any whistleblower would have been thrust into the cold glare of the media, and the cold stare of a vengeful Prime Minister's Office. This is not a place where any career bureaucrat wants to be, and certainly not without any protection under the law.

And therein lies the rub. Sadly, Canada provides virtually no legal protection for people who choose to speak out publicly on principle - to "blow the whistle". Almost anyone who chooses to do so in Canada is exposed to a grim suite of abuses heaped on those deemed "disloyal" to their employer. Retribution typically includes being harassed by your boss, ostracized by your co-workers, fired, demoted, sued, or otherwise made miserable. If a whistleblower chooses to fight any of this, it is usually an long uphill legal battle at their own expense.

We can learn from America and UK

In contrast, the US has both state and federal laws that prevent whistleblowers working for government or corporations from being harassed or fired. Some of these laws even provide financial compensation in recognition of the fact that laws alone cannot fully protect whistleblowers from vengeful employers. Both Australia and the UK also have strong laws on the books specifically in order to ensure that people aren't unfairly punished for speaking out.

Canada's stark lack of legal protection was illustrated in a bizarre case which unfolded four years ago. Two Health Canada scientists went to the media about appalling irregularities in the drug-approval process for bovine growth hormone, a synthetic chemical that boosts the milk production of cows. Among other things, they alleged that that their offices were burgled, files stolen and that the company offered up to $2 million in exchange for swift approval of this new product.

Most reasonable people would applaud these principled scientists for speaking out in the face of such shocking abuses. Not their employer. The two scientists were instead reprimanded for breaching the duty of loyalty to the government. Lacking whistleblower protection, they had to take their case in Federal Court to clear their names. It is little wonder why public or private employees don't choose to go public more often.

Whistleblower protection: Our sorry record

There have been attempts to remedy the situation, but sadly little action. In 1999 the Public Service Whistleblower Act was tabled as a private member bill in the Senate by the Hon. Noel Kinsella. Among other progressive aspects of this bill was the creation of the position of a "Public Interest Commissioner." The person holding this novel position would be immune from prosecution and "if he or she believed it was in the public interest to do so, could make public any information that came to his or her attention..." Small wonder why the government of the day wasn't red hot on the idea. The bill died on the books and remains so today.

The government of Ontario fared little better. Way back in 1993, the Public Service Act was amended to include a new section confidently entitled "whistleblower protection". Though this amendment was passed by the legislature over ten years ago, it was never proclaimed into law and molders uselessly on the books to this day.

Which brings us the real reason for whistleblower protection. Giving employees of our most powerful institutions legal protection to speak out would go a long way toward ensuring that governments and corporations are held accountable for their actions. Had public servants in the sponsorship program felt that they were protected by the law, perhaps this latest scandal would have come to light a long time ago. And if the government knew their employees weren't terrified to go public, perhaps they would have been less brazen in their abuses.

We need whistleblowers. They keep our institutions honest. From Enron, to Walkerton, to the intelligence failures around 9-11, whistleblowers have made a huge contribution to informing the public and fighting corruption and incompetence. It is time the Canada joined other developed nations of the world and gave whistleblowers the strong legal protection they deserve.

Mitchell Anderson manderson@sierralegal.org is a staff scientist with Sierra Legal Defence Fund, an environmental law organization that has long advocated for stronger whistleblower protection.  [Tyee]

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