Trudeau can fix our broken whistleblowing system: here’s why and how

This piece was first published in the Hill Times on March 20, 2017.

The House Government Operations Committee deserves kudos for taking the bull by the horns in its review of Canada’s failed system for protecting government whistleblowers. This week the committee will hear from no less than four experts representing countries that have much better laws: the U.S., U.K., Australia, and Ireland.

The comparisons these experts can offer will be eye-opening, since the Canadian system simply does not protect whistleblowers from reprisals. In more than 10 years not a single truth-teller has been awarded a remedy by the Public Servants Disclosure Protection Tribunal (the only body that can do so), and not a single aggressor has suffered consequences for taking reprisals.

In Canada, it’s more dangerous to kick a dog than to destroy a whistleblower’s life. If you attack a helpless animal, someone might see you. A video of the incident might go viral online, and you might face public outrage and damage to your reputation, even your career. But if you destroy a whistleblower’s life in plain sight—through bullying and harassment, unfair dismissal and blacklisting—it’s unlikely that you will face any consequences.

Even if you are reported to our Public Sector Integrity Commissioner and he decides that reprisals took place (which he rarely does) he has the power (which he almost always uses) to block the tribunal from taking any action against you. It’s too bad about the whistleblower, but you, the aggressor, are fully protected!

Our system is in urgent need of reform.

Trudeau will decide

Once the committee makes its recommendations, Justin Trudeau will make the final decision regarding how much will be done: some superficial bandaids for public consumption, or the rootand- branch reform that is needed. So it’s helpful for politicians such as Trudeau and his cabinet to understand how their self interest aligns with the public interest.

It’s simple: when whistleblowers are protected and listened to, this actually protects those in power, by enabling them to learn about misconduct and to nip it in the bud—before it metastasizes into the type of full-blown scandal that taints and even brings down governments. This also protects the public interest.

In contrast, crushing and silencing whistleblowers is an instinctive but counter-productive strategy. It allows misconduct to flourish, and drives desperate whistleblowers to the media—so that ministers may be the last to know about serious problems that have been brewing within their own departments. They may find out for the first time from scandalous news headlines.

The Phoenix payroll system is a good example. This topic has come up repeatedly at hearings of the committee, and the consensus among knowledgeable witnesses is clear: if public servants (and contractors) had real whistleblower protection, at least some would have come forward and reported to the whistleblower watchdog the serious problems that evidently existed right from the start.

With an independent investigation by this agency under way— and the prospect of a public report to Parliament—there would have been no choice but to stop and fix the problems before any major rollout. Politicians would not now be in the current situation—where thousands of public servants are suffering, the government is deservedly under relentless attack, and no one seems able to stop this all-too-predictable train-wreck.

Furthermore, those responsible would have been identified and held accountable, so that they could not cause further damage. This is vital. Based on my experience in industry (including quality assurance of major, complex software projects) I believe that it is often impossible to properly identify and fix the root technical problems while there are people in the management chain who are motivated to create a smokescreen in order to conceal their own culpability. I suspect that this is why no one seems able to fix Phoenix, or even to predict with confidence how long this might take.

Once politicians (and senior bureaucrats) understand their self-interest in protecting whistleblowers—and how this aligns with the public interest—then the question becomes how best to fix our current broken system.

Strategies for improvement

The committee charged with reviewing the whistleblowing law, the Public Servants Disclosure Protection Act (PSDPA), faces a daunting task. The law is so riddled with problems that it’s easy to get lost in the detail of the countless amendments that are surely required. And there are essential changes required that have less to do the law and more to do with how PSIC is staffed and monitored. We respectfully submit that agreeing on a few broad strategies like the following may simplify the committee’s task

Burst the bubble that surrounds this system

The PSDPA created a completely new quasi-judicial system just for whistleblowers—but one that operates inside a bubble, shrouded with impenetrable secrecy, and sealed off from our proper legal system.

This bubble needs to be burst by allowing much greater visibility of what goes on within PSIC, and by reconnecting the whistleblowing system with the real world. This means for example:

  • Allowing whistleblowers full access to the courts—not just judicial review—to appeal if they are dissatisfied with the handling of their cases by PSIC or the Tribunal.
  • Stripping away much of the extraordinary secrecy that surrounds the operations of PSIC and the tribunal. This secrecy does not protect whistleblowers—rather it protects the alleged wrongdoers, for example, by ensuring that reports of alleged wrongdoing remain hidden forever.
  • Establishing performance standards for PSIC, including detailed reporting, useful performance measurements, and proper oversight, as detailed below—so that poor enforcement of the law is quickly identified and fixed, rather than being ignored for a decade, as has just happened.

Open up the process for drafting and amending the law

The task of rewriting the PSDPA cannot be left again to Treasury Board to conduct behind closed doors, without adequate understanding or respect for best practices. This is like asking the fox to guard the henhouse. Rather there should be an open, transparent process in which civil society groups and international experts have a real say, including the power to report to Parliament any concerns regarding TBS’s proposals.

Dramatically improve reporting, performance measurements and oversight

It is astonishing that, in a modern democracy, an important agency so clearly failing in its mandate should be allowed to continue for a decade with virtually no intervention. This was possible only because of a stunning lack of oversight:

  •  The commissioner’s annual reports contain almost no useful information.
  • There are literally no useful performance measurements in place.
  • Parliamentary oversight has been virtually non-existent.

The committee charged with monitoring PSIC refused to hear any testimony from others even when commissioners presented their annual reports— and so remained unaware of serious problems that were obvious to civil society. Only the auditor general was occasionally able to penetrate this curtain of silence.

The vitally important and legally-required five-year review has been delayed without explanation and is now taking place a decade after the act came into force.

Here’s what’s needed in future:

  • Detailed information from PSIC that enables a proper examination of its internal operations, such as the processing times for all cases.
  • Tried and tested performance measurements that reveal PSIC’s effectiveness in: dealing with whistleblowers respectfully and fairly; winning the trust of public servants at large; and helping reduce the prevalence of wrongdoing in the public service.
  • Performance comparisons with other jurisdictions. These can be obtained through collaboration in international research studies, such as one currently being led by Australia.
  • Parliamentary oversight that respects and indeed requires the testimony of civil society groups that work with whistleblowers.
  • A regular review process—say every three years—that is thorough, independent, transparent, and cannot be arbitrarily blocked by ministerial edict or inaction.

Dramatically improve the process for selecting commissioners

A previous article in this series described how, in all three appointments to date, Privy Council Office (PCO) ignored expert advice and ensured (in our view) that only career bureaucrats were appointed who could be relied upon to protect the bureaucracy and politicians from scandal.

It seems likely that the current commissioner, Joe Friday, may be invited to step down once the committee has properly examined his performance— including his response to a judicial review decision handed down in January 2017 regarding the case of Sylvie Therrien. The judge found that the Commissioner “violated the appellant’s procedural fairness rights,” and made a determination that “was unreasonable” and “incompatible with the intent and purpose of the PSDPA.”

Yet the specific practice that earned such harsh criticism has apparently been standard procedure for the past 10 years under all three commissioners. This type of behaviour— which I see as twisting of the law to justify inaction—cannot be allowed to continue.

In future, integrity commissioners should be selected who have demonstrated past willingness and ability to police the bureaucracy and root out misconduct. This will require major changes to the appointments process, which should include the following elements: a truly independent appointments committee; a public, merit-based search for candidates; and the final selection to be made from a short-list of candidates determined by the committee. (These steps, modelled on Ontario’s appointments system, are described in detail in Democracy Watch’s submission to the committee.)

The way forward

Some developed English-speaking countries have had effective whistleblower protection laws for decades (for example the U.S., UK and Australia) and these countries’ laws put ours to shame—we should learn from them.

Also, with better understanding of best practices, the standard of new legislation is improving. In the last three years both Ireland and Serbia passed laws that are among the best in existence. Both of these regimes have already proven effective, shutting down reprisals against whistleblowers and restoring them to their jobs before serious harm is done. In Canada, under our whistleblowing system, nothing like this has ever happened, not even once.

There is an international trend towards protecting whistleblowers in order to protect society from wrongdoers. With the current review of our law, the opportunity now exists for Canada to become one of the leading countries in this movement and a beacon to others. The knowledge and the expertise required are there for the taking, and the benefits are enormous: greater protection for the integrity of our institutions, the public, and our society.

If countries like Ireland and Serbia can do it, why can’t we? Canadians expect strong leadership from Prime Minister Trudeau on this issue and the integrity of our democracy depends on it.