Note: this article and interview, featuring our Legal Director Tom Devine, were originally published here.
‘A Tissue Paper Shield’: Expert Slams Canada’s Lack of Protections for Whistleblowers
U.S. impeachment hearings raising questions about how Canada protects government informants
Canada’s weak whistleblower laws leave informants exposed to retribution and it’s time to bolster protections before a crisis hits, says a U.S. expert.
“The current law is a fraud. It’s consistently the object of ridicule globally among all the international whistleblower organizations,” Tom Devine, the legal director of the Government Accountability Project, said in an interview with CBC Radio’s The House.
Devine, who has helped defend more than 7,000 whistleblowers worldwide and appeared before Canadian parliamentary committees, says the blowback on sources is more dangerous than ever and Canadian laws are woefully inadequate to protect them.
He rates many democratic countries’ protections as a metal or cardboard shield — insufficient, but offering some safety to whistleblowers. Canada is the only country out of 60 they examined that fails to meet every single one of the 20 criteria his organization uses to judge protections.
“I would rate Canada’s whistleblower law a tissue paper shield,” he said.
The debate surrounding protections for whistleblowers is re-emerging as the impeachment inquiry into U.S. President Donald Trump proceeds through Congress.
It focuses on a whistleblower complaint which alleges Trump tried to pressure Ukraine’s President Volodymyr Zelensky in a July 25 phone call to investigate his political rival Joe Biden and his son, Hunter.
Trump has said he would “like to find out who is the whistleblower,” but bantering about naming a witness is troubling to Devine.
“You’re putting them on the firing line,” he said.
Sweeping recommendations never implemented
Changes to Canada’s rules have been mulled over for years, but no concrete changes have been made.
In 2017 a report released by the House of Commons government operations and estimates committee recommended substantial alterations to better protect federal public servants that speak up about government wrongdoing.
It included giving departments a duty to protect whistleblowers, reversing the burden of proof onto the employer and changing legislation to protect people coming forward from retaliation.
The changes were proposed for the Public Servants Disclosure Protection Act (PSDPA). It was brought in by the Harper government in 2007 and was supposed to go through a legislative review in 2011, which didn’t happen. It has long been criticized for protecting managers and exposing whistleblowers to risk of retaliation.
The committee’s proposals for a revamp went largely ignored and the office of the integrity commissioner said the recommendations were not adopted.
The Treasury Board responded saying the government takes promoting a “positive and respectful public sector culture” very seriously.
“The Government of Canada is making continuous and meaningful improvements to the federal disclosure process. These include enhancing reporting, providing guidance on the disclosure process, and hosting training sessions — all of which support organizations and protect public servants who disclose wrongdoing,” the department said in a statement.
Whistleblowers prevent law enforcement from ‘flying blind’
Whistleblower experts from countries like the U.K., U.S., and Australia have appeared before Parliamentary committees over the years. Devine says he’s “discouraged” that progress in Canada has been slow.
“Whistleblower laws, make sure that we have the free flow of information for evidence and other data that’s essential for responsible exercises of authority,” he said.
Two famous cases in particular have dogged Canada’s international reputation for protecting people who come forward.
Joanna Gualtieri exposed exorbitant spending on accommodations overseas for Global Affairs employees two decades ago. She said her bosses harassed her and moved her to a dead-end job after she came forward. She tried to sue the government, was ultimately unsuccessful and was ordered to pay its legal fees.
In the 1990s, Dr. Shiv Chopra shed light on the drug approvals process at Health Canada, saying he and his colleagues had been pressured to approve drugs despite concerns about human safety. He was fired in 2004 for insubordination and lost a 13-year legal battle to be reinstated.
“If you want to blow the whistle you have to be prepared to risk your career,” he said. “That includes financial damages, personal damages. Your family suffers as well,” Chopra said in 2017 of his ordeal.
Over the last decade, 306 people have submitted a complaint to the integrity commissioner, saying they suffered a reprisal for blowing the whistle. Only one person has completed the tribunal process, and that woman lost her case.
“If whistleblowers are scared into silence, our law enforcement people are going to be flying blind,” Devine said.
Devine has grave concerns about the future of Canada’s whistleblower protections and says he fears change will come too late.
“What happens in the United States is when there’s a tragedy, the politicians wake up and strengthen the whistleblower laws. I hope we don’t have to wait for that in Canada.”