Canada’s Whistleblower Law Ranks Dead Last In International Rankings
This article features Government Accountability Project and was originally published here.
OTTAWA — Canada is at the bottom of an international ranking of countries with whistleblower protection, lagging behind Bangladesh, Pakistan, and Botswana.
A report released Tuesday by the U.S.-based Government Accountability Project and the U.K.-based International Bar Association surveyed whistleblowing frameworks in 37 countries with such laws to determine whether they are actually working.
What they found is that they are not.
“Too often the rights that look impressive on paper are only a mirage of protection in practice,” the study’s six-lead authors said.
“Either they do not make a difference, or in some cases, make whistleblowing more dangerous.”
The picture is especially bleak in Canada, which together with Lebanon and Norway, tied for the world’s weakest whistleblower protection laws. Canada’s Public Servants Disclosure Protection Act and its track record met only one of 20 criteria. The United States, Australia and the European Union’s Whistleblower Protection Directive tied for having the best record, with 16 out of 20 criteria fulfilled. Other top countries included Serbia and Ireland, with 15 out of 20 each, and Namibia, with 14.
The criteria included such matters as how widespread the law was, whether it protected whistleblowers’ identity, or protected them against a full scope of harassment, whether it shielded them from gag orders, and offered them genuine judicial process, with access to court and timely decisions, and coverage for legal fees and costs.
“While an effective statute is the foundation for rights,” the authors said, “it is only the first step in a long journey. Too many whistleblower laws have proven to be ineffective in practice.”
That has led to whistleblowers’ choosing to speak out through different channels — venting on social media or speaking to journalists — or, often, remaining silent.
After a year in which the COVID-19 pandemic has brought to light how important whistleblowers are to safeguarding public health — from the Chinese doctor Li Wenliang who first warned the world about COVID-19 to the doctors and nurses who sounded the alarm about conditions in long-term care homes and the lack of personal protection equipment — Sternford Moyo, the president of the International Bar Association, said he hoped the report would spur better protection for whistleblowers, empowering them to speak up and protecting them when they do.
“Too often attempts have been made to silence such voices,” Moyo said in the report. “China’s Dr Li was ordered by police to ‘stop making false comments’; many doctors, nurses and government employees have lost their jobs for speaking up.”
That is true also in Canada where nurses, for example, have found themselves getting pink slips and others sent on forced unpaid leave.
The authors of the 81-page report chastised Canada for its weak legislation — which covers only public servants — and highlighting that there is scant demonstrative evidence it works.
As HuffPost Canada reported last month, since the law came into effect in 2007, only eight cases — out of 392 reports of reprisals — have been referred to the Public Servants Disclosure Protection Tribunal. That body is supposed to rule on whether a reprisal has taken place and, if so, offer a remedy and recommend disciplinary action against those who took the reprisal.
Of those eight cases — three of which were related to the same incident — six were settled before going to the tribunal. Only two cases were heard, and the tribunal ruled against the whistleblower in each.
The authors noted that few whistleblowers in Canada are offered protection from reprisals.
Of those two cases heard at the Tribunal, it took an unreasonable amount for their cases to be decided. In one case it took 2,501 days — more than 6½ years — before a resolution, and the other took 2,398 days.
“It takes tenacity and financial resources for any whistleblower to sustain a reprisal dispute for over six years, only to lose,” the authors noted.
A major disconnect?
Canada was criticized for ignoring its own legal requirement for periodic reviews of the effectiveness of its whistleblower law. Although it should be reviewed every five years, it wasn’t until 2017 that a parliamentary committee studied the act, recommending 25 changes — suggestions that Prime Minister Justin Trudeau’s government ignored.
Canada’s law was also cited by the authors and placed at the top of the list for having “significant national security or law enforcement loopholes” on the restrictions for disclosures of unclassified information.
In late February, opposition MPs voted to send their 2017 report back to the House of Commons so the government would once again be forced to respond.
David Hutton, a senior fellow at the Centre for Free Expression whose analysis was cited by the authors, told HuffPost Tuesday he wasn’t surprised the report had found Canada’s system “more or less completely ineffective.”
“We have been saying this for years,” he said. “I am a little surprised that we are at the very bottom of the heap — no country scored worse than us!”
Hutton said he hoped the message it sent to the Trudeau government is that there is a major disconnect between words and actions — and that reforms are urgently needed.
“Successive governments have knowingly left this dysfunctional system untouched for 14 years, all the while reassuring us that it’s very important to protect whistleblowers, and even making absurd claims about the law — the “Mount Everest” of whistleblower protection according to one cabinet minister,” Hutton said, referring to comments made by former Conservative minister John Baird who brought in the law in its current form.
“Apparently it’s not a towering peak, but one of the worst swamps on the planet,” he said.
National whistleblowing laws complying with best practices (number of criteria met) as compiled by the report’s authors:
16 – EU Whistleblower Protection Directive, Australia, United States
15 – Ireland, Serbia
14 – Namibia
13 – Kosovo
12 – Cayman Islands, Croatia, Latvia, North Macedonia, Zambia
11 – Kenya, New Zealand
10 – Guyana, Lithuania, Republic of Korea
9 – Slovakia
8 – Albania, Jamaica, Malta, Uganda, Vietnam
7 – Bosnia, France, Ghana, Malaysia, Tanzania, Tunisia
6 – Moldova
5 – Britain, Japan, Pakistan, South Africa
4 – Bangladesh, Belgium, Botswana, Italy, Rwanda
3 – Papua New Guinea, Romania, Sweden
2 – Israel, Hungary, Netherlands, Peru
1 – Canada, Lebanon, Norway