Whistleblower update next to face scrutiny
OTTAWA • Government whistleblowers deserve more protections, advocates say, but doubts over the government's commitment to openness abound after the Liberals broke promises last week on access-to-information reform.
A House of Commons committee released a report this month — little noticed amid the end-of-sitting flurry — suggesting a slew of reforms, and a spokesman for Treasury Board President Scott Brison says the government “will carefully consider its recommendations.”
But advocates worry the all-party asks will be ignored, after a watered-down update to access-to-information law was introduced earlier this week, part of Liberals' ostensible commitment to open government.
“Plainly, if the Liberals don't strengthen whistleblower protection they will break their open government promise. Because you won't have openness by default unless you have whistleblower protection,” said Duff Conacher of Democracy Watch.
Legislation intended to protect whistleblowers was revamped by the Conservative government in 2007. Statutory review was required five years after the Public Servants Disclosure Protection Act's coming-into-force, but the government reset the clock to zero in 2010 with a measure buried in an omnibus budget bill.
The federal election caused further delay in 2015, but Treasury Board President Scott Brison finally pulled the trigger on a review, by a House of Commons committee, last year.
The resulting report was adopted unanimously by committee members, including Liberal MPs, and released last week. Cabinet will need to respond within six months.
It features 15 recommendations designed to address challenges including a “lack of clarity around the public interest purposes of the act,” insufficient protection of whistleblowers and “inadequate” annual reporting. Witnesses had highlighted an impression within the public service that whistleblowing would lead to punishment.
MPs want to see the government make amendments to law that would, among other things: expand definitions under the act; protect and support whistleblowers and prevent retaliation against them; reverse the burden of proof of reprisals from the whistleblower to the employer; provide legal and procedural advice to public servants thinking of whistleblowing; improve confidentiality provisions for witnesses; make the Office of the Public Sector Integrity Commissioner responsible for standardizing internal disclosure processes; and implement mandatory, timely reporting of disclosure activities.
The report notes reforms to be considered later could include granting whistleblower protection to all employees, public or private, and “implementing the payment of rewards to those that uncover certain types of wrongdoing.”
The government is facing criticism this week for scaling back its commitments on another initiative supposed to open up government.
After promising widespread reforms to access-to-information law during the 2015 election campaign, Liberals announced a new bill before parliament rose for summer. Proposed changes give the federal information commissioner new powers but flout a promise to make access laws apply to the Prime Minister's Office, minister's offices, courts and offices of parliament — instead requiring such offices to proactively disclose some routine documents.
Given the government's trajectory so far, Conacher isn't optimistic whistleblower recommendations will immediately lead to new laws. He predicted if Liberals act, they may wait until closer to an election.
“Because there is a dedication to a culture of secrecy in the public service, if you took away all the loopholes that are unjustifiable in the access-to-information act, and strengthen whistleblower protection, there's going to be a transition period where all sorts of wrongdoing and horrible behaviour is going to be exposed, finally,” he said. “And whatever government's in power then will wear that.”
A spokesman for Brison, Jean-Luc Ferland, said in an emailed statement the government was acting after years of Conservatives ignoring their legislative requirement to review the whistleblower protection law.
“Our government believes that federal employees should be encouraged to disclose wrongdoing and they
YOU WON’T HAVE OPENNESS BY DEFAULT UNLESS YOU HAVE WHISTLEBLOWER PROTECTION.
must be protected when they do so,” Ferland said. “We welcome the committee's report, and we will carefully consider its recommendations as we look to strengthen and improve Canada's whistleblowing regime.”
Conacher said the committee report was robust. Only two asks from advocacy groups went untouched: that public servants' names should be publicly released if they have done wrong, rather than protected by privacy laws; and that all government-regulated businesses, including banks, mining companies, food and drug companies, telecoms and more, should be covered.
“Everything else, they did,” he said. “We'll have a world-class system if they implement this.”