Blowing the whistle is vital to democracy

Thanks to a public servant who dared to do his/her/ their job faithfully and with the public interest in mind, Canadians are finally learning of the gaps in protecting our national security.

The current Public Inquiry into Foreign Interference in Federal Electoral Processes and Democratic Institutions was triggered through the public disclosure of classified documents that highlighted the inattention of politicians to warnings from the Canadian Security Intelligence Service (CSIS) of election interference in 2019 and 2021.

Truth be told, public servants have been warning senior government officials and politicians over the last 30 years of the infiltration into our country of bad actors and organized crime. They were ignored, too, leading us to where we are today.

The action of the present-day public servant in this case is notable as it is representative of the timehonoured role of the public servant in a democracy as the impartial guardian of the rule of law and the public trust.

As Lorne Mitchell Sossin reminds us in “Speaking Truth to Power? The Search for Bureaucratic independence in Canada”: “…the common law duties of loyalty and confidentiality, at least since the nineteenth century, have contained whistle-blower exceptions, based on the theory that there can be no breach of the duty by the ‘disclosure of iniquity.’ ”

The claim that public servants must remain silent, even when witnessing actions that jeopardize public safety, national security, or contravene the law, fundamentally misinterprets the duty of public servants and the expectations of democratic governance, full stop.

The assertion that public servants owe their professional loyalty exclusively to their ministers, because of the democratic mandate those ministers hold, fails to account for the complex nature of accountability in a democratic society in the first place and secondly, ignores the duty to maintain the Rule of Law.

While it is true that ministers are accountable to Parliament, and through it, to the public, this does not absolve public servants of their own responsibility to the law and the public good.

The argument against whistle-blowing within the public sector assumes that the electoral process is the sole mechanism for correcting governmental missteps or malfeasance. This perspective dangerously ignores the immediate harms that can occur when wrongdoing is not addressed in a timely manner .

To suggest that we must wait for the electoral cycle to address urgent issues of public safety or legal violations is to misunderstand the nature of accountability.

Moreover, the notion that public servants, by raising concerns about the actions of their superiors, “become independent and unaccountable decision-makers” is a mischaracterization at best and wholly misguided to say the least.

In fact, highlighting wrongdoing or ethical concerns is an act of fidelity to the principles of transparency, accountability, and the rule of law, which is foundational to the Westminster parliamentary system.

The duty of public servants is multi-faceted. It includes a commitment to implement government policies effectively and to provide ministers with impartial, frank and fearless advice. However, it also encompasses a duty to uphold the law and to act in the public interest.

When these duties come into conflict due to the actions of ministers, public servants face a profound ethical dilemma. The resolution to this dilemma should not default to silence in the face of potential harm to the public or the integrity of our democratic institutions.

The Election Interference Inquiry highlights the failure of political leaders to act promptly and resolutely to protect Canada’s national security putting it at risk. It also bolsters the belief that Canada’s democratic institutions are disintegrating.

To boost democracy and accountability in Canada a number of things need to happen.

Firstly, Canada needs a new, effective and robust Whistleblower Protection Law that actually works to protect public servants, including special attention to national security whistleblowers,

Secondly, attention to culture change in the executive branch of government so that it welcomes whistleblower protection legislation and faithfully and sincerely implements and upholds it.

Thirdly, attention to ensuring the effectiveness of the civil service in “executing the policy preferences of the government of the day ... while at the same time revitalizing the role of civil servants as guardians of the rule of law and the public trust.” (Sossin, p. 59)

Canadians deserve no less.

The claim that public servants must remain silent fundamentally misinterprets the duty of public servants