Even more important to close this gap if powers are extended by Bill C-51 – Minister Tony Clement must initiate illegally overdue review of whistleblower protection law and strengthen it
Tuesday, March 17, 2015
OTTAWA – Today, Democracy Watch released the letter it has sent to Prime Minister Harper and the federal Cabinet calling for key changes to ensure people who work within Canada’s spy agencies and military are required to be ethical and honest, and are protected if they blow the whistle on wrongdoing.
Currently, the federal whistleblower protection law exempts the Canadian Security Intelligence Service (CSIS), Canadian Security Establishment (CSE) and the Canadian Forces from the requirement to have an employee code of conduct, and does not protect people who work at these institutions if they blow the whistle on wrongdoing. In contrast, Security Intelligence Review Committee (SIRC) is required to have a code of conduct and people who work there are covered by the whistleblower protection law.
“Conduct codes and independent, effective whistleblower protection are essential to prevent abuses of power and it is extremely dangerous that Canada’s spy agencies and military are not required to have these key accountability measures,” said Duff Conacher, Co-founder of Democracy Watch and Visiting Professor at the University of Ottawa. “Even if the federal government’s unconstitutional proposed Bill C-51 doesn’t become law, these measures are essential to increase the ethics and accountability of Canada’s spy agencies and military.”
Democracy Watch’s position is, as most experts have concluded, that proposed Bill C-51 is unconstitutional in its current form because it increases the police powers of CSIS in overly vague ways that include actions that violate Charter rights. However, even if the federal government’s Bill C-51 does not become law, the code of conduct and whistleblower protection measures are essential to help ensure the ethics and accountability of Canada’s spy agencies and military.
The exemptions are buried in the Public Servants Disclosure Protection Act (PSDPA), as follows:
- section 6 seems to require the chief executive of every federal “public sector” government institution to establish a code of conduct that at least matches the requirements in the Treasury Board’s Values and Ethics Code for the Public Sector;
- but the section 2 definition of “public sector” explicitly says CSIS, CSE and the Canadian Forces are not included in the public sector;
- then section 52 and 53 say CSIS, CSE and the Canadian Forces must have internal disclosure of wrongdoing processes, but people who use those processes can’t appeal to the independent Public Sector Integrity Commissioner because they are not covered by the PSDPA.
In addition, Democracy Watch called on the Cabinet to, finally, undertake the illegally overdue review of the Public Servants Disclosure Protection Act, and to strengthen the PSDPA. Under section 54 of the PSDPA, Treasury Board minister Tony Clement was supposed to have an independent review of the PSDPA completed by now.
Democracy Watch calls on all federal political parties to make the following changes to the federal whistleblower protection system to make it effective:
- all whistleblowers must be effectively protected from retaliation, including politicians, political staff, Cabinet appointees, all public servants, government suppliers and contractors, and members of the public;
- whistleblowers must be allowed, in all cases, to file their complaint directly with the Public Sector Integrity Commissioner;
- everyone who witnesses or receives evidence of wrongdoing by anyone in politics or government must be required to report it to the Public Sector Integrity Commissioner (with the Commissioner strictly and strongly required to keep their identity secret, and people allowed to submit evidence anonymously);
- the identity of anyone in government or politics found guilty of wrongdoing must be made public in all cases;
- the Public Sector Integrity Commissioner must be clearly designated as the trainer (including by issuing interpretation bulletins), investigator and enforcer of all Treasury Board manual or equivalent policies (other than the policies enforced by the Auditor General) and must be required to conduct training sessions, conduct regular random audits of compliance and to investigate complaints about violations of these policies;
- when the Public Sector Integrity Commissioner refers a whistleblower complaint about the violation of another law, regulation or policy for which a designated investigative and enforcement agency exists, the Commissioner must be required to ensure that the agency investigates the complaint within 90 days, and if an investigation does not begin within this time period the Commissioner must be required to investigate the complaint;
- the law must require employers to prove that no retaliation against a whistleblower has taken place (as opposed to requiring the whistleblower to prove that retaliation has occurred);
- the Public Sector Integrity Commissioner must be given the power to order chief executives/heads of departments to take corrective action, and chief executives/heads must be required to report to the Commissioner on corrective actions taken;
- the Public Sector Integrity Commissioner must be given the power to penalize any chief executive/head with a fine, suspension or firing if the chief executive does not comply with the commissioner’s order, or if anyone retaliates against a whistleblower or does not maintain a system that complies with the law;
- the minimum fine for taking a reprisal against a whistleblower must be increased to $50,000, with a maximum range of fines from $100,000 to $200,000;
- whistleblowers must receive adequate funding for legal advice;
- whistleblowers must receive compensation from the government general revenue fund adequate to seek another job (at least 6 months salary) if they want to (for example, if the whistleblowing process leaves them completely alienated from all their co-workers) and/or priority in switching jobs in the federal public service;
- any person nominated and chosen to be the Public Sector Integrity Commissioner must be required to have legal experience enforcing ethics rules or laws to ensure proper enforcement of whistleblower protection measures, and must not be eligible for a renewal of their fixed term in office (to ensure that the Commissioner does not act as a lapdog to Cabinet to try to get re-appointed for a second term), and;
- at least every 3 years, it must be required that an independent audit (by the Auditor General or other independent body) of the entire whistleblower protection system be conducted.
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FOR MORE INFORMATION, CONTACT:
Duff Conacher, Co-founder of Democracy Watch
Democracy Watch’s Open Government Campaign