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Federal Conservatives fail to initiate review of whistleblower law by legal deadline of last April — group planning to take Minister Clement to court

A comprehensive, transparent, and independent review of the flawed Act is required

Friday, February 22, 2012

OTTAWA – Today, Democracy Watch announced it is planning a lawsuit to force Conservative Cabinet Minister Tony Clement to initiate the review of Canada’s very weak whistleblower law, which was legally required to begin April 15, 2012 (by section 54 of the law).

The Conservative Government’s whistleblower protection regime is in disarray, having been discredited by former integrity commissioner Christiane Ouimet.  Under the new commissioner Mario Dion, virtually nothing has been achieved; where wrongdoing has been found the individual(s) responsible have not been named or punished.

“Canada’s whistleblower law is broken. It simply does not work and one of the few ways to punish people who break the rules is to name them and even this is not being used,” said Tyler Sommers, Coordinator of Democracy Watch. “The whistleblower protection law clearly requires an independent review by last April and Minister Clement failed to meet that deadline, so it seems that a lawsuit and court order is needed to ensure he complies with the law.”

Failing to name individuals guilty of violating federal government rules and laws can lead to them resigning from their job and keeping their wrongdoing secret when applying for other jobs, which has already happened.

Democracy Watch filed a complaint on April 5, 2012 with the Information Commissioner asking her to clearly state that the names of individuals found to have broken whistleblower law can be published.  And Democracy Watch has filed a new complaint about the most recent ruling by Dion that failed to name the wrongdoer.

The root cause of these problems lies in the deeply-flawed law passed by the Conservative government in 2006, after coming to power on a promise to clean up the federal government and specifically to protect whistleblowers.

“We need a full, independent, public review of Canada’s whistleblower law and we need it now.  Unfortunately this government is not taking the protection of whistleblowers seriously, this is shown through the review of this law being a year overdue,” said Sommers.

Democracy Watch calls on all federal political parties to make the following changes to the federal whistleblower protection system to make it effective:

  1. all whistleblowers must be effectively protected from retaliation, including politicians, political staff, government suppliers and contractors and members of the public;
  2. whistleblowers must be allowed, in all cases, to file their complaint directly with the integrity commissioner or similar commissioner;
  3. everyone who witnesses or receives evidence of wrongdoing by anyone in politics or government must be required to report it to the integrity commissioner or similar commissioner (with the commissioner strictly and strongly required to keep their identity secret, and people allowed to submit evidence anonymously);
  4. the identity of anyone in government or politics found guilty of wrongdoing must be made public in all cases;
  5. the integrity commissioner or similar 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 whistleblower complaints about violations of these policies;
  6. when the integrity commissioner or similar 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 frame the commissioner must be required to investigate the complaint;
  7. 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);
  8. 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;
  9. the integrity commissioner or similar 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;
  10. 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;
  11. whistleblowers must receive adequate funding for legal advice;
  12. 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;
  13. any person nominated and chosen to be the integrity commissioner or similar whistleblower protection 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;
  14. 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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Tyler Sommers, Coordinator of Democracy Watch and Chair of the Open Government Coalition:
(613) 241-5179
[email protected]
Democracy Watch’s Open Government Campaign

Public Servant Disclosure Protection Act

Section 54:

Five years after this section comes into force, the President of the Treasury Board must cause to be conducted an independent review of this Act, and its administration and operation, and must cause a report on the review to be laid before each House of Parliament on any of the first 15 days on which that House is sitting after the review is completed.

Democracy Watch’s Open Government Campaign