Wither whistle-blower protection…

Only in the world of government public relations is this whistle-blowing legislation

With an election call, Bill C-25, the Public Servants Disclosure Protection Act, dies on the order paper. Its passing is not mourned.

This bill has been promoted by the Martin Liberal government as whistle-blower protection, a law that would enable those who see wrongdoing in the workforce to speak up without fear of reprisal. It is an attempt to convince Canadians that the Liberal government is fixing the problem. In fact, the bill does the opposite, protecting ministers and senior managers by making it unlikely that those who spot corruption and abuse of authority will come forward.

Public servants on the front lines are the first to spot problems such as the sponsorship scandal. They can tell you whether or not Health Canada is suppressing test data. They know when someone is submitting inflated travel expenses. They see the invoices, they see the physical evidence, they know when they have been told to look the other way.

They also know that there is no protection if they come forward to expose wrongdoing. To “blow the whistle” is to expose yourself to significant abuse from your employer. You may be reorganized out of a job or, if you are a term worker, your contract is not renewed. Co-workers may avoid you. Interesting work is assigned to someone else. Training is denied. “Disloyal” employees do not win glowing job appraisals.

If staff choose to fight any of this, they face a long process with an uncertain result. When last year’s amendments to the Public Service Employment Act take effect, employees will not even have the right to sue for constructive dismissal.

The federal government should be setting an example for others with a strong and effective whistle-blowing policy. Instead, it is taking a step back from the status quo.

Bill C-25 sets up an internal process for the disclosure of wrongdoing, and provides a legislative basis for the Public Service Integrity Commissioner. Only in the world of government public relations is this whistle-blowing legislation. It falls far short of what is required.

The most serious flaw in the proposed legislation is that it does not allow public servants to take allegations directly to a neutral party. They must first work within the existing chain of command, beginning with their supervisors.

Consider the employees who lived under what the Auditor General termed a “reign of terror” in the office of the former privacy commissioner. Those who displeased the commissioner or his inner circle were banished from the commissioner’s floor, excluded from meetings they should have attended, not allowed to put their names on reports and moved to other positions. In one case, the employee’s work was contracted out. Exactly where in that chain of command could or should those in the commissioner’s office have gone to complain?

Direct access to an independent third party for carriage and investigation of the complaint is essential if whistle-blowing legislation is to be effective. By requiring public servants to first go to their superiors, Bill C-25 erects a serious roadblock to the disclosure of wrongdoing.

The second flaw of Bill C-25 is that it does not give the Public Service Integrity Commissioner proper authority to protect whistle-blowers, and there is no access to the courts for victims of reprisals. While the commissioner can investigate reprisal complaints, there is no power to deal with them. Rather, these must be referred to existing boards such as the Public Service Staff Relations Board.

Third, the Public Sector Integrity Commissioner will not report directly to Parliament. This will weaken independence and credibility of that office.

Fourth, the bill does not even apply to all federal workers. The RCMP, CSIS and other security agencies are not included. The CBC is also pushing for an exemption. Other agencies, such as the Bank of Canada, could be removed from the list of agencies subject to the proposed act through an Order in Council.

The time has come to create a proper legal framework to provide public servants with the protection they need when reporting potential wrongdoing in the workplace. This requires legislation that gives public servants direct access to an independent third party that can investigate allegations and protect them from reprisal. Bill C-25 does not achieve this.

Senator Noël Kinsella is the Deputy Leader of the Opposition in the Senate and former chair of the New Brunswick Human Rights Commission.

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