Who Protects the Protectors of the Public Interest?

Remember back in 2006
when Stephen Harper’s Conservatives rode to power on promises of transparency
and accountability? Given all that’s happened since 2006, it’s hard to remember
the days when the Conservatives represented the shining promise a future filled
with integrity. Even for those of us who remember that past, it seems somehow
more distant than 2006 – a piece plucked from the annals of history rather than
the headlines of yesterday.

When the Conservatives
took power, one of their early achievements was ushering in the Public Servants Disclosure Protection Act
in 2007[1]. The purpose of the Act was
laudable, being as it were an Act designed to offer protections to
whistleblowers. Through these protections, the Act was supposed to encourage
(or at least not discourage) whistleblowers. But does it work? Are whistleblowers
encouraged, or is it all so much lip service? Unfortunately, whether by design
or by accident, the fact is that the Act falls well short of its goals.

The preamble to the
Act states there is a need to balance two principles: the employees’ right to
freedom of expression and the employees’ duty of loyalty to his or her
employer. While balance is a pivotal aspect of employment law, the question
occasioned by the balancing of these two principles is clear: where’s the
public interest? Where does that factor? As public servants, the overriding
principle must be the interest of the public, not of employers. To have
otherwise is to create a recipe for trouble, to hand an employer carte blanche to engage in all manner of
behaviour. To have otherwise is to open the door to abuses of power and to
ignore the fact that a public servant’s main loyalty should, nay must, be to
the public. Under the PSDPA, so long as it can be shown that the employee’s
duty to the employer should be paramount, no whistle may rightly be blown.

Under the PSDPA we saw the creation of the Office of the Public Sector
Integrity Commissioner (OPSIC). The role of OPSIC is to protect those who would
blow the whistle on corruption. The whole idea of greater accountability in
government hit a snag from the get-go, when OPSIC’s first Commissioner,
Christiane Ouimet, failed to find any cases to investigate. In a cruelly ironic
twist, the sole case of whistleblowing found during Ms. Ouimet’s term as
Commissioner was an auditor general’s investigation into abuses in OPSIC,
abuses which happened on Ms. Ouimet’s watch. 
Ms. Ouimet resigned and a subsequent review of OPSIC files found
numerous whistleblowing cases that had been rejected by OPSIC when they should
have been accepted.

The situation with
OPSIC is not uncommon, and it has wrought devastating results on workers. Recent
years are replete with examples of workers who blew the whistle on an employer
in the interests of serving the greater good of the public interest. Just as
common are examples of these same workers being penalized for their loyalty to
the public good.

Jack Dalgliesh was a Manitoba
bureaucrat and accountant. He had over 20 years of experience as an accountant
and was eager and willing to do his best for the public interest. When he
uncovered an investment fund that was bound to fail, threatening investors with
heavy losses, he spoke out. The only problem: the fund was being pushed by the
provincial government at the time. Mr. Dalgilesh’s warnings were not
appreciated. Rather than being thanked for his loyalty to the public interest
he was punished for his lack of loyalty to the government. He was relegated to
a “non-job” where he had few duties and almost no communication with the
public. In essence he was silenced.

In relegating Mr. Dalgelsih to
“non-job”, the wasted staggering amounts of taxpayer money. As Mr. Dalgelish
himself has stated in a message to the Canadian Taxpayers Federation: “I may
have worked at most 10 days a year for roughly $93,000 or $94,000 a year.” Not
only was Mr. Dalgelish punished for his whistleblowing, the public was also quite
literally made to pay[2].

More recently Edgar
Schmidt, a lawyer in the Legislative Services Branch of the federal Department
of Justice, has become embroiled in the political minefield that is
whistleblowing. One year ago, Schmidt boldly brought a claim against the
Ministry of the Attorney General alleging, amongst other things, that his own
ministry had failed in its lawful duty to properly review the constitutional
compliance of draft legislation. One day after serving this claim, Schmidt’s
superiors contacted him to advise that his action had got him a suspension
without pay.

Mr. Schmidt no longer
has his job at the Legislative Services Branch. Where he had been earning
between $120,000 and $160,000 per year, he now lives on a reduced pension,
waiting for the case to go to trial sometime within the next 6 months[3].

David Hutton,
executive director of the Federal Accountability and Initiative for Reform
(FAIR), a group which strives to promote integrity and accountability of
governmental authorities by helping to protect from reprisals any employee who
blows the whistle on unethical behaviour, has commented on Mr. Schmidt’s case:


This case really shows the lack of
support for government lawyers who are faced with very serious ethical problems
… The government should have an office of professional responsibility where
[government lawyers] can go and get ethical advice and where they or members of
the public or anybody else can make a complaint about the conduct of a govern­ment

It might be surprising
that the accounts noted above are happening, and that they continue to happen.
What is thankfully unsurprising, is that there are still brave men and women
willing to stand up and speak out for what’s right, even against a system that
is inherently flawed and that offers little hope of fulfilling its duty to
protect workers. The stain of corruption has never been easily lifted and
accountability has never been anything but hard won.

Workers who blow the
whistle continue to do the public a great service and, one must assume, are
committed to continue on in the public interest, come what may. And this leads
to a positive outlook in the longterm. The more workers willing to stand up,
the less ability employer’s will have to isolate and punish them for doing so.
At some point it’s reasonable to believe the workers willing to blow the
whistle will reach critical mass, at which point the theory of diminishing
returns will come into play and it will become impossible for employers to mete
out reprisals without suffering reprisals in turn. The workers who blow the
whistle are merely upholding the law under the PSDPA. It’s time for the
government to step up and do more to protect the workers who are protecting the
Canadian public.

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