- Before the Public Servants Disclosure Protection Act was proclaimed into law by the federal Cabinet in March 2007 and the Commissioner position created, an Internal Disclosure Policy had existed since November 2001, enforced by the Public Sector Integrity Officer (which was not a legislated position, and as a result lacked independence from the Prime Minister and Cabinet, and also lacked key powers). See problems with PSIO ruled on, for example, in case Chopra v. Canada (Attorney General), 2005 FC 595 (CanLII) -- [ LINK ]

- The Public Sector Integrity Commissioner position was created in spring 2007, and the first Commissioner appointed on July 9, 2007. Between November 2001 and spring 2007, there was a Public Sector Integrity Officer with limited independence and powers - as a result, while the protection processes exist, they are still not well-established or well-known, nor is their effectiveness determined in any way.

- Based upon the U.S. 20-year experience with a legislated whistleblower protection system (as documented in chapter entitled "Whistleblowing in the United State: The Gap Between Vision and Lessons Learned" by Tom Devine in the book "Whistleblowing Around the World" (ed. Richard Calland and Guy Dehn, pubs. ODAC & PCaW in partnership with the British Council: Southern Africa: 2004), the new Canadian Public Servants Disclosure Protection Act has several identifiable flaws, as follows: - not all whistleblowers all covered by the Act, not even all public servants; - whistleblowers are not allowed to disclose wrongdoing to any legal authority, they must follow the avenue established in the Act or they will likely not be protected; - whistleblowers must complain first to their bosses before they file a complaint with the Public Sector Integrity Commissioner, unless they can prove "reasonable grounds" to believe that their bosses will retaliate or fail to take corrective action, but it is unclear whether proving reasonable grounds is on a "prima facie" basis or a more limited basis (whistleblowers should be allowed to complain directly to the Public Sector Integrity Commissioner in any case, but is seems under the law that they can only do so if they file an anonymous complaint) - it is not clear that protection covers the full scope of reprisals (whistleblowers can file a complaint if they have "reasonable grounds for believing that a reprisal has been taken" but it is not clear if they have to provide "prima facie" evidence of their belief (NOTE: full protection would entail shifting the burden of proof to the employer to prove that no reprisal took place); - the Act does not override other federal laws, and so the government may override the Act in some cases in order to hide wrongdoing or thwart an investigation; - whistleblowers have no right to a jury trial (they must file their submission re: wrongdoing or complaint about a reprisal with the Commissioner, who then designates an investigator, who then reports back to the Commissioner, who then files an application with the Public Servants Disclosure Protection Tribunal (made up of three to seven judges chosen by the federal Cabinet from amongst the Federal Court justices); - whistleblowers do not have the right to determine who will arbitrate their case (if the Commissioner attempts to settle the case through arbitration) -- the Commissioner appoints the "conciliator"; - whistleblowers only have 60 days to complain about a reprisal (should be at least 1 year limitation period); - no interim compensation (while a case is being investigated/heard by Tribunal) is available, and if there is undue delay in investigations/hearings whistleblowers will suffer; - the full scope of compensation is not available (pain and suffering is limited to $10,000 - US$10,266), and Tribunal rulings may limit compensation even further (as occurred in the U.S.); - if a whistleblowers has been fired, they cannot win preference in transferring to another government job, the Tribunal can only reinstate them in their position or compensate them financially; - it seems like anonymous disclosures are allowed, but it is not clear (NOTE: if a person blows the whistle, their identity must be kept secret by the Commissioner throughout the investigation to the extent possible); - there is no clearly defined right to refuse to violate a law, regulations, code, policy or guideline (although general rights under the Values and Ethics Code for the Public Service may apply); - there is no clearly defined duty to disclose wrongdoing (although general duties under the Values and Ethics Code for the Public Service may apply); - the Act seems to cover all types of wrongdoing, but Tribunal rulings may limit the definition significantly (as happened in the U.S.); - - the Commissioner can only provide up to $1,500 (US$1,520)in funding for legal advice for a whistleblower (in exceptional cases, up to $3,000-US$3,040) which will likely not be adequate, although it seems possible that the Tribunal could award full costs if a whistleblower wins their case; - it seems like the Tribunal can make orders for corrective action and penalties for those who have done wrong or retaliated against whistleblowers, but what will actually happen is unknown (NOTE: the penalties for retaliators are limited to $10,000 fine and maximum two years imprisonment) -- wrongdoing must be made public, but not necessarily identity of wrongdoer, and; - extensive education and training of employee rights under the Act is not required by the Act (but will hopefully occur).

- NOTE: the Canadian provinces of New Brunswick and Sasaktchewan have measures in their labour laws that protect all employee "whistleblowers" who report violations of any law or regulation -- see overview of Canadian and U.S. in federal Canadian Competition Bureau 1997 report "Whistleblowing Study: Models of Whistleblower Protection" -- [ LINK ]

See commentary on 2005 court case concerning Saskatchewan law at -- [ LINK ]

References: - Public Servants Disclosure Protection Act (2005, c. 46) which came into force in March 2007 -- [ LINK ] -- with complaints going to the Public Sector Integrity Commissioner -- [ LINK ] -- who addresses complaints about public servants violating laws, regulations, codes, policies and guidelines

- Constitution Act, 1982, Schedule B, Part 1, Canadian Charter of Rights and Freedoms, subsection 2(b) "freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication" -- [ LINK ]

References: - Public Servants Disclosure Protection Act (2005, c. 46) which came into force in March 2007 -- [ LINK ] -- with complaints going to the Public Sector Integrity Commissioner -- [ LINK ] -- who addresses complaints about public servants violating laws, regulations, codes, policies and guidelines

- Constitution Act, 1982, Schedule B, Part 1, Canadian Charter of Rights and Freedoms, subsection 2(b) "freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication" -- [ LINK ]" target="_blank">[ LINK ]

- Court cases in the past resulted in rulings that the Charter of Rights and Freedoms -- http://lois.justice.gc.ca/en/Const/annex_e.html#I -- "freedom of expression" right covers those who blow the whistle on government actions or decisions that endanger the public, but these cases did not result in effective protection of "whistleblowers" because they were still on their own (sometimes aided by their union) facing retaliation for their actions, no matter how justified -- See leading cases Haydon v. Canada (T.D.), 2000 CanLII 16081 (F.C.) -- [ LINK ] -- Haydon v. Canada (Treasury Board) (F.C.), 2004 FC 749 (CanLII) -- [ LINK ] -- and Chopra v. Canada (Treasury Board), 2006 FCA 295 (CanLII) -- [ LINK ]

- Before the Public Servants Disclosure Protection Act was proclaimed into law by the federal Cabinet in March 2007 and the Commissioner position created, an Internal Disclosure Policy had existed since November 2001, enforced by the Public Sector Integrity Officer (which was not a legislated position, and as a result lacked independence from the Prime Minister and Cabinet, and also lacked key powers). See problems with PSIO ruled on, for example, in case Chopra v. Canada (Attorney General), 2005 FC 595 (CanLII) -- [ LINK ]

- The Public Sector Integrity Commissioner position was created in spring 2007, and the first Commissioner appointed on July 9, 2007. Between November 2001 and spring 2007, there was a Public Sector Integrity Officer with limited independence and powers - as a result, while the protection processes exist, they are still not well-established or well-known, nor is their effectiveness determined in any way.

- Based upon the U.S. 20-year experience with a legislated whistleblower protection system (as documented in chapter entitled "Whistleblowing in the United State: The Gap Between Vision and Lessons Learned" by Tom Devine in the book "Whistleblowing Around the World" (ed. Richard Calland and Guy Dehn, pubs. ODAC & PCaW in partnership with the British Council: Southern Africa: 2004), the new Canadian Public Servants Disclosure Protection Act has several identifiable flaws, as follows: - not all whistleblowers all covered by the Act, not even all public servants; - whistleblowers are not allowed to disclose wrongdoing to any legal authority, they must follow the avenue established in the Act or they will likely not be protected; - whistleblowers must complain first to their bosses before they file a complaint with the Public Sector Integrity Commissioner, unless they can prove "reasonable grounds" to believe that their bosses will retaliate or fail to take corrective action, but it is unclear whether proving reasonable grounds is on a "prima facie" basis or a more limited basis (whistleblowers should be allowed to complain directly to the Public Sector Integrity Commissioner in any case, but is seems under the law that they can only do so if they file an anonymous complaint) - it is not clear that protection covers the full scope of reprisals (whistleblowers can file a complaint if they have "reasonable grounds for believing that a reprisal has been taken" but it is not clear if they have to provide "prima facie" evidence of their belief (NOTE: full protection would entail shifting the burden of proof to the employer to prove that no reprisal took place); - the Act does not override other federal laws, and so the government may override the Act in some cases in order to hide wrongdoing or thwart an investigation; - whistleblowers have no right to a jury trial (they must file their submission re: wrongdoing or complaint about a reprisal with the Commissioner, who then designates an investigator, who then reports back to the Commissioner, who then files an application with the Public Servants Disclosure Protection Tribunal (made up of three to seven judges chosen by the federal Cabinet from amongst the Federal Court justices); - whistleblowers do not have the right to determine who will arbitrate their case (if the Commissioner attempts to settle the case through arbitration) -- the Commissioner appoints the "conciliator"; - whistleblowers only have 60 days to complain about a reprisal (should be at least 1 year limitation period); - no interim compensation (while a case is being investigated/heard by Tribunal) is available, and if there is undue delay in investigations/hearings whistleblowers will suffer; - the full scope of compensation is not available (pain and suffering is limited to $10,000 - US$10,266), and Tribunal rulings may limit compensation even further (as occurred in the U.S.); - if a whistleblowers has been fired, they cannot win preference in transferring to another government job, the Tribunal can only reinstate them in their position or compensate them financially; - it seems like anonymous disclosures are allowed, but it is not clear (NOTE: if a person blows the whistle, their identity must be kept secret by the Commissioner throughout the investigation to the extent possible); - there is no clearly defined right to refuse to violate a law, regulations, code, policy or guideline (although general rights under the Values and Ethics Code for the Public Service may apply); - there is no clearly defined duty to disclose wrongdoing (although general duties under the Values and Ethics Code for the Public Service may apply); - the Act seems to cover all types of wrongdoing, but Tribunal rulings may limit the definition significantly (as happened in the U.S.); - - the Commissioner can only provide up to $1,500 (US$1,520)in funding for legal advice for a whistleblower (in exceptional cases, up to $3,000-US$3,040) which will likely not be adequate, although it seems possible that the Tribunal could award full costs if a whistleblower wins their case; - it seems like the Tribunal can make orders for corrective action and penalties for those who have done wrong or retaliated against whistleblowers, but what will actually happen is unknown (NOTE: the penalties for retaliators are limited to $10,000 fine and maximum two years imprisonment) -- wrongdoing must be made public, but not necessarily identity of wrongdoer, and; - extensive education and training of employee rights under the Act is not required by the Act (but will hopefully occur).

- NOTE: the Canadian provinces of New Brunswick and Sasaktchewan have measures in their labour laws that protect all employee "whistleblowers" who report violations of any law or regulation -- see overview of Canadian and U.S. in federal Canadian Competition Bureau 1997 report "Whistleblowing Study: Models of Whistleblower Protection" -- [ LINK ]

See commentary on 2005 court case concerning Saskatchewan law at -- [ LINK ]

- "Whistle-blown: Mounties with gripes about their force get no help from new rules" Greg Weston Ottawa Sun, April 24, 2007, p. 15

- "RCMP 'horribly broken': Former Commissioner Zaccardelli Was 'Autocratic' Leader Who Punished Whistle-Blowers, Investigator Concludes" Campbell Clark and Daniel Leblanc Globe and Mail, June 16, 2007, p. A1

Peer Review Comments: A key witness in the 2006 corruption trial of a top manager in a Montreal borough was transferred to a less prominent position after testifying to "irregularities" in the management's handling of an infrastructure contract awarded to a company linked to the influence-peddling case. The witness, who had held the position of director of the finance department in the district for 18 years, was moved to a job with the city of Montreal's central finance department.

(Note: Following the 2001 municipal merger, former towns on the island of Montreal became boroughs under the direct administration of the city of Montreal. Some of the boroughs reverted to towns in a de-merger referendum in 2004.)

- NOTE: the Canadian provinces of New Brunswick and Sasaktchewan have measures in their labour laws that protect all employee "whistleblowers" who report violations of any law or regulation -- see overview of Canadian and U.S. in federal Canadian Competition Bureau 1997 report "Whistleblowing Study: Models of Whistleblower Protection" -- [ LINK ]

See commentary on 2005 court case concerning Saskatchewan law at -- [ LINK ]

- Based upon the U.S. 20-year experience with a legislated whistleblower protection system (as documented in chapter entitled "Whistleblowing in the United State: The Gap Between Vision and Lessons Learned" by Tom Devine in the book "Whistleblowing Around the World" (ed. Richard Calland and Guy Dehn, pubs. ODAC & PCaW in partnership with the British Council: Southern Africa: 2004), the laws that are set out above have several identifiable flaws, as follows: - there is no set procedure for a whistleblower to file a submission about wrongdoing or complaint about reprisal with the agencies that enforce some (NOTE: only some) of the laws set out above; - it is not clear in many of the laws whether they override other federal laws, and so the government or a private sector corporation may override the laws in some cases in order to hide wrongdoing or thwart an investigation or to leave a whistleblower unprotected; - whistleblowers have no clear right to a jury trial (they must file their submission re: wrongdoing or complaint about a reprisal with the head of the agency involved in most cases, who then designates an investigator, who then reports back to the head, who then files an application with a tribunal; - no interim compensation (while a case is being investigated/heard) is available, and if there is undue delay in investigations/hearings whistleblowers will suffer; - it is not clear whether the full scope of compensation is available; - it seems like anonymous disclosures are allowed under the laws, but it is not clear; - in many of the laws, there is no clearly defined right to refuse to violate a law, regulations, code, policy or guideline (although general employment law rights may apply); - in many of the laws, there is no clearly defined duty to disclose wrongdoing; - there is no up-front funding provided for legal counsel for whistleblowers (which makes it highly unlikely that anyone will blow the whistle, unless they are unionized), and; - extensive education and training of employee rights under the laws is not required by the laws.

References: - section 425.1 (in Part X) of the Criminal Code (R.S., 1985, c. C-46) -- [ LINK ]

- sections 147, 147.1 and 148 (in Part II re: occupational health and safety) of the Canada Labour Code (R.S., 1985, c. L-2) -- [ LINK ]

- section 16 (in Part 2) of the Canadian Environmental Protection Act, 1999 (1999, c. 33) -- [ LINK ]

- section 59 (in Part III) of the Canadian Human Rights Act (R.S., 1985, c. H-6) -- [ LINK ]

- section 66.1 and 66.2 (in Part VII) of the Competition Act (R.S., 1985, c. C-34) -- [ LINK ]

- sections 27, 27.1 and 28 (in Part 1, Division 4) of the Personal Information Protection and Electronic Documents Act (2000, c. 5) -- [ LINK ]

See overview of Canadian and U.S. in federal Canadian Competition Bureau 1997 report "Whistleblowing Study: Models of Whistleblower Protection" -- [ LINK ]

See commentary on 2005 court case concerning Saskatchewan law at -- [ LINK ]

References: - section 425.1 (in Part X) of the Criminal Code (R.S., 1985, c. C-46) -- [ LINK ]

- sections 147, 147.1 and 148 (in Part II re: occupational health and safety) of the Canada Labour Code (R.S., 1985, c. L-2) -- [ LINK ]

- section 16 (in Part 2) of the Canadian Environmental Protection Act, 1999 (1999, c. 33) -- [ LINK ]

- section 59 (in Part III) of the Canadian Human Rights Act (R.S., 1985, c. H-6) -- [ LINK ]

- section 66.1 and 66.2 (in Part VII) of the Competition Act (R.S., 1985, c. C-34) -- [ LINK ]

- sections 27, 27.1 and 28 (in Part 1, Division 4) of the Personal Information Protection and Electronic Documents Act (2000, c. 5) -- [ LINK ]

- Based upon the U.S. 20-year experience with a legislated whistleblower protection system (as documented in chapter entitled "Whistleblowing in the United State: The Gap Between Vision and Lessons Learned" by Tom Devine in the book "Whistleblowing Around the World" (ed. Richard Calland and Guy Dehn, pubs. ODAC & PCaW in partnership with the British Council: Southern Africa: 2004), the laws that are set out above have several identifiable flaws, as follows: - there is no set procedure for a whistleblower to file a submission about wrongdoing or complaint about reprisal with the agencies that enforce some (NOTE: only some) of the laws set out above; - it is not clear in many of the laws whether they override other federal laws, and so the government or a private sector corporation may override the laws in some cases in order to hide wrongdoing or thwart an investigation or to leave a whistleblower unprotected; - whistleblowers have no clear right to a jury trial (they must file their submission re: wrongdoing or complaint about a reprisal with the head of the agency involved in most cases, who then designates an investigator, who then reports back to the head, who then files an application with a tribunal; - no interim compensation (while a case is being investigated/heard) is available, and if there is undue delay in investigations/hearings whistleblowers will suffer; - it is not clear whether the full scope of compensation is available; - it seems like anonymous disclosures are allowed under the laws, but it is not clear; - in many of the laws, there is no clearly defined right to refuse to violate a law, regulations, code, policy or guideline (although general employment law rights may apply); - in many of the laws, there is no clearly defined duty to disclose wrongdoing; - there is no up-front funding provided for legal counsel for whistleblowers (which makes it highly unlikely that anyone will blow the whistle, unless they are unionized), and; - extensive education and training of employee rights under the laws is not required by the laws.

References: - Public Sector Integrity Commissioner -- [ LINK ] -- who addresses complaints about public servants violating laws, regulations, codes, policies and guidelines -- under Public Servants Disclosure Protection Act (2005, c. 46) which came into force in March 2007 -- [ LINK ]

- Court cases in the past resulted in rulings that the Charter of Rights and Freedoms -- [ LINK ] -- "freedom of expression" right covers those who blow the whistle on government actions or decisions that endanger the public, but these cases did not result in effective protection of "whistleblowers" because they were still on their own (sometimes aided by their union) facing retaliation for their actions, no matter how justified -- See leading cases Haydon v. Canada (T.D.), 2000 CanLII 16081 (F.C.) -- [ LINK ] -- Haydon v. Canada (Treasury Board) (F.C.), 2004 FC 749 (CanLII) -- [ LINK ] -- and Chopra v. Canada (Treasury Board), 2006 FCA 295 (CanLII) -- [ LINK ]

- Before the Public Servants Disclosure Protection Act was proclaimed into law by the federal Cabinet in March 2007 and the Commissioner position created, an Internal Disclosure Policy had existed since November 2001, enforced by the Public Sector Integrity Officer (which was not a legislated position, and as a result lacked independence from the Prime Minister and Cabinet, and also lacked key powers) -- See problems with PSIO ruled on, for example, in case Chopra v. Canada (Attorney General), 2005 FC 595 (CanLII) -- [ LINK ]

References: - The Public Sector Integrity Commissioner position -- [ LINK ] -- was created in spring 2007, and the first Commissioner was appointed on July 9, 2007. Between November 2001 and spring 2007, there was a Public Sector Integrity Officer with limited independence and powers -- as a result, while the protection processes exist, they are still not well-established or well-known, nor is their effectiveness determined in any way. See problems with PSIO ruled on, for example, in case Chopra v. Canada (Attorney General), 2005 FC 595 (CanLII)-- [ LINK ]

References: - The Public Sector Integrity Commissioner (PSIC) position -- [ LINK ] -- was created in spring 2007, and the first Commissioner was appointed on July 9, 2007. Between November 2001 and spring 2007, there was a Public Sector Integrity Officer with limited independence and powers. As a result, while the protection processes exist, they are still not well-established or well-known, nor is their effectiveness determined in any way, nor is it known whether adequate, regular funding will be provided to the PSIC.

References: - The Public Sector Integrity Commissioner (PSIC) position -- [ LINK ] -- was created in spring 2007, and the first Commissioner was appointed on July 9, 2007. Between November 2001 and spring 2007, there was a Public Sector Integrity Officer with limited independence and powers. As a result, while the protection processes exist, they are still not well-established or well-known, nor is their effectiveness determined in any way, nor is it known whether the PSIC will act on complaints within a reasonable time period.

Peer Review Comments: It is quite difficult to evaluate this situation due to the set up of a new agency in spring 2007. The actual situation represents a major improvement compared with that of previous years.

References: - The Public Sector Integrity Commissioner (PSIC) position -- [ LINK ] -- was created in spring 2007, and the first Commissioner was appointed on July 9, 2007. Between November 2001 and spring 2007, there was a Public Sector Integrity Officer with limited independence and powers. As a result, while the protection processes exist, they are still not well-established or well-known, nor is their effectiveness determined in any way, nor is it known whether the PSIC will initiate investigations (which it has the legal power to do) even if it does not receive a formal complaint.