What Canada needs to do to really protect whistleblowers

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Here are four key changes Tom Devine, legal director of the Government Accountability Project in Washington, says Canada needs to make to its whistleblower law to make it effective:

• Protect public freedom of expression. Devine says no free speech rights are legitimate if they only protect internal disclosures to the government, as Canada’s law does.
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• Take away the Public Sector Integrity Commissioner’s monopoly power over whistleblowers’ rights. That power can prevent whistleblowers from getting their day in court. Canadian judges Devine spoke to last year “were complaining in practice, they were left high, dry and irrelevant.”

• Enact modern legal burdens of proof for how much evidence it takes to win, so whistleblowers can compete on an even playing field. Those burdens of proof are in place in the United States and organizations such as the UN, World Bank, and OAS. They specify that if a whistleblower proves that free speech affected an employer’s decisions in any way, the employer must prove, by clear and convincing evidence, that it would have taken the same action for independent, innocent reasons.

• Provide full remedies so whistleblowers are made whole for all the direct and indirect effects of retaliation, and so there is accountability for those who engage in harassment. The latter is essential for deterrence, Devine says.

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