Analysis

Winnipeg Free Press - ONLINE EDITION

Broader whistleblower protection needed

By: Heather MacIntosh

Posted: 11/23/2012 2:59 PM | Comments: 0

CALGARY — The breadth and length of the public corruption exposed in the Quebec Charbonneau inquiry should have every jurisdiction in the country anxiously eyeing their own safeguards against malfeasance. Could this happen here, and would we hear about it?

No one should tolerate corruption in government, and we expect our leaders to address wrongdoing and to prevent it. Whistleblower protections are one of the means to achieve these goals. In disclosure regimes, we count on integrity-minded individuals within the system to come forward but recognize the difficulty in doing so.

Who do people trust when they want to divulge possible wrongdoing?

In the public sector, trust is vested in particular office holders, such as auditors, ombudsmen, and commissioners of, for example, integrity, privacy, elections, or public disclosure.

We rely upon these officials to listen to the proverbial "little guy" when there are allegations of abuse, and to act to maintain the public trust. Other potential whistleblowers have faith in law enforcement, and some do not feel safe with any internal channels, preferring confidential disclosure directly to the media.

People need to be free to disclose to those whom they personally trust, or little if anything will come out.

Trust is essential in disclosure of wrongdoing. The opportunity for anonymous disclosure, ability to seek confidential advice prior to making a complaint, and protection against reprisal are all essential to reassuring people that it is safe to blow the whistle.

There are numerous cases of whistleblowers waiting to report until they have retired or resigned, which comes as no surprise when employees fear repercussions.

In October, proposed provincial whistleblower legislation was introduced in the Alberta legislature and will soon pass into law. This is a significant step forward for Alberta in governmental accountability. Yet no one should think that this solves the problem of encouraging and protecting disclosure of public wrongdoing.

Reprisal provisions seem very strong in the proposed Alberta act, and should help assure public servants that they will be protected. Encouragingly, this applies not only to employees working directly for the province, but also to those in schools, hospitals, agencies, boards and commissions.

The legislation does not adequately protect those outside government however.

Consider the sweeping issues being raised in the Charbonneau Commission Inquiry in Quebec: bribes to public officials from private contractors, bid collusion and intimidation in public procurement by mafia-controlled construction firms, unofficial campaign contributions, and excessive gifts.

Many of the allegations have come not from public servants or elected officials, but from private individuals associated with the construction companies accused of corruption. They have much to lose, and we owe them gratitude for coming forward at great personal risk.

It is incumbent upon all governments to ensure that any disclosure regime fully protects whistleblowers in the private and not-for-profit sectors, particularly government contractors, as Manitoba does. Protecting whistleblowers who are volunteers, especially board directors, would go even further in establishing a strong disclosure regime.

Achieving a balance between punitive and incentive measures in disclosure is complex. Many whistleblower advocates view harsh penalties for exposed wrongdoers as an indication of seriousness and a means to dissuade wrongdoing. Yet, harsh penalties can discourage whistleblowers if the penalty seems disproportionate to the wrongdoing. If issues remain hidden, this negates the possibility of effective corrective action at an early stage.

In any case, an official office designated to hear whistleblower complaints is not the end of the story, no matter how well designed. The effectiveness of whistleblower legislation depends greatly upon implementation and the Commissioner’s exercise of discretion.

As we have seen across Canada, some Commissioners have taken a broad view of their mandate and others a narrower one. Procedures to allow whistleblowers to come forward to those they trust, while safeguarding confidentiality and avoiding false charges, are also needed.

Whistleblower provisions are only one tool in the ethical leadership kit. Our goal should be not only to address wrongdoing, but also to encourage public servants and others to see disclosure as a positive means to advance honesty and integrity. Fostering an ethical culture within the public service is foundational to open and accountable government.

Every province and territory — and every municipality, NGO, corporation and small business — should take a long, hard look at their whistleblower protections in light of the Quebec corruption investigations. With the mafia involvement and potential for violent reprisals, it is hard to imagine a more extreme test case for disclosure. We need to ask, do people feel safe to blow the whistle on wrongdoing? If not, we need to change things.

Heather MacIntosh, program director, democratic development and human rights, Sheldon Chumir Foundation for Ethics in Leadership.

—Troy Media

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