Prime Time Crime
(Prime Time Crime exclusive Oct. 9, 2006)
The Whistleblowers Bill and the Dragon Slayers of FAIR
By Leanne Jones
Whistleblowers, are born out of those who have been deeply hurt by having done the right thing and then having been chastised for it.
Now, they may have a chance to slay the dragon’s of injustice and corruption, with a new bill passing currently, known as ”The Whistleblower’s Bill” but there will be no dancing until the bill is through.
FAIR (Federal Accountability Initiative for Reform) was founded in 1998 by Joanna Gualtieri, a prominent Canadian whistleblower, who was joined in 1999 by Brian McAdam.
Brian is a person, according to many, who should have gotten the Order of Canada for his reports about organized criminals, known as Triads, infesting the immigration flow from Hong Kong to Canada; and his revelations about espionage activities in Canada, but instead was chastised, had death threats and lost his job.
Similarily, Joanna lost her job, after blowing the whistle. Her job for the government, had been evaluating waste to make efficient use of Canada's billion-dollar investments in real estate and rental properties around the world. When she noted under-use and waste of Canadian diplomat's residences abroad, she was forbidden to use the term “lavish” Her whistle blowing ultimately ended up In court.
She says now that she wishes she'd known earlier that the Department of Foreign Affairs and International Trade's overspending had been criticized by auditors general dating back 25 years. A 1997 report notes cost overruns of $38 million on three projects alone; a 1998 report notes that more than half the diplomatic hospitality properties exceed normal size.
David Hutton who is the web site coordinator for Fair said the following:
I see legislation coming forward that is extremely complex and bulky. I will contrast that with the Auditor General Act. I can read that. It is clear, it is simple, and it is obvious what it wants to accomplish. It works very well.
On September 26th when Ms. Gualtieri, went before the senate committee with her presentation of suggestions for the bill, which were in the form of 23 drafted items for the committee to consider, she also said that a good law must provide:
1. Free speech: All employees, government or its agencies or business, must have the right to blow the whistle on any wrongdoing, anywhere, anytime and to any audience -- including the media. If there is an issue, such as national security, involved, a whistleblower should be able to tell Parliament and law enforcement agencies.
2. Independent review: An investigative body, such as an all-party committee, must be free to review government's treatment of a whistleblower and to order corrective action -- holding to parliamentary account any minister who refused to fix the problem.
3. The right to seek remedy in the courts: Employees must be able to claim compensation for lost wages, for lost future earnings, for pain and suffering, and for all discriminatory acts of reprisal. They must not be "shuffled off," as now, to a tribunal that can become a "kangaroo court, captive of the government of the day." They should have full due process and realistic burdens of proof with which to vindicate themselves.
4. Wrongdoer's accountability: Culprits must be charged with offences, and appropriately fined, removed from office, jailed if found guilty of wrongdoing -- including destructive retaliation against whistleblowers..
The 23 points were left for the senate committee to consider.
Allen Cutler was proclaimed “Whistleblower” by Mr. Gomery, in his report.
In Allan Cutler’s presentation to the Senate Committee on “Whistleblowers” He said the following:
First, the bill still leaves the burden of proof for reprisals on the whistle‑blower. The burden of proof following a whistle‑blowing incident should be on management.
He proceeded to give an account of his experience in this way.
I was working on advertising and public opinion surveys at the time. There was a collapsing of the rules and regulations, the checks and balances, and Mr. Guité had tremendous power within the department. I continually refused to sign documents and was eventually told that I would pay for refusing to sign documents that I said were illegal to sign. I would not recommend illegal documents. I would not do things that were illegal.
I went through the threats and everything else that Ms. Gualtieri experienced. The situation differs in only one respect. I had a letter from the department that said the problem was solved and would not recur. They put it in writing to me.
I had worked for the Department of Public Works for 20 years. One senior person who had known me stuck his neck out and offered me a job. No one else would touch me. I spent the rest of my career in one spot because my name was mud through the whole department. One person, Noel Bhumgara, stuck his neck out and offered me a job, and that is the reason I survived with a job. That is where our stories differ. That is the exception. People do not come to your rescue very often.
It is a trust that is honoured by whistle-blowers and a trust that is respected and they pay a huge price for it, as many of us know. But there is a strong myth that the whistle-blower is the troublemaker.
I give speeches to a large number of people. Last week, I gave a speech at Calian to a group of businessmen from around the country. The subject was committed and responsible leadership. In it, I asked them for a synonym for the word "whistle‑blower." I did not get one positive comment. The synonyms they came up with were informer, betrayer, snitch, tattle‑tale, blabbermouth, squealer, stool pigeon, stoolie, fink and spy. The word "narc" was also used.
Every single word that came up as a synonym was negative. They could recognize the need to find a positive word, but they could not find one. They continually found negative words.
I will give you a list of reprisals: Intimidation, demotion, firing, blacklisting, threats, forced transfer, manufacturing a poor record, humiliation, denial of meaningful work, complete paralysis of one's career and isolation.
Under the whistle‑blowing portion of Bill C‑2, I continue to wonder if I would have been protected, and I believe I would have been protected and had an alternative to choose to be protected.
However, the other question is: Would others have been protected, the next group, the people I am talking to? I believe they could be protected as well. The legislation is workable, but the flaws are bad.
Extensive improvements must be made. I will comment on only three improvements that must be there, which are fundamental. Most times there is the expression "you cannot see the forest for the trees." I do not think you can see the trees for the forest with all the amendments proposed to you. I will limit my discussion to three suggestions, and hopefully they will be considered.
First, the bill still leaves the burden of proof for reprisals on the whistle‑blower. The burden of proof following a whistle‑blowing incident should be on management. All management has to do under the new bill would be to claim the incident is unrelated. The burden of proving they are linked therefore falls on the whistle‑blower.
It was my case, it will still be the case and it is impossible to prove reprisals if you do not have access to the information and documents that led up to the situation. If the events are close in time, the burden of proof must be on management. They must prove they are unrelated, not prove they are related.
Second, clause 25 (1), sections 4, 5 and 6 all limit the amount that can be paid for legal advice provided to the whistle‑blower. That is an unacceptable amount. $3,000 is the ceiling, except you can go up to $6,000 with clause 6. It represents four days of potential work for a lawyer. The lawyer does not really get a chance to look at your case or help you.
If you are accusing a manager of wrongdoing, a normal manager will be allowed up to $25,000 for their legal expenses to be paid. That appears in the rules and guidelines sitting in departments right now. The whistle‑blower gets a pittance in comparison. At the very least, the amount should be equal so the whistle‑blower has the ability to get legal representation when needed.
Third, in clause 201, sections 19.1 (2) and 19.2 (2) on page 140 state that complaints about reprisals have to be filed within 60 days after which the complainant knew the reprisal was taking place. It is far too short. A year would be more realistic.
Ms. Gualtieri mentioned reprisals. I will give you a more extensive list of these reprisals: Intimidation, demotion, firing, blacklisting, threats, forced transfer, manufacturing a poor record, humiliation, denial of meaningful work, complete paralysis of one's career and isolation.
There are basic principles and ethical values on which this society works, or says it works, which are fundamental for everyone and should cross every line. They should not be: Well I am fair to you, but I do not have to be fair to the next guy because the next guy defines "fair" differently. We need only one set of standards for everyone in terms of ethical values.
The reverse onus is also a huge problem, because if you are talking about the first item I testified on, the fact is that if management claims that what is being done to the whistle‑blower is not reprisal, then how do you prove it is reprisal?
The Dragon
Was the Dragon all expired?
No! It simply had retired
To rest a little while in its lair,
Then with a screaming wail
It leaped forth to impale
Poor St. George, to his factions's great despair.
My friends, let this be a lesson That our freedom's slow regression
Is a sign that our work is not complete.
We must eradicate the evil
So there will be no upheaval
And then we can go dancing in the street
Mark S