Developing a Whistleblowing Culture in Canada

Posted July 24, 2018
By Abbas Kassam

Being a whistleblower in Canada is tough. The Canadian legal framework with respect to whistleblowing is a hodgepodge of different laws and regulations, none of which historically have been very effective. The frameworks differ with respect to whether the whistleblower is in the federal or provincial jurisdiction, in the public or private sector or depending on the type of information being disclosed.

Consider the public sector.  Federally, there is a Public Servants Disclosure Protection Act, which purports to provide whistleblowing protection by public sector employees. However, since its inception, the law has proved “deeply flawed and “no whistleblower has ever prevailed at the tribunal that is supposed to compensate them for reprisals they have suffered”. In 2017, the law was reviewed and recommendations were tabled. However, the federal government failed to implement any of the recommendations.

Whistleblowing in the private sector in Canada can be even more difficult. For example, in Ontario, limited whistleblowing protections exist for certain types of whistleblowers. The Environmental Protection Act protects whistleblowers against retaliation with respect to violations under that Act or other environmental acts. Furthermore, the Ontario Securities Commission (OSC) developed a policy in 2016 which incentivizes whistleblowers with monetary rewards up to $5 million to disclose possible violations of Ontario’s securities laws. While there has been “roughly 200 tips” received by the OSC, not a single public award to a whistleblower has been issued.

The lack of successful public cases of whistleblowing in Canada is not for a want of individual Canadians coming forward as whistleblowers. Earlier this year, Canadian Christopher Wylie, came forward with information that data analytics form Cambridge Analytica used Facebook data acquired without consent of the users. Additionally, last year, Canadians produced the most foreign-based tips submitted to the US Securities and Exchange Commission under their whistleblower program.

However, Canadian society at large does not appear to foster an encouraging environment for whistleblowers. This is perhaps due to Canadians’ trust in their institutions. Following the election of the Trudeau government, trust in government, business, media and NGOs increased in 2015. However, analysts have noted that last year, following the election of Donald Trump in the US, Canadian’s trust in government has decreased. One metric found that Canadians moved into the category of “distrusters” in civil institutions for the first time. Perhaps this new found (and healthy) distrust in civil institutions will enable the Canadian public to encourage whistleblowers to come forward.

Nevertheless, the distrust has not filtered into all the corridors of power as Canadian companies in 2018 were found to be the most trusted companies globally. This appears to be a nonsensical belief as we are only five years removed from Canadian companies comprising almost half of the companies blacklisted from bidding on World Bank projects under its fraud and corruption policies.

With a bit of luck and a lot of work Canadian culture on whistleblowing will shift. The Ryerson Centre for Free Expression is seeking to lead that charge. The Centre has already committed to such a shift by setting up a whistleblowing initiative with a free confidential advice centre where potential whistleblowers will be able to seek advice on the labyrinth that is Canadian whistleblowing protection.

As Justice Louis Brandeis said "Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman." However, it’s up to society to remove the barriers of sunlight casting shadows and enable those who can to shine the electric light.