OTTAWA, November 24, 2005

 

 

Open Letter to All Senators

 

 

Re: Whistleblowing and Bill C-11

 

Honourable Senators:

 

For over two decades we have sought to promote greater accountability in public service through championing the right of employees to speak out about wrongdoing that harms the public interest.  As we have witnessed by the candid testimony of Allan Cutler at the Gomery Commission, the threats and punishment levelled against employees who seek to expose wrongdoing is palpable, real and swift.  With the testimony at Gomery, the social and political climate to introduce reforms that would provide comprehensive legal protection for whistleblowers has been never been more receptive.  It is thus a shock to the whistleblower community and advocates for justice that the Senate would act so hastily to pass the repressive Bill C-11 -- the Government’s Bill to protect whistleblowers which in reality will be used as a sword to silence and, if necessary “slay” any future whistleblowers.

 

The idea of occupational free speech seems simple – employees exercising their constitutional right to speak out about wrongdoing.  But in reality powerful institutions, be they public or private, are inclined to quash dissent and engage in cover-up.  But as we have witnessed with the recent indictment of Conrad Black, properly resourced and authorized public office holders – in Black’s case the Attorney General -- can be powerful foes against those alleged to have committed betrayals of the public trust. 

 

Metaphorically, whistleblowers act as private attorney generals, challenging abuses of power and wrongdoing.  But unlike public attorney generals, whistleblowers are almost always alone, lack resources, and face great threats from powerful institutions.  In order to be effective and, in fact to even exist, whistleblowers require solid legal protection and society must not acquiesce to a system which requires employees to risk their livelihood, their health, and the health of their families while acting to safeguard the public interest.

 

Much has been said that C-11 became vastly improved with the amendment to establish an independent commissioner to investigate the wrongdoing and report directly to Parliament.  While this certainly appears to improve the investigatory phase it does nothing to protect the whistleblower.  Indeed, C-11 has ignored the legal requirements necessary to protect the individual including the right to access our courts of justice, the right to legal counsel, and the right to compensatory, aggravated and punitive damages.  While it is essential to fully and independently investigate the wrongdoing, it is equally important to fully protect the whistleblower since without protection there will be no disclosures to investigate.  Why has the Senate overlooked this basic truism?

 

It is fitting that today, as the Senate rushes to pass C-11, that the Supreme Court of Canada delivered an historic decision upholding the rights of Linda Merk who so courageously blew the whistle against her corrupt union bosses more than five years ago.  Today, she received justice because she had the statutory right to pursue her legal remedy right up to the Supreme Court of Canada.  Under C-11, three hundred and fifty thousand public servants will have no such right since the Government has relegated them to second class citizenship by expressing removing their right to go to court.  Instead, public servants will be forced to rely exclusively on a government administrative tribunal with impotent legal powers and subject to government bias. 

 

In a Canada which is struggling to regain its reputation as a caring and just society, and re-establish fundamental democratic principles, it boggles the mind that the Senate would pass C-11 without any committee meetings and the opportunity to hear witness testimony.  How can the Senate possibly understand what a whistleblower faces without hearing from the whistleblower community?  How can they presume to understand what legal protection is required without hearing from human rights lawyers and public advocates?  How can a chamber of sober second thought fulfill its function when it refuses to hear any evidence on which to reflect?

 

Let there be no misunderstanding, by passing C-11, the Senate will have betrayed Canada’s public servants and the public whom they serve.  By passing the Bill with such haste and bypassing the democratic committee process, the Senate will have done much to reinforce public cynicism and contempt for our entire political process.

 

Joanna Gualtieri, Brian McAdam, Michele Brill-Edwards

 

 

Cc: Members of Parliament

      Media

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