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Canadians better protected by a U.S. law

|Written By Kirsten McMahon - Law Times

Thefederal government's bill to protect public servants who challengeinstitutional abuses of power or illegality is inadequate and an"anti-whistleblower" law, says Allan Cutler, the former Department of PublicWorks employee who sounded the early warning in the federal sponsorshipscandal.

(Photo: Kirsten McMahon) Allan Cutler, who sounded alarm bells in the sponsorship scandal, says retaliation for whistleblowing is usually swift.
(Photo: Kirsten McMahon) Allan Cutler, who sounded alarm bells in the sponsorship scandal, says retaliation for whistleblowing is usually swift.

Cutler was the keynote speaker at the Investigative and Forensic Accounting Conference held last week in Toronto, and shared with the crowd his experiences as a whistleblower. His speech couldn't have been more timely, with the release of Justice John Gomery's first report on the sponsorship scandal coming just days before.

Between 1994 and 1996, Cutler worked at the public works department as a procurement officer under Chuck Guité, the bureaucrat who almost single-handedly ran the sponsorship program. Cutler said he was asked to backdate contracts, refused, and then was told he'd have to pay a price for his behaviour.

He eventually made a formal complaint to a union official in June 1996 and almost lost his job.

Although Cutler found another job within the federal government, he never went higher in the ranks and eventually retired last year. He now teaches and does consulting in the area of government ethics.

Cutler said that although attempts have been made to identify a specific profile for whistleblowers, studies show that they tend to be most diligent and apply similar moral standards in their workplace and at home.

"On a personal level I couldn't accept it and on a professional level I couldn't accept it, and I blew," he said. "I took a bigger vision than my organization."

Once Cutler spoke out, the repercussions started immediately, which he said happens in about 85 per cent of cases of whistleblowing. Employers can use intimidation, blacklisting, threats, forced transfers, and firing to retaliate against whistleblowers. Basically, he said, the methods are "limited only by your imagination."

In his case, Cutler was denied meaningful work, and would often spend entire work days with nothing to do.

Recently introduced legislation, the "public servants disclosure protection act," purports to help protect federal public servants from this kind of retaliation but falls far short of its goal, said Cutler. This is the second bill dealing with whistleblowing, as the former bill C-25 died on the order paper.

Bill C-11, which went through second reading at the Senate last month, is designed, said Cutler, to "protect the innocent from the guilty." He said he would never recommend that whistleblowers trust that this bill would protect them.

There are many flaws with the proposed law, he said:

· It leaves the burden of proof for reprisals on the whistleblower. "A good bill would shift the burden of proof to management," Cutler said, as often these decisions are made behind closed doors with no paper trail. "How do you prove something nobody put in writing?"

· The government can add or delete any Crown corporation or public body from the protection of the bill.

· There is to be no public disclosure except under exceptional circumstances, and whistleblowers must follow a prescribed route, which "is a means of covering up the problem," said Cutler.

· The bill only covers permanent federal employees and not contract employees.

· The remedy for reprisals is to apply to the government-controlled Staff Relations Board.

· The person accused or involved in the complaint may be assisted by counsel paid for by the government, while the whistleblower is not. "The odds are stacked against the whistleblower," Cutler said.

· The independent commissioner is investigative only, and can't enforce compliance.

Cutler said it is noteworthy that 2003's Public Service Modernization Act took away the right of public servants to bring a court action against their employer, a right bill C-11 does not restore.

"At present, their only remedy is to complain to their boss — a process that we would normally expect only from totalitarian regimes," he said.

Some Canadians may be protected under the whistleblower provisions of U.S. legislation, the Sarbanes-Oxley Act of 2002, which raised the stakes of even the most routine employment actions taken against employees of publicly traded companies who make complaints or provide information or assistance in certain qualified investigations.

However, the U.S. act only deals with large Canadian publicly traded companies and covers the area of financial wrongdoings. Cutler said whistleblowing often involves health and safety issues.

"Isn't it rather interesting that Canada has no equivalent?" asked Cutler. "Canadians are better protected by U.S. law and very few Canadians are protected at all."

Even given the fallout from and the consequences of speaking out, Cutler said he would do it again in a heartbeat.

"If you are honest with yourselves, whistleblowers, far from being perceived as a liability, are in fact an asset and should be placed in that side of the ledger. Their early warnings offer a golden opportunity for senior executives to avoid blindsides by risks taken without their knowledge and to save them from liability for decisions taken far from their own purview."

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