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WHISTLEBLOWING: WHAT IT IS AND WHAT YOU SHOULD CONSIDER BEFOREHAND
Phone interview with Pierre Champagne, Gowling WLG. The transciption below has been edited for clarity and length.
WT - Thanks for doing this, Pierre.
Champagne - My pleasure.
WT- First can you define what whistleblowing actually means, we hear it all the time, what does it mean?
Champagne - When we speak of whistleblowing, weíre really talking about a person who - believing the public interest overrides the interest of the organization that he or she serves - publicly blows the whistle that the organization is involved in what could be termed as corrupt, illegal, fraudulent or harmful activity of some kind.
WT- There are protections of sorts for whistleblowers. I just want to touch briefly on what whistleblowing means if youíre with an NGO, then what whistleblowing means if youíre a federal government employee, and then what it means if youíre a private sector employee?
Champagne - Okay, well I think in order to address that question, we really need to deal with those areas where the whistleblowing protections are a little bit more prevalent. So, lets deal with it in this order: public sector being federal government, provincial government and then private sector. Weíll find that the private sector is the area where there are fewer protections.
In the public sector I think we need to start with the federal government. There is the Public Servants Disclosure Protection Act that has existed for the better part of 13, 14 years; that provides protections for employees of public federal, public sector organizations; there is protection there that prevents reprisal to someone who acts as a whistleblower. Keep in mind that when we speak of someone acting as a whistleblower were not really talking about somebody who reports to the media. Weíre really talking about someone who follows the chain, lets call it the chain of command within an organization, or who takes steps to follow the proper process to bring attention to a problem.
In other words, this is not about someone making malicious comments about someone else in their organization, it's about someone raising legitimate concerns with respect the use of resources. To ensure that wrongdoing is brought to light, but before someone acts as a wrong doer you want to make sure that you follow the protections that are afforded to you under the appropriate legislation, be it federal public sector, provincial public sector.
I have mentioned the protection in the federal public legislation. In the provincial public legislation, thereís protection in many different provinces. Some stronger than others and I think it starts by Alberta protection and then goes to Saskatchewan. Thereís some in Manitoba, thereís some in New Brunswick and thereís also some in Ontario under the Public Service of Ontario Act; a legislation that came into force shortly after 2006 which pretty much follows the scope of what is found in the Public Servants Disclosure Protection Act .
It's always about someone acting in good faith, cooperating with an investigation or a disclosure of information so as to raise issues that are of concern to that particular individual generally about the use of resources within their organization. Really, that would be the extent of the public service disclosure that exists, or public service protection that exists.
WT - I was talking to several of my own sources and much to my amazement, when I brought up whistleblowing, they told me that in their view you could only 'whistle blow' if they reported this to a law enforcement agency, and then they brought up section 425.1 of the Canadian Criminal Code. I was wondering if you could speak to the difference between what youíre talking about and what theyíre talking about.
Champagne - Keep in mind that the legislation that I talked about is really about a process to carry out an investigation into a report of someone acting as a whistleblower and some protection for that person. The Criminal Code of Canada, also as you say contains a disposition with a view to dealing with whistleblowing, 425.1, and keep in mind that the purpose of the criminal code is really to punish behavior that is sort of outside of what is expected by our society. So, for example, you find all kinds of infractions in the criminal code and similarly when you are dealing with the 425.1 section, you're quite correct that in fact, it seeks to protect reports to law enforcement. So, again this is not about someone acting on their own disclosing all kinds of information. Keep in mind that in many positions that people hold within organizations, principally in the public sector there are documents that you sign when you commence employment that impose obligations on you as to what you can and can not do. So, the fact that there is legislation that allows for some extent of disclosure of information that may fit within the category of whistleblowing, you have to keep in mind your contractual obligations towards your employer, your duty of, fidelity towards your employer.
Getting back to section 425.1, what we find there is that that section creates an offense for individuals that threaten or retaliate, threaten to retaliate or retaliate against an employee who has made a report to law enforcement. So, you're correct, 425.1 is about protecting employees that have made reports to law enforcement. There are other sections of the provincial and federal legislation that deal with different types of protections for whistleblowers that donít sort of create an offence as the criminal code does.
WT - In Anderson versus IMTT Quebec Inc., the idea was, this person wanted to explain something that they had seen going on. They ended up exhausting all the internal whistleblowing mechanisms and because of that it ended up with the whistleblower having to report the conduct to the very same supervisor that they wanted to report. He talked a bit about exhausting all the internal sort of mechanisms here.
Champagne - So weíve dealt with the public sector protections for employees and as Iíve said it's really protection for people acting in good faith that have raised the flag, raised the alarm on concerns and generally speaking the courts and the legislation are really targeted towards individuals who have followed the proper process in ensuring that they have raised the concern. Itís about protecting them from retaliation or threats of retaliation. Its about protecting them in their position in their employment if they do become whistleblowers. So, an employee needs to follow the proper chain of command within their organization in order to raise the concerns that they have with respect to the subject matter of what would become a whistleblower.
Now, there are individuals that have positions within the federal government, within the provincial government that have a duty to investigate concerns, complaints. You either talk about the auditor general for example, the ombudsman, and so there are circumstances where reports can be made in good faith to the proper organization even within the federal public sector, the provincial public sector, before any attempts are made outside of that. Attempts outside of the structure of the organization and the broader public sector of concern raise all kinds of other issues as to whether there are protections for those individuals that take steps on their own, a little bit renegade steps, and so thereís concerns there. The protections in the private sector are even fewer than those in the public sector.
WT- If Iím at a private sector corporation and I have an issue where I feel whistleblowing is the right thing to do, is there protection for me under the Canadian labour code and then even further than that if Iím in the financial sector, is there protection under the competition act?
Champagen- The protection in the private sector would not be under the Canada Labour Code which deals with the broader federal public sector, but the private sector protections would be protections that you would find in the Labour Employment Standards legislation. There are some quite explicit in New Brunswick, thereís some in Saskatchewan. The protections in Ontario are not as generous as those found in Saskatchewan and New Brunswick, but there are dispositions that prevent reprisals. Not necessarily whistleblowing reprisals but there could be circumstances where those would be applicable.
So, you really want to make sure before you go ahead and become a classic whistleblower to make sure what the status of it is and the risks involved in taking those steps, especially if youíre in the private sector because the protections are few and far between. But the process would be the same. The protections are afforded to those individuals who followed the proper process, not really the whistleblowers that we hear a lot about in the media. Those that we hear about in the media are whistleblowers that are not following the proper investigatory process that exists within their structure under various pieces of legislation.
WT- Because I deal with a lot of environmentalists, Iíve been told in the last week that in fact, whistleblowers that would work for the province or the feds or even the environmental company, there seems to be at least an opinion that whistleblowing comes under the Environmental Protection Act. Can you speak to that specific act and whistleblowing?
Champagne - Iím not sure if I can speak to that specific Act but there are people that are in organizations where the organizations and those people working within those organizations have duties under the legislation to report problems. Letís take examples in the environmental sector, when we talk about dangerous spills, spills of liquids that are dangerous to the environment, to health, there are obligations to report those to the proper provincial, federal authority depending on the case. Those that have the duty to report and if anyone attempts to prevent them from doing so, taking the steps to meet their statutory obligations to report would not be necessarily known as whistleblowing. Although they have the feeling they are doing so because there are threats of reprisals, or reprisals being taken out against them, but they are really sort of ensuring that they meet their obligations. So, while Iím not speaking to the specific Environmental Protection Act legislation, because there are similar legislations in all jurisdictions, or almost all jurisdictions in Canada, there are obligations there that are very similar and that need to be respected. So, what Iím saying is, while you need to meet your statutory obligations on disclosing information that others in your organizations may not want disclosed it's still an obligation that you have, even though it may not be information that makes your organization look good so to speak.
WT- One of the more serious questions Iíve gotten from sources is the misunderstanding or the not sure of I guess, the strengths of their evidential proof. How strong does that have to be and how does a layman employee figure this out? How do they know they have enough evidence to prove it in court If thatís the case?
Champagne - Yeah, and it really is something that comes up in every court matter. In other words, not just in whistleblowing issues but in every court matter, there is always someone to affirm a fact and the opposing party likely wishes to disprove that fact. So, while oral evidence, evidence not backed up by paper, by pieces of documents or extracts from documents are admissible as evidence, it is a lot harder to prove cases based on oral statements. Oral contracts are valid but how do you prove what the terms of the contract are down the road a few years when the issue has arisen between the parties. One party will say that the terms of their contract are A, B, C, and the other party will likely deny that the terms of the contract include A, B, C. So, no matter what the case, whether it is a whistleblowing issue or not, youíre really looking to support with paper and when I speak of paper, Iím really talking about evidence that can be reproduced in different ways. An email is what I include in the category of paper; it's electronic but it exists in a way that it can be reproduced down the road. So, how do you know if youíve got enough to support what youíre saying and itís not going to fall back on you as being some type of renegade person trying to advance your own personal agenda? It's when you have paper to back up your allegations and to support the position that you are advancing or the statements that you are making.
WT- One of the things I get told on a daily basis is that, yes, I have proof of wrongdoing and if you use it, it will clearly lead back to only me who gave this to you. Can you talk about whistleblowing pertaining to the media and what people are not understanding there?
Champagne - Yeah, and so I guess itís a concern for whistleblowers that it will be obvious at some point that it all leads back to them and they become the person that has leaked the information to the media. So, that should be a concern because in the practical world there are consequences to taking such steps and especially in environments where the protections for employment are not as great in positions where people can be easily terminated or retaliated against. The concerns are very real. As a result of that and in order to sort of generate as much information as possible, some in the media have devised ways by which information can be submitted to them in what is sort of state of the art, anonymous fashion. So that exists.
The media also hold quite dearly the principle that their sources are anonymous and that they will not disclose their sources. Itís a question of trust, itís a question of whether the person that acts as a whistleblower or as a leaker will have the trust that their identity will be protected. Itís probably not a very comfortable position to be in that knowing that you may be the whistleblower and that you're dependent on someone in the media not disclosing who you are; by name, by description or even with the facts contained in an article either on a website, in a newspaper, in a radio show, in a tv show or any other types of medias. So, itís a concern. There are ways the protection exists of journalistic sources but at the same time youíd always want to process or proceed by way of something that maybe a little bit more secure than simply those protections.
WT- Weíre going to go into an area that we both should be careful both the questioner and the answerer. With Operation HONOUR and the Canadian military people coming forward with sexual harassment complaints, is that the same as a whistleblower?
Champagne - Well it all depends what your obligations are as part of your employment and the nature of the information that you are disclosing. If your disclosing information publicly that you have otherwise undertaken to keep secret, confidential, private you may be breaching some of your duty of fidelity towards your employer and other contractual documents that you may have entered into. So, thereís different categories of information. Information that deals with the manner in which you have been treated. In other words, how you have been treated, how damages, prejudices that you have suffered, by its nature, probably less secret, confidential, privileged than other types of information relating to more business-like information.
Certainly, the concerns would be the business-like information because these are usually the types of information that youíve undertaken to keep confidential, secret, so on. In terms of allegations against individuals, those should not be made lightly, but at the same time, if you have evidence, they should be directed to the proper authorities and the proper authorities have the obligations to investigate.
Where we see information being leaked to the media is usually when people do not have the impression that the concerns they have shared with the proper authorities has been dealt with appropriately. So, in circumstances where we have seen recently, allegations of sexual abuse within the military, they are mostly coming from individuals who feel that the allegations that they have brought forward have not been processed, treated, considered appropriately so that they have a belief that they have received some sense of justice for their complaints.
So, one way to deal with such allegations coming out publicly, is really to ensure that the internal processes that exist in any organization are really strong in terms of dealing with perceived, real wrongdoing, so that the person making the complaint has a belief that thereís been a fair process to deal with their complaint. If that happens, thereís still no guarantee that the information will not be leaked out externally but at least thereís less of a sense that a person will do so because they feel frustrated by not having been heard. So, a person leaking information about themselves is of less sensitive type of information and thatís what weíve been seeing.
WT- Youíve been in many court rooms, you know, lawyer for a long time. Whatís your overall advice to someone and Iíll take the media part out of it. Whatís your overall advice to a private sector, a public sector person who has information they want to 'whistle blow'. What would your sort of overall sort of advice be when this person got on your phone?
Champagne - I think the general advice that any body should consider before taking any steps, are what your legal obligations are. What have you in your position undertaken to do? Generally, the relationship between the employer and employee is one of fidelity and so you have the duty of fidelity towards your employer. Have you maintained that duty? Have you then taken the appropriate steps to bring the information forward to the appropriate person and have you followed the policies and procedures that exist within your organization to bring such information forward? Thatís the first thing that comes to mind. The second thing that comes to mind is about the legislation that may exist in your particular area, whether it's federal, public sector, provincial public sector or private sector and what protections exist for you to raise the alarm, raise the flag to share the information with the proper authorities. Information should be shared in the proper manner because usually thereís a mechanism by which outside parties may have access to that information if the information is shared with the appropriate parties. So that would be the advice that generally would be given to individuals who have such concerns.
WT- Do you think then just before I end the interview, do you think if someone is considering whistleblowing, showing evidence of this, would they not be far sort of smarter to talk to a lawyer first or do you think that going internally to their own people is really good advice?
Champagne - Going internally is fraught with danger because often the reaction may be that because of the steps taken, there may still be retaliation or threats of retaliation. So, before somebody raises the alarm whether internally or externally, they want to document what they have, quite well. That may be possible at an early stage. Prior to taking steps to report concerns internally or externally I think it would be prudent to get legal advice to see what type of protection they have and that they donít have. So that they know exactly what they are getting into and the risks they are taking in taking such steps.
WT- Pierre, Iíd like to thank you for doing this. What can I say, that was a great information.
PC- Thank you, my pleasure.
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