At the time this article was
written Inger Hansen was the information Commissioner of Canada
A whistleblower is a person who
speaks out in order to expose public or private sector improprieties or
negligence. The sanctioning of whistleblowing by governmental agencies raises
some interesting questions for individuals charged with upholding civil rights
in Canada. This article is based on a presentation to the Conference of
Canadian Ombudsmen in Quebec City.
A few explanations about my work
may be in order. The Information Commissioner's mandate is established under
the federal Access to Information Act. The Commissioner is appointed by
Parliament and has the same powers of investigation as provincial ombudsmen.
Complaints may be presented by anyone who has used the Act or their
representative. Complaints may also be initiated by the Commissioner. The
complaints must be against the federal government and concern failure to comply
with the Access to Information Act.
A number of provinces also have
freedom of information or access to information and privacy laws and in the
provinces of New Brunswick, Newfoundland, and Manitoba, the provincial
ombudsmen's mandate include access to information complaints. The provinces of
Quebec and Ontario have established decision-making and advisory commissions to
deal with such complaints and their ombudsmen are not directly involved in
freedom of information issues.
The federal office has not yet has
occasion to use any of the provisions of the Canadian Charter of Rights and
Freedoms in support of a complainant under the Canadian Access to
Information Act. However, that fact has not prevented me from giving
considerable thought to the issues involved and I am convinced that charter rights
are relevant to the work of all Canadian ombudsmen.
While the principles that I hope to
establish may have general application, my presentation will focus on freedom
of expression, which is defined in paragraph 2(b) of the federal Charter of
Rights and Freedoms as:
"freedom of thought, belief,
opinion, and expression including freedom of the press and other media"
At the same time, though, in a
democratic society, rights and freedoms are not absolute; they are often
qualified or limited in order to protect the rights of others or in light of
other constitutional values. An example is the qualification on free speech in
laws on libel or slander or the prohibition of hate propaganda. Section 1 of
the Charter thus guarantees the rights set out in the Charter, subject to such
limitations as are shown to be justified in a free and democratic society. Any
limitation of a guaranteed right must be established by a rule of law. The
limitation cannot restrict the right more than is required to achieve a desirable
social purpose and those who rely on the limitation must prove it is
justifiable in a free and democratic society.
Fundamental rights and freedoms may
be subject to "such reasonable limits prescribed by law as can be
demonstrably justified in a free and democratic society."
My concern is with an old problem
which has in recent time been given a new name in the English language. I am
talking about whistleblowing. A whistleblower is a person who speaks out in
order to expose public or private sector improprieties or negligence. The term
whistleblower has already found its way into the Civil Service Reform Act
of the United States and here in Canada, the federal Auditor General has recently
suggested the establishment of a fraud hotline so that public servants may
anonymously report misuse of government funds. Proposals have also been made in
the House of Commons, for example after the Hinton railway disaster, for
legislation to protect persons who in good faith expose threats to public
health and safety.
There exist at least two problems
in this area: on the one hand, the motives of the whistleblower may be suspect
and on the other, even if the information is genuine, the informer may still
suffer adverse consequences if he or she goes public. In some instances going
public may be against the law.
Some ombudsmen's offices have
encountered persons who feared reprisals as a consequence of making a
complaint. Such a situation may be handled by the ombudsman initiating the
complaint on his or her own initiative or by causing an investigation based on
the systemic approach. Occasionally, there may be sufficient evidence to
warrant an allegation of obstruction of the ombudsman.
We all know that it takes a very
strong person to risk his or her career as a public servant by going on the
public record as an accuser of his superiors or her political masters. The
decision to whistleblow is not taken lightly by thoughtful people.
Public servants are supposed to be
loyal to their employer. They are not supposed to "be political" and
they face more restrictions on their freedom of speech than other members of
Until recently, it was generally
believed that public servants were not permitted to engage in work for
political candidates. The authority was found in the Public Service
Employment Act which provides that:
"32.(1) No deputy head and,
except as authorized under this section, no employee, shall
(a) engage in work for, on behalf
of or against a candidate for election as a member of the House of Commons, a
member of the legislature of a province or a member of the Council of the Yukon
Territory or the Northwest Territories, or engage in work for, on behalf of or
against a political party …"
This provision was challenged under
the federal Charter by some public servants, none of whom were deputy
ministers. In that case, the Federal Court of Appeal found that the words were
vague, ambiguous, uncertain or subject to discretionary determination and thus
unreasonable. Paragraph 32(1)(a), the Court concluded, is of no force and
An amendment to the Public
Service Employment Act may, of course, be proposed before the next election
and I should emphasize that the court made it clear in other parts of the
decision that the ruling on paragraph 32(1)(a) did not alter the principle that
the public service must be politically neutral. The important principle for our
purposes is that the Court stated that limits on Charter rights must be expressed
in definitive terms.
Other limitations on freedom of
speech which affect public servants are to be found in the Official Secrets
Act which we inherited from England. Let me quickly summarize just one
It is an offence to communicate,
use, retain or fail to take care of anything that relates to or is used in a
prohibited place (this could be a defence establishment) or that has been
entrusted in confidence to that person by anyone who holds office under Her
Majesty, or that the person obtained while in some capacity that enabled him or
her to gain access to it while subject to the Code of Service Discipline within
the meaning of the National Defence Act.
The essence of the offence is to
communicate something without authority to the prejudice of the safety or
interests of the State, meaning Canada.
At the same time, there have been
moves on the part of government to provide more open government, the Access
to Information Act being one of the most important in recent times. The new
Communications Policy, issued by Treasury Board in 1988, also directs public
servants that "good communications is fundamental to the achievement of
government objectives" and that the government must:
1. provide information to the
public about its policies, programs and services that is accurate, complete,
objective, timely, relevant and understandable;
2. take into account the concerns
and views of the public in establishing priorities, developing policies and
implementing programs; and
3. ensure that the government is
visible and answerable to the public that it serves.
Under the Access to Information
Act itself, the administration encourages public servants to release
information informally with reference to subsection 2(2) of the Act which
"(2) This Act is intended to
complement and not replace existing procedures for access to government
information and is not intended to limit in any way access to the type of
government information that is normally available to the general public."
When acting in good faith, public
servants are protected from civil and criminal liability if they release
information under the Access to Information Act and if they act with
"due authority" they would not be in violation of the oath of office
The problem is that many public
servants do not appear to know when they are authorized and when they are not.
Many consider the provisions and policies I have referred to ambiguous, vague
It does not take much imagination
to think of what can go wrong. Subtle sanctions may be applied to discourage
future whistleblowing, the extent of the public servant's authority to disclose
some information may be misinterpreted. Careers of both provincial and federal
public servants can easily be put at risk in this new age of more open
But you may ask, who lends support
to the public servant who discovers unsafe situations for which the government
is responsible? Who stands by the person who discovers improprieties of other
civil servants? Who counsels the public servant who becomes aware of evidence
of criminal acts or abuse of power on the part of his or her bosses? Who comes
to the defence of the individual whose integrity and conscience will not
tolerate the luxury of silence? Sometimes no one.
Is the right to freedom of
expression in the charters important here? Do ombudsmen have a role to play?
If the state seeks to impose
criminal sanctions as a legitimate restraint on the ability of individual
freedom of expression, lawyers, not ombudsmen, will become involved. If an
individual who has been eased out for speaking up, pursues redress through a
grievance process or civil action for wrongful dismissal, the ombudsman may
simply watch the proceedings with interest. Other avenues than the ombudsman
may also be available to redress official languages complaints and human rights
violations based on discrimination.
But what about the residue of
administrative actions that may be taken to silence potential whistleblowers?
What about the whistleblowers who have not necessarily had their day in court
or before a tribunal? They too may be harassed or overlooked for promotions.
Can the right to freedom of expression be invoked to argue their cause? Is the
ombudsman able to do that? Is or should the ombudsman be able to intervene if
the state unfairly silences whistleblowers?
Should a new expanded role be
created for ombudsmen to assist the so-called whistleblower? Should laws that
create ombudsmen contain provisions permitting a potential whistleblower to confide
in the ombudsman without fear of sanctions? Should it be possible for an
ombudsman to determine the public interest in disclosure of the information
received from the whistleblower?
Let's examine some action taken or
advocated to try to solve the whistleblower's dilemma. In Sweden, public
servants may draw government wrongdoing to the attention of the media. The
media, to the best of my knowledge, are prohibited from publishing the identity
of the informer.
The Whistleblower Protection Act
of 1989 provides protection at the federal level in the United States for those
who disclose government "illegality, waste and corruption" and the
Office of Special Counsel is charged with protecting whistleblowers against
prohibited personnel practices. Some states have similar legislation. The
Canadian Auditor General has spoken of the idea of a fraud hotline which he
says already exists in the United States and saves their government $20 to $50
for every dollar spent running toll-free telephone lines and checking the
An interesting example of a
statutory role as informer has been given to the Information Commissioner in
the Canadian Access to Information Act. The Commissioner is expressly
authorized to disclose to the Attorney General of Canada information relating
to the commission of an offence against any law of Canada or a province on the
part of any officer or employee of a government institution if in the
Commissioner's opinion there is evidence of such activities.
There is, as we all know, no
federal ombudsman, but I think that is irrelevant to the recommendation that is
inherent in my presentation. If there were one, my suggestions would cover the
mandate of such an office as well.
I think that Canadian ombudsmen are
ideally suited to sort out the whistleblowers' dilemma. They are independent of
government, they have the experience and resources to separate the
megalomaniacs from those who in good faith bring forward plausible evidence of
government wrongdoing. Ombudsmen are used to act as intermediaries in the
interest of a greater social good. Ombudsmen have the knowledge and experience
that would enable them to dissuade informers who are imagining things or are
mistaken about the facts or the law.
By interpreting their mandates
liberally and acting informally, ombudsmen probably do some of what I have
spoken about. But I suggest that they should have an express statutory mandate
enabling them to hear the whistleblower, to protect his or her identity when
appropriate and to make public or otherwise communicate the information
received from the whistleblower to any level in government, including the
legislature that appointed the ombudsman. The ombudsmen should also be
authorized to investigate complaints of sanctions or harassment against the
whistleblower where there are no other reasonable avenues available for