The Public Protector chose the worst time of the year to release the best report there is on the whistleblower protection mechanism. While all the political and media attention goes to the negotiations in the public sector and the end of the parliamentary session under gag order, the protector Marc-André Dowd denounced the “culture of omerta” in the public service, figures at support. The opposition parties will have to take up these findings when they return from the holidays.
According to the results of a survey by the Public Protector, more than half (56%) of public sector employees are unaware of the existence of the law aimed at protecting whistleblowers, although it was passed in December 2016 under the government Couillard. Quebec was then recovering from the trauma of the Commission of Inquiry into the awarding and management of public contracts in the construction industry. The Charbonneau report made a whistleblower protection regime a flagship measure to ensure that cronyism, favoritism, collusion and corruption in the awarding of public contracts could be stemmed at the source.
Six years after the law came into force, the Québec Ombudsman noted that state employees have the impression of operating in an environment “hostile to whistleblowers.” They fear being “hunted, tracked and possibly punished” if they denounce errors in the sound management of public funds or even ill-advised political decisions in terms of public ethics.
Some recent episodes remind us that the hunt for whistleblowers is not an illusion. In 2021, The duty revealed in an investigation that an aide at the CHSLD in Saint-Laurent had been fired for denouncing the deplorable living conditions of residents. In 2022, two Baie-Comeau educators were suspended without pay for an alleged violation of confidentiality. Their employer did not hesitate to consult their emails without their knowledge, a practice which is not compatible with the spirit of the law, according to Me Dowd.
The most emblematic case of the hunt for whistleblowers remains that of the agronomist Louis Robert, dismissed in 2019 and subsequently reinstated in his position. He was at the origin of a leak which fueled an investigation by the Duty and Radio-Canada on private interference in scientific research. The main person responsible for the reprisals against Louis Robert was none other than the Minister of Agriculture, André Lamontagne. This one is still in place. This mark of confidence shown in him by the Prime Minister, François Legault, is indicative of the low interest this government places in whistleblowers. The fate reserved for Louis Robert is a powerful lesson of fear and paralysis for those who would be tempted to imitate him.
Real “canaries in the mine”, whistleblowers help inject a healthy dose of transparency into public bodies which succumb too easily to the temptation of opacity. Of course, they are not always motivated by noble intentions. Some denounce out of revenge, out of opportunism, or even out of opposition to political decisions which can border on insubordination. If public denunciation had to first pass a test of purity and angelism, there would simply be no more investigative journalism in Quebec. Without revealing the “secret of the sources”, we can affirm that most investigations need or start from the confidences of a whistleblower. Usually, the facts speak for themselves. Journalists are able to distinguish the shadow from the light in the confidences of whistleblowers. The same should be true within the state apparatus.
Hunting for sources is not just the prerogative of politicians. It is also practiced by civil servants who find themselves in an impossible position under the whistleblower protection regime. State employees who wish to report a problematic situation must contact the person responsible for monitoring disclosures (RSD). However, 85% of these RSDs occupy management functions. It is therefore not surprising that the breach of the duty of loyalty weighs so heavily in the processing of files. Even the Treasury Council recognized, in a 2020 notice, that this dual status of RSD and manager could call into question “the impartiality of the treatment” and “discourage internal disclosure”. This breach, known to the government, deserves to be corrected.
The Public Protector’s report is full of useful recommendations and warnings. In its current form, the law does not fulfill its promises and does not inspire confidence. This is a problem that parliamentarians should tackle in 2024, in a non-partisan and collaborative approach.