Law Times

Page 6 June 23, 2014 • Law Times www.lawtimesnews.com COMMENT Whistleblowing rules Fix what's in place hile critics have long raised concerns about federal protections for government whistleblowers, a new Australian report this week compares how Canada fares on the issue against other G20 countries. Perhaps surprisingly, a snapshot in the report released by several organizations, including Transparency International Australia, gave this country relatively high marks for its whistleblowing efforts in the public sector following the enactment of the Public Servants Dis- closure Protection Act. Canada mostly scored top or decent marks with the notable exception of protections for anonymity. But as the report makes clear, there are many gaps. While the law may look fine on paper, implementation has been a challenge. Critics such as the Federal Accountability Initiative for Reform, of course, have noted several weaknesses with the public sector integrity com- missioner, including the lack of authority to order corrective actions or sanction wrongdoers. In addition, the federal auditor general re- cently found gross mismanagement in the commissioner's handling of two cases and a five-year review of the whistleblowing law is two years overdue, the Australian report noted. Most glaringly absent are laws protecting whistleblowers in the private sector. On that score, Canada has done almost nothing, ac- cording to the report. While the issues are different when it comes to transparency in the private versus the public sector, the report notes countries such as Britain and the United States have put in plenty of rules that apply to companies. And overall, the report notes a general Harper racks up another court defeat verybody remembers Prime Min- ister Stephen Harper's famous closed-door speech in Sault Ste. Marie, Ont., on Sept. 2, 2009, when he revealed to an audience of par- tisan Conservatives what he really thinks about judges. Harper was solemn: "I ask you for a moment to imagine how different things would be if the Liberals were still in power. . . . Imagine how many left-wing ideologues they would be putting in the courts. . . . I should say, how many more they would be putting in." His partisan audience laughed and applauded. Harper's remarks were consistent with the campaign he launched against the judiciary after he came to power. He also abolished the Court Challenges program as well as the Law Reform Commission of Canada. Harper has refused to attend annual anniversary celebrations for Canada's foremost legal document, the Charter of Rights and Freedoms. He probably thought of it as former prime minister Pierre Trudeau's Charter of Rights. No piece of paper would be telling Harper what to do. He has often lost his composure about the Supreme Court. He just doesn't like judges who don't think as he does. He isn't about to let them tell him what to do. But Harper is a big-time loser in court. Harper has lost six straight important cases at the Supreme Court. No Canadian prime minister has ever lost so badly and so repeatedly in the highest court of the land. It goes back to even before he became prime minister to 2001 when he was president of the National Citi- zens Coalition. Harper went to court to argue third parties, including big corporations, should be able to give political parties as much money as they wished during an election. The court said no because it wasn't fair. Harper was furious, but there was noth- ing he could do except get himself elected so he could appoint the judges he was sure would think his way. He kept on harping over the years about judicial activism and Liberal judg- es. But it was to no end. When he finally came to power in 2006, Harper thought he might finally start winning in court. But it didn't work out that way. The Supreme Court judges he ap- pointed kept making judg- ments based on the law rather than gratitude to Harper. By the fall of this year, Harp- er will have appointed almost all of the nine Supreme Court judges. With numbers like that, he certainly can't say the court is full of Liberal ideologues. But he keeps losing. There are many examples. Harper lost his case against safe-injection sites for drug addicts. He lost on his plan for Senate reform. He lost his on his appointment of Jus- tice Marc Nadon to the Supreme Court itself. He recently lost on the prostitution issue. But he was so furious that he intro- duced bill C-36, legislation that ignores what the Supreme Court said about the sex trade. Harper's latest judicial defeat came two Fridays ago over an Internet privacy issue. Harper said police don't need judicial warrants to force Internet service provid- ers to hand over customer information. The Supreme Court, of course found otherwise. The major reason Harper loses so many big court cases is his legislation keeps defying the Constitution. But we have a Charter of Rights and all of Harp- er's huffing and puffing won't make it go away. Harper was never a lawyer. He started out as a mailroom delivery boy at Imperi- al Oil in Calgary, a job his dad got for him, and he worked his way up from there, first as a gopher on Parliament Hill and then picked up an economics degree. He later made it as a junior politician and finally got right to the top. Today, he's prime minister but that doesn't mean every lawyer and judge should think as he does. Harper is still in trouble. There's an- other court challenge working its way through the judicial system. Harper wants to be able to remove Ca- nadian citizenship from people holding dual citizenship whom authorities sus- pect of involvement in terrorism or other serious criminal activity. But we have a Constitution. Once again, the co urt will tell Harper we have a Constitution and he must obey it even if he's the smartest person in the room. LT Richard Cleroux is a freelance reporter and columnist on Parliament Hill. His e-mail address is richardcleroux@rogers. com. ©2014 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written per- mission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. 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We all know the federal government hasn't been particularly keen on openness, but it can at least take some solace in the positive marks for Canada in the report. And when it comes to dealing with the issues identified, it should probably address the long-standing com- plaints about the public sector integrity commis- sioner befor e moving into new areas such as the private sector. For a government that came into of- fice promising a new era of accountability, it's time to show it meant what it promised. — Glenn Kauth W E The Hill Richard Cleroux

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