How the Law Abandons Those Who Speak Up in the Public Interest

On December 3, my new report titled Whistleblowers Not Protected: How the Law Abandons Those Who Speak Up in the Public Interest in Alberta was published by the Parkland Institute. The report looks at whistleblowing in a broad sense, meaning anyone who either publicly or anonymously discloses information that is in the public interest.

The report considers not only the gross deficiencies of Alberta’s whistleblower protection legislation but also looks at the need for both anti-SLAPP legislation, and a journalist shield law to protect confidential news sources.

The week before the report, a major controversy erupted in Alberta politics over the “leak” of audio recordings of the provincial COVID response team meetings which showed that politicians were not following the recommendations of medical experts including the chief medical officer. In response to criticism about the leak, I wrote an op-ed in the Edmonton Journal which highlighted the need for protection of the confidential journalist source.

The report, and op-ed, generated a minor buzz leading to two local radio interviews at 630 CHED  and CBC radio.

In this column I would like to briefly discuss three issues based on, or connected to, the report.

These Reforms Are a Sweet Spot for More Transparency in Government & Democratic Participation

My objective in writing this report was to find ways to ensure greater transparency, and to check various forms of corruption, in government. The access to information route, the obvious candidate, has so many intractable administrative and legal problems, I did not see this as a viable avenue of achievable, large-scale reform. Indeed, in researching this area, I quickly came to the conclusion that Canadian governments are both structurally and culturally extremely secretive.

The areas I have chosen are, in some ways, an end run around the problem. By protecting whistleblowers and confidential journalist sources, wrongdoing behind the scenes is brought to the public’s attention through the security of legal protection given to these individuals. Anti-SLAPP protection can also facilitate disclosures contrary to the public interest and, more than that, such legislation also encourages opinion and debate on matters of public interest.

Viewed in this light, whistleblowers serve an immensely important function as a check to ensure that what goes on behind the scenes is not against the public interest. A challenge has always been – and remains – that the public understands this special role of the whistleblower rather than vilifying these individuals as somehow disloyal, disaffected and/or partisan individuals.

I am not convinced, from a policy perspective, that an individual’s motivation in making a public interest disclosure should be relevant though both human nature and the scant legal protections in place suggest otherwise. Still the focus should be on the public service function of such disclosures.

I would venture to guess that most major scandals in government (and the private sector) are brought to light through whistleblowers, e.g. Tobaccogate in Alberta or SNC Lavalin at the federal level. Our Supreme Court, and our Parliament through federal legislation, has affirmed the positive role (and the need to protect) confidential sources as a means to bring wrongdoing to light.

While I do not advocate for complete transparency in government, I think it is quite clear that government is unnecessarily secretive I am skeptical that all hell will break loose if we overprotect whistleblowers. No legal regime anywhere gives a blank cheque to whistleblowers – there are always thresholds to be met. Journalists similarly do not report on anything and everything that is given to them – they must be concerned with veracity, reliability and newsworthiness. Most US states have had strong confidential journalist source protections of the kind advocated for in this report without unduly compromising needed confidentiality in government decision-making.

Many of the Reports Findings and Arguments Apply with Equal Force to Other Provinces

The report will be of interest to other provinces since the deficiencies highlighted are by no means unique to Alberta. Only two provinces have anti-SLAPP legislation (called protection of public participation laws in both Ontario and BC) and no province has yet enacted a journalist shield law though very strong ones are commonplace in the US.

This means that those who speak up against powerful interests in the public interest can be grinded into submission or destitution through abusive and costly court actions. Those who make public interest disclosures as a confidential journalist source are easily exposed by court order.

As for public sector whistleblower protection, I know that Albertan and Canadian legislation is among the worst in the world and my understanding of other provincial laws is they are not any better and likely suffer from the same or similar deficiencies.

The Report Was submitted to the Legislative Committee Reviewing Alberta’s Whistleblower Act

In my view, whistleblower legislation and its administration in Alberta is not designed to expose wrongdoing, much less to protect whistleblowers, but rather its goal is to internally manage and absorb dissent.

I submitted the report to the Resource Stewardship standing committee of the Alberta Legislature that is currently undertaking a review of the legislation. I look forward to making oral submissions to this committee. I have been in contact with Ryerson’s Center for Free Expression which also hopes to be called to deliver submissions before this committee. We both hope that the committee is serious about fixing this legislation.