Law to protect P.E.I. whistleblowers still not in effect 2 years after legislation passed

Nearly two years after a bill was passed in the P.E.I. legislature to enshrine protections for government whistleblowers into law, the legislation still hasn't been enacted by government.

That means rather than a law to protect civil servants who want to come forward with reports of government wrongdoing, P.E.I. instead has a policy which the province's auditor general has said "falls short" of assuring government workers they can come forward "without fear of reprisal."

There's no point in having a piece of legislation on the books that is not in force.— Peter Bevan-Baker

Peter Bevan-Baker, as leader of the third party, criticized and tried unsuccessfully to amend the legislation when it was debated in the legislature in December 2017.

Now the Opposition leader, he said the law still needs to change, "but first of all we have to proclaim it. I mean there's no point in having a piece of legislation on the books that is not in force."

"Policies have no legislative statutory weight," Bevan-Baker said. "So although [the legislation] was not perfect by any stretch of the imagination it's definitely better than having a policy in place."

Allegations of wrongdoing

The Greens raise their concerns on the heels of a report from P.E.I.'s Ethics Commissioner Shauna Sullivan Curley in which she says she's received her first written allegations of government wrongdoing since the current policy to protect whistleblowers was put in place under the previous Liberal government in 2015.

In her report for the 2018-19 fiscal year, released publicly last Friday, Sullivan Curley said she received two written disclosures of wrongdoing, one of which came from someone who also alleged they had been subject to a reprisal in the workplace as a result of coming forward.

But in that case, the commissioner told CBC the report was filed by someone who works for one of a handful of arms-length government offices excluded from protection under the whistleblower policy, and thus were beyond the jurisdiction of the commissioner to investigate.

A second allegation of wrongdoing within government was unresolved as of Mar. 31, 2019. But Sullivan Curley said since then the employee involved "was satisfied that the concerns were dealt with to their satisfaction" within their department and withdrew their disclosure without requiring the commissioner to investigate.

As to the nature of the wrongdoing disclosed in the allegations, there is no information in the commissioner's report. Sullivan Curley said her next report will contain some further information on the second allegation, but won't include details on the allegation itself or even which department of government was involved.

She said that's partly because she did not conduct an investigation, but more from the need to protect the privacy of the whistleblower.

"What I will be careful not to do is to do anything that would identify the employee or the circumstances which gave rise to [the allegation]," Sullivan Curley said, calling that "one of the cardinal rules" of whistleblower protection.

Looking for better balance

But Bevan-Baker noted some jurisdictions including Ottawa do provide details of whistleblower complaints.

He said he thinks there's a better balance to be struck "so that both the employees … who bring forward these complaints on behalf of Islanders are appropriately protected and also the general public can get as much information as they can to make sure that government is indeed operating with the highest levels of ethics, of accountability, of openness."

P.E.I.'s current whistleblower policy defines "government wrongdoing" to include:

• Violations of provincial or federal law.

• "Gross mismanagement" of government funds or public assets.

• An act or a failure to take action in such a way that creates a "substantial and specific danger" to people or the environment.

• Any direction or counsel to do any of the above.

Sullivan Curley said because she did not investigate she could not confirm whether any wrongdoing actually took place.

'Policy falls short'

In 2016, P.E.I.'s auditor general Jane MacAdam concluded the protection provided through the province's whistleblower policy does not go far enough.

"In our view, the policy falls short in providing the kind of environment that would ensure that employees of government could disclose wrongdoing without fear or reprisal," the auditor general wrote in her report investigating the province's e-gaming affair.

A government spokesperson told CBC News the current government under Dennis King "fully intends to proclaim the whistleblower legislation."

However, they said government is considering how that legislation would work within the context of government's commitment to create a position for an ombudsman for P.E.I., and offered no timeline as to when the whistleblower legislation might be enacted.

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