Whistleblower and lobbyist acts not arm's-length enough, critics suggest

The P.E.I. government passed two significant pieces of legislation last month that will bring the province in line with other jurisdictions across the country by offering legislated protection for government whistleblowers and establishing a lobbyist registry. 

While both opposition parties welcomed the bills, they also spent hours in debate trying, unsuccessfully, to amend them.

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What both the PCs and the Green Party were trying to do was put more distance between government and the administration of both the new lobbyist registry and the process for investigating reports of wrongdoing from government whistleblowers.

It turns out it's not just the opposition parties who feel there should be more arms-length between government and the accountability processes established in these new laws.

'Fatal flaw' in whistleblower law, advocate says

Duff Conacher is the co-founder of the group Democracy Watch, which advocates for government accountability. He also teaches law and political science at the University of Ottawa.

He said P.E.I.'s Public Interest Disclosure and Whistleblower Protection Act contains what he considers a "fatal flaw" which will discourage government whistleblowers from coming forward.

Under the act, when a civil servant files a complaint with the province's new public interest disclosure commissioner, the commissioner has the option to conduct their own investigation if necessary, or have the deputy minister of the department involved conduct an investigation.

"It's not a whistleblower protection act if there's any possibility that someone who files a complaint will have that complaint sent on to their boss. Then they're not protected," Conacher said.

"The investigation has to be done by someone who's independent from the boss of the person who's blown the whistle. Otherwise, the whole incentive for someone who heads up the department where there's been a disclosure of wrongdoing is to cover it up, and penalize and retaliate against the person who reported it if they can figure it out."

Like changing a company without using CEO, says premier

In his year-end interview with CBC News, Premier Wade MacLauchlan said there's no way to develop a whistleblower protection regime that's independent of government.

"It has to be part of government, it's the public service. And you have to engage the leadership of the public service, of the departments and the agencies, in order to have in place a regime that works," he said.

"It's like trying to say, 'I'm going to change a company, but I'm going to leave the CEO out of it.' You have to have leadership. That's why the deputies play the role they do."

Another expert says P.E.I.'s law as it now stands will have a "chilling effect" on potential whistleblowers.

Ian Stedman is a lawyer who worked in the Office of the Integrity Commissioner of Ontario. He's also one of the authors of the book Honest Politics Now, which looks at ethics in Canadian politics.

He said P.E.I.'s legislation may discourage whistleblowers because it doesn't specifically set out what information gets passed on from the commissioner to a deputy minister when a complaint is filed, nor who should be responsible for investigations under what circumstances.  

"The commissioner will have to create and publish policies about what information gets referred back to the deputy so that potential disclosers can trust that their identity will be protected throughout the process," he said.

Who should choose the new commissioner?

Both Stedman and Conacher agree with another objection raised by P.E.I.'s opposition parties — that cabinet shouldn't be responsible for deciding who becomes the province's public interest disclosure commissioner.

Under P.E.I.'s law, the appointment has to receive the support of two-thirds of the legislative assembly. According to government's jurisdictional scan, this is how similar appointments are handled in most provinces.

But Stedman calls this "an outdated process." He said, "If it's supposed to be an independent officer who serves the whole legislature, the progressive thinking would be that you have everyone, like an all-party committee put those names forward."

Conacher takes his recommendation a step further — saying P.E.I. should choose commissioners the way Ontario chooses judges, by letting cabinet pick from a merit-based list of names put forward by an independent commission.

In debate, the PCs introduced an amendment which would have given responsibility for selecting a commissioner to a committee of the legislature, but that amendment was defeated.

"Essentially what the government needs to understand, if you're going to have true accountability and independence, you have to take it away from cabinet and give it to the legislature," Progressive Conservative Leader James Aylward said, adding his party wanted to see the whistleblower legislation taken back for further revisions.

Lobbyist registry has 'fewer gaps' than previous bill

Meanwhile, it was the Green Party that introduced an amendment to the Lobbyists Registration Act to put control of P.E.I.'s new lobbyist registry in the hands of the province's conflict of interest commissioner.

That amendment was also defeated, meaning cabinet will name the person in charge of maintaining the registry. Bevan-Baker argued that almost every other jurisdiction in Canada has placed this control in the hands of an officer of the legislative assembly.

Regardless of who controls the registry, Conacher said just like every other province, P.E.I.'s legislation contains loopholes which will allow some lobbying to remain undisclosed.

An analysis by the law firm Fasken Martineau DuMoulin concluded P.E.I.'s current Lobbyists Registration Act contains "fewer gaps" than a previous draft — but contains gaps all the same, including one that allows cabinet to name certain classes of people who don't have to report their lobbying.

Conacher said Islanders shouldn't be fooled by the names government puts on pieces of legislation, saying the devil is in the details.

"[P.E.I.] doesn't have a 'lobbying registration law,' it has a 'some lobbying will be registered law.' And the whistleblower protection law is in a form that is in no way best practice and really won't protect whistleblowers so I don't expect to see many complaints go to the commissioner as a result."

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