Following the publication of the report of the Charbonneau Commission which dealt with corruption and collusion in the awarding of public sector contracts in the construction industry, the Liberal government introduced legislation to facilitate the disclosure of wrongful conduct within the public sector and establish measures to protect whistleblowers from reprisals. The legislation was introduced in December. Bill 87 is known as the Act to enable the disclosure of reprehensible acts in the public sector.
The evidence tendered before the Commission revealed that a fair number of individuals including employees of the public sector were aware of or suspected that corrupt practices existed or that contractors were in collusion to get public contracts. Nevertheless, because there was little or no incentive for a whistleblower to come forward and no real and comprehensive legislative framework to protect whistleblowers from reprisals, including loss of employment or future lack of advancement, very few people came forward. A private bill (Bill 196) had been introduced by an opposition member of the National Assembly in 2009 but as the government was against setting up any Commission of Inquiry at the time, the Bill was never adopted.
The precious few who had the courage to come forward did so anonymously and with disguised voices and their faces hidden when appearing on Radio-Canada’s famous investigative television show Enquête which is credited with turning public opinion around and forcing the government to set up the Commission after years of dithering. Those who chose to come forward publicly were often the victims of threats and intimidation. Finally, those who spoke before the Commission did so because they were, in most cases, promised immunity from prosecution. The Commission therefore recommended that whistleblowers be encouraged to divulge inappropriate or corrupt practices and that they be protected from reprisals.
The law is quite technical. Firstly, it defines public bodies, boards or commissions to include all government departments but it also extends to public bodies such as Hydro-Quebec and the Caisse de dépôt et Placement, school boards, Universities, Colleges and most establishments operating in the public health sector. Secondly, a reprehensible act encompasses any violation of a provincial or federal statute, a serious breach of the rules of ethics, egregious management practices, abuse of governmental funds or resources, endangering the health or safety of a person or the environment or ordering someone to commit a breach of same.
The Act incorporates one existing principle behind whistleblowing. Namely, the disclosure is not intended to serve or to advance the resolution of a personal dispute concerning conditions of employment or to challenge existing policies of the government. The whistleblower must be acting in the public interest and not his own personal interest. The existing principle of escalation within the existing hierarchy is no longer the rule as the whistleblower may now make a disclosure directly to the Protecteur du Citoyen (Ombudsman). The whistleblower may also disclose to the individual designated by the public body to receive disclosures of reprehensible acts. Also, and this is quite new, the whistleblower may make a disclosure to the public (presumably this includes the media) if he believes that the health or safety of a person is in danger provided the disclosure is made beforehand to the police or the Commissioner entrusted with fighting corruption.
The Act provides a rather complicated mechanism whereby the contents of the disclosure is investigated by the Ombudsman’s office or the officer responsible for handling such disclosures within the public body.
Prior to the adoption of this legislation, there were few rules dealing with whistleblowing in Quebec. Firstly, article 425.1 of the Criminal Code enacted in 2004 (in the wake of the Sponsorship scandal) makes it a crime to threaten an employee with reprisals or to exercise such reprisals (including termination of employment) in order to compel the employee from abstaining to provide information to a person whose duties include the enforcement of a federal or provincial law. Secondly, the Civil Code of Quebec provided at article 1472 that an employee did not breach his duty of confidentiality and did not incur civil liability if he disclosed a trade secret in order to prevent serious harm and injury and if the disclosure was considered to be in the public interest. There is little or no reported case law on these sections. The truth of the matter was there was no statutory recourse enabling a whistleblower to file a complaint or seek redress and/or compensation for reprisals suffered as a result of the disclosure.
Bill 87 fills this legislative void insofar as public sector employees are concerned. The Act clearly states that reprisals not only include a suspension or termination but any disciplinary or administrative measure adversely impacting conditions of employment. Reprisals may occur with the intent to prevent a disclosure or to punish an existing disclosure. Accordingly, the Labour Standards Act is amended so that an employee of the public sector may file a complaint before the Labour Standards Commission (now known as the CNESS) to challenge the imposition of reprisals. If the complaint is not settled, it will be heard by the new Tribunal administratif du travail who may even order the reinstatement of the employee with compensation for lost wages.
In our opinion, it remains to be seen whether this law will have any real effect and lead to disclosures of further collusion or corrupt practices. As far back as the American Civil War, President Lincoln whose Northern Army was being abused by unscrupulous suppliers (some of them selling sick mules used to carry ammunition) had the foresight to enact the False Claims Act which is still in force more than 150 years later and is still being used. It permitted any citizen who was aware of an abuse of government contracts or funds to file an action on his own volition and if successful, claim 15% of the amount awarded to the government. The Quebec legislation contains no such incentive which is strange since the federal government does award some amounts to citizens who disclose incidents of tax evasion. Such an incentive would have shown the government was serious in its desire to curtail corruption and collusion and not simply create a new class of bureaucrats.
The other glaring omission in the legislation is obvious. Why only protect employees of the public sector when most governmental suppliers and their employees are in the private sector? Before the Charbonneau Commission, many of these private contractors and their employees admitted that there was systematic collusion in the awarding of construction contracts in the public sector. Given this, it is difficult to understand why the law does not apply to all employees of the public sector and any employee of the private sector dealing with the government.