Scholar advocates strengthening whistleblower protections to combat corruption.
Last fall, a whistleblower accused President Donald J. Trump of committing bribery. In response, the President suggested that the whistleblower might be guilty of treason—a crime technically punishable by death in the United States.
To date, the identity of the whistleblower has not been publicly confirmed—despite revelations of the alleged whistleblower’s name in a variety of forums. But a whistleblower in Canada might be even less fortunate. Although Canada ranks highly on anti-corruption metrics, its whistleblower laws leave much to be desired, argues Siavash Vatanchi, the author of a recent law journal article. Vatanchi, a recent law graduate of Western University, urges Canadian lawmakers to improve existing protections and to extend those protections to private sector employees.
He argues that Canada could improve its laws by creating a nationwide regulation that protects public and private sector employees equally. He recommends that the government adopt a reverse burden of proof provision that would make it easier for whistleblowers to protect themselves through harassment and retaliation lawsuits. He also suggests that the use of financial incentives for private-sector whistleblowers could encourage people to come forward who would not otherwise do so.
Vatanchi argues that the need for these proposed reforms is revealed in the flaws in current law.
For example, Canada’s criminal code provides that employers could face criminal sanctions if they retaliate against employees who report illegal activity to law enforcement officers. But Vatanchi argues that this code does little to protect whistleblowers because courts have made the process of obtaining protection under it burdensome.
Canadian courts have required private-sector whistleblowers first to exhaust all internal whistleblowing mechanisms before going public. If the company refuses to act, the employee may then go public with the information. The issue Vatanchi has with this requirement is that the criminal code only protects whistleblowers who are retaliated against after reporting to law enforcement officials. Thus, private-sector employees may be legally terminated by going through the steps required to receive the only protection available to them.
On the other hand, public-sector employees are protected from retaliation from the moment they bring attention to people “up the ladder.” This disparity leads Vatanchi to conclude that Canada needs a uniform system protecting private-sector and public-sector employees equally. In addition, he argues that a uniform standard would encourage more people in both sectors with valuable information to come forward as it would be clearer when legal protections apply.
In addition, Vatanchi suggests that the government adopt a reverse burden of proof provision in the law that would ensure that the protections for potential whistleblowers are legitimate. He argues that it would be easier for employees to bring and succeed on retaliation claims if employers bore the burden of showing that they did not retaliate. Thus, he suggests that such a provision would make employees feel confident enough in their security to come forward with information.
Vatanchi argues that, after providing adequate protections to both public and private-sector employees, the Canadian government should go a step further and actually provide positive incentives for whistleblowers to come forward.
He explains that in the private sector, the people who may have the most valuable knowledge are often those who have the most to lose. High-paid executives and board members might not see the benefit of coming forward as worth the cost of their high salaries. Although they would be legally protected from retaliation, whistleblowing opens these individuals up to reputational attacks and potential blackballing, Vatanchi explains.
Vatanchi recommends that the government supplies financial incentives that would provide private-sector employees with enough of a cushion to feel comfortable coming forward. He suggests that the government could give whistleblowers a portion of the fines levied against companies to make up for the cost of coming forward. In addition, he suggests that a system could be set up that would help whistleblowers with legal fees to ensure they can protect themselves against retaliation when necessary.
But Vatanchi recognizes the potential for abuse in such a system. He advocates requirements of a minimum penalty to be levied by the government before any rewards are paid out as a means to deter petty or insignificant complaints.
Vatanchi hopes that Canada will continue to be a leader in anti-corruption. He argues that Canada’s commitment to combatting corruption will be enhanced by adopting the proposed changes to whistleblower law. In addition to protecting the public interest by encouraging more individuals to expose corruption, new whistleblower laws could also result in better corporate governance, Vatanchi argues. In turn, the laws could make it so that corrupt activities never happen in the first place.
