Last October, swarthy Joe Rogan interviewed scrawny Edward Snowden about mass surveillance, patriotism, and extraterrestrial life. Eleven million people have tuned in since. Snowden, who copied and leaked over a million highly classified files from US military and intelligence agencies, shares the stage with Chelsea Manning, and the currently unnamed individuals behind the Panama Papers and the Trump-Ukraine scandal, as the most famous whistleblowers in recent history. Yet a search for their Canadian counterparts turns up no one comparable.
Are Canadians naturally tight-lipped? Does our comparative global insignificance result in a lack of whistles to blow? Or do legislative and policy gaps leave potential whistleblowers feeling indisposed? We sat down with international fraud and corruption investigator Sandy Boucher to try and find out.
Boucher, whose long I’s and dropped O’s hint at his Sheffield upbringing, began his career as a police officer in Hong Kong, tackling organized crime syndicates transporting heroin to Western markets. But my attempts at eliciting war stories from his past were in vain. Boucher is resolutely focussed on one thing: whistleblowers. “Whistleblowers of one kind or another are pretty much always the best type of information—whether we’ve got an informer inside a criminal syndicate or someone inside a large organization that’s seen something wrong, the concept is the same,” says Boucher.
Examples abound. Throughout our interview, Boucher mentioned a multitude of cases where whistleblowers were tragically neglected, one of the most salient being the flawed Boeing 737s that dominated headlines last year. “Twelve different whistleblowers from within Boeing reported those issues to the FAA,” Boucher noted. But instead of speedy corrective action, the results were disastrous: “300 and something lives lost, two airplanes crashed, families devastated, the whole fleet grounded.” But Boeing was not an isolated case.
“There was another case where a nuclear power station was being built and a critical flaw in the infrastructure could’ve caused a disaster. Volkswagen and their emissions-cheating. Walkerton, rail disasters, transportation, policing, hospitals…” The tragic list continued.
But far from lauding those among us who try to prevent disasters, it is almost certain that punishment follows whistleblowing. “Something like 80% of people who blow the whistle probably suffer some form of negative consequences,” says Boucher.
Consider Joanna Gualtieri, who blew the whistle on millions of dollars in wasted funds and unused villas by Foreign Affairs diplomats. She was “hounded” by her civil service superiors into taking unpaid medical leave, and only recently settled a 20-year lawsuit. Brian MacAdam was offered red envelopes full of cash at a Hong Kong racetrack, but refused to be bribed into silence. He blew the whistle on Chinese Triad members obtaining fraudulent visas to Canada, lost his job, and sank into severe clinical depression for over two decades. Roderick MacIsaac was falsely accused of leaking Health Ministry data while working as a PhD student in British Columbia. He committed suicide after losing his job, but before the RCMP completely exonerated him.
Joanna Gualtieri. Brian MacAdam. Roderick MacIsaac. These are Canadians who have suffered horribly as a result of whistleblower retaliation.
How can things change? The current array of legislative tools leaves something to be desired. Boucher could only laugh at the current Criminal Code provision protecting whistleblowers. “It’s absolutely useless,” he said, interchangeably referring to s. 425.1 as “the Titanic of whistleblowing laws,” the “Mount Everest of whistleblowing laws,” and “a tissue paper shield” for protection.
Regarding the Office of the Public Sector Integrity Commissioner, whose explicit mandate involves protecting whistleblowers from reprisal, Boucher is equally dismissive: “The first leader of the Commission was ousted from her job because of whistleblower complaints about bullying and that organization has never recovered.”
Beyond legislation and governance, another potential solution is further promotion of whistleblowers across public and private sectors. But in a complex world, how and when can potential whistleblowers feel certain in their perception of ‘right’ from ‘wrong’? Where does bribery begin and local custom end? When can company rules be safely dismissed as ethically unsound?
Boucher was skeptical of any sense of relativism. “The reality is that all of us know right from wrong. There can be very complex situations, but at the end of the day most of us will have a pretty good feeling as to whether or not that’s okay or not okay.”
By way of example, Boucher described a recent investigation he had followed. A whistleblower in Britain anonymously informed the family of a recently deceased woman that multiple mistakes made in her care were ultimately responsible for her death. The hospital where the woman resided had seen ten different whistleblowers report to the authorities that there were problems of bullying and harassment in patient care. But instead of addressing the root cause of the problem, the hospital used their resources to try and get employees’ fingerprints so they could identify the whistleblower who told the family. The case is ongoing.
But as a thought experiment, it seems to miss the point. Everyone can intuitively grasp that it’s wrong for an employer to demand fingerprints from its employees in an effort to identify the person who exposed negligence and incompetence that resulted in the death of a human being. There’s too little of the ambiguity and uncertainty that real-life situations so often exhibit.
Boucher was aware of this fact. Concerning Edward Snowden, whose critics say he endangered the lives of American intelligence officers working undercover overseas, Boucher noted, “There [are] all sorts of issues about what he did and the way he did it that can be seen legitimately in a negative light.”
So Boucher avoids cases like Snowden’s, explaining, “I want to use much simpler cases where it’s fully cut and dried. They are important and they bring the issue of whistleblowing to the front but they’re also very nuanced and there’s all sorts of ways of looking at it so they can muddy the waters a lot.”
In trying to raise consciousness about the importance of whistleblowers and the reality of retaliation against them, this position makes perfect sense. But for individuals navigating the everyday workplaces and institutions where wrongdoing can occur, Boucher’s final word is to stand up for what you believe is right. “More often than not whistleblowing ends up being a story about speaking truth to power. And power knows how to shoot the messenger,” he cautioned.
But, warning aside, Boucher was sure to note that the smallest things can have great results. “You know what the case was in Ireland that drove change in government? It was about senior police officers fixing speeding tickets for their mates. It’s not National Security, it’s not transportation disasters, it’s not health problems.” Ireland now has some of the strongest whistleblower protections in place globally, based on “a really good definition of what a whistleblower is,” some “really good definitions of what you can blow the whistle about,” and “a really good definition of when you start getting protected.”
Boucher leaves us with a challenge. If any Osgoode student or professor can find a case where the Canadian Criminal Code s. 425.1 was used by a whistleblower to prevent retaliation, he will buy that person a beer. “They can come right here and claim anytime, all right?” Interested parties can find Boucher at his downtown office near St. Andrew Station. Maybe bring a whistle, just in case.
I talked to Sandy Boucher with fellow 1L Jacob Braun, who made our conversation into an episode of the Osgoode ProBono podcast – check it out on Spotify by searching “pro bono podcast”