The Courts – Ideology, Duty of Loyalty, and Impartiality
There are three areas touching on the courts that point to a need for more research and a better understanding of the implications for whistleblowers, whistleblowing and Canadian society. These are legal ideology (sets of basic beliefs or ideas), duty of loyalty and impartiality.
An example of legal ideology apparently held by members of Canada’s criminal justice system has been raised in the debate over the failure of criminal law in Canada in reigning in corporate crime. The argument contends that a juridic idea has developed which maintains there is a difference between “true crimes” and regulatory or public welfare offences with the latter being less serious or important than the former. These “less important” offences relate to such everyday matters as traffic infractions, sales of impure food, violations of liquor laws and the like. These every day offences are the ones that cause more severe risks to life, health, safety or the environment than many offenses found in the Criminal Code. Further, the distinction between the two offenses creates a legal double standard where enforcement of regulatory offences is continually subordinated to the enforcement of conventional Criminal Code offenses by the police, crown prosecutors and the judiciary. (Source: Sargent, Neil C. “Law, Ideology and Social Change: An Analysis of The Role of Law in the Construction of Corporate Crime”. The Journal of Human Justice. Spring 1990).
Another example of legal ideology or belief is in a ruling of the Ontario Appeal Court Judges to disallow a class-action law suit against Health Canada relating to the Meme breast implant (which damaged thousands) and reinforcing the above argument. The decision concluded that regulatory bodies should not be held liable in negligence as it could lead to decreased vigilance by the regulated entity. The Judges determined that diminished deterrence for a regulated industry is to be avoided particularly when it is the industry, and not the regulator, that holds critical knowledge regarding product safety. The decision is based on an incorrect belief. Health Canada Regulators have the same information about a product or drug as the manufacturer. Manufacturers are required by law to give all the information they have about a product, its efficacy and safety to the regulator both before marketing approval and afterwards when/if new information emerges (Food & Drugs Act & Regulations). In effect, this ruling confers immunity on the Regulators if they are less than vigilant or negligent.
Duty of Loyalty.
Legal precedent seemingly encouraging public exposure of wrongdoing was established in Canada in 1985 in the Supreme Court decision in Fraser v. Public Service Staff Relations Board (PSSRB),  2 S.C.R. 455 . This was deemed acceptable if the Government were engaged in illegal acts, or if its policies jeopardized the life, health or safety of the public servant or others. A Treasury Board of Canada review of the outcome in court cases since indicates the application of the precedent by the courts is inconsistent and a “maturing concept”.
Others have gone further, asserting that Canadian courts have done little to protect whistleblowers. In “The Neglected State of Whistleblowing Laws in Canada” Hoque discusses the case of Fraser v. P.S.S.R.B. 1985.
The Supreme Court observed that "the public interest in both the actual and apparent impartiality of the public service dictates a general requirement of loyalty on the part of the public servant to the Government of Canada, as opposed to the political party in power." Hoque asserts that through this decision the SCC endorsed a view that the interest in the actual and apparent impartiality of the public service justified an increased duty of loyalty on the part of public servants.
This author further points out, the Federal Court of Appeal, in Anderson v IMTT-Quebec Inc. 2013, emphasized that in order for employees to uphold their duty of loyalty and fidelity to the employer, they must exhaust all internal whistleblowing mechanisms before going public. Practically speaking, most employees would be unwilling to report their employer's misconduct to their immediate superior, thus, the actual quality of this protection as interpreted by the courts is questionable.
The above suggests it may be time to revisit the duty of loyalty in the workplace. It is particularly troublesome when the wrongdoing is top down. More voices are arguing that whistle blowing is compatible with employee loyalty and that the very existence of protective legislation reinforces the idea that whistleblowing should not be regarded as disloyal behaviour. (Source: Lewis, David. “Whistleblowing in a Changing Legal Climate: Is it time to revisit our approach to trust and loyalty at the workplace”. Business Ethics: A European Review. Vol. 20. 2011).
In fact, whistleblowers have been shown in many cases to be those who are most loyal to the missions and mandates of their organizations. (Source: Glazer and Glazer. The Whistleblowers. Exposing Corruption in Government and Industry. 1989).
The role of the Judge in Canadian courts is to interpret the law, assess the evidence presented, and control how hearings and trials unfold. “Most important of all, judges are impartial decision-makers in the pursuit of justice” (Source: Canadian Superior Court Judges Association).
Whistleblowers in Canada do not always fare well in the courts. There is some evidence in Canadian whistleblower cases that are in line with findings by researchers in other jurisdictions regarding the treatment of whistleblowers by the courts. In the UK, cases lead to suggestions that under present [whistle-blower protection] legislation as applied by UK courts, “the defense of employers trumps the public-interest matters about which whistle-blowers express concerns” (Source: Ramage, Roderick and Sally Ramage. “Book Review: Whistleblowing Law and Practice”. The Criminal Lawyer. UK. 2013).
In the US, a study done of state court whistle-blower cases similarly suggests “[. . .] that courts are denying claims based on employer-favorable legal standards as well as by considering the evidence in a light favorable to the employer”. (Source: Modesitt, N. “Why Whistleblowers Lose: An Empirical and Qualitative Analysis of State Court Cases.” Kansas Law Review. Vol. 62. 2011).
At least two Canadian cases raise questions in regards to their treatment in the courts and require further research.
Dr. Michele Brill-Edwards
The decision in the defamation case against the Fifth Estate Leenen vs. the CBC, demonstrated an attitude toward the whistleblower, a witness for the Fifth Estate, that was very negative, dismissing her as a disgruntled, disloyal employee despite evidence to the contrary before the Judge. Further, this decision by J. Douglas Cunningham, supporting the defamation claim and upheld by the Ontario Court of Appeal, was found troubling by advocates of free expression in the media lawyers group Ad IDEM as it “affirmed concepts of “meaning”, “fair comment”, “privilege” and “malice” that are contrary to earlier precedent” and troubling for freedom of expression (Ad IDEM 2001). The Judge’s views on conflict of interest were also contrary to the legal and popular usage of the term which is clear, in that an allegation of conflict does not imply actual dishonesty or corruption. It was also contrary to the views of the Minister of Health at the time and a study by medical professionals confirming for the first time that financial conflict of interest does bias the scientific evaluation of medicines. Interestingly, the Judge’s decision never mentioned that the plaintiff had told the Health Canada regulators that the drug in question was unsafe for the use it had been approved for originally and there was no reason for it to be on the market. This was a view the whistleblower concurred with. The Regulators declined to take it off the market and the plaintiff who was advising them remained silent. The Supreme Court declined to hear the case in 2000 and gave no reason.
Cpl. Robert Read
The following summary is from “Prominent Canadian Whistleblowers”, web site of Whistleblowing Initiative, Centre for Free Expression, Ryerson University.
Cpl. Robert Read, a 26-year veteran of the RCMP, was fired after investigating government corruption involving the Canadian High Commission in Hong Kong. In the course of his investigation he uncovered evidence of the corruption and what appeared to him to be a massive cover-up of that evidence. Read‘s investigation involved very rich and powerful members of the business community in Hong Kong, political connections in the People‘s Republic of China and the Liberal government of Jean Chretien.
An RCMP external review committee later vindicated Read saying the Mounties had seriously mishandled investigations into complaints that Asian triads had infiltrated the embassy. The committee also found that the national police force was reluctant to investigate foreign affairs employees who were suspected of taking bribes from China‘s rich and powerful, many of whom are widely known to be part of the communist spy network. In its ruling, the committee said that Read was justified in taking his concerns to the media and ordered him reinstated. The RCMP refused.
Read took his case to the Federal Court of Canada. In June 2005 Judge Sean Harrington condemned Read for “a lack of loyalty to the government” and reaffirmed his firing. Read appealed all the way to the Supreme Court of Canada, which in May 2007 declined to hear his case.