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Whistle Blower Law

Topics on this page:

Edward Snowden

Wikileaks

ClimateGate

What is a Whistle blower?

Reason for Whistle blowing Laws

New Brunswick is the only Canadian Jurisdiction Providing Specific Protection for Whistle blowers

Statutes that Address Whistle blowing

Whistle blowing on One's Self - (Immunity from Prosecution can be Extended to Companies)

May, 2001 Newspaper Article on the need for Stronger Whistle blower Law

Edward Snowden

Edward Snowden The individual responsible for one of the most significant leaks in US political history is Edward Snowden, a 29-year-old former technical assistant for the CIA and former employee of the defence contractor Booz Allen Hamilton. Snowden had been working at the National Security Agency for the last four years as an employee of various outside contractors, including Booz Allen and Dell.

The Guardian, after several days of interviews, revealed his identity at his request. From the moment he decided to disclose numerous top-secret documents to the public, he was determined not to opt for the protection of anonymity. "I have no intention of hiding who I am because I know I have done nothing wrong," he said.

Snowden will go down in history as one of America's most consequential whistleblowers, alongside Daniel Ellsberg and Bradley Manning. He is responsible for handing over material from one of the world's most secretive organisations – the NSA.

In a note accompanying the first set of documents he provided, he wrote: "I understand that I will be made to suffer for my actions," but "I will be satisfied if the federation of secret law, unequal pardon and irresistible executive powers that rule the world that I love are revealed even for an instant."

In June 2013, US federal prosecutors charged Snowden with espionage and theft of government property. Snowden fled the United States to Moscow, prior to the publication of his disclosures, where he was granted political asylum at the end of July 2013 and where he now resides at an undisclosed location.

Wikileaks

WikiLeaks is the world's most well know whistle blower:

Cablegate: 250,000 US Embassy Diplomatic Cables - On Sunday 28th November 2010, Wikileaks began publishing 251,287 leaked United States embassy cables, the largest set of confidential documents ever to be released into the public domain.

War Diary: Iraq War Logs - The 391,832 reports were released on October 22, 2010. The Iraq War Logs, document the war and occupation in Iraq, from 1st January 2004 to 31st December 2009 (except for the months of May 2004 and March 2009) as told by soldiers in the United States Army.

War Diary: Afghanistan War Logs - These were released on July 25, 2010.

Video: Collateral Murder -

This video was released on April 5, 2010 and depicts the indiscriminate slaying of over a dozen people in the Iraqi suburb of New Baghdad -- including two Reuters news staff. Reuters has been trying to obtain the video through the Freedom of Information Act, without success since the time of the attack. The video, shot from an Apache helicopter gun-sight, clearly shows the unprovoked slaying of a wounded Reuters employee and his rescuers. Two young children involved in the rescue were also seriously wounded.

Julian Assange, of WikiLeaks has been vilified as a reckless anarchist “with blood on his hands,” but also praised as a brave whistle-blower willing to risk his life to expose the truth. The cablegate leaks of November 28, 2010 have have generated a flurry of outrage:

  • On December 1, 2010 Tom Flanagan, a University of Calgary professor, prominent Conservative thinker and a former adviser to Prime Minister Stephen Harper, says Julian Assange should be assassinated. He later apologized for his remarks.

  • November 29, 2010 - Bill O'Rielly on his Fox Cable show, The Factor, said: "Whoever leaked all those State Department documents to the WikiLeaks website is a traitor and should be executed or put in prison for life," he said. "The guy who runs the website is a sleazeball named Julian Assange, who is bent on damaging America. Since he's not a U.S. citizen, it's hard for American authorities to move against him. But we can prosecute those who leak the documents to Assange."

  • December 5, 2010 - On the Fox News Chris Wallace Show, Newt Gingrich, former Speaker of the House, became the latest conservative Sunday to suggest that WikiLeak's Julian Assange deserves to be hunted and executed by calling him an "enemy combatant... He should be treated as an enemy combatant and WikiLeaks should be closed down permanently and decisively," Gingrich said.

  • Sarah Palin is demanding the world hunt down the director of Wikileaks “with the same urgency we pursue al Qaeda and Taliban leaders.”

  • White House press secretary Robert Gibbs said “WikiLeaks and people that disseminate information to people like this are criminals.”

  • Senior Republican Mike Huckabee has said that "anything less than execution is too kind a penalty" for what he has done.



Guy FawkesDespite all the rhetoric and anger over the release of the cables no legal action has been taken against Julian Assange. The US probably cannot take any legal action since Julian Assange is an Australian and does not reside in the US. Note that the New York Times, which published redacted excerpts of the cables, has received little criticism and no calls for prosecution.

WikiLeaks has been the target of repeated and persistent attacks on its website. In order to fight the attacks on WikiLeaks's website WikiLeaks has set up a number of mirror sites.

As at December 5, 2010 the followng sites and/or hosts have been compromised:

http://wikileaks.com/ - Shut down

http://wikileaks.org - Shut down

Hosting at Amazon.com has been cancelled by Amazon.com

Hosting at DiaryDig.org has been compromised. DiaryDig's comments are, On Dec. 1, WikiLeaks began directing visitors to this site with links from their home page. Unfortunately, this also attracted the attention of repeated distributed denial of service attacks. Fighting these attacks has become a full-time job and a strain on our resources which we are unable to sustain. At this time, DiaryDig.org will remain offline until the crush of attacks diminishes. We apologize for this inconvenience.

WikiLeaks is currently (December 5, 2010) hosted in Canada at http://wikileaks.ca/ and in Switzerland at http://www.wikileaks.ch/. It is also available at http://213.251.145.96. In order to fight the attacks on WikiLeaks's website WikiLeaks has set up a number of mirror sites.


ClimateGate

In late November 2009, more than 1,000 emails between scientists at the Climate Research Unit (CRU) of the U.K.’s University of East Anglia were stolen and made public by an as yet unnamed hacker. Climate skeptics claim that they show scientific misconduct that amounts to the complete fabrication of man made global warming. The disclosed emails reveal a litany of misinformation, manipulation of data, character assassination, lying, dirty tricks and collusion amongst scientists to present false information to support their agenda that the cause of Global Warming can be attributed to anthropogenic causes. Thanks to The Telegraph for the following:

Manipulation of evidence:

I’ve just completed Mike’s Nature trick of adding in the real temps to each series for the last 20 years (ie from 1981 onwards) amd from 1961 for Keith’s to hide the decline.

Private doubts about whether the world really is heating up:

The fact is that we can’t account for the lack of warming at the moment and it is a travesty that we can’t. The CERES data published in the August BAMS 09 supplement on 2008 shows there should be even more warming: but the data are surely wrong. Our observing system is inadequate.

Suppression of evidence:

Can you delete any emails you may have had with Keith re AR4? Keith will do likewise. He’s not in at the moment – minor family crisis. Can you also email Gene and get him to do the same? I don’t have his new email address. We will be getting Caspar to do likewise.

Fantasies of violence against prominent Climate Sceptic scientists:

Next time I see Pat Michaels at a scientific meeting, I’ll be tempted to beat the crap out of him. Very tempted.

Attempts to disguise the inconvenient truth of the Medieval Warm Period (MWP):

……Phil and I have recently submitted a paper using about a dozen NH records that fit this category, and many of which are available nearly 2K back–I think that trying to adopt a timeframe of 2K, rather than the usual 1K, addresses a good earlier point that Peck made w/ regard to the memo, that it would be nice to try to “contain” the putative “MWP”, even if we don’t yet have a hemispheric mean reconstruction available that far back….

Michael Mann is shown to have manipulated data to show the "Hockey Stick" graph that supported his agenda that global warming has increased only in the modern period, ignoring the Medieval global warming spike.

 

Tuesday, 16 February, 2010 - Professor Jones, the head of the Climate Research Unit (CRU) of the U.K.’s University of East Anglia conceded the possibility that the world was warmer in medieval times than now – suggesting global warming may not be a man-made phenomenon. And he said that for the past 15 years there has been no ‘statistically significant’ warming.

And, perhaps most reprehensibly, a long series of communications discussing how best to squeeze dissenting scientists out of the peer review process. How, in other words, to create a scientific climate in which anyone who disagrees with AGW can be written off as a crank, whose views do not have a scrap of authority.

“This was the danger of always criticising the skeptics for not publishing in the “peer-reviewed literature”. Obviously, they found a solution to that–take over a journal! So what do we do about this? I think we have to stop considering “Climate Research” as a legitimate peer-reviewed journal. Perhaps we should encourage our colleagues in the climate research community to no longer submit to, or cite papers in, this journal. We would also need to consider what we tell or request of our more reasonable colleagues who currently sit on the editorial board…What do others think?”

“I will be emailing the journal to tell them I’m having nothing more to do with it until they rid themselves of this troublesome editor.”“It results from this journal having a number of editors. The responsible one for this is a well-known skeptic in NZ. He has let a few papers through by Michaels and Gray in the past. I’ve had words with Hans von Storch about this, but got nowhere. Another thing to discuss in Nice !”

Whistle Blowers:

Those who disclose information about something they believe to be harmful to the public's interest, occurring in business or in government. It includes disclosure to authorities within the organization, to outside agencies or to the media.

 

Reason for Whistle blowing Laws

Whistle blowing provisions are designed to facilitate regulation and enforcement of laws by encouraging employees to report evidence essential for industry regulation and the prosecution of corporate wrongdoers.

New Brunswick is the only Canadian Jurisdiction Providing Specific Protection for Whistle blowers

In New Brunswick, Section 28 of the Employment Standards Act, Chap. E-7.2 provides, in part, as follows:

  • 28. Notwithstanding anything in this Act an employer shall not dismiss, suspend, lay off, penalize, discipline or discriminate against an employee if the reason therefor is related in any way to
    • (b) the making of a complaint or the giving of information or evidence by the employee against the employer with respect to any matter covered by this act; or
    • (c) the giving of information or evidence by the employee against the employer with respect to the alleged violation of any Provincial or federal Act or regulation by the employer while carrying on the employer's business; or if the dismissal, suspension, layoff, penalty, discipline or discrimination constitutes in any way an attempt by the employer to evade any responsibility imposed upon him under this Act or any other Provincial or federal Act or regulation or to prevent or inhibit an employee from taking advantage of any right or benefit granted to him under this Act.

Statutes that Address Whistle blowing

  • Ontario's two main environmental statutes, the Environmental Protection Act, R.S.O. 1990, c. E.19 and the Environmental Bill of Rights, S.O. 1993, c. 28, contain extensive protections for employees who have been discharged, disciplined or harassed for complying with Ontario's environmental legislation.

    Under both statutes, employees who have had reprisals taken against them are authorized to file a complaint with the Ontario Labour Relations Board, which will first try to effect a settlement or, if unsuccessful, hold an inquiry into the complaint. If the Board finds the employee's complaint justified, it has broad powers to order rectification, reinstatement or compensation. Because Ontario's Environmental Protection Act prohibits an employer from taking reprisals against an employee for complying with the Act, an employer who contravenes this section could be prosecuted under s. 186 of the Act, which states that every person who contravenes the Act is guilty of an offence.
  • The Canadian Environmental Protection Act, R.S.C. 1985, c. C-15.3 ("CEPA") also contains a whistle blowing provision. It declares that no federal government employee shall be disciplined, dismissed or harassed for reporting on the release of certain toxic substances to a CEPA inspector. These provisions have been criticized for applying to only a limited number of violations under CEPA, for protecting only reports to a CEPA inspector, rather than the media or other officials, and for extending only to federal public servants, rather than all employees in the federal sphere (Environment Canada, CEPA Issue Elaboration Paper #10 -- Public Participation for Environmental Protection, 1994, pp. 119-20).
  • Ontario's Occupational Health and Safety Act, R.S.O. 1990, c. O.1 prohibits employers from taking reprisals against a worker because the worker has complied with the Act, sought its enforcement, or given evidence in a proceeding brought under the Act. Alleged contraventions are dealt with either by binding arbitration pursuant to a collective agreement, if one exists, or by filing a complaint with the Ontario Labour Relations Board. If a penalty for contravention is not established in the collective agreement, the Board can substitute such other penalty that to the Board seems "just and reasonable in all the circumstances".
  • The employment standards provisions in the Canada Labour Code, R.S.C. c. L-2, which apply to employers under federal jurisdiction, contain similar protections for employees who have testified, given information to an inspector, or sought enforcement of the Code. Employers who contravene these provisions are guilty of a summary conviction offence and liable to a fine of up to $15,000.
  • The Canadian Human Rights Act, R.S.C. 1985, c. H-6, prohibits any person from threatening, intimidating, or discriminating against an individual because that individual has made a complaint, given evidence, or assisted in the initiation or prosecution of a complaint under the Act.

Whistle blowing on One's Self - (Immunity from Prosecution can be Extended to Companies)

Canada's Competition Bureau's immunity policy was initiated in 1991, when then Director Howard Wetston outlined nine factors that "could be relevant in determining whether to recommend immunity from prosecution to the Attorney General" (Wetston, "Notes for an Address to the Canadian Corporate Counsel Association", Aug. 19, 1991)

  • the firm must be the first to approach the Bureau with evidence of the offence;
  • the firm must provide full and frank disclosure of the facts;
  • the firm must cooperate fully with the Bureau's investigation, and with any ensuing prosecution;
  • the evidence provided by the firm must be important and valuable in terms of any prosecution or other legal proceeding;
  • the firm must be prepared to make restitution commensurate with the facts and its responsibility in the matter;
  • the evidence must confirm that the firm took immediate steps to terminate the activity and report it to the Director as soon as it was discovered by its senior executives;
  • a prior record of antitrust violations will be a significant factor in deciding whether to recommend immunity;
  • the firm should usually be prepared to consent to the issuance of a prohibition order; and
  • the role of the firm in the conduct in question.
  • In a Canadian Bar Association speech in October 1993, Francis Rioux, Senior Counsel at the Department of Justice, suggested four factors that would be taken into account to determine whether immunity could be granted in these cases:

  • At what point in time did the corporation come forward as compared to others.
  • Whether at the time the corporation comes forward there exists sufficient evidence against the corporation to sustain a conviction against it or other parties to the conduct.
  • The importance, degree and completeness of the cooperation and the importance of the evidence offered, if any.
  • The corporation's relative culpability in the conduct and past record.

  • May, 2001 Newspaper Article on the need for Stronger Whistle blower Laws

    Whistle blowing: Breaking the Silence of the Lambs

    by Rosella Melanson

    There are people in Canada who would report something they know - health or environmental hazards, abuse, theft, corruption - if they felt protected from retaliation.

    But whistle blowers sometimes pay a price in Canada. In any case they don't get nominated for the Order of Canada.

    (Whistle blowers are usually defined as those who disclose information about something they believe to be harmful to the public's interest, occurring in business or in government. It includes disclosure to authorities within the organization, to outside agencies or to the media.)

    Earlier this year, an inquiry into 12 infant deaths at a Winnipeg hospital concluded that at least five of the deaths were preventable - and that whistle blower legislation would have helped protect nurses from reprisal when reporting a particular surgeon.

    Scientists Margaret Haydon and Shiv Chopra complained last year they were being forced to approve an unsafe growth hormone for cows. Their employer, Health Canada, protector of Canadians, imposed a gag order! A judge then ruled the scientists have a constitutional right to speak if they have concerns about public safety. Recently, Ms. Haydon spoke out again to say the Canadian ban of Brazilian beef was not based on science. Another gag order was imposed.

    "I was doing my job as a public servant", Ms. Haydon said when she won a Whistle blower award recently.

    Dr. Nancy Olivieri, senior scientist at the Hospital for Sick Children, discovered evidence suggesting a drug she was testing might be life threatening. The firm which partly funded her research told her not to publish the results; the Hospital and the University of Toronto left her ‘hung out to dry'. She eventually won.

    Joanna Gualtieri reported on lavish spending by Foreign Affairs personnel abroad, concerns which the Auditor General of Canada had raised years earlier. She eventually had to go on medical leave and is now trying to sue for the harassment she says she suffered; she has started a group of Ottawa whistle blowers.

    A government-commissioned report recently said the Department of Fisheries and Oceans "treats public criticism ... by employees as an offence akin to ... mutiny on the high seas."

    It is worlds away from a British government suggestion that whistle blowers be included in the British Honours system for their good corporate citizenship. The British whistle blower-protection law is said to be the most far-reaching in the world, even voiding gagging clauses in contracts. There is now a regular whistle blowers' column in the London Times Higher Education Supplement.

    In numerous international disasters, whistle blowers had in fact spoken out about the risks and suffered penalties for their public-spiritedness. The British law was enacted only after several inquiries into scandals revealed that employees had been too scared to report problems. Canada has had its share of similar episodes, including military scandals and cover-ups.

    Most Canadians are not protected from retaliation - except in New Brunswick. We are one of the few jurisdictions in North America to offer protection. Since 1989, New Brunswick's Employment Standards Act has protected employees in the public or private sector who provide information about an employer's violation of a provincial or federal law. This legal protection is as yet untested - no complaints have been filed with the government - and covers only the 75 per cent of workers who are under provincial jurisdiction, but it is still to New Brunswick's credit. The very existence of such protection for whistle blowers should be an incentive for employers to comply with laws.

    During the 1993 federal election, the Liberals promised to introduce whistle blower legislation in the first session of Parliament. To date, only private members' bills have been introduced, including two now under consideration. No law has been adopted.

    Some federal laws on business competition and health and safety and the environment do offer some narrow protection to Canadians, but only if a complaint is made to a certain authority. Of course, some laws require whistle blowing: Everyone is required by law to report suspected child abuse.

    As a result of a series of scandals about covered-up manufacturing defects, Japan - the land of rigid company loyalty - is now encouraging employees to blow the whistle when they have information of concern.
    Recent laws in the United States also champion whistle blowing, while establishing a distinction between ethical whistle blowing and groundless complaints.

    One American law gives whistle blowers a percentage of the savings realized when inappropriate activity is ended by their disclosure: In its first six years of implementation, $147 million has been saved and the average whistle blower has received $400,000.

    American cases have included reports that a company was passing off false test results on the MX missile's guidance system.

    Recently, two Florida journalists who had tried to report on the dangers of Monsanto's bovine growth hormone won a $425,000 judgment, the first time journalists have won a ‘whistle-blower' case against a news organization accused of distorting the news.

    Movies such as The Insider and Silkwood made us marvel at the courage it took for decent persons to simply do their duty. The federal government - Health Canada actually - made a lot of hay when it used The Insider hero himself, Jeffrey Wigand, as a consultant on its dealings with tobacco companies.


    We sure like them when they blow the whistle on the other guy.


    Rosella Melanson is a writer residing in Moncton. Her weekly column, Subject to Debate, appears in the New Brunswick Telegraph Journal. She can be reached at rosellam@nbnet.nb.ca.

    copyright: Rosella Melanson
    First published in the New Brunswick Telegraph Journal May 2001.


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