Who dares to speak: Riding the tiger

By Alex Roslin
Montreal Gazette

In a growing shroud of secrecy, governments fail whistleblowers who often lose their careers, their marriages and their health after exposing corruption. Alex Roslin explores Canada and the US, focusing on Dr Shiv Chopra who tried to protect Canadians from dangerous drugs, agricultural practices, and carcinogenic pesticides from entering the food supply.


Dr. Shiv Chopra still remembers the words his friend spoke a few days before he died. “Every time I come here, I vomit,” Dr. Chris Basudde, a fellow Health Canada doctor, had said. “I feel sick. I can’t take this.”

Chopra told his friend to see a doctor and take some time off work. Days later, he was stunned to learn that Basudde had died of a suspected heart attack.

Chopra said he, Basudde and two other Health Canada doctors were living under enormous stress and had seen their careers and lives turned upside down after they had protested against plans to approve bovine growth hormone -which was eventually banned from dairy production in 1999 -and other drugs they considered to be unsafe.

The four doctors were subjected to harassment and isolated from each other in different buildings, Chopra said. He got shingles that he attributes to the stress and went on sick leave. Health Canada fired Chopra and the two other surviving doctors in 2004, citing insubordination.

They have been fighting ever since to overturn their firings before a labour tribunal.

Chopra’s story shows the intense personal and professional stress whistleblowers frequently face when they expose wrongdoing. Critics say it also shows how the Harper government, which was first elected promising openness and transparency, has failed to protect whistleblowers and, instead, has become obsessed with stamping out criticism.

So what is a lone whistle-blower to do in times of ever-greater government secrecy? Why, harness the magic of the Internet, of course.

As official channels of complaint fail, some whistleblowers in other countries are exposing wrongdoing by turning to websites like WikiLeaks, which has published leaked U.S. military footage of a massacre of Iraqi civilians and thousands of pages of classified U.S. military reports.

And whistle-blower advocates warn that Canadian government and corporate secrets may also start turning up on such websites if Canada doesn’t do more to protect whistle-blowers.

We’ve come a long way since 1969 when Pentagon Papers leaker Daniel Ellsberg painstakingly photocopied 7,000 pages of a classified U.S. military study on the Vietnam War and smuggled them out in his briefcase -only to spend more than a year trying to find a way to make the damning information public.

Nowadays, the Pentagon Papers could have gone viral minutes after Ellsberg hit “send.”

When Prime Minister Stephen Harper created an independent Public Sector Integrity Commissioner to protect whistleblowers in 2007, Chopra was cautiously optimistic. Here finally was someone who might investigate the doctors’ claim that Health Canada managers had pressured them to approve questionable drugs.

Three years later, however, integrity commissioner Christiane Ouimet’s office is getting a failing grade from whistleblowers.

“None feel they have actually had satisfaction from the system. They’re told to go away and that their case won’t be dealt with,” said David Hutton, the executive director of the Federal Accountability Initiative for Reform, an Ottawa-based advocacy group that says it is in contact with about 90 Canadian whistle-blowers.

Hutton is calling on Harper to overhaul Canada’s “fatally flawed” whistle-blower protection system and to replace Ouimet, a career federal civil servant, with someone more independently minded, noting that she has dismissed almost every complaint she’s got.

Hutton said his group has heard from 15 federal government whistle-blowers who have dealt with the integrity commissioner’s office. “What we hear from whistle-blowers is that her office is like a black hole. They feed all this information, and they never hear back,” he said.

It’s part of a broader dysfunction in Canadian governments of stamping out internal criticism and jealously guarding government secrets -a culture that has only accelerated under Harper, Hutton said.

Harper is under fire over silencing a long list of high-profile critics. They include veterans ombudsman Pat Strogan and crime-victims ombudsman Steve Sullivan (whose terms weren’t renewed after they criticized the government), Canadian Nuclear Safety Commission president Linda Keen (who was fired after she shut down the Chalk River reactor due to safety concerns) and Statistics Canada boss Munir Sheikh (who resigned recently after clashing with the government over changes to the census).

The integrity commissioner’s office acknowledges it’s launched few investigations. Out of 156 complaints about wrongdoing or reprisals from potential whistle-blowers reviewed in its first two years of operations, her office decided only five of the cases warranted an investigation.

Ouimet didn’t find any wrongdoing or reprisal in a single case, according to her office’s first two annual reports.

Brian Radford, senior counsel in Ouimet’s office, defended the commissioner’s record. “I don’t think we are surprised by the numbers … when you look at the complexity of the act and its precise jurisdiction.”

But Hutton is flabbergasted at the lack of results. “It’s hard to believe there has been no wrongdoing whatsoever, and that no one’s suffered any reprisals for reporting it, when her jurisdiction is 400,000 federal employees.”

Three whistle-blowers told The Gazette they were disillusioned by how the integrity commissioner’s office handled their complaints of misconduct and punishment for speaking out.

One manager said he experienced severe reprisals after reporting fraud involving several million dollars in his department. Speaking on condition of anonymity because an internal departmental investigation is still ongoing, he said he was demoted, harassed, relocated to an isolated area and told not to speak to his own supervisor.

He said extreme stress from the situation led to heart palpitations and memory loss, forcing him to take an unpaid leave of absence.

When he informed the integrity commissioner’s office, he said, he was told it sounded “like a textbook case” of reprisal, but that his case wouldn’t be accepted because he had already filed an ongoing union grievance.

“There was a brick wall dealing with her office. They refused to communicate. I have no confidence that she is there to do anything for me. Accountability just doesn’t exist,” he said.

A now-retired regional director in another federal department said he, too, is disillusioned with the integrity commissioner. Speaking anonymously because his wife still works for the government, he said he faced reprisals after he reported to superiors that department officials weren’t following ministerial policies.

He said he filed complaints about the wrongdoing and reprisals to the integrity commissioner. After several months without results and suffering from depression, he said, he withdrew his complaints and took early retirement.

“They were not helpful in anything,” he said of the commissioner’s office.

Chopra said he has also gotten nowhere fast with the integrity commissioner.

At his five-acre spread in Manotick, 30 kilo-metres south of Ottawa, Chopra, 76, bides his time tending to a large organic garden with his five grandchildren and speaking out about food safety.

He chronicled his battle with Health Canada in a 2008 book titled Corrupt to the Core: Memoirs of a Health Canada Whistle-blower.

In it, Chopra tells a cautionary tale of how a whistle-blower can get bogged down in years of grinding legal and bureaucratic wrangling.

Chopra and his colleagues first filed complaints in 2002 about the wrongdoing and reprisals they say they witnessed at Health Canada. The complaints went to the Public Service Integrity Officer, a predecessor to the current integrity commissioner who was widely seen as too cozy with the government because he worked at the Treasury Board.

The integrity officer agreed that one of the doctors had experienced a reprisal but rejected their complaints about wrongdoing. The doctors appealed to the Federal Court of Canada.

In 2005, the court sided with the doctors, saying the integrity officer’s bureau had erred in law and “failed to conduct the investigation in accordance with its mandate.”

The court ordered the integrity officer to reexamine the complaints. The new integrity commissioner took over the case in 2007.

Her office dismissed the reprisal complaint last year, Chopra said.

The integrity commissioner’s Radford said he can’t comment on specific cases, citing confidentiality concerns. But his office’s annual report last year mentions a reprisal complaint known simply as “Case 4” that was rejected and involves the same details as that of Chopra and his colleagues.

“It was not in the public interest for the tribunal to hear this reprisal complaint,” the report said. “There was a need for finality in this matter.”

“That’s complete nonsense,” Chopra says of the decision. “We’re talking about pressure to pass questionable drugs. How can that not be in the public interest? Our lawyers sent them tons of stuff that was in the public interest.”

The integrity commissioner is dealing separately with the doctors’ complaint of wrongdoing at Health Canada. Its decision could come in its third annual report due after Parliament resumes sitting in September.

Radford refused to reveal the commissioner’s decision, but he hinted that his office feels Case 4 is really about a public-policy issue rather than misconduct. “We felt the subject matter of the disclosure really concerns an issue of public policy. Our office cannot substitute itself for a political decision-maker.”

Chopra is reserving comment until he sees the commissioner’s report, but he was unhappy about Radford’s take. “If they say it’s public policy, that’s just kicking the ball back and forth. Our complaint is we were being pressured not to apply the law. Someone’s going to have to be responsible to the public.”

Even starting an investigation at the commissioner’s office seems at times to be a major ordeal. Its annual report last year gives one especially telling example.

Three different complaints surfaced at the same time “alleging gross mismanagement in the form of widespread and recurring contracting irregularities. Given the responsibilities of the organization, the allegations raised serious concerns about potential danger to public health and safety.”

The allegations were further “supplemented by corroborating information from other sources, and it strongly suggested the possibility of wrongdoing.”

At some point, however, the three complainants got cold feet and didn’t want to help the commissioner’s office any further. The commissioner, despite having all the powers to subpoena witnesses of a full royal commission of inquiry, decided not to investigate.

“It did not cross the threshold of evidence in law to require a formal investigation,” Radford said of the case.

“The disclosers never disclosed to us precise facts. Based on that, we did not see anything irregular that would justify further investigation. … We didn’t identify any deficiencies.”

Radford said his office prepared a list of best practices it submitted to the organization, but it didn’t bother to follow up to see if anything changed. “I don’t think they adopted our best practices,” he said.

“We did not request that they follow up with us. We do not know if they amended their policies.”

Other countries have taken far bolder steps to protect whistle-blowers and ferret out wrongdoing.

Sweden has some of the best legal protection for those who leak stories to the media. Its constitution says authorities can’t investigate a journalist’s sources, except in exceptional cases of national security. A confidential source can even seek criminal charges against a journalist who reveals his or her identity without consent.

Britain has a whistle-blower-protection law covering virtually the entire workforce (not just federal civil servants, like Canada’s law). Whistle-blowers there filed 1,761 complaints last year. Of those that went to a public hearing, the whistle-blower won 22 per cent of the time.

Hutton said that’s far better than in Canada, where the rate is zero per cent.

The U.S. is in some ways seen as a mecca for whistle-blowers because of a culture of celebrating the little guy who stands up to wrongdoing. Some whistle-blowers have got Hollywood treatment, like New York cop Frank Serpico, who exposed police corruption, and Erin Brockovich, who exposed industrial pollution.

The U.S. pioneered some of the world’s first whistle-blower-protection laws in the 1970s and 1980s, but one of its strongest tools dates back to the Civil War. Under the False Claims Act, created after the Union Army was sold faulty rifles and ailing donkeys, a whistle-blower can sue a federal contractor believed to be defrauding the U.S. government and pocket part of any court-awarded payout.

Such cases have become a major tool for fighting fraud in the pharmaceutical industry. False Claims Act suits led to $6.3 billion (U. S.) in settlement payments to the U.S. government related to fraudulent marketing of drugs between 2001 and 2009, according to a New England Journal of Medicine study in May.

Whistle-blowers received an average $3 million in each case.

“The U.S. is so different from us in terms of the openness in government. There is all kinds of stuff our government hides from us that you’ll actually find on websites in the U.S.,” Hutton said.

But even the U.S. is far from perfect. Most whistle-blowers say that even the money from the False Claims cases was not worth the personal cost of coming forward, including divorce, ruined careers and stress-related health problems, the New England journal study found.

In July, Congress boosted the protection of corporate whistle-blowers as part of its Wall Street Reform Law.

But the measures don’t protect government employees, and critics say the Obama administration has actually retreated on helping them.

The Obama justice department has vowed to aggressively pursue unauthorized leaks, and according to a Newsweek report, even boasts of being more zealous than it was under George W. Bush. It prosecuted three leaks in its first 17 months in office. Previously, such prosecutions were rare.

Back in Ottawa, Hutton said the clampdowns and failed protections are not in the public’s interest. “Most whistle-blowers get into this situation because they’re simply trying to do their job honestly.”

Chopra, for his part, said he wouldn’t hesitate to do it all over again despite the hardships. “It was my duty to do so under Canadian law. One cannot think of hardships when it is part of one’s duty.”

His advice to other whistle-blowers: “Never do it for glory. Once you do it, you will be riding a tiger. It will be him or you.”

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