Canadian Lawyer

46 M a y 2 0 1 4 w w w . C A N A D I A N L a w y e r m a g . c o m lEgal rEport/lAbouR & EmploymEnt Truth and consequences Current federal laws focus on the disclosure of wrongdoing leaving protections for the whistleblower as kind of an afterthought. by luiS Millán w hen Edgar Schmidt launched an atypi- cal lawsuit against the Attorney Gen- eral of Canada accusing Ottawa of circumventing a legal requirement to properly review the con- stitutionality of draft legislation, the soft- spoken lawyer was prepared to pay the price for revealing a long-standing prac- tice that strikes at the heart of the federal legislative process. The riposte was swift. The day after the 61-year-old senior law- yer of the federal Department of Justice filed his claim before the Federal Court of Canada in December 2012, he was suspended without pay. Schmidt would have preferred to keep working, but is now retired and living on a reduced pension. While disappointed with the "vengeful attitude" displayed by his former employer and the snub he has felt by some former colleagues, he has no regrets. "Quite frankly, I don't think there was anything wrong with what I did," says the former general counsel of the Legisla- tive Services Branch, the group responsible for drafting and examining bills and regu- lations. "There is nothing wrong in seeking to uphold the rule of law. There is nothing wrong in seeking the court to clarify one's instructions when the instructions one is getting seem in conflict with the law." Schmidt joins a growing list of Canadian whistleblowers who quickly discover dis- closing potential wrongdoing in the work- place almost always leaves them vulnerable. Schmidt's court case raises thorny issues over the nature of professional responsibili- ties and ethical obligations of government lawyers, but also underscores the tension between an employee's duty of loyalty and freedom of expression as guaranteed by the Charter of Rights and Freedoms, and federal and provincial whistleblowing leg- islation that aims to protect whistleblowers from retribution by employers. It has proven to be an uneasy co-exis- tence. Besides the federal Public Servant Disclosure Protection Act, six provinces have whistleblowing laws, almost all of which provide far broader protection to employees in the public sector than the private sector. Introduced over the past decade under the guise of promoting accountability and transparency in the public sector, the whistleblowing laws do not give civil servants a free pass to criticize or make malicious comments against their employers without justification. Indeed, limits are imposed on what kind of wrong- doing may be disclosed and to whom, apparently to ensure the whistleblowing legislation is not misused by employees to unduly criticize their employer. But whistleblower advocacy groups mattheW billington

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