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UBC Theses and Dissertations

Whistle blowing in the public service of Canada Mercan, Dennis

Abstract

The lack of a comprehensive statute to assist federal public servants in exposing wrongdoing within government has been a factor in the recent media attention focused upon the federal Privacy Commissioner. This has contributed, in large part, to his resignation from office. This incident highlights the complex relationships that exist for public servants who encounter and consider disclosing to the public wrongdoing within the federal government. This thesis is intended to contribute to the discussion of the issues involved in a public servant's duty of loyalty owed to the government and the confusion in the jurisprudence between whistle blowing and criticism of government policy. It investigates the scope of the Supreme Court of Canada's decision in Fraser v. Public Service Staff Relations Board and Federal Court, provincial appellate court, and administrative tribunal decisions that apply it. In particular, this thesis examines the relationships at law that underlay a theoretical foundation for those decisions. The relationship between whistle blowing and criticism of government policy by public servants as it relates to the common law duty owed by them to the government is examined. Consideration is also given to the role and extent that a civil servant's freedom of expression plays in shaping that duty of loyalty. Current government initiatives and proposed federal legislation are reviewed, since each establishes a different regime for addressing whistle blowing by federal public servants. An assessment of the current state of the common law and these initiatives from the perspective of law reform of this area of the law completes the discussion. The conclusion of this thesis is that the continuing confusion in the courts and administrative tribunals concerning separation of whistle blowing from government policy criticism is best addressed through the proposed federal legislative initiative. It seeks to create a regime that will adequately resolve the approach to adopt in relation to whistle blowing as a form of permissible organizational dissent by federal public servants in Canada.

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