British Columbia’s new whistleblower protection laws may be better than nothing, but they would have still failed to protect former B.C. Lottery Corporation official Ross Alderson, who took his concerns about money laundering directly to media in 2017.
That’s because the Public Interest Disclosure Act created by the BC NDP in 2018 only contemplates a government employee may bring a matter to the public that is an “imminent risk of a substantial and specific danger to the life, health or safety of persons, or to the environment,” but only if they “consult” what is called a “protection official” from the very government agency where the problem may exist.
“What if they’re the problem?” asks former whistleblower Jeff Melland, who exposed the BC Liberal “quick wins” ethnic outreach scandal, wherein public funds were used by the party, resulting in several resignations plus former BC Liberal staffer Brian Bonney pleading guilty for breach of trust in 2018.
Melland says there was no protection for him at the time, however the new Act may not produce the results the public expects, as there are numerous limitations for the whistleblower seeking to out wrongdoing.
For instance, in a health emergency the whistleblower, under the Act, would have to seek the Provincial Health Officer to consult and receive direction from, as the protection officer. For an environmental matter, the protection officer would be the “agency responsible for the Emergency Program Act” and in a criminal matter, “an appropriate police force.”
The whistleblower is also bound by clauses for personal information and unauthorized release of information. The latter falls under large umbrellas such as solicitor-client privilege, common law rule of privilege, restrictions under enactments and public interest immunity.
Otherwise, the whistleblower can go to the B.C. Ombudsperson, who decides whether or not to launch an investigation, which may or may not become public. And if the investigation is made public it’s unclear just how much information is revealed.
To that end, said Melland, “It depends on the independence of the ombudsperson. If they are an officer of the Legislature [which they are], I can perceive there being problems.”
Attorney General David Eby instituted the new Act, which he says is doing as it was intended.
“There are exceptions in the act that allow a prospective whistleblower to make his concerns public but there are very clear restrictions on that ability. The intention was for a third party, namely the ombudsperson, would be receiving these complaints and the ombudsperson, in his or her discretion, could make those complaints public if they felt it were appropriate. So the decision around what to announce and what not to announce to the public would be in their hands — not of government — which presumably is the subject of the complaint.”
The Act outlines measures to protect an employee from reprisals, should the whistleblowing be done in accordance with it.
Eby testified at the Commission of Inquiry into Money Laundering in B.C. on April 26 that he had conflicting views of Alderson’s leak of “high-level, highly detailed allegations.”
“I came to the opinion that information was being inappropriately released from somewhere, either the Gaming Policy Enforcement Branch or the BC Lottery Corporation.”
It turned out to be Alderson.
“That was a source of concern for me from a couple of different perspectives.
One, here's an individual who was releasing government documentation inappropriately — confidential information, breaking the law. And — but also here's an individual whose information has led to public scrutiny on what I understood to be a serious issue and could be seen by people as a whistleblower, and it wasn't clear to me about what the appropriate resolution of that issue should be,” Eby told the inquiry.
Under the Act, Alderson’s leaks would still be illegal. Had Alderson had the Act to guide him, it would be up to police to guide his whistleblowing — and it is the RCMP that is subject to much scrutiny on how B.C. casinos accepted bags of six-figures worth of cash in grocery bags for roughly a decade. Or, Alderson could have filed a complaint with the ombudsperson.
While it can’t be known how the entire matter would have played out in the public eye via the ombudsperson, and what sort of information would be disclosed, Alderson contended that the inquiry wouldn’t have happened without him.
During his testimony last week Alderson called Eby a hypocrite for criticizing his leak, particularly after former RCMP assistant commissioner Peter German drafted the report Dirty Money wherein German praised the reporting of Province reporter Sam Cooper, which was grounded on Alderson’s whistleblowing.
But if whistleblowing to media is allowed without such stringent limitations, what are the perils?
The B.C. Civil Liberties Association, an intervener in the inquiry, described Alderson’s actions as a “huge security breach.”
However, Melland points out that such whistleblower cases are rare, as they must stand up to the public interest test, which admittedly is subjective.
“I think what is fair is corruption. I think whistleblowing is inappropriate if it is just [a difference of] ideology or opinion. If you disagree with a position then maybe you should just resign.”
In recent memory, British Columbians have seen only Melland and Alderson blow the whistle in such a manner.
Making whistleblowing even more rare is the personal impact it has on someone, said Melland.
“It’s not easy, it’s a tough decision. It can follow you through your career, it can impact your personal life. There are legal costs. It’s not consequence-free. But I knew I did the right thing. I knew the people of B.C. had all the information they needed. I can sleep at night,” said Melland.
Likewise, Alderson told the inquiry he felt he was harassed and threatened by BCLC lawyers after his leak. He said it took a toll on his family, which he’s since moved back to his native Australia. Alderson produced anonymous emails sent to him he believed were intended to silence him. Alderson also produced his family doctor’s note dispelling the allegation by BCLC investigator Darryl Tottenham that he suffered mental health issues around the time of his leak.
Some of the information Alderson was concerned about was ties casino investigators and police were making between gamblers, loan sharks, transnational organized crime and even the Chinese Communist Party.
Melland said, in his opinion, Alderson met the public interest test, even with information that possibly exposed the names of gamblers under surveillance, including those tied to transnational organized crime groups and one connected to the People’s Liberation Army.
“I’d get that information out there if they are PLA. You’ve got national security going on there, absolutely,” said Melland.
Melland has also previously called for whistleblowers to be reimbursed any applicable legal costs.