Thank you, sir.
From that perspective then, let me share with you some of the solutions that have been made for the concerns that we addressed about this one. None of these are new problems, and there are many examples of ways to effectively achieve the criteria that I was advocating in the last testimony.
Let's go to the first one, context for free expression with no loopholes, so that restrictions based on formality, context, time, and audience aren't done arbitrarily, reducing the effectiveness of the law. Examples of where we met that criteria include the U.S. model, which protects against disclosures of illegality, gross waste, gross mismanagement, abusive authority, or substantial and specific danger to health and safety. The European model has also been very effective in that it allows a public freedom of expression when it's necessary because internal remedies aren't working. The U.S. model has cut all the loopholes involving job duties, formality, context, time of disclosure. If the information will make a difference under those laws, it is going to be protected.
With regard to subject matter, it's basically the same thing. The U.S. model protects any disclosure of unlawful activity, but based on violation of any law. There are no arbitrary restrictions. Some of the other nations have added to the scope of this. African nations such as Ghana and South Africa are protecting disclosures of threats to the environment. A relatively new development is catch-up protected speech categories, such as large-scale damage in Serbia, professional norms in Romania, and the public interest, generally, in Uganda. These allow us to make sure that the law doesn't limit how it can make a difference.
A third criteria that I thought was significant is protection against spillover retaliation because it does take a village to be effective. A lone wolf whistle-blower probably isn't going to make much difference except to destroy his or her own career. You need to protect that support base, not just the final messenger or ambassador.
The U.S. has in its laws protections for those who are about to blow the whistle, who are assisting in blowing the whistle, or who are perceived, even if mistakenly, as whistle-blowers. Serbia has separate articles in its whistle-blower law for associated persons, for those who are wrongly identified, and for those who are retaliated against just for asking the wrong questions, which are necessary for the research base. Relatives are protected in a number of the African nations' whistle-blower laws. Protection for all people who need the protection....
In the United States, we have a kind of piecemeal protection, but it does cover virtually the entire public and private sector. Other nations go much further. Serbia's covers public employees and private employees, so that's the military, the legislature, national security employees, corporate employees. It covers NGOs and the media. Anyone who is retaliated against for challenging abuses of power that betray the public trust is covered by that law. Korea's laws, Zambia's laws, and Uganda's laws all protect any person, not just national government employees.
Another significant criteria is confidentiality. The flow of information will dry up if you don't have effective protections. Here, if we look to the solutions that have been used, the United States and Serbia have both set the pace by having their laws not just protect the identity, but the identifying information that can be traced back to the whistle-blower. Before anything can be used, there needs to be advanced consent, unless it's necessary to satisfy legal process in which the whistle-blower gets an advance warning.
In fact, the Serbian law even says that the initial confidentiality provisions get carried over into any other government agencies that work on this. Korea actually has criminal penalties for those who breech confidentiality, which is a new dimension in a number of the more modern laws. This is a very significant criteria, and it has been developed.
With regard to unconventional harassment, over a third of the global whistle-blower laws now protect against civil and criminal liability, not just employment liability. There are so many ways to threaten, scare, or effectively silence a whistle-blower. Serbia's language in article 7 of their law is, I think, very illustrative. It's any action that puts the person at a disadvantage. You don't even have to be part of a list.
Anti-gag provisions so that other laws can't overcome the whistle-blower rights, whether they're agency regulations or other broad-based legislative laws, are very significant. The U.S. has five anti-gag provisions in their code and three in the Whistleblower Protection Act. I think Serbia's article 3 is illustrative. It says any provision that prevents whistle-blowing from occurring is null and void. That chilling effect has been the dimension for most of the best practices.
Another criteria is essential support services. Yes, you have an administrative remedial agency, but there are no limits on its discretion and there are no mandatory duties for it to help people. In the United States the remedial agency has a mandatory duty to investigate. It has no discretion to undermine the rights of those seeking help. It must explain its actions to the complainants. In Serbia and a number of other nations, every institution has to set up internal procedures and have somebody who will be there to assist in their implementation.
Burden of proof is the most fundamental cornerstone of any whistle-blower law. Canada does not have one. The reverse burden of proof is the global best practice.
Finally, for the purposes of this morning's presentation, there is the right to a genuine day in court. We're hoping that Canada may finally have, after a decade, the first opportunity for whistle-blowing in your country to get a day in court. This makes the law almost irrelevant, except potentially as a threat to those who are trying to enforce their rights.
Folks, the solutions to the problems that we've seen and summarized in this law do not involve a requirement for creativity. They just involve studying the record of 35 other nations that have been going through the same process of learning lessons and growing pains, and adopting the best examples. Our organization is here to help in any way that would contribute to that process.