Whistleblowing and Freedom of Conscience: Towards a New Legal Analysis

Abstract

Most of us have an instinctive understanding of what “whistleblowing” is: the act of alerting the public to scandal, danger, malpractice, corruption or other immoral or unethical behaviour. For a long time, whistleblowers were treated poorly – today, they are now acknowledged, and sometimes even admired, but there is still some way to go. We believe that a strongly developed and distinct freedom of conscience, as expressed in s. 2(a) of the Canadian Charter of Rights and Freedoms, could go some way towards achieving that goal.

In law, however, conscience is often treated as inseparable from religion, without any meaningful analysis of the relationship between the two. At best, it takes the form of a silent partner to religion. At worst, it is frequently ignored or unnoticed. This need not be so. In this paper, we argue that the deliberate inclusion of “conscience” in s. 2(a) of the Charter ought to taken seriously; to do so, freedom of conscience must be recognized as an independent and robust freedom. Whistleblowing is an activity that seems to have some connection to conscience but not necessarily religion. In this article, we first discuss whistleblowing and its development within a modern legal and business environment. We then explore the nature of a stand-alone legal and constitutional freedom of conscience, sketching out an argument for its singularity and importance. In the last part, we show how a revitalized freedom of conscience – distinct and separate from religious freedom – could provide a model for interpreting whistleblowing in Canada. A whistleblower’s attempt to do “good” or “justice” – in the face of a strong potential for retaliation, in any form and degree – connects the activity with conscience. By tying whistleblowing to conscience, through legislative and policy choices that engage this universal aspect of humanity, its importance will be enhanced.

Keywords: constitutional law, Canadian Charter of Rights and Freedoms, freedom of conscience and religion, whistleblowing, employment

JEL Classification: K40, K41