Public Servants Disclosure Protection Act (S.C. 2005, c. 46)

Assented to 2005-11-25

Public Servants Disclosure Protection Act

S.C. 2005, c. 46

Assented to 2005-11-25

An Act to establish a procedure for the disclosure of wrongdoings in the public sector, including the protection of persons who disclose the wrongdoings

SUMMARY

This enactment establishes a procedure for the disclosure of wrongdoings in the public sector and provides for the protection of persons who disclose the wrongdoings.

Preamble

Recognizing that

the public service of Canada is an important national institution and is part of the essential framework of Canadian parliamentary democracy;

it is in the public interest to maintain and enhance public confidence in the integrity of public servants;

confidence in public institutions can be enhanced by establishing effective procedures for the disclosure of wrongdoings and for protecting public servants who disclose wrongdoings, and by establishing a code of conduct for the public sector;

public servants owe a duty of loyalty to their employer and enjoy the right to freedom of expression as guaranteed by the Canadian Charter of Rights and Freedoms and that this Act strives to achieve an appropriate balance between those two important principles;

the Government of Canada commits to establishing a Charter of Values of Public Service setting out the values that should guide public servants in their work and professional conduct;

Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

SHORT TITLE

Marginal note:Short title

 This Act may be cited as the Public Servants Disclosure Protection Act.

INTERPRETATION

Marginal note:Definitions

 The following definitions apply in this Act.

“chief executive”

« administrateur général »

“chief executive” means the deputy head or chief executive officer of any portion of the public sector, or the person who occupies any other similar position, however called, in the public sector.

“Commissioner”

« commissaire »

“Commissioner” means the Public Sector Integrity Commissioner appointed under subsection 39(1).

“member of the Royal Canadian Mounted Police”« membre de la Gendarmerie royale du Canada »

“member of the Royal Canadian Mounted Police”membre de la Gendarmerie royale du Canadamembre de la Gendarmerie royale du Canadamembre de la Gendarmerie royale du Canadamembre de la Gendarmerie royale du Canada means a person who is a member or a special constable of the Royal Canadian Mounted Police or who is employed by that force under terms and conditions substantially the same as those of one of its members.

“Minister”

« ministre »

“Minister” means, in respect of sections 4, 5 and 54, the Minister responsible for the Public Service Human Resources Management Agency of Canada.

“protected disclosure”

« divulgation protégée »

“protected disclosure” means a disclosure that is made in good faith and that is made by a public servant

  • (a) in accordance with this Act;

  • (b) in the course of a parliamentary proceeding;

  • (c) in the course of a procedure established under any other Act of Parliament; or

  • (d) when lawfully required to do so.

“public sector”

« secteur public »

“public sector” means

However, subject to sections 52 and 53, “public sector” does not include the Canadian Forces, the Canadian Security Intelligence Service or the Communications Security Establishment.

“public servant”

« fonction­naire »

“public servant” means every person employed in the public sector, every member of the Royal Canadian Mounted Police and every chief executive.

“reprisal”

« représailles »

“reprisal” means any of the following measures taken against a public servant because the public servant has made a protected disclosure or has, in good faith, cooperated in an investigation carried out under this Act:

  • (a) a disciplinary measure;

  • (b) the demotion of the public servant;

  • (c) the termination of employment of the public servant, including, in the case of a member of the Royal Canadian Mounted Police, a discharge or dismissal;

  • (d) any measure that adversely affects the employment or working conditions of the public servant; and

  • (e) a threat to take any of the measures referred to in any of paragraphs (a) to (d).

“senior officer”

« agent supérieur »

“senior officer” means a senior officer designated under subsection 10(2).

“wrongdoing”

« acte répréhensible »

“wrongdoing” means a wrongdoing referred to in section 8.

Marginal note:Authority to act for Commission- er of the Royal Canadian Mounted Police

 The Commissioner of the Royal Canadian Mounted Police may authorize a Deputy or Assistant Commissioner of the Royal Canadian Mounted Police to exercise the powers or perform the duties and functions of the Commissioner of the Royal Canadian Mounted Police as a chief executive in respect of any of paragraphs 22(g) and (h), subsections 26(1), 27(1) and (3), 28(1) and 29(3) and sections 36 and 50.

AMENDING THE SCHEDULES

Marginal note:Amending the schedules

 The Governor in Council may, by order, amend

  • (a) Schedule 1 by adding or deleting the name of any Crown corporation or other public body;

  • (b) Schedule 2 by adding or deleting the name of any portion of the public sector that has a statutory mandate to investigate other portions of the public sector; and

  • (c) Schedule 3 by adding or deleting any provision of any Act of Parliament.

PROMOTING ETHICAL PRACTICES

Marginal note:Promotion of ethical practices and dissemination of information

 The Minister must promote ethical practices in the public sector and a positive environment for disclosing wrongdoings by disseminating knowledge of this Act and information about its purposes and processes and by any other means that he or she considers appropriate.

CODE OF CONDUCT

Marginal note:Obligation to establish — Treasury Board
  •  (1) The Treasury Board must establish a code of conduct applicable to the public sector.

  • Marginal note:Other provisions do not apply

    (2) The Treasury Board’s obligation under subsection (1) applies despite the provisions of the Financial Administration Act and of any other Act of Parliament that otherwise restrict the powers of the Treasury Board.

  • Marginal note:Consultation with organizations

    (3) Before the code of conduct is established, the Minister must consult with the employee organizations certified as bargaining agents in the public sector.

  • Marginal note:Code to be tabled

    (4) The Minister must cause the code of conduct established by the Treasury Board to be tabled before each House of Parliament at least 30 days before it comes into force.

Marginal note:Chief executives shall establish codes of conduct
  •  (1) Every chief executive shall establish a code of conduct applicable to the portion of the public sector for which he or she is responsible.

  • Marginal note:Consistency

    (2) The codes of conduct established by chief executives must be consistent with the code of conduct established by the Treasury Board.

Marginal note:Application
  •  (1) The codes of conduct applicable to a portion of the public sector apply to every public servant employed in that portion of the public sector.

  • Marginal note:Conflict — RCMP

    (2) In the event of a conflict between the code of conduct established under subsection 5(1) or 6(1) and the code of conduct established under section 38 of the Royal Canadian Mounted Police Act, the code of conduct established under that section prevails to the extent of the conflict.

WRONGDOINGS

Marginal note:Wrongdoings

 This Act applies in respect of the following wrongdoings in or relating to the public sector:

  • (a) a contravention of any Act of Parliament or of the legislature of a province, or of any regulations made under any such Act;

  • (b) a misuse of public funds or a public asset;

  • (c) a gross mismanagement in the public sector;

  • (d) an act or omission that creates a substantial and specific danger to the life, health or safety of persons, or to the environment, other than a danger that is inherent in the performance of the duties or functions of a public servant;

  • (e) a serious breach of a code of conduct established under section 5 or 6;

  • (f) the taking of a reprisal against a public servant; and

  • (g) knowingly directing or counselling a person to commit a wrongdoing set out in any of paragraphs (a) to (f).

Marginal note:Disciplinary action

 In addition to, and apart from, any penalty provided for by law, a public servant is subject to appropriate disciplinary action, including termination of employment, if he or she commits a wrongdoing.

DISCLOSURE OF WRONGDOINGS

Marginal note:Establishment of internal disclosure procedures
  •  (1) Each chief executive must establish internal procedures to manage disclosures made under this Act by public servants employed in the portion of the public sector for which the chief executive is responsible.

  • Marginal note:Designation of senior officer

    (2) Each chief executive must designate a senior officer to be responsible for receiving and dealing with, in accordance with the duties and powers of senior officers set out in the code of conduct established by the Treasury Board, disclosures of wrongdoings made by public servants employed in the portion of the public sector for which the chief executive is responsible.

  • Marginal note:Senior officer from other portion of public sector

    (3) A chief executive may designate as a senior officer for the portion of the public sector for which the chief executive is responsible a person who is employed in any other portion of the public sector.

  • Marginal note:Exception

    (4) Subsections (1) and (2) do not apply to a chief executive if he or she declares, after giving notice to the Public Service Human Resources Management Agency of Canada, that it is not practical to apply those subsections given the size of that portion of the public sector.

Marginal note:Protection of identity

 Each chief executive must

  • (a) subject to any other Act of Parliament and to the principles of procedural fairness and natural justice, protect the identity of persons involved in the disclosure process, including that of persons making disclosures, witnesses and persons alleged to be responsible for wrongdoings; and

  • (b) establish procedures to ensure the confidentiality of information collected in relation to disclosures of wrongdoings.

Marginal note:Disclosure to supervisor or senior officer

 A public servant may disclose to his or her supervisor or to the senior officer designated for the purpose by the chief executive of the portion of the public sector in which the public servant is employed any information that the public servant believes could show that a wrongdoing has been committed or is about to be committed, or that could show that the public servant has been asked to commit a wrongdoing.

Marginal note:When disclosure can be made to the Commis- sioner
  •  (1) A public servant may disclose information referred to in section 12 to the Commissioner if

    • (a) the public servant believes on reasonable grounds that it would not be appropriate to disclose the information to his or her supervisor, or to the appropriate senior officer, by reason of the subject-matter of the wrongdoing or the person alleged to have committed it;

    • (b) the public servant has already disclosed the information to his or her supervisor or to the appropriate senior officer and is of the opinion that the matter has not been appropriately dealt with; or

    • (c) the portion of the public sector in which the public servant is employed is subject to a declaration made under subsection 10(4).

  • Marginal note:Exception

    (2) Nothing in this Act authorizes a public servant to disclose to the Commissioner a confidence of the Queen’s Privy Council for Canada in respect of which subsection 39(1) of the Canada Evidence Act applies or any information that is subject to solicitor-client privilege. The Commissioner may not use the confidence or information if it is disclosed.

Marginal note:Disclosure concerning the Office of the Public Sector Integrity Commissioner

 A disclosure that a public servant is entitled to make under section 13 that concerns the Office of the Public Sector Integrity Commissioner may be made to the Auditor General of Canada who has, in relation to that disclosure, the powers, duties and protections of the Commissioner under this Act.

Marginal note:Restriction re portions named in Schedule 2

 Despite sections 12 to 14, a public servant employed in a portion of the public sector that has a statutory mandate to investigate other portions of the public sector and that is named in Schedule 2 may disclose information under any of those sections only if the wrongdoing to which the information relates involves the portion of the public sector in which he or she is employed.

Marginal note:Application of ss. 12 to 14

 Sections 12 to 14 apply despite

  • (a) section 5 of the Personal Information Protection and Electronic Documents Act, to the extent that that section relates to obligations set out in Schedule 1 to that Act relating to the disclosure of information; and

  • (b) any restriction created by or under any other Act of Parliament on the disclosure of information, other than a restriction created by or under any provision set out in Schedule 3.

Marginal note:Requirements when making a disclosure

 In making a disclosure under this Act, a public servant must

  • (a) provide no more information than is reasonably necessary to make the disclosure; and

  • (b) follow established procedures or practices for the secure handling, storage, transportation and transmission of information or documents, including, but not limited to, information or documents that the Government of Canada or any portion of the public sector is taking measures to protect.

Marginal note:Disclosure to public
  •  (1) A disclosure that a public servant may make under sections 12 to 14 may be made to the public if there is not sufficient time to make the disclosure under those sections and the public servant believes on reasonable grounds that the subject-matter of the disclosure is an act or omission that

    • (a) constitutes a serious offence under an Act of Parliament or of the legislature of a province; or

    • (b) constitutes an imminent risk of a substantial and specific danger to the life, health and safety of persons, or to the environment.

  • Marginal note:Limitation

    (1.1) Subsection (1) does not apply in respect of information the disclosure of which is subject to any restriction created by or under any Act of Parliament, including the Personal Information Protection and Electronic Documents Act.

  • Marginal note:Rights not affected

    (2) Nothing in subsection (1) affects the rights of a public servant to make to the public in accordance with the law a disclosure that is not protected under this Act.

Marginal note:Exception — special operational information

 Section 12, subsection 13(1) and sections 14 and 16 do not apply in respect of any information that is special operational information within the meaning of subsection 8(1) of the Security of Information Act.

Marginal note:Saving — journalists with Canadian Broadcasting Corporation

 Nothing in this Act relating to the making of disclosures is to be construed as applying to the dissemination of news and information by a person employed by the Canadian Broadcasting Corporation for that purpose.

Marginal note:Other obligations to report

 Nothing in this Act relating to the making of disclosures is to be construed as affecting any obligation of a public servant to disclose, report or otherwise give notice of any matter under any other Act of Parliament.

PROTECTION OF PERSONS MAKING DISCLOSURES

Marginal note:Prohibition against reprisal

 No person shall take any reprisal against a public servant.

Definition of “Board”

  •  (1) In this section and section 21, “Board” means,

    • (a) in relation to a public servant who is employed in the Public Service Labour Relations Board or a person whose complaint relates to a reprisal taken while he or she was so employed, the Canada Industrial Relations Board;

    • (b) in relation to any other public servant who is employed in any portion of the public sector referred to in Schedule I to the Public Service Staff Relations Act or a person whose complaint relates to a reprisal taken while he or she was so employed, the Public Service Staff Relations Board; and

    • (c) in relation to any other public servant, the Canada Industrial Relations Board.

  • Marginal note:Complaint to Board

    (2) Subject to subsection (2.1), a public servant, or former public servant, or a person designated by a public servant or former public servant for the purpose, who alleges that a person has taken a reprisal against the public servant may make a complaint in writing to the Board in respect of the reprisal.

  • Marginal note:Exception — RCMP

    (2.1) A member of the Royal Canadian Mounted Police may not make a complaint under subsection (2) in relation to any matter that is the subject of an investigation or proceeding under Part IV or V of the Royal Canadian Mounted Police Act unless

    • (a) the member has exhausted every procedure available under that Act for dealing with the matter; and

    • (b) the member has been granted leave by the Board to make the complaint.

  • Marginal note:Conditions for granting leave

    (2.2) The Board may grant the leave only if

    • (a) the application for leave is made within 60 days after the procedures referred to in paragraph (2.1)(a) have been exhausted; and

    • (b) the Board is of the opinion that the issue of reprisal was not adequately dealt with by those procedures.

  • Marginal note:Restriction

    (2.3) The Board ceases to have jurisdiction if an application for judicial review of any decision relating to the procedures referred to in paragraph (2.1)(a) is made by the member.

  • Marginal note:Time for making complaint

    (3) Subject to subsection (3.1), the complaint must be made to the Board not later than

    • (a) 60 days after the date on which the complainant knew, or in the Board’s opinion ought to have known, that the reprisal was taken;

    • (b) if the complainant has made a disclosure to the Commissioner in respect of the reprisal during the 60-day period referred to in paragraph (a) and the Commissioner has decided to deal with the disclosure, 60 days after the Commissioner reports his or her findings to the complainant and the appropriate chief executive; or

    • (c) if the complainant is a member of the Royal Canadian Mounted Police and the complaint is in relation to a matter referred to in subsection (2.1), 60 days after the member was granted leave.

  • Marginal note:Time extended

    (3.1) The complaint may be made after the periods referred to in subsection (3) if the Board feels it is appropriate considering the circumstances of the complaint.

  • Marginal note:Exclusion of arbitration

    (4) Despite any law or agreement to the contrary, a complaint made under this section may not be referred by a public servant to arbitration or adjudication.

  • Marginal note:Duty and power of Board

    (5) On receipt of a complaint, the Board may assist the parties to the complaint to settle the complaint. The Board must hear and determine the complaint if it decides not to so assist the parties or the complaint is not settled within a period considered by the Board to be reasonable in the circumstances.

  • Marginal note:Board orders

    (6) If the Board determines that the com­plain­ant has been subject to a reprisal taken in contravention of section 19, the Board may, by order, require the employer or the appropriate chief executive, or any person acting on behalf of the employer or appropriate chief executive, to take all necessary measures to

    • (a) permit the complainant to return to his or her duties;

    • (b) reinstate the complainant or pay damages to the complainant in lieu of reinstatement if, in the Board’s opinion, the relationship of trust between the parties cannot be restored;

    • (c) pay to the complainant compensation in an amount not greater than the amount that, in the Board’s opinion, is equivalent to the remuneration that would, but for the reprisal, have been paid to the complainant;

    • (d) rescind any measure or action, including any disciplinary action, and pay compensation to the complainant in an amount not greater than the amount that, in the Board’s opinion, is equivalent to any financial or other penalty imposed on the complainant; and

    • (e) pay to the complainant an amount equal to any expenses and any other financial losses incurred by the complainant as a direct result of the reprisal.

  • Marginal note:Royal Canadian Mounted Police Act

    (6.1) The Board may make an order in relation to a member of the Royal Canadian Mounted Police despite subsections 42(4) and (6), 45.16(7) and 45.26(6) of the Royal Canadian Mounted Police Act.

  • Marginal note:Standing

    (7) The Commissioner has standing in any proceedings under this section for the purpose of making submissions.

Marginal note:Procedures for RCMP
  •  (1) After having consulted with the Royal Canadian Mounted Police and taken its security and confidentiality needs into account, the Public Service Labour Relations Board shall establish procedures for the processing and hearing of complaints relating to reprisals involving that organization.

  • Marginal note:Full-time member to hear complaint

    (2) A complaint relating to a reprisal involving the Royal Canadian Mounted Police shall not be heard or determined by any person other than a full-time member of the Public Service Labour Relations Board.

Marginal note:Retroactivity
  •  (1) A public servant who alleges that a reprisal was taken against him or her by reason that he or she, in good faith, disclosed a wrongdoing in the course of a parliamentary proceeding or an inquiry under Part I of the Inquiries Act — after February 10, 2004 and before the day on which section 20 comes into force — may make a complaint under that section in respect of the reprisal.

  • Marginal note:Time limit

    (2) The public servant may make the complaint within 60 days after the later of

    • (a) the day on which section 20 comes into force, and

    • (b) the day on which he or she knew or, in the opinion of the Board, ought to have known that the reprisal was taken.

Marginal note:Power to temporarily assign other duties
  •  (1) A chief executive may temporarily assign other duties to a public servant who is involved in a disclosure or a complaint in respect of a reprisal if the chief executive believes on reasonable grounds that the public servant's involvement has become known in the public servant’s workplace and that the tempo­rary assignment is necessary to maintain the effective operation of the workplace.

  • Marginal note:Public servants who may be assigned other duties

    (2) For the purposes of this section, the public servants involved in a disclosure or a complaint in respect of a reprisal are

    • (a) the public servant who made the disclosure and every public servant who is the subject of the disclosure;

    • (b) the public servant who filed the complaint and every public servant who is alleged to have taken the reprisal to which the complaint relates; and

    • (c) every public servant who is a witness or potential witness in the investigation, if any, relating to the disclosure or in any proceeding dealing with the complaint.

  • Marginal note:Duration

    (3) The assignment may be for a period of up to three months, but the chief executive may renew the assignment one or more times if he or she believes that the conditions giving rise to it continue to exist on the expiry of a previous period.

  • Marginal note:Duties

    (4) Subject to subsection (6), the duties that may be assigned must be in the same portion of the public sector in which the public servant is employed and must be comparable to the public servant's normal duties.

  • Marginal note:Consent

    (5) Subsection (1) applies to a public servant who made a disclosure under this Act, or who is a witness or potential witness in any investigation relating to the disclosure or in any proceeding dealing with a complaint in respect of a reprisal, only if the public servant consents in writing to the assignment. The assignment is deemed not to be a reprisal if the public servant's consent is given.

  • Marginal note:Duties in other portion of the public service

    (6) The public servant may be temporarily assigned duties in another portion of the public sector if both the chief executive of that other portion and the public servant consent to the assignment and the duties are comparable to the public servant's normal duties. The assignment is deemed not to be a reprisal if the public servant's consent is given.

DUTIES OF THE COMMISSIONER

Marginal note:Duties

 The duties of the Commissioner under this Act are to

  • (a) provide advice to public servants who are considering making a disclosure under this Act;

  • (b) receive, record and review disclosures of wrongdoings in order to establish whether there are sufficient grounds for further action;

  • (c) conduct investigations of disclosures made in accordance with section 13, and investigations referred to in section 33, including to appoint persons to conduct the investigations on his or her behalf;

  • (d) ensure that the right to procedural fairness and natural justice of all persons involved in investigations is respected, including persons making disclosures, witnesses and persons alleged to be responsible for wrongdoings;

  • (e) subject to any other Act of Parliament, protect, to the extent possible in accordance with the law, the identity of persons involved in the disclosure process, including that of persons making disclosures, witnesses and persons alleged to be responsible for wrongdoings;

  • (f) establish procedures for processing disclosures and ensure the confidentiality of information collected in relation to disclosures and investigations;

  • (g) review the results of investigations and report his or her findings to the persons who made the disclosures and to the appropriate chief executives; and

  • (h) make recommendations to chief executives concerning the measures to be taken to correct wrongdoings and review reports on measures taken by chief executives in response to those recommendations.

Marginal note:Restriction — general
  •  (1) The Commissioner may not deal with a disclosure under this Act or commence an investigation under section 33 if a person or body acting under another Act of Parliament is dealing with the subject-matter of the disclosure or the investigation other than as a law enforcement authority.

  • Marginal note:Royal Canadian Mounted Police Act

    (2) For the purpose of subsection (1), a person or body dealing with a matter in the course of an investigation or proceeding under Part IV or V of the Royal Canadian Mounted Police Act is deemed not to be dealing with the matter as a law enforcement authority.

Marginal note:Right to refuse
  •  (1) The Commissioner may refuse to deal with a disclosure or cease an investigation if he or she is of the opinion that

    • (a) the subject-matter of the disclosure is one that could more appropriately be dealt with, initially or completely, according to a procedure provided for under another Act of Parliament;

    • (b) the subject-matter of the disclosure is not sufficiently important or the disclosure is not made in good faith;

    • (c) the length of time that has elapsed between the date when the subject-matter of the disclosure arose and the date when the disclosure was made is such that dealing with the disclosure would serve no useful purpose;

    • (d) the disclosure relates to a matter that results from a balanced and informed decision-making process on a public policy issue; or

    • (e) there is a valid reason for not dealing with the disclosure.

  • Marginal note:Adjudicative decisions

    (2) The Commissioner must refuse to deal with a disclosure or must cease an investigation if he or she is of the opinion that the subject-matter of the disclosure relates solely to a decision that was made in the exercise of an adjudicative function under an Act of Parliament, including a decision of the Commissioner of the Royal Canadian Mounted Police under Part IV or V of the Royal Canadian Mounted Police Act.

  • Marginal note:Notice of refusal or cessation of investigation

    (3) If the Commissioner refuses to deal with a disclosure or ceases an investigation under this Act, he or she must inform the person who made the disclosure and give reasons why he or she did so.

Marginal note:Delegation
  •  (1) The Commissioner may delegate to any employee of the Office of the Public Sector Integrity Commissioner any of his or her powers and duties under this Act, except

    • (a) the power to delegate under this section;

    • (b) the duties in paragraphs 22(g) and (h) to review the result of investigations, to report findings and to make recommendations;

    • (c) the power in section 24 to refuse to deal with a disclosure and the duty in that section to provide reasons for the refusal;

    • (d) the power to issue, in the exercise of any powers referred to in subsection 29(1), a subpoena or other request or summons to appear before the Commissioner or a person appointed to conduct an investigation;

    • (e) the power in section 33 to commence another investigation;

    • (f) the power in section 34 to refer a matter to another authority;

    • (g) the power in subsection 35(1) to remit information; and

    • (h) the duty or power in any of sections 36 to 38 in relation to making a report.

  • Marginal note:Restriction concerning certain investigations

    (2) The Commissioner may not delegate the conduct of any investigation that involves or may involve information relating to international relations, national defence, national security or the detection, prevention or suppression of criminal, subversive or hostile activities, except to one of a maximum of four officers or employees of the Office of the Public Sector Integrity Commissioner specifically designated by the Commissioner for the purpose of conducting those investigations.

INVESTIGATIONS

Marginal note:Purpose of investigations
  •  (1) Investigations under this Act are for the purpose of bringing the existence of wrongdoings to the attention of chief executives and making recommendations concerning corrective measures to be taken by them.

  • Marginal note:Informality

    (2) The investigations are to be conducted as informally and expeditiously as possible.

Marginal note:Notice to chief executive
  •  (1) When commencing an investigation under this Act, the Commissioner must notify the chief executive concerned and inform that chief executive of the substance of the disclosure to which the investigation relates.

  • Marginal note:Notice to others

    (2) The Commissioner, or the person conducting an investigation, may also notify any other person he or she considers appropriate, including every person whose acts or conduct are called into question by the disclosure to which the investigation relates, and inform that person of the substance of the disclosure.

  • Marginal note:Opportunity to answer allegations

    (3) It is not necessary for the Commissioner to hold any hearing and no person is entitled as of right to be heard by the Commissioner, but if at any time during the course of an investigation under this Act it appears to the Commissioner that there may be sufficient grounds to make a report or recommendation that may adversely affect any individual or any portion of the public sector, the Commissioner must, before completing the investigation, take every reasonable measure to give to that individual or the chief executive responsible for that portion of the public sector a full and ample opportunity to answer any allegation, and to be assisted or represented by counsel, or by any person, for that purpose.

Marginal note:Access
  •  (1) If the Commissioner so requests, chief executives and public servants must provide him or her, or the person conducting an investigation, with any facilities, assistance, information and access to their respective offices that the Commissioner may require for the carrying out of his or her duties under this Act.

  • Marginal note:Application

    (2) Subsection (1) applies despite any restriction created by or under any other Act of Parliament on the disclosure of information.

Marginal note:Powers
  •  (1) In conducting any investigation under this Act, the Commissioner has all the powers of a commissioner under Part II of the Inquiries Act.

  • Marginal note:Subpoenas, etc., and right to be represented

    (2) Whenever the Commissioner issues a subpoena or other request or summons to a person in the exercise of any powers referred to in subsection (1), he or she must allow that person to be assisted or represented by counsel, or by any person.

  • Marginal note:Notice before entering premises

    (3) Before entering the premises of any portion of the public sector in the exercise of any powers under subsection (1), the Commissioner must notify the chief executive of that portion of the public sector.

Marginal note:Exception
  •  (1) Sections 28 and 29 do not apply in respect of a confidence of the Queen’s Privy Council for Canada in respect of which subsection 39(1) of the Canada Evidence Act applies or information that is subject to solicitor-client privilege. The Commissioner may not use the confidence or information if it is nevertheless received under section 28 or 29.

  • Marginal note:Canada Evidence Act

    (2) Nothing in this Act is to be construed as limiting the application of the Canada Evidence Act to investigations conducted by the Commissioner.

Marginal note:Canadian Broadcasting Corporation

 With respect to the Canadian Broadcasting Corporation, in making a request referred to in section 28 or in exercising the powers in section 29, the Commissioner must consider whether doing so will unduly disrupt the gathering and dissemination of news and information by the Corporation.

Marginal note:Self-incrimination

 No public servant shall be excused from cooperating with the Commissioner, or with a person conducting an investigation, on the grounds that any information given by the public servant may tend to incriminate the public servant or subject him or her to any proceeding or penalty, but the information, or any evidence derived from it, may not be used or received to incriminate the public servant in any criminal proceeding against him or her, other than a prosecution under section 132 or 136 of the Criminal Code.

Marginal note:Power to investigate other wrongdoings
  •  (1) If, during the course of an investigation or as a result of any information provided to the Commissioner by a person who is not a public servant, the Commissioner has reason to believe that another wrongdoing, or a wrongdoing, as the case may be, has been committed, he or she may, subject to sections 23 and 24, commence an investigation into the wrongdoing if he or she believes on reasonable grounds that the public interest requires an investigation. The provisions of this Act applicable to investigations commenced as the result of a disclosure apply to investigations commenced under this section.

  • Marginal note:Restriction

    (2) The Commissioner may not, in the course of an investigation commenced under subsection (1), use a confidence of the Queen’s Privy Council for Canada in respect of which subsection 39(1) of the Canada Evidence Act applies, or information that is subject to solicitor-client privilege, if the confidence or information is disclosed to the Commissioner.

Marginal note:Information outside public sector

 If the Commissioner is of the opinion that a matter under investigation would involve obtaining information that is outside the public sector, he or she must cease that part of the investigation and he or she may refer the matter to any authority that he or she considers competent to deal with it.

Marginal note:Remittal of information
  •  (1) If the Commissioner has reasonable grounds to suspect that information obtained in the course of an investigation may be used in the investigation or prosecution of an alleged contravention of any Act of Parliament or of the legislature of a province, he or she may, in addition to or in lieu of continuing the investigation, remit the information, at that point in time, to a peace officer having jurisdiction to investigate the alleged contravention or to the Attorney General of Canada.

  • Marginal note:Restriction

    (1.1) If the information relates to the Royal Canadian Mounted Police, the Commissioner may remit the information only to the Attorney General of Canada.

  • Marginal note:No further remittal of information

    (2) To maintain the separation of investigations carried out under this Act and those carried out for law enforcement purposes, after information has been remitted under subsection (1) in relation to any matter, the Commissioner may not — except in accordance with a prior judicial authorization — remit to any peace officer or to the Attorney General of Canada any further information in relation to that matter that the Commissioner obtains in the course of his or her investigation into that matter and in respect of which there is a reasonable expectation of privacy.

REPORTS

Marginal note:Request for notice of action

 In making a report to a chief executive in respect of an investigation under this Act, the Commissioner may, if he or she considers it appropriate to do so, request that the chief executive provide the Commissioner, within a time specified in the report, with notice of any action taken or proposed to be taken to implement the recommendations contained in the report or reasons why no such action has been or is proposed to be taken.

Marginal note:Report to appropriate Minister or governing council

 If the Commissioner considers it necessary, he or she may report a matter to the Minister responsible for the portion of the public sector concerned or, if the matter relates to a Crown corporation, to its board or governing council, including, but not limited to, when the Commissioner is of the opinion that

  • (a) action has not been taken within a reasonable time in respect of one of his or her recommendations; and

  • (b) a situation that has come to his or her attention in the course of carrying out his or her duties exists that constitutes an imminent risk of a substantial and specific danger to the life, health or safety of persons, or to the environment.

Marginal note:Preparation of report
  •  (1) Within three months after the end of each financial year, the Commissioner must prepare and submit to Parliament an annual report in respect of the activities of the Commissioner during that financial year.

  • Marginal note:Content

    (2) The annual report must set out

    • (a) the number of general inquiries relating to this Act;

    • (b) the number of disclosures received and the number of those that were acted on and those that were not acted on;

    • (c) the number of investigations commenced under this Act;

    • (d) the number of recommendations that the Commissioner has made and their status;

    • (e) whether there are any systemic problems that give rise to wrongdoings;

    • (f) any recommendations for improvement that the Commissioner considers appropriate; and

    • (g) any other matter that the Commissioner considers necessary.

  • Marginal note:Special reports

    (3) The Commissioner may, at any time, make a special report to Parliament referring to and commenting on any matter within the scope of his or her powers and duties under this Act if, in his or her opinion, the matter is of such urgency or importance that a report on it should not be deferred until the time provided for transmission of the annual report.

  • Marginal note:Transmission of reports

    (4) Every report to Parliament made by the Commissioner shall be made by being transmitted to the Speaker of the Senate, and to the Speaker of the House of Commons, for tabling in those Houses.

  • Marginal note:Reference to committee

    (5) After it is transmitted for tabling, every report of the Commissioner stands referred to the committee of the Senate, the House of Commons or both Houses of Parliament that may be designated or established for the purpose of reviewing the Commissioner’s reports.

OFFICE OF THE PUBLIC SECTOR INTEGRITY COMMISSIONER

Public Sector Integrity Commissioner

Marginal note:Appointment
  •  (1) The Governor in Council shall, by commission under the Great Seal, appoint a Public Sector Integrity Commissioner after approval of the appointment by resolution of the Senate and House of Commons.

  • Marginal note:Tenure of office and removal

    (2) Subject to this section, the Commissioner holds office during good behaviour for a term of seven years, but may be removed by the Governor in Council at any time on address of the Senate and House of Commons.

  • Marginal note:Re-appointment

    (3) The Commissioner is eligible to be re-appointed for a further term of not more than seven years.

  • Marginal note:Absence or incapacity

    (4) In the event of the absence or incapacity of the Commissioner, or if the office of Commissioner is vacant, the Governor in Council may appoint another qualified person to hold office instead of the Commissioner for a term of not more than six months, and that person shall, while holding that office, have all of the powers, duties and functions of the Commissioner under this or any other Act of Parliament and be paid the salary or other remuneration and expenses that may be fixed by the Governor in Council.

Marginal note:Rank and powers
  •  (1) The Commissioner has the rank, and all the powers, of a deputy head of a department.

  • Marginal note:Restriction on other employment or activities

    (2) The Commissioner shall not hold any other office or employment in the public sector or carry on any activity that is inconsistent with his or her powers and duties.

Marginal note:Remuneration
  •  (1) The Commissioner is to be paid the remuneration determined by the Governor in Council.

  • Marginal note:Expenses

    (2) The Commissioner is entitled to be paid reasonable travel and other expenses incurred in the course of his or her duties while absent from his or her ordinary place of work if he or she has been appointed to serve on a full-time basis or his or her ordinary place of residence if he or she has been appointed to serve on a part-time basis.

  • Marginal note:Application of Public Service Superannuation Act

    (3) The Commissioner is deemed to be employed in the public service for the purposes of the Public Service Superannuation Act.

  • Marginal note:Application of other Acts

    (4) The Commissioner is deemed to be employed in the federal public administration for the purposes of the Government Employees Compensation Act and regulations made under section 9 of the Aeronautics Act.

Staff

Marginal note:Staff
  •  (1) The officers and employees that are necessary to enable the Commissioner to perform his or her duties and functions are to be appointed in accordance with the Public Service Employment Act.

  • Marginal note:Technical assistance

    (2) The Commissioner may engage on a temporary basis the services of persons having technical or specialized knowledge of any matter relating to the Commissioner’s work to advise and assist the Commissioner in the performance of his or her duties and functions and, with the approval of the Treasury Board, may fix and pay the remuneration and expenses of those persons.

PROHIBITIONS

Marginal note:False statements

 No person shall, in a disclosure of a wrongdoing or in the course of any investigation under this Act of a wrongdoing, knowingly make a false or misleading statement, either orally or in writing, to a supervisor, a senior officer, the Commissioner or a person acting on behalf of or under the direction of any of them.

Marginal note:Obstruction

 No person shall wilfully obstruct a senior officer or the Commissioner, or any person acting on behalf of or under the direction of a senior officer or the Commissioner, in the performance of the senior officer’s, or the Commissioner’s, as the case may be, duties under this Act.

Marginal note:Destroying documents and things, etc.

 No person knowing that a document or thing is likely to be relevant to an investigation under this Act shall

  • (a) destroy, mutilate or alter the document or thing;

  • (b) falsify the document or make a false document;

  • (c) conceal the document or thing; or

  • (d) direct, counsel or cause, in any manner, any person to do anything mentioned in any of paragraphs (a) to (c), or propose, in any manner, to any person that they do anything mentioned in any of those paragraphs.

CONFIDENTIALITY

Marginal note:Security requirements

 The Commissioner and every person acting on behalf of or under the direction of the Commissioner who receives or obtains information relating to an alleged wrongdoing must, with respect to access to and the use of that information, satisfy any security requirements applicable to persons who normally have access to and use of that information and take any oath of secrecy required to be taken by them.

Marginal note:Confidentiality

 Unless the disclosure is required by law or permitted by this Act, the Commissioner and every person acting on behalf of or under the direction of the Commissioner shall not disclose any information that comes to their knowledge in the performance of their duties under this Act.

Marginal note:Canada Evidence Act

 Nothing in this Act is to be construed as limiting the application of the Canada Evidence Act to any disclosure, or proposed disclosure, of information under this Act by the Commissioner or any person acting on behalf of or under his or her direction.

PROTECTION

Marginal note:Protection

 No criminal or civil proceedings lie against the Commissioner, or against any person acting on behalf of or under the direction of the Commissioner, for anything done or omitted to be done, or reported or said, in good faith in the course of the exercise or performance, or purported exercise or performance, of any power or duty of the Commissioner under this Act.

Marginal note:Not compellable witness

 The Commissioner or any person acting on behalf of or under the direction of the Commissioner is not a competent or compellable witness in any proceedings, other than a prosecution for an offence under this Act, in respect of any matter coming to the knowledge of the Commissioner, or that person, as a result of performing any duties under this Act.

Marginal note:Libel or slander

 For the purposes of any law relating to libel or slander,

  • (a) anything said, any information supplied or any document or thing produced in the course of an investigation under this Act by or on behalf of the Commissioner is privileged if it was said, supplied or produced in good faith; and

  • (b) any report under this Act made in good faith by the Commissioner is privileged, and any fair and accurate account of the report made in good faith in a newspaper or any other periodical publication or in a broadcast is privileged.

GENERAL

Marginal note:Disclosure not waiver

 The disclosure of information to the Commissioner under this Act does not, by itself, constitute a waiver of any privilege that may exist with respect to the information.

Marginal note:Restriction
  •  (1) Subject to subsections (2) and (3), when referring any matter under section 34 or making a special or annual report under this Act, the Commissioner shall not disclose any information that the Government of Canada or any portion of the public sector is taking measures to protect, including, but not limited to, information that

    • (a) is a confidence of the Queen’s Privy Council for Canada in respect of which subsection 39(1) of the Canada Evidence Act applies;

    • (b) is subject to solicitor-client privilege;

    • (c) is special operational information within the meaning of subsection 8(1) of the Security of Information Act;

    • (d) is subject to any restriction on disclosure created by or under any other Act of Parliament;

    • (e) could reasonably be expected to cause injury to international relations, national defence or national security, or to the detection, prevention or suppression of criminal, subversive or hostile activities;

    • (f) could reasonably be expected to cause injury to the privacy interests of an indi­vidual; or

    • (g) could reasonably be expected to cause injury to commercial interests.

  • Marginal note:Exception — previously disclosed information or consent

    (2) The Commissioner may disclose any information referred to in subsection (1) if it has already been disclosed following a request under the Access to Information Act or with the consent of the relevant individual or an authorized person in the organization that has a primary interest in the information.

  • Marginal note:Exception — disclosure necessary for referral or report

    (3) The Commissioner may disclose any information referred to in subsection (1) if, in his or her opinion,

    • (a) the disclosure is necessary to refer any matter under section 34 or to establish the grounds for any finding or recommendation in a special or annual report under this Act; and

    • (b) the public interest in making the disclosure clearly outweighs the potential harm from the disclosure.

  • Marginal note:Compliance and consultation

    (4) Before disclosing any information as permitted by subsection (3), the Commissioner must

    • (a) comply with subsection 38.02(1.1) of the Canada Evidence Act; and

    • (b) except for information that only affects the privacy interests of an individual, consult with the organization that has a primary interest in the information.

Marginal note:Personal information

 Despite section 5 of the Personal Information Protection and Electronic Documents Act, to the extent that that section relates to obligations set out in Schedule 1 to that Act relating to the disclosure of information, and despite any other Act of Parliament that restricts the disclosure of information, a report by a chief executive in response to recommendations made by the Commissioner to the chief executive under this Act may include personal information within the meaning of subsection 2(1) of that Act, or section 3 of the Privacy Act, depending on which of those Acts applies to the portion of the public sector for which the chief executive is responsible.

Marginal note:Saving

 Subject to subsection 20(4), nothing in this Act is to be construed as prohibiting

EXCLUDED ORGANIZATIONS

Marginal note:Obligation of excluded organizations

 As soon as possible after the coming into force of this section, the person responsible for each organization that is excluded from the definition of “public sector” in section 2 must establish procedures, applicable to that organization, for the disclosure of wrongdoings, including the protection of persons who disclose the wrongdoings. Those procedures must, in the opinion of the Treasury Board, be similar to those set out in this Act.

Marginal note:Order to make provisions of Act applicable

 The Governor in Council may, by order, direct that any provision of this Act applies, with any modifications that may be specified in the order, in respect of any organization that is excluded from the definition of “public sector” in section 2.

FIVE-YEAR REVIEW

Marginal note:Review

 Five years after this section comes into force, the Minister must cause to be conducted an independent review of this Act, and its administration and operation, and must cause a report on the review to be laid before each House of Parliament on any of the first 15 days on which that House is sitting after the review is completed.

TRANSITIONAL

Marginal note:Transitional — staff
  •  (1) Each person employed in the Public Service Human Resources Management Agency of Canada in the administrative unit known as the Office of the Public Service Integrity Officer assumes, on the coming into force of this section, a position in the Office of the Public Sector Integrity Commissioner.

  • Marginal note:Status unchanged

    (2) Nothing in subsection (1) is to be construed as affecting the status of any person who assumes a position in the Office of the Public Sector Integrity Commissioner by reason of that subsection.

Marginal note:Transfer of appropriations

 To the extent that the charges and expenses are in relation to the Office of the Public Service Integrity Officer, any amount appropriated, for the fiscal year in which this section comes into force, by an appropriation Act based on the Estimates for that year for defraying the charges and expenses of the federal public administration within the portion of the federal public administration known as the Public Service Human Resources Management Agency of Canada, and that, on the day on which this section comes into force, is unexpended is deemed, on that day, to be an amount appropriated for defraying the charges and expenses of the Office of the Public Sector Integrity Commissioner.

Marginal note:Continuation

 Disclosures under the Treasury Board Policy on the Internal Disclosure of Information Concerning Wrongdoing in the Workplace that are being dealt with on the coming into force of this section are to be continued as though they had been made under this Act.

CONSEQUENTIAL AMENDMENTS

R.S., c. A-1Access to Information Act

 Section 16 of the Access to Information Act is amended by adding the following after subsection (1):

  • Marginal note:Public Servants Disclosure Protection Act

    (1.1) If the record came into existence less than five years before the request, the head of a government institution may refuse to disclose any record requested under this Act that contains information

    • (a) prepared in relation to or as a result of a disclosure or an investigation under the Public Servants Disclosure Protection Act; or

    • (b) obtained by a supervisor or a senior officer designated under subsection 10(2) of that Act, or by the Public Sector Integrity Commissioner, in relation to or as a result of a disclosure or an investigation under that Act, if the information identifies, or could reasonably be expected to lead to the identification of, a public servant who made a disclosure under that Act or who cooperated in an investigation under that Act.

R.S., c. C-5Canada Evidence Act

 The schedule to the Canada Evidence Act is amended by adding the following after item 19:

2000, c. 5Personal Information Protection and Electronic Documents Act

 Subsection 9(3) of the Personal Information Protection and Electronic Documents Act is amended by striking out the word “or” at the end of paragraph (c.1), by adding the word “or” at the end of paragraph (d) and by adding the following after paragraph (d):

  • (e) the information came into existence less than five years before it is requested and the information was

  • (i) prepared in relation to or as a result of a disclosure or an investigation under the Public Servants Disclosure Protection Act; or

  • (ii) collected or used by a supervisor or a senior officer designated under subsection 10(2) of that Act, or by the Public Sector Integrity Commissioner, in relation to or as a result of a disclosure or an investigation under that Act, if the information identifies, or could reasonably be expected to lead to the identification of, a public servant who made a disclosure under that Act or who cooperated in an investigation under that Act.

R.S., c. P-21Privacy Act

 Section 22 of the Privacy Act is amended by adding the following after subsection (1):

  • Marginal note:Public Servants Disclosure Protection Act

    (1.1) If the information came into existence less than five years before the request, the head of a government institution may refuse to disclose any personal information requested under subsection 12(1) that was

    • (a) prepared in relation to or as a result of a disclosure or an investigation under the Public Servants Disclosure Protection Act; or

    • (b) obtained by a supervisor or a senior officer designated under subsection 10(2) of that Act, or by the Public Sector Integrity Commissioner, in relation to or as a result of a disclosure or an investigation under that Act, if the information identifies, or could reasonably be expected to lead to the identification of, a public servant who made a disclosure under that Act or who cooperated in an investigation under that Act.

 The schedule to the Act is amended by adding the following in alphabetical order under the heading “Other Government Institutions”:

  • Office of the Public Sector Integrity Commissioner

    Commissariat à l’intégrité du secteur public

COORDINATING AMENDMENTS

Marginal note:2003, c. 22
  •  (1) On the later of the coming into force of section 2 of the Public Service Modernization Act and the coming into force of subsection 20(1) of this Act,

    • (a) paragraph 20(1)(b) of this Act is replaced by the following:

      • (b) in relation to any other public servant who is employed in any portion of the public sector referred to in Schedule I, IV or V to the Financial Administration Act or a person whose complaint relates to a reprisal taken while he or she was so employed, the Public Service Labour Relations Board; and

    • (b) paragraph 51(a) of this Act is replaced by the following:

  • Marginal note:2003, c. 22

    (2) On the later of the coming into force of section 11 of the Public Service Modernization Act and the coming into force of section 2 of this Act, the definition “public sector” in section 2 of this Act is replaced by the following:

    “public sector”

    « secteur public »

    “public sector” means

    • (a) the departments named in Schedule I to the Financial Administration Act and the other portions of the federal public administration named in Schedules I.1 to V to that Act; and

    • (b) the Crown corporations and the other public bodies set out in Schedule 1.

    However, subject to sections 52 and 53, “public sector” does not include the Canadian Forces, the Canadian Security Intelligence Service or the Communications Security Establishment.

  • Marginal note:2003, c. 22

    (3) On the later of the coming into force of section 224 of the Public Service Modernization Act and the coming into force of section 1 of this Act, the reference to “public service of Canada” in the preamble of the English version of this Act is replaced by a reference to “federal public administration”.

COMING INTO FORCE

Marginal note:Order in council
  •  (1) Subject to subsection (2), the provisions of this Act, other than section 59, come into force on a day or days to be fixed by order of the Governor in Council.

  • Marginal note:Canada Pension Plan Investment Board

    (2) The reference to the “Canada Pension Plan Investment Board” in Schedule 1 comes into force, in accordance with subsection 114(4) of the Canada Pension Plan, on a day to be fixed by order of the Governor in Council .

SCHEDULE 1(Section 2 and paragraph 3(a))

  • Bank of Canada

    Banque du Canada

  • Canada Council for the Arts

    Conseil des Arts du Canada

  • Canada Pension Plan Investment Board

    Office d’investissement du régime de pensions du Canada

  • Canadian Broadcasting Corporation

    Société Radio-Canada

  • Canadian Race Relations Foundation

    Fondation canadienne des relations raciales

  • International Development Research Centre

    Centre de recherches pour le développement international

  • National Arts Centre Corporation

    Corporation du Centre national des Arts

  • Public Sector Pension Investment Board

    Office d’investissement des régimes de pensions du secteur public

  • Telefilm Canada

    Téléfilm Canada

SCHEDULE 2(Paragraph 3(b) and section 14.1)

  • Office of the Auditor General of Canada

    Bureau du vérificateur général du Canada

  • Office of the Commissioner of Official Languages

    Commissariat aux langues officielles

  • Office of the Information Commissioner of Canada

    Commissariat à l’information au Canada

  • Office of the Privacy Commissioner of Canada

    Commissariat à la protection de la vie privée au Canada

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