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.

 
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