Federal Accountability Act (S.C. 2006, c. 9)
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Assented to 2006-12-12
PART 3OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS, ADMINISTRATIVE TRANSPARENCY AND DISCLOSURE OF WRONGDOING
2005, c. 46Public Servants Disclosure Protection Act
Amendments to Act
202. (1) Paragraph 22(a) of the Act is replaced by the following:
(a) provide information and advice regarding the making of disclosures under this Act and the conduct of investigations by the Commissioner;
(2) Paragraphs 22(g) and (h) of the Act are replaced by the following:
(g) review the results of investigations into disclosures and those commenced under section 33 and report his or her findings to the persons who made the disclosures and to the appropriate chief executives;
(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; and
(i) receive, review, investigate and otherwise deal with complaints made in respect of reprisals.
203. Sections 24 and 25 of the Act are replaced by the following:
Marginal note:Right to refuse
24. (1) The Commissioner may refuse to deal with a disclosure or to commence an investigation — and he or she may cease an investigation — if he or she is of the opinion that
(a) the subject-matter of the disclosure or the investigation has been adequately dealt with, or could more appropriately be dealt with, according to a procedure provided for under another Act of Parliament;
(b) the subject-matter of the disclosure or the investigation is not sufficiently important;
(c) the disclosure was not made in good faith or the information that led to the investigation under section 33 was not provided in good faith;
(d) the length of time that has elapsed since the date when the subject-matter of the disclosure or the investigation arose is such that dealing with it would serve no useful purpose;
(e) the subject-matter of the disclosure or the investigation relates to a matter that results from a balanced and informed decision-making process on a public policy issue; or
(f) there is a valid reason for not dealing with the subject-matter of the disclosure or the investigation.
Marginal note:Adjudicative decisions
(2) The Commissioner must refuse to deal with a disclosure or to commence an investigation if he or she is of the opinion that the subject-matter of the disclosure or the investigation 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
(3) If the Commissioner refuses to deal with a disclosure or to commence an investigation, he or she must inform the person who made the disclosure, or who provided the information referred to in section 33, as the case may be, and give reasons why he or she did so.
Marginal note:Delegation
25. (1) The Commissioner may delegate to any employee in 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 power to decide not to deal with a complaint filed under subsection 19.1(1);
(c) the power in section 20.2 to approve or reject a settlement;
(d) the power in section 20.4 to apply to the Tribunal;
(e) the power in section 20.5 to dismiss a complaint;
(f) the duties in paragraphs 22(g) and (h) to review the result of investigations, to report findings and to make recommendations;
(g) the power in section 24 to refuse to deal with a disclosure or to commence an investigation, the power in that section to cease an investigation and the duty in that section to provide reasons;
(h) 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;
(i) the power in section 33 to commence an investigation;
(j) the power in section 34 to refer a matter to another authority;
(k) the power in subsection 35(1) to remit information;
(l) the power to request that a chief executive provide notice as referred to in section 36; and
(m) the power in section 37 and the power and duties in section 38 to make a report.
Marginal note:Restriction concerning certain investigations
(2) The Commissioner may not delegate the conduct of an 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.
Marginal note:Access to legal advice
25.1 (1) The Commissioner may provide access to legal advice to
(a) any public servant who is considering making a disclosure of wrongdoing under this Act;
(b) any person who is not a public servant who is considering providing information to the Commissioner in relation to any act or omission that may constitute a wrongdoing under this Act;
(c) any public servant who has made a disclosure under this Act;
(d) any person who is or has been involved in any investigation conducted by a senior officer or by or on behalf of the Commissioner under this Act;
(e) any public servant who is considering making a complaint under this Act regarding an alleged reprisal taken against him or her; or
(f) any person who is or has been involved in a proceeding under this Act regarding an alleged reprisal.
Marginal note:Condition
(2) The Commissioner may provide the access to legal advice only if the public servant or person satisfies the Commissioner that they do not have other access to legal advice at no cost to them.
Marginal note:Additional condition
(3) In addition to the condition referred to in subsection (2), the Commissioner may provide access to legal advice to a public servant referred to in paragraph (1)(a) or a person referred to in paragraph (1)(b) only if the Commissioner is of the opinion that the act or omission to which the disclosure or the information relates, as the case may be, likely constitutes a wrongdoing under this Act and that the disclosure or the provision of the information is likely to lead to an investigation being conducted under this Act.
Marginal note:Maximum payment
(4) The maximum amount that may be paid by the Commissioner under this section for legal advice provided or to be provided to any particular public servant or person in relation to any particular act or omission that may constitute a wrongdoing or reprisal is $1,500.
Marginal note:Maximum value
(5) If, for the purpose of this section, the Commissioner chooses to provide access to legal advice to any particular public servant or person in relation to a particular act or omission that may constitute a wrongdoing or reprisal through legal counsel employed in his or her office, the monetary value of the time spent by them in providing the legal advice may not be more than $1,500.
Marginal note:Deemed amount
(6) If the Commissioner is of the opinion that there are exceptional circumstances, the maximum amount provided for in subsections (4) and (5) is deemed to be $3,000.
Marginal note:Factors
(7) In determining the amount to be paid for legal advice, or the monetary value of the time to be spent providing it, as the case may be, the Commissioner must take into account
(a) the degree to which the public interest may be affected by the subject-matter of the disclosure or the information provided; and
(b) the degree to which the public servant or person seeking the legal advice may be adversely affected as a result of his or her involvement in making the disclosure, providing the information, making the complaint or participating in the investigation or the proceeding, as the case may be.
Marginal note:Grants and contributions
(8) For the purpose of providing access to legal advice under this section, the Commissioner may make grants or contributions in accordance with terms and conditions approved by the Treasury Board.
Marginal note:Solicitor-client basis
(9) The relationship between the public servant or person to whom access to legal advice is provided under this section and the legal counsel providing the advice is that of solicitor and client.
204. Subsection 26(1) of the Act is replaced by the following:
Marginal note:Purpose of investigations
26. (1) Investigations into disclosures and investigations commenced under section 33 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.
205. (1) Subsection 27(1) of the English version of the Act is replaced by the following:
Marginal note:Notice to chief executive
27. (1) When commencing an investigation, the Commissioner must notify the chief executive concerned and inform that chief executive of the substance of the disclosure to which the investigation relates.
(2) Subsection 27(3) of the English version of the Act is replaced by the following:
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 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.
206. Subsection 28(1) of the Act is replaced by the following:
Marginal note:Access
28. (1) If the Commissioner so requests for the purposes of an investigation, chief executives and public servants must provide him or her, or the person conducting the investigation, with any facilities, assistance, information and access to their respective offices that the Commissioner may require.
207. Subsection 29(1) of the Act is replaced by the following:
Marginal note:Powers
29. (1) In conducting an investigation, the Commissioner has all the powers of a commissioner under Part II of the Inquiries Act.
208. Section 36 of the English version of the Act is replaced by the following:
Marginal note:Request for notice of action
36. In making a report to a chief executive in respect of an investigation, 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.
209. The portion of section 37 of the Act before paragraph (a) is replaced by the following:
Marginal note:Report to appropriate Minister or governing council
37. If the Commissioner considers it necessary, he or she may report any matter that arises out of an investigation 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
210. (1) Subsection 38(1) of the Act is replaced by the following:
Marginal note:Annual report
38. (1) Within three months after the end of each financial year, the Commissioner must prepare an annual report in respect of the activities of the Commissioner during that financial year.
(2) Paragraph 38(2)(b) of the Act is replaced by the following:
(b) the number of disclosures received and complaints made in relation to reprisals, and the number of them that were acted on and those that were not acted on;
(3) Subsection 38(2) of the Act is amended by adding the following after paragraph (d):
(d.1) in relation to complaints made in relation to reprisals, the number of settlements, applications to the Tribunal and decisions to dismiss them;
(4) Subsections 38(3) to (5) of the Act are replaced by the following:
Marginal note:Special report
(3) The Commissioner may, at any time, prepare a special report 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 the submission of the annual report.
Marginal note:Case report
(3.1) If the Commissioner makes a report to a chief executive in respect of an investigation into a disclosure or an investigation commenced under section 33 and there is a finding of wrongdoing in the report, the Commissioner must, within 60 days after making the report, prepare a case report setting out
(a) the finding of wrongdoing;
(b) the recommendations, if any, set out in the report made to the chief executive;
(c) the time, if any, that was specified in the report to the chief executive for the chief executive to provide the notice referred to in section 36;
(d) the Commissioner’s opinion as to whether the chief executive’s response to the report to the chief executive, up to that point in time, is satisfactory; and
(e) the chief executive’s written comments, if any.
Marginal note:Opportunity to make representations
(3.2) Before making a case report, the Commissioner must provide the chief executive with a reasonable opportunity to make written comments.
Marginal note:Tabling of report
(3.3) Within the period referred to in subsection (1) for the annual report and the period referred to in subsection (3.1) for a case report, and at any time for a special report, the Commissioner shall submit the report to the Speaker of the Senate and the Speaker of the House of Commons, who shall each table the report in the House over which he or she presides forthwith after receiving it or, if that House is not then sitting, on any of the first fifteen days on which that House is sitting after the Speaker receives it.
Marginal note:Referral to Committee
(4) After it is tabled, every report 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.
211. The Act is amended by adding the following after section 38:
Marginal note:Report to Agency — disclosures under section 12
38.1 (1) Within 60 days after the end of each financial year, each chief executive must prepare and submit to the Agency a report for that financial year on the activities, in the portion of the public sector for which the chief executive is responsible, respecting disclosures made under section 12.
Marginal note:Report to Minister — disclosures under section 12
(2) Within six months after the end of each financial year, the President of the Agency must prepare and submit to the Minister a report for that financial year that provides an overview of the activities, throughout the public sector, respecting disclosures made under section 12.
Marginal note:Content
(3) The report under subsection (2) must set out
(a) the number of general inquiries relating to this Act;
(b) the number of disclosures received, the number of those that were acted on and the number of those that were not acted on;
(c) the number of investigations commenced as a result of disclosures made under section 12;
(d) whether there are any systemic problems that give rise to wrongdoings; and
(e) any other matter that the President of the Agency considers necessary.
Marginal note:Report to Parliament
(4) The Minister must cause the report to be laid before each House of Parliament on any of the first 15 days on which that House is sitting after the Minister receives the report.
212. Subsection 39.3(1) of the Act is replaced by the following:
Marginal note:Staff
39.3 (1) The Deputy Commissioner and 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:Duties and powers of Deputy Commissioner
(1.1) The Deputy Commissioner exercises any of the powers and performs any of the duties and functions that the Commissioner may assign.
Marginal note:Scope of assigned duties and functions
(1.2) The assignment of powers, duties and functions by the Commissioner to the Deputy Commissioner may include the delegation to the Deputy Commissioner of any of the Commissioner's powers, duties and functions, including those referred to in paragraphs 25(1)(a) to (k) and the powers in sections 36 and 37, but it may not include the delegation of the Commissioner’s power or any of his or her duties in section 38.
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