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

Act current to 2021-11-17 and last amended on 2019-07-29. Previous Versions

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

Preamble

Recognizing that

the federal public administration 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;

    2005, c. 46, s. 59(E).

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

  •  (1) The following definitions apply in this Act.

    Agency

    Agency[Repealed, 2010, c. 12, s. 1678]

    chief executive

    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. (administrateur général)

    Commissioner

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

    investigation

    investigation means, for the purposes of sections 24, 25, 26 to 31, 33, 34, 36 and 37, an investigation into a disclosure and an investigation commenced under section 33. (enquête)

    member of the Royal Canadian Mounted Police

    member of the Royal Canadian Mounted Police 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. (membre de la Gendarmerie royale du Canada)

    Minister

    Minister[Repealed, 2010, c. 12, s. 1678]

    protected disclosure

    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. (divulgation protégée)

    public sector

    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. (secteur public)

    public servant

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

    reprisal

    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 into a disclosure or an investigation commenced under section 33:

    • (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). (représailles)

    senior officer

    senior officer means a senior officer designated under subsection 10(2). (agent supérieur)

    Tribunal

    Tribunal means the Public Servants Disclosure Protection Tribunal established under subsection 20.7(1). (Tribunal)

    wrongdoing

    wrongdoing means a wrongdoing referred to in section 8. (acte répréhensible)

  • Marginal note:Taking a reprisal

    (2) Every reference in this Act to a person who has taken a reprisal includes a person who has directed the reprisal to be taken.

  • 2005, c. 46, ss. 2, 59
  • 2006, c. 9, s. 194
  • 2010, c. 12, s. 1678

 [Repealed before coming into force, 2006, c. 9, s. 195]

Amending the Schedules

Marginal note:Amending the schedules

 The Governor in Council may, by order, amend

  • (a) Schedule 1 by adding 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.

  • 2005, c. 46, s. 3
  • 2006, c. 9, s. 196

Promoting Ethical Practices

Marginal note:Promotion of ethical practices and dissemination of information

 The President of the Treasury Board 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.

  • 2005, c. 46, s. 4
  • 2010, c. 12, s. 1682

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 President of the Treasury Board must consult with the employee organizations certified as bargaining agents in the public sector.

  • Marginal note:Code to be tabled

    (4) The President of the Treasury Board 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.

  • 2005, c. 46, s. 5
  • 2010, c. 12, s. 1682

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, other than a contravention of section 19 of this 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; and

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

  • (g) [Repealed, 2006, c. 9, s. 197]

  • 2005, c. 46, s. 8
  • 2006, c. 9, s. 197

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 Chief Human Resources Officer appointed under subsection 6(2.1) of the Financial Administration Act, that it is not practical to apply those subsections given the size of that portion of the public sector.

  • 2005, c. 46, s. 10
  • 2006, c. 9, s. 198
  • 2010, c. 12, s. 1679
  • 2011, c. 24, s. 177

Marginal note:Duty of chief executives

  •  (1) Each chief executive must

    • (a) subject to paragraph (c) and 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;

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

    • (c) if wrongdoing is found as a result of a disclosure made under section 12, promptly provide public access to information that

      • (i) describes the wrongdoing, including information that could identify the person found to have committed it if it is necessary to identify the person to adequately describe the wrongdoing, and

      • (ii) sets out the recommendations, if any, set out in any report made to the chief executive in relation to the wrongdoing and the corrective action, if any, taken by the chief executive in relation to the wrongdoing or the reasons why no corrective action was taken.

  • Marginal note:Exception

    (2) Nothing in paragraph (1)(c) requires a chief executive to provide public access to information the disclosure of which is subject to any restriction created by or under any Act of Parliament.

  • 2005, c. 46, s. 11
  • 2006, c. 9, s. 199

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:Disclosure to the Commissioner

  •  (1) A public servant may disclose information referred to in section 12 to the Commissioner.

  • 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.

  • 2005, c. 46, s. 13
  • 2006, c. 9, s. 200

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.

 
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