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

Marginal note:Rank and powers

• 39.1 (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

• 39.2 (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

• 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.

• 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

General Prohibitions

Marginal note:False statements

40 No person shall, in a disclosure of a wrongdoing or in the course of any investigation under this Act, 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

41 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.

42 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.

Employers

Marginal note:Prohibition — employer

• 42.1 (1) No employer shall take any of the following measures against an employee by reason only that the employee has, in good faith and on the basis of reasonable belief, provided information concerning an alleged wrongdoing in the public sector to the Commissioner or, if the alleged wrongdoing relates to the Office of the Public Sector Integrity Commissioner, to the Auditor General of Canada — or by reason only that the employer believes that the employee will do so:

  • (a) take a disciplinary measure against the employee;

  • (b) demote the employee;

  • (c) terminate the employment of the employee;

  • (d) take any measure that adversely affects the employment or working conditions of the employee; or

  • (e) threaten to take any measure referred to in paragraphs (a) to (d).

• Marginal note:Saving

  (2) Nothing in subsection (1) impairs any right of an employee either at law or under an employment contract or collective agreement.

• Meaning of employer

  (3) For the purpose of subsection (1), employer does not include an employer in the public sector.

Contracts

Marginal note:Prohibition — termination of contract or withholding of payments

• 42.2 (1) A public servant or any person purporting to act on behalf of Her Majesty in right of Canada or a portion of the public sector shall not terminate any contract with Her Majesty in right of Canada or any portion of the public sector, or withhold any payment that is due and payable in respect of any such contract, by reason only that the other party to the contract or any of that other party’s employees has, in good faith and on the basis of reasonable belief, provided information concerning an alleged wrongdoing in the public sector to the Commissioner or, if the alleged wrongdoing relates to the Office of the Public Sector Integrity Commissioner, to the Auditor General of Canada.

• Marginal note:Prohibition — entering into contract

  (2) A public servant or any person purporting to act on behalf of Her Majesty in right of Canada or a portion of the public sector shall not, in considering whether to enter into a contract with a person, take into account that the person or any of the person’s employees has, in the past, in good faith and on the basis of reasonable belief, provided information concerning an alleged wrongdoing in the public sector to the Commissioner or, if the alleged wrongdoing relates to the Office of the Public Sector Integrity Commissioner, to the Auditor General of Canada.

• Meaning of contract

  (3) In this section, contract includes, but is not limited to, an agreement for the supply of goods or the provision of services, an agreement relating to real property or immoveables, a loan, a grant and a contribution, but does not include an agreement by a public servant, or by a person appointed by the Governor in Council or by a minister of the Crown, to perform the duties to which their employment or appointment relates.

Offence

Marginal note:Offence and punishment

42.3 Every person who knowingly contravenes section 19 or contravenes any of sections 40 to 42.2 commits an offence and is guilty of

• (a) an indictable offence and liable to a fine of not more than $10,000 or to imprisonment for a term of not more than two years, or to both that fine and that imprisonment; or

• (b) an offence punishable on summary conviction and liable to a fine of not more than $5,000 or to imprisonment for a term of not more than six months, or to both that fine and that imprisonment.

Confidentiality

Marginal note:Security requirements

43 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

44 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

44.1 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

45 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

• 46 (1) 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:Exceptions

  (2) Subsection (1) does not apply to

  • (a) the Commissioner or any person acting on behalf of or under the direction of the Commissioner, with respect to the Commissioner’s participation in any proceedings before the Tribunal; or

  • (b) a person designated as an investigator under section 19.7 with regard to his or her participation in the investigation for which he or she was so designated.

Marginal note:Libel or slander

47 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

48 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

• 49 (1) Subject to subsections (2) and (3), when referring any matter under section 34 or making a report under section 38, 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 Foreign Interference and 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 report under section 38; 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

50 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

51 Subject to subsections 19.1(4) and 21.8(4), nothing in this Act is to be construed as prohibiting

• (a) the presentation of an individual grievance under subsection 208(1) or section 238.24 of the Federal Public Sector Labour Relations Act; or

• (b) the Canada Industrial Relations Board from considering a complaint under section 242 of the Canada Labour Code.