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

Act current to 2019-05-22 and last amended on 2018-03-06. Previous Versions

Investigations (continued)

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, 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.

  • 2005, c. 46, s. 36
  • 2006, c. 9, s. 208(E)

Marginal note:Report to appropriate Minister or governing council

 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

  • (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.

  • 2005, c. 46, s. 37
  • 2006, c. 9, s. 209

Marginal note:Annual report

  •  (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.

  • 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 complaints made in relation to reprisals, and the number of them 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;

    • (d.1) in relation to complaints made in relation to reprisals, the number of settlements, applications to the Tribunal and decisions to dismiss them;

    • (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 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.

  • (5) [Repealed, 2006, c. 9, s. 210]

  • 2005, c. 46, s. 38
  • 2006, c. 9, s. 210
 
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