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

Investigations

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.

• Marginal note:Informality

  (2) The investigations are to be conducted as informally and expeditiously as possible.

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.

• Marginal note:Notice to others

  (2) The Commissioner, or the person conducting an investigation, may also notify any other person he or she considers appropriate, including every person whose acts or conduct are called into question by the disclosure to which the investigation relates, and inform that person of the substance of the disclosure.

• 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.

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.

• Marginal note:Application

  (2) Subsection (1) applies despite any restriction created by or under any other Act of Parliament on the disclosure of information.

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.

• Marginal note:Subpoenas, etc., and right to be represented

  (2) Whenever the Commissioner issues a subpoena or other request or summons to a person in the exercise of any powers referred to in subsection (1), he or she must allow that person to be assisted or represented by counsel, or by any person.

• Marginal note:Notice before entering premises

  (3) Before entering the premises of any portion of the public sector in the exercise of any powers under subsection (1), the Commissioner must notify the chief executive of that portion of the public sector.

Marginal note:Exception

• 30 (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

31 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

32 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

• 33 (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

34 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

• 35 (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

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.

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

• (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.

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.

• 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]

Marginal note:Report — 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 Chief Human Resources Officer appointed under subsection 6(2.1) of the Financial Administration Act 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 President of the Treasury Board — disclosures under section 12

  (2) Within six months after the end of each financial year, the Chief Human Resources Officer must prepare and submit to the President of the Treasury Board 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 Chief Human Resources Officer considers necessary.

• Marginal note:Report to Parliament

  (4) The President of the Treasury Board 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 President of the Treasury Board receives the report.

Office of the Public Sector Integrity Commissioner

Public Sector Integrity Commissioner

Marginal note:Appointment

• 39 (1) The Governor in Council shall, by commission under the Great Seal, appoint a Public Sector Integrity Commissioner after consultation with the Leader of the Government in the Senate or Government Representative in the Senate, the Leader of the Opposition in the Senate, the Leader or Facilitator of every other recognized party or parliamentary group in the Senate and the leader of every recognized party in the House of Commons and approval of the appointment by resolution of the Senate and House of Commons.

• Marginal note:Tenure

  (2) Subject to this section, the Commissioner holds office during good behaviour for a term of seven years, but may be removed for cause by the Governor in Council at any time on address of the Senate and House of Commons.

• Marginal note:Re-appointment

  (3) The Commissioner is eligible to be re-appointed for a further term of not more than seven years.

• Marginal note:Interim appointment

  (4) In the event of the absence or incapacity of the Commissioner, or if that office is vacant, the Governor in Council may appoint any qualified person to hold that office in the interim for a term not exceeding six months, and that person shall, while holding office, be paid the salary or other remuneration and expenses that may be fixed by the Governor in Council.