SHORT TITLE

Marginal note:Short title

1. This Act may be cited as the Public Servants Disclosure Protection Act.

INTERPRETATION

Marginal note:Definitions

2. The following definitions apply in this Act.

“chief executive”

« administrateur général »

“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.

“Commissioner”

« commissaire »

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

“member of the Royal Canadian Mounted Police”« membre de la Gendarmerie royale du Canada »

“member of the Royal Canadian Mounted Police”membre de la Gendarmerie royale du Canadamembre de la Gendarmerie royale du Canadamembre de la Gendarmerie royale du Canadamembre de la Gendarmerie royale du Canada 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.

“Minister”

« ministre »

“Minister” means, in respect of sections 4, 5 and 54, the Minister responsible for the Public Service Human Resources Management Agency of Canada.

“protected disclosure”

« divulgation protégée »

“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.

“public sector”

« secteur public »

“public sector” means

• (a) the departments and other portions of the public service of Canada named in Schedule I to the Public Service Staff Relations Act;

• (b) the bodies named in Schedules I.1, II and III to the Financial Administration Act; and

• (c) the Crown corporations and the other public bodies named 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.

“public servant”

« fonction­naire »

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

“reprisal”

« représailles »

“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 carried out under this Act:

• (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).

“senior officer”

« agent supérieur »

“senior officer” means a senior officer designated under subsection 10(2).

“wrongdoing”

« acte répréhensible »

“wrongdoing” means a wrongdoing referred to in section 8.

Marginal note:Authority to act for Commission- er of the Royal Canadian Mounted Police

2.1 The Commissioner of the Royal Canadian Mounted Police may authorize a Deputy or Assistant Commissioner of the Royal Canadian Mounted Police to exercise the powers or perform the duties and functions of the Commissioner of the Royal Canadian Mounted Police as a chief executive in respect of any of paragraphs 22(g) and (h), subsections 26(1), 27(1) and (3), 28(1) and 29(3) and sections 36 and 50.

AMENDING THE SCHEDULES

Marginal note:Amending the schedules

3. The Governor in Council may, by order, amend

• (a) Schedule 1 by adding or deleting 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.

PROMOTING ETHICAL PRACTICES

Marginal note:Promotion of ethical practices and dissemination of information

4. The Minister 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.

CODE OF CONDUCT

Marginal note:Obligation to establish — Treasury Board

• 5. (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 Minister must consult with the employee organizations certified as bargaining agents in the public sector.

• Marginal note:Code to be tabled

  (4) The Minister 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.

Marginal note:Chief executives shall establish codes of conduct

• 6. (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

• 7. (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

8. 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;

• (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;

• (f) the taking of a reprisal against a public servant; and

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

Marginal note:Disciplinary action

9. 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

• 10. (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 Public Service Human Resources Management Agency of Canada, that it is not practical to apply those subsections given the size of that portion of the public sector.

Marginal note:Protection of identity

11. Each chief executive must

• (a) subject to 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; and

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

Marginal note:Disclosure to supervisor or senior officer

12. 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:When disclosure can be made to the Commis- sioner

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

  • (a) the public servant believes on reasonable grounds that it would not be appropriate to disclose the information to his or her supervisor, or to the appropriate senior officer, by reason of the subject-matter of the wrongdoing or the person alleged to have committed it;

  • (b) the public servant has already disclosed the information to his or her supervisor or to the appropriate senior officer and is of the opinion that the matter has not been appropriately dealt with; or

  • (c) the portion of the public sector in which the public servant is employed is subject to a declaration made under subsection 10(4).

• 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.

Marginal note:Disclosure concerning the Office of the Public Sector Integrity Commissioner

14. 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

14.1 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

15. 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

15.1 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.

Marginal note:Disclosure to public

• 16. (1) A disclosure that a public servant may make under sections 12 to 14 may be made to the public if there is not sufficient time to make the disclosure under those sections and the public servant believes on reasonable grounds that the subject-matter of the disclosure is an act or omission that

  • (a) constitutes a serious offence under an Act of Parliament or of the legislature of a province; or

  • (b) constitutes an imminent risk of a substantial and specific danger to the life, health and safety of persons, or to the environment.

• Marginal note:Limitation

  (1.1) Subsection (1) does not apply in respect of information the disclosure of which is subject to any restriction created by or under any Act of Parliament, including the Personal Information Protection and Electronic Documents Act.

• Marginal note:Rights not affected

  (2) Nothing in subsection (1) affects the rights of a public servant to make to the public in accordance with the law a disclosure that is not protected under this Act.

Marginal note:Exception — special operational information

17. Section 12, subsection 13(1) and sections 14 and 16 do not apply in respect of any information that is special operational information within the meaning of subsection 8(1) of the Security of Information Act.

Marginal note:Saving — journalists with Canadian Broadcasting Corporation

18. Nothing in this Act relating to the making of disclosures is to be construed as applying to the dissemination of news and information by a person employed by the Canadian Broadcasting Corporation for that purpose.

Marginal note:Other obligations to report

18.1 Nothing in this Act relating to the making of disclosures is to be construed as affecting any obligation of a public servant to disclose, report or otherwise give notice of any matter under any other Act of Parliament.

PROTECTION OF PERSONS MAKING DISCLOSURES

Marginal note:Prohibition against reprisal

19. No person shall take any reprisal against a public servant.

Definition of “Board”

• 20. (1) In this section and section 21, “Board” means,

  • (a) in relation to a public servant who is employed in the Public Service Labour Relations Board or a person whose complaint relates to a reprisal taken while he or she was so employed, the Canada Industrial Relations Board;

  • (b) in relation to any other public servant who is employed in any portion of the public sector referred to in Schedule I to the Public Service Staff Relations Act or a person whose complaint relates to a reprisal taken while he or she was so employed, the Public Service Staff Relations Board; and

  • (c) in relation to any other public servant, the Canada Industrial Relations Board.

• Marginal note:Complaint to Board

  (2) Subject to subsection (2.1), a public servant, or former public servant, or a person designated by a public servant or former public servant for the purpose, who alleges that a person has taken a reprisal against the public servant may make a complaint in writing to the Board in respect of the reprisal.

• Marginal note:Exception — RCMP

  (2.1) A member of the Royal Canadian Mounted Police may not make a complaint under subsection (2) in relation to any matter that is the subject of an investigation or proceeding under Part IV or V of the Royal Canadian Mounted Police Act unless

  • (a) the member has exhausted every procedure available under that Act for dealing with the matter; and

  • (b) the member has been granted leave by the Board to make the complaint.

• Marginal note:Conditions for granting leave

  (2.2) The Board may grant the leave only if

  • (a) the application for leave is made within 60 days after the procedures referred to in paragraph (2.1)(a) have been exhausted; and

  • (b) the Board is of the opinion that the issue of reprisal was not adequately dealt with by those procedures.

• Marginal note:Restriction

  (2.3) The Board ceases to have jurisdiction if an application for judicial review of any decision relating to the procedures referred to in paragraph (2.1)(a) is made by the member.

• Marginal note:Time for making complaint

  (3) Subject to subsection (3.1), the complaint must be made to the Board not later than

  • (a) 60 days after the date on which the complainant knew, or in the Board’s opinion ought to have known, that the reprisal was taken;

  • (b) if the complainant has made a disclosure to the Commissioner in respect of the reprisal during the 60-day period referred to in paragraph (a) and the Commissioner has decided to deal with the disclosure, 60 days after the Commissioner reports his or her findings to the complainant and the appropriate chief executive; or

  • (c) if the complainant is a member of the Royal Canadian Mounted Police and the complaint is in relation to a matter referred to in subsection (2.1), 60 days after the member was granted leave.

• Marginal note:Time extended

  (3.1) The complaint may be made after the periods referred to in subsection (3) if the Board feels it is appropriate considering the circumstances of the complaint.

• Marginal note:Exclusion of arbitration

  (4) Despite any law or agreement to the contrary, a complaint made under this section may not be referred by a public servant to arbitration or adjudication.

• Marginal note:Duty and power of Board

  (5) On receipt of a complaint, the Board may assist the parties to the complaint to settle the complaint. The Board must hear and determine the complaint if it decides not to so assist the parties or the complaint is not settled within a period considered by the Board to be reasonable in the circumstances.

• Marginal note:Board orders

  (6) If the Board determines that the com­plain­ant has been subject to a reprisal taken in contravention of section 19, the Board may, by order, require the employer or the appropriate chief executive, or any person acting on behalf of the employer or appropriate chief executive, to take all necessary measures to

  • (a) permit the complainant to return to his or her duties;

  • (b) reinstate the complainant or pay damages to the complainant in lieu of reinstatement if, in the Board’s opinion, the relationship of trust between the parties cannot be restored;

  • (c) pay to the complainant compensation in an amount not greater than the amount that, in the Board’s opinion, is equivalent to the remuneration that would, but for the reprisal, have been paid to the complainant;

  • (d) rescind any measure or action, including any disciplinary action, and pay compensation to the complainant in an amount not greater than the amount that, in the Board’s opinion, is equivalent to any financial or other penalty imposed on the complainant; and

  • (e) pay to the complainant an amount equal to any expenses and any other financial losses incurred by the complainant as a direct result of the reprisal.

• Marginal note:Royal Canadian Mounted Police Act

  (6.1) The Board may make an order in relation to a member of the Royal Canadian Mounted Police despite subsections 42(4) and (6), 45.16(7) and 45.26(6) of the Royal Canadian Mounted Police Act.

• Marginal note:Standing

  (7) The Commissioner has standing in any proceedings under this section for the purpose of making submissions.