Public Servants Disclosure Protection Act (S.C. 2005, c. 46)
Assented to 2005-11-25
Marginal note:Procedures for RCMP
20.1 (1) After having consulted with the Royal Canadian Mounted Police and taken its security and confidentiality needs into account, the Public Service Labour Relations Board shall establish procedures for the processing and hearing of complaints relating to reprisals involving that organization.
Marginal note:Full-time member to hear complaint
(2) A complaint relating to a reprisal involving the Royal Canadian Mounted Police shall not be heard or determined by any person other than a full-time member of the Public Service Labour Relations Board.
21. (1) A public servant who alleges that a reprisal was taken against him or her by reason that he or she, in good faith, disclosed a wrongdoing in the course of a parliamentary proceeding or an inquiry under Part I of the Inquiries Act — after February 10, 2004 and before the day on which section 20 comes into force — may make a complaint under that section in respect of the reprisal.
Marginal note:Time limit
(2) The public servant may make the complaint within 60 days after the later of
(a) the day on which section 20 comes into force, and
(b) the day on which he or she knew or, in the opinion of the Board, ought to have known that the reprisal was taken.
Marginal note:Power to temporarily assign other duties
21.1 (1) A chief executive may temporarily assign other duties to a public servant who is involved in a disclosure or a complaint in respect of a reprisal if the chief executive believes on reasonable grounds that the public servant's involvement has become known in the public servant’s workplace and that the temporary assignment is necessary to maintain the effective operation of the workplace.
Marginal note:Public servants who may be assigned other duties
(2) For the purposes of this section, the public servants involved in a disclosure or a complaint in respect of a reprisal are
(a) the public servant who made the disclosure and every public servant who is the subject of the disclosure;
(b) the public servant who filed the complaint and every public servant who is alleged to have taken the reprisal to which the complaint relates; and
(c) every public servant who is a witness or potential witness in the investigation, if any, relating to the disclosure or in any proceeding dealing with the complaint.
(3) The assignment may be for a period of up to three months, but the chief executive may renew the assignment one or more times if he or she believes that the conditions giving rise to it continue to exist on the expiry of a previous period.
(4) Subject to subsection (6), the duties that may be assigned must be in the same portion of the public sector in which the public servant is employed and must be comparable to the public servant's normal duties.
(5) Subsection (1) applies to a public servant who made a disclosure under this Act, or who is a witness or potential witness in any investigation relating to the disclosure or in any proceeding dealing with a complaint in respect of a reprisal, only if the public servant consents in writing to the assignment. The assignment is deemed not to be a reprisal if the public servant's consent is given.
Marginal note:Duties in other portion of the public service
(6) The public servant may be temporarily assigned duties in another portion of the public sector if both the chief executive of that other portion and the public servant consent to the assignment and the duties are comparable to the public servant's normal duties. The assignment is deemed not to be a reprisal if the public servant's consent is given.
DUTIES OF THE COMMISSIONER
22. The duties of the Commissioner under this Act are to
(a) provide advice to public servants who are considering making a disclosure under this Act;
(b) receive, record and review disclosures of wrongdoings in order to establish whether there are sufficient grounds for further action;
(c) conduct investigations of disclosures made in accordance with section 13, and investigations referred to in section 33, including to appoint persons to conduct the investigations on his or her behalf;
(d) ensure that the right to procedural fairness and natural justice of all persons involved in investigations is respected, including persons making disclosures, witnesses and persons alleged to be responsible for wrongdoings;
(e) subject to any other Act of Parliament, protect, to the extent possible in accordance with the law, the identity of persons involved in the disclosure process, including that of persons making disclosures, witnesses and persons alleged to be responsible for wrongdoings;
(f) establish procedures for processing disclosures and ensure the confidentiality of information collected in relation to disclosures and investigations;
(g) review the results of investigations and report his or her findings to the persons who made the disclosures and to the appropriate chief executives; and
(h) make recommendations to chief executives concerning the measures to be taken to correct wrongdoings and review reports on measures taken by chief executives in response to those recommendations.
Marginal note:Restriction — general
23. (1) The Commissioner may not deal with a disclosure under this Act or commence an investigation under section 33 if a person or body acting under another Act of Parliament is dealing with the subject-matter of the disclosure or the investigation other than as a law enforcement authority.
Marginal note:Royal Canadian Mounted Police Act
(2) For the purpose of subsection (1), a person or body dealing with a matter in the course of an investigation or proceeding under Part IV or V of the Royal Canadian Mounted Police Act is deemed not to be dealing with the matter as a law enforcement authority.
Marginal note:Right to refuse
24. (1) The Commissioner may refuse to deal with a disclosure or cease an investigation if he or she is of the opinion that
(a) the subject-matter of the disclosure is one that could more appropriately be dealt with, initially or completely, according to a procedure provided for under another Act of Parliament;
(b) the subject-matter of the disclosure is not sufficiently important or the disclosure is not made in good faith;
(c) the length of time that has elapsed between the date when the subject-matter of the disclosure arose and the date when the disclosure was made is such that dealing with the disclosure would serve no useful purpose;
(d) the disclosure relates to a matter that results from a balanced and informed decision-making process on a public policy issue; or
(e) there is a valid reason for not dealing with the disclosure.
Marginal note:Adjudicative decisions
(2) The Commissioner must refuse to deal with a disclosure or must cease an investigation if he or she is of the opinion that the subject-matter of the disclosure relates solely to a decision that was made in the exercise of an adjudicative function under an Act of Parliament, including a decision of the Commissioner of the Royal Canadian Mounted Police under Part IV or V of the Royal Canadian Mounted Police Act.
Marginal note:Notice of refusal or cessation of investigation
(3) If the Commissioner refuses to deal with a disclosure or ceases an investigation under this Act, he or she must inform the person who made the disclosure and give reasons why he or she did so.
25. (1) The Commissioner may delegate to any employee of the Office of the Public Sector Integrity Commissioner any of his or her powers and duties under this Act, except
(a) the power to delegate under this section;
(b) the duties in paragraphs 22(g) and (h) to review the result of investigations, to report findings and to make recommendations;
(c) the power in section 24 to refuse to deal with a disclosure and the duty in that section to provide reasons for the refusal;
(d) the power to issue, in the exercise of any powers referred to in subsection 29(1), a subpoena or other request or summons to appear before the Commissioner or a person appointed to conduct an investigation;
(e) the power in section 33 to commence another investigation;
(f) the power in section 34 to refer a matter to another authority;
(g) the power in subsection 35(1) to remit information; and
(h) the duty or power in any of sections 36 to 38 in relation to making a report.
Marginal note:Restriction concerning certain investigations
(2) The Commissioner may not delegate the conduct of any investigation that involves or may involve information relating to international relations, national defence, national security or the detection, prevention or suppression of criminal, subversive or hostile activities, except to one of a maximum of four officers or employees of the Office of the Public Sector Integrity Commissioner specifically designated by the Commissioner for the purpose of conducting those investigations.
Marginal note:Purpose of investigations
26. (1) Investigations under this Act 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.
(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 under this Act, 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 under this Act 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.
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