Public Servants Disclosure Protection Act (S.C. 2005, c. 46)
Assented to 2005-11-25
39.3 (1) 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: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.
Marginal note:False statements
40. No person shall, in a disclosure of a wrongdoing or in the course of any investigation under this Act of a wrongdoing, 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.
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.
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.
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.
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. 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: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.
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.
49. (1) Subject to subsections (2) and (3), when referring any matter under section 34 or making a special or annual report under this Act, 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 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 special or annual report under this Act; 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.
51. Subject to subsection 20(4), nothing in this Act is to be construed as prohibiting
(a) a person from presenting a grievance under section 91 of the Public Service Staff Relations Act; or
(b) an adjudicator from considering a complaint under section 242 of the Canada Labour Code.
Marginal note:Obligation of excluded organizations
52. As soon as possible after the coming into force of this section, the person responsible for each organization that is excluded from the definition of “public sector” in section 2 must establish procedures, applicable to that organization, for the disclosure of wrongdoings, including the protection of persons who disclose the wrongdoings. Those procedures must, in the opinion of the Treasury Board, be similar to those set out in this Act.
Marginal note:Order to make provisions of Act applicable
53. The Governor in Council may, by order, direct that any provision of this Act applies, with any modifications that may be specified in the order, in respect of any organization that is excluded from the definition of “public sector” in section 2.
54. Five years after this section comes into force, the Minister must cause to be conducted an independent review of this Act, and its administration and operation, and must cause a report on the review to be laid before each House of Parliament on any of the first 15 days on which that House is sitting after the review is completed.
Marginal note:Transitional — staff
54.1 (1) Each person employed in the Public Service Human Resources Management Agency of Canada in the administrative unit known as the Office of the Public Service Integrity Officer assumes, on the coming into force of this section, a position in the Office of the Public Sector Integrity Commissioner.
Marginal note:Status unchanged
(2) Nothing in subsection (1) is to be construed as affecting the status of any person who assumes a position in the Office of the Public Sector Integrity Commissioner by reason of that subsection.
Marginal note:Transfer of appropriations
54.2 To the extent that the charges and expenses are in relation to the Office of the Public Service Integrity Officer, any amount appropriated, for the fiscal year in which this section comes into force, by an appropriation Act based on the Estimates for that year for defraying the charges and expenses of the federal public administration within the portion of the federal public administration known as the Public Service Human Resources Management Agency of Canada, and that, on the day on which this section comes into force, is unexpended is deemed, on that day, to be an amount appropriated for defraying the charges and expenses of the Office of the Public Sector Integrity Commissioner.
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