Bill C-290: An Act to amend the Public Servants Disclosure Protection Act and to make a consequential amendment to the Conflict of Interest Act

Short Title Short title 1 This Act may be cited as the Public Sector Integrity Act . 2005, c. 46 Public Servants Disclosure Protection Act 2 The third paragraph of the preamble of the Public Servants Disclosure Protection Act is replaced by the following: confidence in public institutions can be enhanced by establishing effective procedures for the disclosure of wrongdoings and for the protection of public servants who are involved in the disclosure of wrongdoings, and by establishing a code of conduct for the public sector; 3 (1) The definition investigation in subsection 2(1) of the Act is replaced by the following: investigation  means, for the purposes of sections 24, 25, 26 to 31, 33, 36 and 37, an investigation into a disclosure and an investigation commenced under section 33. ( enquête ) (2) The portion of the definition protected disclosure in subsection 2(1) of the Act before paragraph (a) is replaced by the following: protected disclosure  means a disclosure that is made, on the basis of reasonable belief, by a public servant (3) The definition reprisal in subsection 2(1) of the Act is replaced by the following: reprisal  means any listed measure taken against a public servant because the public servant (a) has refused to commit a wrongdoing; (b) has made a protected disclosure; (c) has witnessed another public servant making a protected disclosure; (d) has collaborated with another public servant in the making of a protected disclosure; (e) has been mistaken for a public servant who is in a situation described in any of paragraphs (a) to (d); (f) has, on the basis of reasonable belief, cooperated in an investigation into a disclosure or an investigation commenced under section 33; or (g) is associated with a public servant who is in a situation described in any of paragraphs (a) to (f). ( représailles ) (4) Subsection 2(1) of the Act is amended by adding the following in alphabetical order: listed measure  means, in relation to a public servant, (a) a disciplinary measure; (b) their demotion; (c) the termination of their employment, including, in the case of a member of the Royal Canadian Mounted Police, a discharge or dismissal; (d) any measure that adversely affects their employment or working conditions including, but not limited to: (i) the mandatory assignment or deployment of the public servant, (ii) any form of reprimand, (iii) any form of discrimination, (iv) the infliction of emotional distress, (v) any act or omission that causes any psychological injury to the public servant; (e) a threat to take any of the measures referred to in any of paragraphs (a) to (d). ( mesure énumérée ) 4 Paragraphs 8(c) to (f) of the Act are replaced by the following: (b.1) an abuse of authority, which has such meaning as may be prescribed; (c) a mismanagement in the public sector; (c.1) political interference in the public sector, political interference having such meaning as may be prescribed; (c.2) foreign interference in the public sector, foreign interference having such meaning as may be prescribed; (d) an act or omission that creates a danger to the life, health or safety of persons, or to the environment, other than a danger that is inherent in the perform­ ance of the duties or functions of a public servant; (e) a breach of a code of conduct established under section 5 or 6; and (f) directing or counselling a person to commit a wrongdoing set out in any of paragraphs (a) to (e). 4. 1 Subsection 10(3) of the Act is replaced by the following: Designation of other persons (2.1) Each chief executive must designate one or more persons to be responsible in addition to the senior officer for receiving disclosures of wrongdoings made by public servants employed in the portion of the public sector for which the chief executive is responsible. Other portion of public sector (3) A person designated under subsection (2) or (2.1) may be a person who is employed in a portion of the public sector other than the one for which the chief executive is responsible. 4. 2 The Act is amended by adding the following after section 10: Policies 10. 1 The Treasury Board may establish policies respecting the duty set out in subsection 10(1). 5 Paragraph 11(1)(a) of the Act is replaced by the following: (a) provide, on request, non-financial support — including information on appropriate resources and recourse mechanisms — to a public servant who has made a protected disclosure, has witnessed another public servant making a protected disclosure, has collaborated with another public servant in the making of a protected disclosure or has been mis­ taken for a public servant who made a protected disclosure; (a.1) subject to paragraph (c) and 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 any person referred to in paragraph (a), any other witness and any person alleged to be responsible for a wrongdoing; 5. 1 The Act is amended by adding the following after section 11: Policies 11. 1 The Treasury Board may establish policies regarding the duties set out in subsection 11(1). 6 Section 12 of the Act is replaced by the following: Disclosure to certain persons 12 A public servant may disclose to any of the following persons 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 he or she has been asked to commit a wrongdoing: (a) the public servant’s supervisor; (b) any person who is at a higher level than the public servant’s supervisor in the line of reporting for the portion of the public sector in which the public servant is employed; (c) the senior officer designated by the chief executive of the portion of the public sector in which the public servant is employed; or (d) any person designated under subsection 10(2.1) by the chief executive of the portion of the public sector in which the public servant is employed. 6. 1 The Act is amended by adding the following after section 12: Jurisdiction of the Conflict of Interest and Ethics Commissioner 12.1 (1) A senior officer must refuse to deal with a disclosure if the senior officer is of the opinion that the subject-matter of the disclosure is within the jurisdiction of the Conflict of Interest and Ethics Commissioner under the Conflict of Interest Act and must refer the matter to the Conflict of Interest and Ethics Commissioner. Notice of refusal (2) If a senior officer refuses to deal with a disclosure under subsection (1), the senior officer must inform the person who made the disclosure and give reasons why he or she did so. 7 The portion of section 15.1 of the Act before paragraph (a) is replaced by the following: Requirements when making a disclosure 15. 1 In making a disclosure under this Act, a public servant or former public servant must 8 (1) The portion of subsection 16(1) of the Act before paragraph (a) is replaced by the following: Disclosure to public 16 (1) A disclosure that a public servant or former 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 or former public servant believes on reasonable grounds that the subject-matter of the disclosure is an act or omission that (2) Paragraph 16(1)(b) of the Act is replaced by the following: (b) constitutes an imminent risk of a danger to the life, health or safety of persons, or to the environment. (3) Subsection 16(2) of the Act is replaced by the following: Rights not affected (2) Nothing in subsection (1) affects the rights of a public servant or former public servant to make to the public in accordance with the law a disclosure that is not protected under this Act. 9 Section 18.1 of the Act is replaced by the following: 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 or former public servant to disclose, report or otherwise give notice of any matter under any other Act of Parliament. 10 (1) Subsections 19.1(1) and (2) of the Act are replaced by the following: Complaints 19.1 (1) A public servant or former public servant who reasonably believes that a reprisal has been taken against them may file with the Commissioner a complaint in a form acceptable to the Commissioner. The complaint may also be filed by a person designated by the public servant or former public servant for the purpose. Time for making complaint (2) The complaint must be filed within one year after the day on which the complainant knew, or in the Commissioner’s opinion ought to have known, that the reprisal was taken. (2) Paragraph 19.1(5)(b) of the Act is replaced by the following: (b) the complaint is filed within one year after those procedures have been exhausted. 11 The Act is amended by adding the following after section 19.1: Complaint concerning the Office of the Public Sector Integrity Commissioner 19. 11 A complaint under section 19.1 that concerns the Office of the Public Sector Integrity Commissioner may be filed with the Auditor General of Canada who has, in relation to that complaint, the powers, duties and protections of the Commissioner under this Act. 12 Paragraph 19.3(1)(d) of the Act is replaced by the following: (d) the complaint was not made on the basis of reasonable belief. 12. 1 Section 19.4 of the Act is amended by adding the following after subsection (3): Additional information (3.1) If, under paragraph 19.3(1)(a) or (b), the Commissioner refuses to deal with a complaint or if subsection 19.3(2) applies, the Commissioner must also provide the complainant with information on, as applicable, (a) the procedure under which the complaint has been adequately dealt with; (b) any procedure under which the complaint could more appropriately be dealt with; or (c) the procedure under which the complaint is being dealt with. 13 Subsection 19.4(5) of the Act is replaced by the following: Exception (5) Subsection (4) does not apply if the Commissioner has decided not to deal with the complaint for the reason that it was not made on the basis of reasonable belief. 14 Subsection 19.5(3) of the Act is amended by striking out “and” at the end of paragraph (b), by adding “and” at the end of paragraph (c), and by adding the following after paragraph (c): (d) in the case where the complainant makes an application to the Tribunal for the orders referred to in subsection 21.01(1) in respect of the complaint, the day on which the Tribunal makes a determination that the complainant was not subject to a reprisal taken by the person. 15 Subsection 19.6(3) of the Act is amended by striking out “and” at the end of paragraph (c) and by adding the following after that paragraph: (c.1) in the case where the complainant makes an application to the Tribunal for the orders referred to in subsection 21.01(1) in respect of the complaint, the day on which the Tribunal makes a determination that the complainant was not subject to a reprisal taken by the person, and 16 Subsection 20.2(3) of the Act is replaced by the following: Application barred (3) If the Commissioner approves a settlement that relates to disciplinary action, if any, that is to be imposed on a person, (a) the Commissioner may not apply to the Tribunal for an order referred to in paragraph 20.4(1)(b) in respect of the person; and (b) the complainant may not apply to the Tribunal for an order referred to in subsection 21.01(1) in respect of the person. 17 Subsection 20.4(3) of the Act is amended by adding “and” at the end of paragraph (a) and by replacing paragraphs (b) to (d) by the following: (b) the complaint should be dismissed on any ground mentioned in paragraph 19.3(1)(a) or (b). 18 The heading before section 21.1 of the Act is replaced by the following: Applications to the Tribunal 19 The Act is amended by adding the following before section 21.1: Application by complainant 21.01 (1) A complainant may apply to the Tribunal for a determination of whether or not a reprisal was taken against him or her and, if the Tribunal determines that a reprisal was taken, the complainant may apply for an order respecting a remedy in his or her favour and an order respecting disciplinary action against any person or persons identified by the complainant in the application as being the person or persons who took the reprisal. Time for making application (2) The application must be filed not later than 60 days after the day on which the complainant is notified under section 20.6. 20 Subsection 21.1(1) of the Act is replaced by the following: Assignment of member or members 21.1 (1) On receipt of an application made by a complainant under subsection 21.01(1) or by the Commissioner under subsection 20.4(1), the Chairperson of the Tribunal must assign a member of the Tribunal to deal with the application, but the Chairperson may assign a panel of three members if he or she considers that the complexity of the matter requires that it be dealt with by three members. Every decision of the member or panel is a decision of the Tribunal. 21 The Act is amended by adding the following after section 21.3: Proof of reprisal 21. 31 An application made by the Commissioner to the Tribunal under subsection 20.4(1) is, in the absence of evidence to the contrary, proof that a reprisal was taken against the complainant. 22 Subsection 21.4(3) of the Act is replaced by the following: Addition of party (3) If the Tribunal is of the opinion that a person who has been identified as being a person who may have taken the alleged reprisal is directly affected by a determination of the Tribunal, the Tribunal must add that person as a party. 23 Subsection 21.5(1) of the Act is replaced by the following: Determination — paragraph 20.4(1)(b) and subsection 21.01(1) 21.5 (1) On application made for the orders referred to in paragraph 20.4(1)(b) or subsection 21.01(1), the Tribunal must determine whether the complainant has been subject to a reprisal and whether the person or persons identified by the Commissioner or the complainant, as the case may be, in the application as having taken the alleged reprisal actually took it. If it determines that a reprisal was taken, the Tribunal may, regardless of whether or not it has determined that the reprisal was taken by the person or persons named in the application, make an order granting a remedy to the complainant. 24 Section 22 of the Act is amended by adding the following after paragraph (a): (a.1) assess the internal disclosure procedures established by a chief executive under section 10 and, on the Commissioner’s own initiative or at the request of any party, conduct a review of the receiving of and dealing with disclosures of wrongdoings under those procedures; 25 (1) Paragraph 24(1)(c) of the Act is replaced by the following: (c) the disclosure was not made on the basis of reasonable belief or the information that led to the investigation under section 33 was not provided on the basis of reasonable belief; (2) Section 24 of the Act is amended by adding the following after subsection (3): Additional information (4) If the Commissioner refuses to deal with a disclosure or to commence an investigation, he or she must provide the person who made the disclosure with information on the most appropriate procedures for dealing with the disclosure. 26 Paragraph 25(1)(j) of the Act is repealed. 27 Paragraph 25.1(1)(e) of the Act is replaced by the following: (e) any public servant or former public servant who is considering making a complaint under this Act regarding an alleged reprisal taken against him or her; or 28 Subsection 33(1) of the Act is replaced by the following: 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 section 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. 29 Section 34 of the Act is replaced by the following: Cessation of part of investigation 34 If the Commissioner is of the opinion that a matter under investigation would involve obtaining information from the Canadian Forces, the Canadian Security Intelligence Service or the Communications Security Establishment, the Commissioner must cease that part of the investigation and may refer the matter to any authority that the Commissioner considers competent to deal with it. 30 Subsection 35(1) of the Act is replaced by the following: 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, to the Attorney General of Canada or to the Auditor General of Canada. 31 Paragraph 37(b) of the Act is replaced by the following: (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 danger to the life, health or safety of persons, or to the environment. 32 (1) Paragraphs 38(2)(b) and (c) of the Act are replaced by the following: (b) the number of disclosures received, broken down by department and region, as well as by type of wrongdoing, 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, the number of investigations concluded, the duration of each investigation, the various case outcomes for all investigations and a summary of investigations that, in the Commissioner’s opinion, are of interest to Canadians; (2) Section 38 is amended by adding the following after subsection (2): Annual survey (2.01) The Commissioner must conduct an annual survey to determine the extent to which public servants who have made protected disclosures of wrongdoings under this Act felt protected and supported in the disclosure process and include the results of the survey in the report under subsection (2). Details (2.1) The information referred in paragraphs (2)(a) to (d.1) is to be broken down by portion of the public sector and by region of Canada. 33 Section 40 of the Act is replaced by the following: False statements 40 No person shall, in a disclosure of a wrongdoing or in the course of any investigation under this Act, knowingly make a false or misleading statement, either orally or in writing, to a supervisor, a person referred to in paragraph 12(b), a senior officer, a person designated under subsection 10(2.1), the Commissioner or a person acting on behalf of or under the direction of any of them. 34 The portion of subsection 42.1(1) of the Act before paragraph (a) is replaced by the following: Prohibition — employer 42.1 (1) No employer shall take any of the following measures against an employee by reason only that the employee has, on the basis of reasonable belief, provided information concerning an alleged wrongdoing in the public sector to the Commissioner or, if the alleged wrongdoing relates to the Office of the Public Sector Integrity Commissioner, to the Auditor General of Canada — or by reason only that the employer believes that the employee will do so: 35 Subsections 42.2(1) and (2) of the Act are replaced by the following: Prohibition — termination of contract or withholding of payments 42.2 (1) A public servant or any person purporting to act on behalf of Her Majesty in right of Canada or a portion of the public sector shall not terminate any contract with Her Majesty in right of Canada or any portion of the public sector, or withhold any payment that is due and payable in respect of any such contract, by reason only that the other party to the contract or any of that other party’s employees has, on the basis of reasonable belief, provided information concerning an alleged wrongdoing in the public sector to the Commissioner or, if the alleged wrongdoing relates to the Office of the Public Sector Integrity Commissioner, to the Auditor General of Canada. Prohibition — entering into contract (2) A public servant or any person purporting to act on behalf of Her Majesty in right of Canada or a portion of the public sector shall not, in considering whether to enter into a contract with a person, take into account that the person or any of the person’s employees has, in the past, on the basis of reasonable belief, provided information concerning an alleged wrongdoing in the public sector to the Commissioner or, if the alleged wrongdoing relates to the Office of the Public Sector Integrity Commissioner, to the Auditor General of Canada. 36 Paragraphs 42.3(a) and (b) of the Act are replaced by the following: (a) an indictable offence and liable to a fine of not more than $200,000 or to imprisonment for a term of not more than two years, or to both that fine and that imprisonment; or (b) an offence punishable on summary conviction and liable to a fine of not more than $100,000 or to im­ prisonment for a term of not more than six months, or to both that fine and that imprisonment. 37 The Act is amended by adding the following after section 44.1: Identity of person making disclosure and witness 44. 2 The Commissioner and every person acting on behalf of or under the direction of the Commissioner may disclose the identity of a person making a disclosure and of a witness, with the consent of that person. Disclosure of information obtained in the course of an investigation 44. 3 Subject to the provisions of this Act and any other Act of Parliament, the Commissioner may disclose to a chief executive or the Tribunal any information obtained in the course of an investigation if, in the Commissioner’s opinion, the public interest in making the disclosure clearly outweighs the potential harm from the disclosure. 38 (1) The portion of subsection 49(1) of the Act before paragraph (a) is replaced by the following: Restriction 49 (1) Subject to subsections (2) and (3), when making a report under section 38, 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 (2) Paragraph 49(3)(a) of the Act is replaced by the following: (a) the disclosure is necessary to establish the grounds for any finding or recommendation in a report under section 38; and 39 The Act is amended by adding the following after section 51.3: Regulations Governor in Council 51. 4 The Governor in Council may make regulations prescribing anything that by this Act is to be or may be prescribed. 40 Section 54 of the Act is replaced by the following: Review 54 On the fifth anniversary of the day on which this section comes into force, and every five years after that, the President of the Treasury Board 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. 2006, c. 9, s. 2 Conflict of Interest Act 41 The portion of section 68 of the Conflict of Interest Act before paragraph (a) is replaced by the following: Referral from Public Sector Integrity Commissioner 68 If a matter is referred to the Commissioner under subsection 12.1(1) or 24(2.1) of the Public Servants Disclosure Protection Act , the Commissioner shall Coming into Force First anniversary 42 This Act comes into force on the first anniversary of the day on which it receives royal assent.