This enactment amends the Public Servants Disclosure Protection Act to, among other things, expand the application of the Act to additional categories of public servants, permit that a protected disclosure be made to an officer within the portion of the public sector in which the public servant is employed, extend the period during which a reprisal complaint may be filed and add a duty to provide support to public servants.

Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

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)

protected disclosure means a disclosure that is made by a public servant

public servant means every person employed in the public sector, Insertion start every person retained under contract to perform services for the public sector Insertion end , every member of the Royal Canadian Mounted Police and every chief executive. (fonctionnaire)

reprisal means any of the following measures taken against a public servant because the public servant has made a protected disclosure, Insertion start has witnessed another public servant making a protected disclosure, has collab­orated with another public servant in the making of a protected disclosure, has been mistaken for a public servant who made a protected disclosure Insertion end or has cooperated in an investigation into a disclosure or an investigation commenced under section 33:

• (c) the termination of employment Insertion start or contract Insertion end of the public servant, including, in the case of a member of the Royal Canadian Mounted Police, a discharge or dismissal;

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  (c.‍1) an act or omission that constitutes a failure to provide support to the public servant as required under paragraph 11(1)‍(a);

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  (b.‍1) a case of abuse of authority;

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• (c) a mismanagement in the public sector;

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  (c.‍1) political interference in the public sector;

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• (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 perform­ance 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).

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  (a) provide support 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 mis­taken for a public servant who made a protected disclosure;

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• Insertion start (a.‍1) Insertion end  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 persons making disclosures, witnesses and persons alleged to be responsible for wrongdoings;

Disclosure to supervisor or officer

12 A public servant may disclose any information that Insertion start he or she Insertion end believes could show that a wrongdoing has been committed or is about to be committed, or that could show that Insertion start he or she Insertion end has been asked to commit a wrongdoing to Insertion start any Insertion end supervisor Insertion start or officer in the portion of the public sector in which he or she is employed Insertion end or to the senior officer designated for the purpose by the chief exec­utive of the portion of the public sector in which Insertion start he or she Insertion end is employed.

Disclosure to the Commissioner

13 (1) A public servant Insertion start or former public servant Insertion end may disclose information referred to in section 12 to the Commissioner.

Exception

(2) Nothing in this Act authorizes a public servant Insertion start or former public servant Insertion end 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.

Disclosure concerning the Office of the Public Sector Integrity Commissioner

14 A disclosure that a public servant Insertion start or former public servant Insertion end 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.

Requirements when making a disclosure

15.‍1 In making a disclosure under this Act, a public servant Insertion start or former public servant Insertion end must

Disclosure to public

16 (1) A disclosure that a public servant Insertion start or former public servant Insertion end 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 Insertion start or former public servant Insertion end believes on reasonable grounds that the subject-matter of the disclosure is an act or omission that

• (b) constitutes an imminent risk of a danger to the life, health Insertion start or Insertion end safety of persons, or to the environment.

Rights not affected

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

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 Insertion start or former public servant Insertion end to disclose, report or otherwise give notice of any matter under any other Act of Parliament.

Complaints

19.‍1 (1) A public servant or former public servant who Insertion start believes Insertion end that a reprisal has been taken against Insertion start them Insertion end 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 Insertion start within one year Insertion end after the day on which the complainant knew, or in the Commissioner’s opinion ought to have known, that the reprisal was taken.

• (b) the complaint is filed within Insertion start one year Insertion end after those procedures have been exhausted.

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.

• (a) if the complainant is a member or former member of the Royal Canadian Mounted Police, the subject-matter of the complaint has been adequately dealt with by the procedures referred to in subsection 19.‍1(5); or

• (b) the complaint is beyond the jurisdiction of the Commissioner.

Effect of not dealing with complaint

(4) If the Commissioner decides not to deal with a complaint and sends the complainant a written notice setting out the reasons for that decision, the period of time that begins on the day on which the complaint was filed and ends on the day on which the notice is sent is not to be included in the calculation of any time the complainant has to avail himself or herself of any procedure under any other Act of Parliament or collective agreement in respect of the measure alleged to constitute the reprisal.

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  (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.

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  (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

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Application barred

(3) If the Commissioner approves a settlement that relates to disciplinary action, if any, that is to be imposed on a person,

• Insertion start (a) Insertion end  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

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  (b) the complainant may not apply to the Tribunal for an order referred to in subsection 21.‍01(1) in respect of the person.

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• (b) the complaint should be dismissed on any ground mentioned in Insertion start paragraph 19.‍3(1)‍(a) or (b) Insertion end .

Applications Insertion start to the Tribunal Insertion end

Application by complainant

21.‍01 (1) A complainant whose complaint is dismissed by the Commissioner under section 20.‍5 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.

Assignment of member or members

21.‍1 (1) On receipt of an application made by Insertion start a complainant under subsection 21.‍01(1) or by Insertion end 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.

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.

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  (d) the person or persons identified in the application as having taken the alleged reprisal.

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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) Insertion start or subsection 21.‍01(1) Insertion end , the Tribunal must determine whether the complainant has been subject to a reprisal and whether the person or persons identified by the Commissioner Insertion start or the complainant, as the case may be Insertion end , 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.

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  (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;

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• (e) any public servant Insertion start or former public servant Insertion end who is considering making a complaint under this Act regarding an alleged reprisal taken against him or her; or

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 Insertion start section Insertion end 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.

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 Insertion start to the Auditor General of Canada Insertion end .

• (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.

• (b) the number of disclosures received, Insertion start broken down by type of wrongdoing Insertion end , 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, Insertion start the number of investigations concluded, the average duration of an investigation and a summary of investigations that, in the Commissioner’s opinion, are of interest to Canadians Insertion end ;

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.

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, Insertion start an officer Insertion end , a senior officer, the Commissioner or a person acting on behalf of or under the direction of any of them.

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:

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.

• (a) an indictable offence and liable to a fine of not more than $ Insertion start 200,000 Insertion end 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 $ Insertion start 100,000 Insertion end or to im­prisonment for a term of not more than six months, or to both that fine and that imprisonment.

Identity of persons involved in disclosure

44.‍2 The Commissioner and every person acting on behalf of or under the direction of the Commissioner may disclose the identity of any person involved in the disclosure process, including that of a person making a disclosure, a witness and a person alleged to be responsible for wrongdoings, 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.

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

• (a) the disclosure is necessary to establish the grounds for any finding or recommendation in a report under section 38; and

Saving

51 Subject to Insertion start subsection Insertion end 21.‍8(4), nothing in this Act is to be construed as prohibiting

Review

54  Insertion start On the fifth anniversary of the day on which this section comes into force, and every five years after that Insertion end , 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.