Bill S-6

1st Session, 37th Parliament,

49 Elizabeth II, 2001

senate of canada

BILL S-6

An Act to assist in the prevention of wrongdoing in the Public Service by establishing a framework for education on ethical practices in the workplace, for dealing with allegations of wrongdoing and for protecting whistleblowers

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

Short Title

1. This Act may be cited as the Public Service Whistleblowing Act.

Purpose

2. The purpose of this Act is

(a) to educate persons working in the Public Service workplace on ethical practices in the workplace and to promote the observance of these practices;

(b) to protect the public interest by providing a means for employees of the Public Service to make allegations of wrongful acts or omissions in the workplace, in confidence, to an independent Commissioner who will investigate them and seek to have the situation dealt with, and who will report to Parliament in respect of problems that are confirmed but have not been dealt with; and

(c) to protect employees of the Public Service from retaliation for having made or for proposing to make, in good faith and on the basis of reasonable belief, allegations of wrongdoing in the workplace.

Interpretation

3. The definitions in this section apply in this Act.

“Commissioner” means a commissioner of the Public Service Commission designated as Public Interest Commissioner under section 4.

“employee” means a person who is an employee within the meaning of the Public Service Employment Act.

“law in force in Canada” means an Act of the Parliament of Canada or of the legislature of a province or any instrument issued under the authority of any such Act.

“minister” means any member of the Queen’s Privy Council for Canada holding the office of a minister of the Crown.

“Public Service” means the parts of the public service of Canada to which the Public Service Staff Relations Act applies.

“wrongful act or omission” means an act or omission that is

(a) an offence against any law in force in Canada;

(b) likely to cause a significant waste of public money;

(c) likely to endanger public health or safety or the environment;

(d) a significant breach of an established public policy or directive in the written record of the Public Service; or

(e) one of gross mismanagement or abuse of authority.

Public Interest Commissioner

4. (1) The Governor in Council shall designate one of the commissioners of the Public Service Commission to serve as Public Interest Commissioner for the purposes of this Act.

(2) The functions of the Commissioner under this Act are within the work of the Public Service Commission for the purposes of the Public Service Employment Act.

(3) The powers granted to the Commissioner by the Public Service Employment Act for the purposes of that Act may be exercised for the purposes of this Act.

5. (1) Subject to section 10, the Commissioner may make public any information that comes to the attention of the Commissioner as a result of the performance or exercise of the Commissioner’s duties or powers under this Act if, in the Commissioner’s opinion, it is in the public interest to do so.

(2) The Commissioner may disclose, or may authorize any person acting on behalf or under the direction of the Commissioner to disclose, information that, in the Commissioner’s opinion, is necessary to

(a) conduct an investigation under this Act; or

(b) establish the grounds for findings or recommendations contained in any report made under this Act.

(3) The Commissioner may disclose, or may authorize any person acting on behalf or under the direction of the Commissioner to disclose, information in the course of

(a) a prosecution for an offence under section 21; or

(b) a prosecution for an offence under section 132 of the Criminal Code (perjury) in respect of a statement made under this Act.

(4) The Commissioner may disclose to the Attorney General of Canada or of a province, as the case may be, information relating to the commission of an offence against any law in force in Canada that comes to the attention of the Commissioner as a result of the performance or exercise of the Commissioner’s duties or powers under this Act if, in the Commissioner’s opinion, there is evidence of an offence.

6. The Commissioner or person acting on behalf or under the direction of the Commissioner is not a competent witness in respect of any matter that comes to their knowledge as a result of the performance or exercise of the Commissioner’s duties or powers under this Act in any proceeding other than

(a) a prosecution for an offence under section 21; or

(b) a prosecution for an offence under section 132 of the Criminal Code (perjury) in respect of a statement made under this Act.

7. (1) No criminal or civil proceedings lie against the Commissioner, or against any person acting on behalf or under the direction of the Commissioner, for anything done, reported or said in good faith as a result of the performance or exercise or purported performance or exercise of the Commissioner’s duties or powers under this Act.

(2) For the purposes of any law relating to libel or slander,

(a) anything said, any information supplied or any record or thing produced in good faith and on the basis of reasonable belief in the course of an investigation carried out by or on behalf of the Commissioner under this Act is privileged; and

(b) any report made in good faith by the Commissioner under this Act and any fair and accurate account of the report made in good faith for the purpose of news reporting is privileged.

Education

8. The Commissioner shall promote ethical practices in the Public Service workplace and a positive environment for giving notice of wrongdoing, by disseminating knowledge of this Act and information about its purposes and processes and by such other means as seem fit to the Commissioner.

Notice of Wrongful Act or Omission

9. (1) An employee who has reasonable grounds to believe that another person working for the Public Service or in the Public Service workplace has committed or intends to commit a wrongful act or omission

(a) may file with the Commissioner a written notice of allegation; and

(b) may request that their identity be kept confidential with respect to the notice.

(2) A notice under subsection (1) shall identify

(a) the employee making the allegation, and be signed by that person;

(b) the person against whom the allegation is being made; and

(c) the grounds on which the employee believes that the wrongful act or omission is wrongful and has been or will be committed, giving the particulars that are known to the employee.

(3) A notice by an employee to the Commissioner under subsection (1), given in good faith and on the basis of reasonable belief, is not a breach of any oath of office or loyalty or secrecy taken by the employee and, subject to subsection (4), is not a breach of duty.

(4) No employee, in giving notice under subsection (1), shall violate any law in force in Canada or rule of law protecting privileged communications as between solicitor and client, unless the employee is prompted by reasonable concerns for public health or safety.

10. Subject to any lawful requirement made of the Commissioner under this Act or any law in force in Canada, the Commissioner shall keep confidential the identity of an employee who has filed a notice with the Commissioner under subsection 9(1) and to whom the Commissioner has given an assurance that, subject to this Act, their identity will be kept confidential.

11. On receiving a notice under subsection 9(1), the Commissioner shall review it, may ask the employee for further information and may make such further inquiries as, in the opinion of the Commissioner, may be necessary.

12. (1) The Commissioner shall reject and take no further action on a notice given under subsection 9(1) where the Commissioner makes a preliminary determination that the notice

(a) is trivial, frivolous or vexatious;

(b) fails to allege or give adequate particulars of a wrongful act or omission;

(c) breaches subsection 9(4); or

(d) was not given in good faith or on the basis of reasonable belief.

(2) The Commissioner may determine that a notice that contains any statement that the employee knew to be false or misleading at the time it was made was not given in good faith.

(3) The Commissioner need not determine that a notice was not given in good faith for the sole reason that it contains mistaken facts.

(4) Where the Commissioner has made a determination under subsection (1), the Commissioner shall, in writing and on a timely basis, advise the employee who gave notice under subsection (1) of that determination.

(5) Where the Commissioner determines under subsection (1) that a notice was given in breach of subsection 9(4) or was not given in good faith and on the basis of reasonable belief, the Commissioner may advise the person against whom the allegation was made and the minister responsible for the employee who gave the notice.

13. (1) The Commissioner shall accept a notice given under subsection 9(1) where the Commissioner determines that the notice

(a) is not trivial, frivolous or vexatious;

(b) alleges and gives adequate particulars of a wrongful act or omission;

(c) does not breach subsection 9(4); and

(d) was given in good faith and on the basis of reasonable belief.

(2) Where the Commissioner has made a determination under subsection (1), the Commissioner shall, in writing and on a timely basis, advise the employee who gave notice under subsection (1) of that determination.

Investigation and Report

14. (1) The Commissioner shall investigate a notice accepted under section 13 and, subject to subsection (2), shall prepare a written report of findings and recommendations.

(2) The Commissioner is not required to prepare a report if the Commissioner is satisfied that

(a) the employee ought to first exhaust review procedures otherwise available;

(b) the matter could more appropriately be dealt with, initially or completely, by means of a procedure provided for under a law in force in Canada other than this Act; or

(c) the length of time that has elapsed between when the wrongful act or omission that is the subject-matter of the notice occurred and the date when the notice was filed is such that a report would not serve a useful purpose.

(3) Where the Commissioner has made a determination under subsection (2), the Commissioner shall, in writing and on a timely basis, advise the employee who gave notice under subsection (1) of that determination.

(4) The Commissioner shall provide the minister responsible for the employee against whom an allegation has been made, on a timely basis and in no case later than one year after the Commissioner receives the notice, with a copy of the report under subsection (1).

15. (1) A minister who receives a report under subsection 14(4) shall consider the matter and respond to the Commissioner.

(2) The response of a minister under subsection (1) shall advise of any action the minister has taken or proposes to take to deal with the Commissioner’s report, or that the minister proposes to take no action.

(3) A minister who, for the purposes of this section, advises of any action proposed to be taken shall give such further responses as seem appropriate to the Commissioner until such time as the minister advises that the matter has been dealt with.

16. (1) The Commissioner may require the President of the Treasury Board to cause an emergency report prepared by the Commissioner to be made to Parliament on the next day that either House sits if, in the Commissioner’s opinion, it is in the public interest to do so.

(2) A report prepared by the Commissioner for the purposes of subsection (1) shall describe the substance of a report made to a minister under subsection 14(4) and the minister’s response or lack thereof under section 15.

17. (1) The Public Service Commission shall include in the annual report to Parliament made pursuant to section 47 of the Public Service Employment Act a statement of activity under this Act prepared by the Commissioner that includes:

(a) a description of the Commissioner’s activities under section 8;

(b) the number of notices received pursuant to section 9;

(c) the number of notices rejected pursuant to section 12;

(d) the number of notices accepted pursuant to section 13;

(e) the number of accepted notices that are still under investigation pursuant to subsection 14(1);

(f) the number of accepted notices that were reported to ministers pursuant to subsection 14(4);

(g) the number of reports to ministers pursuant to section 14 in respect of which action satisfactory to the Commissioner has been taken;

(h) the number of reports to ministers pursuant to section 14 in respect of which action satisfactory to the Commissioner has not been taken;

(i) an abstract of the substance of all reports to ministers pursuant to section 14 and the responses of ministers pursuant to section 15; and

(j) where the Commissioner is of the opinion that the public interest would be best served, the substance of an individual report made to a minister pursuant to section 14 and the response or lack thereof of a minister pursuant to section 15.

(2) The Public Service Commission may include in the annual report to Parliament made pursuant to section 47 of the Public Service Employment Act an analysis of the administration and operation of this Act and any recommendations with respect to it.

Prohibitions

18. (1) No person shall give false information to the Commissioner or to any person acting on behalf or under the direction of the Commissioner while the Commissioner or person is engaged in the performance or exercise of the Commissioner’s duties or powers under this Act.

(2) No employee shall give a notice under subsection 9(1) in bad faith.

19. (1) No person shall take disciplinary action against an employee because

(a) the employee, acting in good faith and on the basis of reasonable belief, has disclosed or stated an intention to disclose to the Commissioner that a person working for the Public Service or in the Public Service workplace has committed a wrongful act or omission;

(b) the employee, acting in good faith and on the basis of reasonable belief, has refused or stated an intention to refuse to commit an act or omission contrary to this Act;

(c) the employee, acting in good faith and on the basis of reasonable belief, has done or stated an intention of doing anything that is required to be done in order to comply with this Act; or

(d) the person believes that the employee will do anything referred to in paragraph (a), (b) or (c).

(2) In subsection (1), “disciplinary action” means any action that adversely affects the employee or any term or condition of the employee’s employment, and includes

(a) harassment;

(b) financial penalty;

(c) affecting seniority;

(d) suspension or dismissal;

(e) denial of meaningful work or demotion;

(f) denial of a benefit of employment; or

(g) an action that is otherwise disadvantageous to the employee.

(3) A person who takes disciplinary action contrary to this section within two years after an employee gives a notice to the Commissioner under subsection 9(1) shall be presumed, in the absence of a preponderance of evidence to the contrary, to have taken the disciplinary action against the employee because the employee gave the notice.

20. (1) Except as authorized by this Act or any other law in force in Canada, no person shall disclose to any other person the existence or nature of a notice given under to subsection 9(1) in such a way as to identify the employee who made it.

(2) Subsection (1) does not apply where a notice was given in breach of subsection 9(4) or was not given in good faith and on the basis of reasonable belief.

Enforcement

21. A person who contravenes a provision of subsection 9(4), section 18, or subsection 19(1) or 20(1) is guilty of an offence and liable on summary conviction to a fine not exceeding $10,000.

Employee Recourse

22. (1) An employee against whom disciplinary action is taken contrary to section 19 is entitled to use every recourse available to the employee under the law, including grievance proceedings provided for under an Act of Parliament or otherwise.

(2) An employee may seek recourse as described in subsection (1) whether or not proceedings based upon the same allegations of fact are or may be brought under section 21.

(3) An employee is entitled in all recourse proceedings referred to in subsection (1) to the benefit of the presumption in subsection 19(3).

(4) Where grievance proceedings are pending on the coming into force of this Act, the proceedings shall be dealt with and disposed of as if this Act had not been enacted.