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Bill C-432

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First Session, Forty-second Parliament,
64-65-66-67-68 Elizabeth II, 2015-2016-2017-2018-2019
HOUSE OF COMMONS OF CANADA
BILL C-432
An Act to amend the Public Servants Disclosure Protection Act
FIRST READING, February 27, 2019
Mr. Picard
421565


SUMMARY
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.
Available on the House of Commons website at the following address:
www.ourcommons.ca


1st Session, 42nd Parliament,
64-65-66-67-68 Elizabeth II, 2015-2016-2017-2018-2019
HOUSE OF COMMONS OF CANADA
BILL C-432
An Act to amend the Public Servants Disclosure Protection Act
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
2005, c. 46

Public Servants Disclosure Protection Act

1The 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;
2(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 by a public servant
(3)The portion of the definition reprisal in subsection 2(1) of the Act before paragraph (a) is replaced by the following:
reprisal means any of the following measures taken against a public servant because the public servant has made a protected disclosure, has witnessed another public servant making a protected disclosure or 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 or has cooperated in an investigation into a disclosure or an investigation commenced under section 33:
(4)The definition reprisal in subsection 2(1) of the Act is amended by adding the following after paragraph (c):
(c.‍1)an act or omission that constitutes a failure to provide support to the public servant as required under paragraph 11(1)‍(a);
3Paragraphs 8(c) to (f) of the Act are replaced by the following:
(c)a mismanagement in the public sector;
(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).
4Paragraph 11(1)‍(a) of the Act is replaced by the following:
(a)provide support to a public servant who has made a protected disclosure, who has witnessed another public servant making a protected disclosure or has collaborated with another public servant in the making of a protected disclosure or who has been mis­taken 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 persons making disclosures, witnesses and persons alleged to be responsible for wrongdoings;
5Sections 12 to 14 of the Act are replaced by the following:
Disclosure to supervisor or officer
12A public servant may disclose any information that he or she 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 to any supervisor or officer in the portion of the public sector in which he or she is employed or to the senior officer designated for the purpose by the chief exec­utive of the portion of the public sector in which he or she is employed.
Disclosure to the Commissioner
13(1)A public servant or a former public servant may disclose information referred to in section 12 to the Commissioner.
Exception
(2)Nothing in this Act authorizes a public servant or a former public servant 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
14A disclosure that a public servant or a former public servant 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.
6The portion of section 15.1 of the Act before paragraph (a) is replaced by the following:
Requirements when making a disclosure
15.1In making a disclosure under this Act, a public servant or a former public servant must
7(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 a 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 a former public servant to make to the public in accordance with the law a disclosure that is not protected under this Act.
8Section 18.1 of the Act is replaced by the following:
Other obligations to report
18.1Nothing in this Act relating to the making of disclosures is to be construed as affecting any obligation of a public servant or a former public servant to disclose, report or otherwise give notice of any matter under any other Act of Parliament.
9(1)Subsections 19.1(1) and (2) of the Act are replaced by the following:
Complaints
19.1(1)A public servant or a former public servant who 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)Subsection 19.1(4) of the Act is repealed.
(3)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.
10The Act is amended by adding the following after section 19.1:
Complaint concerning the Office of the Public Sector Integrity Commissioner
19.11A 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.
11(1)Paragraphs 19.3(1)‍(a) to (d) of the Act are replaced by the following:
(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 complainant is beyond the jurisdiction of the Commissioner.
(2)Subsections 19.3(2) and (3) of the Act are repealed.
12Subsections 19.4(4) and (5) of the Act are replaced by the following:
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.
13Subsection 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.
14Subsection 19.6(3) of the Act is amended by striking out “and” at the end of paragraph (c) and by adding the following after paragraph (c):
(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
15Subsection 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.
16Subsection 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 paragraphs 19.3(1)‍(a) or (b).
17The heading before section 21.1 of the Act is replaced by the following:
Applications to the Tribunal
18The Act is amended by adding the following before section 21.1:
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.
19Subsection 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.
20The Act is amended by adding the following after section 21.3:
Proof of reprisal
21.31An 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.
21(1)Subsection 21.4(2) 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)the person or persons identified in the application as having taken the alleged reprisal.
(2)Subsection 21.4(3) of the Act is repealed.
22Subsection 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.
23Section 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;
24Section 23 of the Act is repealed.
25Paragraph 24(1)‍(c) of the Act is repealed.
26Paragraph 25(1)‍(j) of the Act is repealed.
27Paragraph 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
28Subsection 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.
29Section 34 of the Act is repealed.
30Paragraph 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.
31(1)Paragraphs 38(2)‍(b) and (c) of the Act are replaced by the following:
(b)the number of disclosures received, broken down 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 average duration of an investigation 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):
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.
32Section 40 of the Act is replaced by the following:
False statements
40No 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, an officer, a senior officer, the Commissioner or a person acting on behalf of or under the direction of any of them.
33The 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:
34Subsections 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.
35Paragraphs 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 im­prisonment for a term of not more than six months, or to both that fine and that imprisonment.
36The Act is amended by adding the following after section 44.1:
Identity of persons involved in disclosure
44.2The 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
44.3Subject 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.
37(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
38The portion of section 51 before paragraph (a) is replaced by the following:
Saving
51Subject to subsection 21.8(4), nothing in this Act is to be construed as prohibiting
39Section 54 of the Act is replaced by the following:
Review
54On 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.
Published under authority of the Speaker of the House of Commons

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