Briefing on the Protected Disclosure Regime of the Federal Public

Sector of Canada

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Why a Disclosure Regime?

• Provides a safe and effective mechanism for the disclosure of wrongdoings and for protecting public servants who disclose wrongdoings.

• Contributes to maintain and enhance public confidence in the integrity of public servants and in the public institutions.

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Public Servants Disclosure Protection Act (PSDPA)

• Came into effect in 2007 as part of the Federal Accountability Act.

• One Act, two distinct mechanisms: disclosure of wrongdoing and protection from reprisals as a result of a disclosure.

• Jurisdiction over the federal public sector and not just the public service.

• Key pillars • Confidentiality• Procedural fairness and natural justice.

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A Shared Responsibility

1. Treasury Board Secretariat• Responsible for disseminating knowledge of the Act and information

about its purpose and processes.

2. Chief Executive Officer• Promotes awareness of the Act, including all available options for

making a protected disclosure1, and establish internal procedures to manage disclosures.

3. PSIC Commissioner • Receives, reviews and investigates disclosures of wrongdoing and

reprisal complaints.• If wrongdoing is found, makes recommendations to the CEO and table

a Case Report in Parliament. 1 see slide 8

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Disclosing a Wrongdoing

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What is a wrongdoing?The PSDPA defines what constitutes a wrongdoing:(a) A contravention of any Act of Parliament or of the legislature of a

province, or of any regulations made under any such Act;

(b) A misuse of public funds or a public asset;

(c) A gross mismanagement in the federal public sector;

(d) An act or omission that creates a substantial and specific danger to the life, health and safety of persons, or the environment, other than a danger that is inherent in the performance of the duties or functions of a public servant;

(e) A serious breach of a code of conduct established under this Act;

(f) Knowingly directing or counselling a person to commit a wrongdoing set out in any of paragraphs (a) to (e).

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What is a Protected Disclosure?

‘Protected disclosure’ means a disclosure that is made in good faith and that is made by a public servant:

(a) In accordance with this Act;(b) In the course of a parliamentary proceeding;(c) In the course of a procedure established under any

other Act of Parliament; or(d) When lawfully required to do so.*Note: members of the public can also come forward with

an allegation of wrongdoing.

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Making a Protected Disclosure

• Public servants can make a disclosure, when they believe a wrongdoing occurred, either to: Their organization’s designated Senior Officer; Their supervisor; or Directly to the Public Sector Integrity Commissioner.

• Public disclosures (media) are only permitted when there is not sufficient time to make a protected disclosure when there are reasonable grounds to believe that the issue: Constitutes a serious offence under an Act of Parliament or of the

legislature of a province; or Constitutes an imminent risk of a substantial and specific danger to

the life, health and safety of persons, or to the environment.

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What to expect if you make a disclosure?

• Step 1: Case Analysis (up to 90 days)

• Based on information received by the discloser, the Commissioner decides if an investigation is warranted.

• Step 2: Investigation (up to 1 year)

• Inform the CEO of the organization that an investigation is being launched and collect information for the purpose of determining if a wrongdoing has been committed.

• Step 3: Case Report (60 days)

• If a wrongdoing is found, the Commissioner must table a Case Report in Parliament including recommendations made to the CEO and his/her responses.

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Complaints Relating to Reprisals

• PSDPA protects from reprisal after a disclosure of wrongdoing (internal or external)

• A central means of protection is confidentiality.

• Very few reprisal complaints compared to disclosure complaints (approximately 25 per year)

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What constitutes a Reprisal? Any of the following measures taken against a public servant because he/she has made a protected disclosure or has, in good faith, cooperated in an investigation:

a) A disciplinary measure; b) The demotion of the public servant;c) The termination of employment of the public servant, including, in

the case of a member of the Royal Canadian Mounted Police, a discharge or dismissal;

d) Any measure that adversely affects the employment or working conditions of the public servant; and

e) A threat to take any of the measures referred to in any of paragraphs (a) to (d).

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What to expect if you make a Complaint of Reprisal?• It is an indictable offence to commit a reprisal (s. 42.3).

• Legislative deadlines• Complaint must be filed no later than 60 days after the day on which the

public servant knew they were reprised against. • Commissioner has 15 days to decide if an investigation is warranted once

all the necessary documents have been received.

• Investigation• Once the Commissioner decides that an investigation is warranted, the

investigator collects all the information related to the situation; possible to conciliate at any time. (up to one year)

• Referrals to the Public Servants Disclosure Protection Tribunal • If the Commissioner has reasonable grounds to believe that reprisal has

taken place, the complaint is referred to the Tribunal to be heard.

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What is the Public Servants Disclosure Protection Tribunal?• Determines whether reprisal has taken place.

• Comprised of judges of the Federal Court or a superior court of a province.

• If reprisal occurred, Tribunal can issue remedial orders:

a) Return complainant to his/her duties;b) Reinstate complainant or order compensation in lieu of reinstatement; c) Order compensation equivalent to remuneration lost;d) Rescind any disciplinary measure;e) Reimburse financial losses incurred; orf) Award compensation for pain and suffering up to $10,000.

• The Tribunal can also order disciplinary sanctions against those who have taken reprisals if requested by the Commissioner.

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Operational Overview of the Office April 1, 2007 to September 30, 2014

Disclosures Reprisals Total

New files 560 194 754

Investigations 75 43 118

Case reports 9 N/A 9

Tribunal applications N/A 6 6

Conciliation by PSIC N/A 2 2

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Challenges

• Operational

• Policy

• Legal

• Communications

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Outreach Opportunities

• Representatives of the Office of the Public Sector Integrity Commissioner are available to participate at various events, such as:

• All staff meetings• Branch/departmental/section meetings• Special events• Conferences

• Informational materials are also available upon request.

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Contact Us

Office of the Public Sector Integrity Commissioner of Canada60 Queen Street, 7th Floor, Ottawa, Ontario K1P 5Y7

www.psic-ispc.gc.caTelephone: 613-941-6400 Toll Free: 1-866-941-6400 Fascimile: 613-941-6535 (general); 613-946-2151 (secure transmission)Follow the Office on Twitter @PS_Integrity