Annual Report on the Public Servants Disclosure Protection Act 2007-08

Overview

Background of the Act

The PSDPA represents a new phase in the movement to build greater trust in Canada's public sector. This movement first had clear expression in A Strong Foundation: Report of the Task Force on Public Service Values and Ethics (best known as the "Tait Report"), released in 1996. The report included the recommendation that, as part of a proper ethics regime, "there must be means, consistent with public service values, for public servants to express concern about actions that are potentially illegal, unethical or inconsistent with public service values, and to have those concerns acted upon in a fair and impartial manner."

Following recommendations made in 2000 by the Auditor General on values and ethics in the Public Service, the Treasury Board adopted the policy on the Internal Disclosure of Information Concerning Wrongdoing in the Workplace in 2001. This policy required organizations in the core public administration to establish procedures for reporting wrongdoing and created the position of Public Service Integrity Officer as a neutral third party for investigating alleged wrongdoing in the workplace. With the adoption of the Values and Ethics Code for the Public Service in 2003, the policy was reinforced by adding breaches of the Code to its definition of wrongdoing.

In 2003 and 2004, accompanying the Auditor General's release of her report on the Sponsorship Program, the reports of both the House of Commons Standing Committee on Government Operations and Estimates and of a Working Group on the Disclosure of Wrongdoing recommended a new, legislated regime for the disclosure of wrongdoing in the federal public sector, including Crown corporations. The first version of the Act was introduced in Parliament on March 22, 2004. A revised version was introduced on October 8, 2004, while Parliament was also focusing attention on the Commission of Inquiry into the Sponsorship Program and Advertising Activities (the Gomery Inquiry). After extensive study and amendment by Parliament, the Act received Royal Assent on November 25, 2005.

Parliament subsequently amended the PSDPA as part of the Federal Accountability Act and Action Plan. The amended Act came into force on April 15, 2007, and forms a key element of the values and ethics regime of the federal public service.

Outline of the Act

The Act is a significant part of the Government's actions to increase the trust and confidence of Canadians in the public sector. It establishes procedures for handling alleged wrongdoing and complaints of reprisal, and provides concrete support to a positive public sector culture that is grounded firmly in values and ethics. In doing so, the Act strikes a balance between the principle of freedom of expression and the duty of loyalty to the employer.

The Act encourages employees in the public sector to come forward if they have reason to believe that serious wrongdoing has taken place, and provides protections for them against reprisal when they do so. It allows any person to provide the Public Sector Integrity Commissioner with information about possible wrongdoing in the public sector. The Act also allows employees to make disclosures to their supervisors or to the Senior Officer designated for their organization, and created the Public Sector Disclosure Protection Tribunal to address alleged cases of reprisal. Through these provisions, the Act is expected to enhance the ability of organizations to identify and resolve incidents of wrongdoing, while supporting employees who disclose wrongdoing and protecting them from reprisal.

The Act requires allegations of wrongdoing to be treated with an appropriate degree of confidentiality. Organizations must protect any information they collect about disclosures, including the identities of those making disclosures and of others involved, subject to other Acts of Parliament and the principles of natural justice and procedural fairness. In this way, the PSDPA provides a fair and objective process for those against whom allegations are made. The PSDPA amended the Access to Information Act and the Privacy Act to ensure that information created for the purpose of making a disclosure or in the course of an investigation into a disclosure or reprisal complaint cannot be released under requests for information under either of those Acts. To balance these provisions with the need for transparency with respect to public sector wrongdoings, the Act requires chief executives and the Public Sector Integrity Commissioner to provide prompt public access to information that describes incidents of wrongdoing found as a result of disclosures made under the Act, and any corrective action taken as a result.

The establishment of procedures for handling alleged wrongdoing and complaints of reprisal are only one feature of the Act. More broadly, the Act supports a positive public sector culture that is grounded in values and ethics. It requires that the Government establish a new code of conduct applicable to the entire federal public sector, and that each public sector organization establish a code of conduct consistent with the public sector code. It also requires that the President of the Treasury Board promote ethical practices and a positive environment for disclosing wrongdoing in the public sector. Supported by these efforts, leaders in public sector organizations should model ethical leadership and inspire employees to make public sector values and ethics part of their everyday actions and decisions. Ultimately, the Act will help to sustain and support an ethical culture, thereby reinforcing the federal public sector as a workplace of choice.

The Act applies to most organizations in the federal public sector, which includes the core public administration, separate employers and parent Crown corporations. The Canadian Forces, the Communications Security Establishment and the Canadian Security Intelligence Service are excluded, but the Act requires that these organizations establish comparable disclosure protection regimes.

Key terms

For the purposes of the Act, and of this report, public servant denotes every person employed in the public sector. This includes the deputy heads and chief executives of public sector organizations, but does not include other Governor in Council appointees (such as judges or boards of directors of Crown corporations), or parliamentarians or their staff.

The Act defines wrongdoing as any of the following actions in or relating to the public sector (it is not restricted to activities of public servants):

• the violation of a federal or provincial law or regulation;

• a misuse of public funds or assets;

• gross mismanagement in the public sector;

• a serious breach of a code of conduct established under the Act;

• an act or omission that creates a substantial and specific danger to the life, health and safety of Canadians or the environment; or

• knowingly directing or counselling a person to commit a wrongdoing.

A protected disclosure is a disclosure that is made in good faith by a public servant:

• in accordance with the Act, to the public servant's immediate supervisor, Senior Officer or the Public Sector Integrity Commissioner;

• in the course of a parliamentary proceeding;

• in the course of a procedure established under any other Act of Parliament; or

• when lawfully required to do so.

Furthermore, any person can provide information about public sector wrongdoing to the Public Sector Integrity Commissioner (PSIC).

The Act defines reprisal as any of the following measures taken against a public servant who has made a protected disclosure or who has, in good faith, co-operated in an investigation into a disclosure:

• any disciplinary measure;

• the demotion of the public servant;

• the termination of employment of the public servant;

• the taking of any measure that adversely affects the employment or working conditions of the public servant; or

• a threat to do any of those things or to direct a person to do them.

Each organization subject to the Act is required to establish internal procedures to manage disclosures made in the organization. Organizations that are too small to establish their own internal procedures can request an exception under section 10(4) of the Act. In this case, disclosures related to the Act would be handled directly by the PSIC or the Senior Officer of a related organization.

A Senior Officer is the person appointed within each organization to receive and deal with disclosures made under the Act. Senior Officers have key leadership roles in the implementation of the Act in their organizations by:

• providing information and advice to employees and supervisors on the Act;

• receiving, recording and reviewing disclosures of wrongdoing; and

• leading investigations of disclosures and recommending to the chief executive measures that could be taken to correct any incidents of wrongdoing found.

The forthcoming code of conduct for the public sector will further define the duties and powers of Senior Officers.