Presentation Public Sector Integrity Commissioner 60 Queen Street, 7 th floor Ottawa ON K1P 5Y7

1. Presentation Public Sector Integrity Commissioner 60 Queen Street, 7th floor Ottawa ON K1P 5Y7 (613) 941-6400 1-866-941-6400 WWW.PSIC-ISPC.GC.CA

2. Presentation Outline • Why a Disclosure Regime • Background • Our Mandate • Legislative Framework • Implementation Factors

3. I. Why a Disclosure Regime? • Canadians expect the highest standards of conduct within their public institutions. • The vast majority of public servants serve Canadians with integrity, honesty and pride, a disclosure regime is a safe mechanism allowing public servants who believe that something is wrong or needs further examination to come forward. • Canadians expect that when mistakes are made or where there is a wrongdoing, that corrections will be made effectively and with transparency.

4. II. Background Historical Context • Treasury Board Policy on the Internal Disclosure of Wrongdoing in the Workplace adopted in 2001, established the Public Service Integrity Office (PSIO). • In 2003, a Working Group consisting of experts from outside Government recommended a legislative approach to increase credibility and effectiveness of the disclosure regime and to provide the necessary independence.

5. II. Background Historical Context • The first Public Servants Disclosure Protection Act (PSDPA), introduced in October 2004 and received Royal Assent in November 2005, but never came into force. • The Federal Accountability Act, introduced in April 2006 and received Royal Assent in December 2006, brought significant amendments to the PSDPA. • PSDPA as amended by Federal Accountability Act, came into force on April 15, 2007.

6. II. Background Objectives of the PSDPA • Recognizing that the federal public administration is essential to the Canadian parliamentary democracy framework, the PSDPA: • enhances confidence in public institutions by protecting public servants who act with integrity and who come forward with information about possible wrongdoing in the federal public sector; and • encourages a collective commitment to contribute to a culture of right doing. • Strikes a balance between the principles of freedom of expression and duty of loyalty to the employer.

7. III. Our Mandate Serving all Canadians • Commissioner established as independent Agent of Parliament. • Guardian of public interest and public trust. • Keeping the public informed through transparency and public reports to Parliament. • Centre of Expertise: • Working jointly with the public sector to prevent problems through education and promotion of ethical practices; • Pro-active to effectively resolve cases. • World leader.

8. III. Our Mandate Protecting Public Servants • Office is a safe alternative allowing public servants to come forward if they suspect possible wrongdoing. • Exclusive jurisdiction to protect public servants from possible reprisals. • Confidentiality of disclosure process and investigations. • Procedural fairness and natural justice to all persons involved. • Commissioner can grant access to free legal advice.

9. III. Our Mandate Jurisdiction • Federal “public sector” includes core public administration, separate agencies and parent Crown corporations. • Jurisdiction over approximately 400,000 employees (in addition, members of the public, not just public servants, can report a possible wrongdoing to the Commissioner). • Canadian Forces, Canadian Security Intelligence Service, Communications Security Establishment are excluded but must establish their own regimes. • PSDPA creates two main areas of responsibility: A) Disclosure Process; and B) Reprisal Complaints Process.

10. IV. Legislative Framework • Disclosure Process • Public servants can make a protected disclosure of wrongdoing either to: • their organization’s designated senior officer; • their supervisor; or • directly to the Commissioner. • There is no requirement to exhaust internal avenues before going to the Commissioner. • Public disclosures, for example, to the media, are still permitted but under exceptional circumstances only.

11. IV. Legislative Framework A) Disclosure Process • Definition of “Wrongdoing” : • Violation of any federal or provincial law or regulations; • Misuse of public funds or assets; • Gross mismanagement; • Serious breach of a code of conduct; • An act or omission that creates a substantial and specific danger to the life, health and safety of persons or the environment; or • Knowingly directing or counselling a person to commit wrongdoing.

12. IV. Legislative Framework A) Disclosure Process Safeguards to avoid duplication of processes: Restrictions: Commissioner may not deal with a disclosure when a person or body acting under another Act of Parliament is dealing with the subject-matter, other than as a law enforcement agency. The Commissioner must refuse to deal with a disclosure when the subject-matter of the disclosure relates solely to a decision that was made in the exercise of an adjudicative function.

13. IV. Legislative Framework A) Disclosure Process Discretionary Right to Refuse The Commissioner may refuse to deal with a disclosure or to commence an investigation or cease an investigation if: • the disclosure has been or could be more appropriately dealt with according to a procedure provided by another Act of Parliament; • the disclosure is not sufficiently important; • the disclosure was not made in good faith; • the length of time that has elapsed is such that it would serve no useful purpose; • the subject-matter of the disclosure results from a balanced and informed decision-making process on a public policy issue; or • there is a valid reason for not dealing with the disclosure.

14. IV. Legislative Framework A) Disclosure Process Investigations: • Purpose is to make recommendations to bring corrective measures. • Conducted as informally and expeditiously as possible. • Has investigative powers under Part II of the Inquiries Act. • Restrictions: • Access to cabinet confidences and solicitor-client privileges is restricted. • Investigations limited to public sector only.

15. IV. Legislative Framework • Disclosure Process • Importance of using all appropriate tools, formal and informal, to resolve cases effectively with a view of preserving the public trust in the integrity of federal institutions. • The use of alternative dispute resolution (ADR) could be envisaged, with the consent of parties, at various stages of the disclosure process: - to facilitate the screening of allegations; - identify causes of conflicts; - resolve differences of opinion or interpretation on specific issues; and - identify options for resolution.

16. IV. Legislative Framework • Disclosure Process Reporting Obligations • Report findings and make recommendations for corrective measures to chief executives. • Power to present special reports to the Minister / Board of a Crown Corporation if delays in implementing recommendations or if required by urgency of situation. • Report to Parliament within 60 days of finding of wrongdoing, including chief executive’s response to any of the Commissioner’s recommendations. • Power to present special reports at any time to Parliament.

17. IV. Legislative Framework • B) Reprisal Complaints Process • Reprisal Protection • Preventing reprisals is a collective responsibility. • Reprisals against public servants who make in good faith a protected disclosure or who are witnesses in a disclosure process are clearly prohibited. • “Reprisal” includes disciplinary sanction and any measure that adversely affects the employment or working conditions of the public servant.

18. IV. Legislative Framework B) Reprisal Complaints Process • Commissioner has exclusive jurisdiction to deal with reprisal complaints from public servants. • Public servants must file complaints within 60 days of reprisal. • Commissioner has 15 days to decide if investigation is warranted. • Commissioner can refer at any time a complaint to a conciliation process. • Investigations as informal and expeditious as possible.

19. IV. Legislative Framework B) Reprisal Complaints Process Safeguards to avoid duplication of processes: Discretionary Right to Refuse: Commissioner may refuse to deal with a complaint if: - it has been or could be more appropriately dealt with according to a procedure provided by another Act of Parliament or through collective agreement; - it is beyond jurisdiction of Commissioner; or - complaint not made in good faith.

20. IV. Legislative Framework B) Reprisal Complaints Process Restriction: Commissioner may not deal with a complaint when a person or body acting under another Act of Parliament or a collective agreement is dealing with the subject-matter, other than as a law enforcement agency.

21. IV. Legislative Framework B) Reprisal Complaints Process Public Servants Disclosure Protection Tribunal • After investigation, Commissioner decides if a referral to the Public Servants Disclosure Protection Tribunal is warranted. • Tribunal composed of four Federal Court judges. • Tribunal has power to order remedial measures and disciplinary sanctions.

22. V. Implementation Factors Complementary Roles • There are several other independent bodies that carry out oversight or investigative functions, for example: • Auditor General • Privacy Commissioner • Access to Information Commissioner • Canadian Human Rights Commission • Public Service Commission of Canada / Public Service Staffing Tribunal • Chief executives play a key role in establishing effective internal organizational disclosure regimes.

23. V. Implementation Factors • Considerations for Success • Key leadership role in promoting integrity and transparency. • Important implementation role by providing education, communication and outreach. • Horizontal integration and complementary roles of several oversight mechanisms. • Shared responsibilities between Commissioner and stakeholders to prevent and deal with wrongdoings and protect public servants.