Presentation

Public Sector Integrity Commissioner60 Queen Street, 7th floor

Ottawa ON K1P 5Y7(613) 941-64001-866-941-6400

WWW.PSIC-ISPC.GC.CA

Presentation Outline

I. Why a Disclosure Regime

II. Background

III. Our Mandate

IV. Legislative Framework

V. Implementation Factors

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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.

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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.

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II. Background

II. BackgroundHistorical 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.

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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.

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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.

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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.

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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; andB) Reprisal Complaints Process.

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IV. Legislative Framework

A) 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.

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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.

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IV. Legislative FrameworkA) 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.

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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:a) the disclosure has been or could be more appropriately dealt with

according to a procedure provided by another Act of Parliament;b) the disclosure is not sufficiently important;c) the disclosure was not made in good faith;d) the length of time that has elapsed is such that it would serve no useful

purpose;e) the subject-matter of the disclosure results from a balanced and

informed decision-making process on a public policy issue; orf) there is a valid reason for not dealing with the disclosure.

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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.

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IV. Legislative Framework

A) 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.

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IV. Legislative FrameworkA) 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.

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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.

IV. Legislative Framework

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.

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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.

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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.

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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.

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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.

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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.