Marginal note:Procedures for RCMP

• 20.1 (1) After having consulted with the Royal Canadian Mounted Police and taken its security and confidentiality needs into account, the Public Service Labour Relations Board shall establish procedures for the processing and hearing of complaints relating to reprisals involving that organization.

• Marginal note:Full-time member to hear complaint

  (2) A complaint relating to a reprisal involving the Royal Canadian Mounted Police shall not be heard or determined by any person other than a full-time member of the Public Service Labour Relations Board.

Marginal note:Retroactivity

• 21. (1) A public servant who alleges that a reprisal was taken against him or her by reason that he or she, in good faith, disclosed a wrongdoing in the course of a parliamentary proceeding or an inquiry under Part I of the Inquiries Act — after February 10, 2004 and before the day on which section 20 comes into force — may make a complaint under that section in respect of the reprisal.

• Marginal note:Time limit

  (2) The public servant may make the complaint within 60 days after the later of

  • (a) the day on which section 20 comes into force, and

  • (b) the day on which he or she knew or, in the opinion of the Board, ought to have known that the reprisal was taken.

Marginal note:Power to temporarily assign other duties

• 21.1 (1) A chief executive may temporarily assign other duties to a public servant who is involved in a disclosure or a complaint in respect of a reprisal if the chief executive believes on reasonable grounds that the public servant's involvement has become known in the public servant’s workplace and that the tempo­rary assignment is necessary to maintain the effective operation of the workplace.

• Marginal note:Public servants who may be assigned other duties

  (2) For the purposes of this section, the public servants involved in a disclosure or a complaint in respect of a reprisal are

  • (a) the public servant who made the disclosure and every public servant who is the subject of the disclosure;

  • (b) the public servant who filed the complaint and every public servant who is alleged to have taken the reprisal to which the complaint relates; and

  • (c) every public servant who is a witness or potential witness in the investigation, if any, relating to the disclosure or in any proceeding dealing with the complaint.

• Marginal note:Duration

  (3) The assignment may be for a period of up to three months, but the chief executive may renew the assignment one or more times if he or she believes that the conditions giving rise to it continue to exist on the expiry of a previous period.

• Marginal note:Duties

  (4) Subject to subsection (6), the duties that may be assigned must be in the same portion of the public sector in which the public servant is employed and must be comparable to the public servant's normal duties.

• Marginal note:Consent

  (5) Subsection (1) applies to a public servant who made a disclosure under this Act, or who is a witness or potential witness in any investigation relating to the disclosure or in any proceeding dealing with a complaint in respect of a reprisal, only if the public servant consents in writing to the assignment. The assignment is deemed not to be a reprisal if the public servant's consent is given.

• Marginal note:Duties in other portion of the public service

  (6) The public servant may be temporarily assigned duties in another portion of the public sector if both the chief executive of that other portion and the public servant consent to the assignment and the duties are comparable to the public servant's normal duties. The assignment is deemed not to be a reprisal if the public servant's consent is given.

DUTIES OF THE COMMISSIONER

Marginal note:Duties

22. The duties of the Commissioner under this Act are to

• (a) provide advice to public servants who are considering making a disclosure under this Act;

• (b) receive, record and review disclosures of wrongdoings in order to establish whether there are sufficient grounds for further action;

• (c) conduct investigations of disclosures made in accordance with section 13, and investigations referred to in section 33, including to appoint persons to conduct the investigations on his or her behalf;

• (d) ensure that the right to procedural fairness and natural justice of all persons involved in investigations is respected, including persons making disclosures, witnesses and persons alleged to be responsible for wrongdoings;

• (e) subject to any other Act of Parliament, protect, to the extent possible in accordance with the law, the identity of persons involved in the disclosure process, including that of persons making disclosures, witnesses and persons alleged to be responsible for wrongdoings;

• (f) establish procedures for processing disclosures and ensure the confidentiality of information collected in relation to disclosures and investigations;

• (g) review the results of investigations and report his or her findings to the persons who made the disclosures and to the appropriate chief executives; and

• (h) make recommendations to chief executives concerning the measures to be taken to correct wrongdoings and review reports on measures taken by chief executives in response to those recommendations.

Marginal note:Restriction — general

• 23. (1) The Commissioner may not deal with a disclosure under this Act or commence an investigation under section 33 if a person or body acting under another Act of Parliament is dealing with the subject-matter of the disclosure or the investigation other than as a law enforcement authority.

• Marginal note:Royal Canadian Mounted Police Act

  (2) For the purpose of subsection (1), a person or body dealing with a matter in the course of an investigation or proceeding under Part IV or V of the Royal Canadian Mounted Police Act is deemed not to be dealing with the matter as a law enforcement authority.

Marginal note:Right to refuse

• 24. (1) The Commissioner may refuse to deal with a disclosure or cease an investigation if he or she is of the opinion that

  • (a) the subject-matter of the disclosure is one that could more appropriately be dealt with, initially or completely, according to a procedure provided for under another Act of Parliament;

  • (b) the subject-matter of the disclosure is not sufficiently important or the disclosure is not made in good faith;

  • (c) the length of time that has elapsed between the date when the subject-matter of the disclosure arose and the date when the disclosure was made is such that dealing with the disclosure would serve no useful purpose;

  • (d) the disclosure relates to a matter that results from a balanced and informed decision-making process on a public policy issue; or

  • (e) there is a valid reason for not dealing with the disclosure.

• Marginal note:Adjudicative decisions

  (2) The Commissioner must refuse to deal with a disclosure or must cease an investigation if he or she is of the opinion that the subject-matter of the disclosure relates solely to a decision that was made in the exercise of an adjudicative function under an Act of Parliament, including a decision of the Commissioner of the Royal Canadian Mounted Police under Part IV or V of the Royal Canadian Mounted Police Act.

• Marginal note:Notice of refusal or cessation of investigation

  (3) If the Commissioner refuses to deal with a disclosure or ceases an investigation under this Act, he or she must inform the person who made the disclosure and give reasons why he or she did so.

Marginal note:Delegation

• 25. (1) The Commissioner may delegate to any employee of the Office of the Public Sector Integrity Commissioner any of his or her powers and duties under this Act, except

  • (a) the power to delegate under this section;

  • (b) the duties in paragraphs 22(g) and (h) to review the result of investigations, to report findings and to make recommendations;

  • (c) the power in section 24 to refuse to deal with a disclosure and the duty in that section to provide reasons for the refusal;

  • (d) the power to issue, in the exercise of any powers referred to in subsection 29(1), a subpoena or other request or summons to appear before the Commissioner or a person appointed to conduct an investigation;

  • (e) the power in section 33 to commence another investigation;

  • (f) the power in section 34 to refer a matter to another authority;

  • (g) the power in subsection 35(1) to remit information; and

  • (h) the duty or power in any of sections 36 to 38 in relation to making a report.

• Marginal note:Restriction concerning certain investigations

  (2) The Commissioner may not delegate the conduct of any investigation that involves or may involve information relating to international relations, national defence, national security or the detection, prevention or suppression of criminal, subversive or hostile activities, except to one of a maximum of four officers or employees of the Office of the Public Sector Integrity Commissioner specifically designated by the Commissioner for the purpose of conducting those investigations.

INVESTIGATIONS

Marginal note:Purpose of investigations

• 26. (1) Investigations under this Act are for the purpose of bringing the existence of wrongdoings to the attention of chief executives and making recommendations concerning corrective measures to be taken by them.

• Marginal note:Informality

  (2) The investigations are to be conducted as informally and expeditiously as possible.

Marginal note:Notice to chief executive

• 27. (1) When commencing an investigation under this Act, the Commissioner must notify the chief executive concerned and inform that chief executive of the substance of the disclosure to which the investigation relates.

• Marginal note:Notice to others

  (2) The Commissioner, or the person conducting an investigation, may also notify any other person he or she considers appropriate, including every person whose acts or conduct are called into question by the disclosure to which the investigation relates, and inform that person of the substance of the disclosure.

• Marginal note:Opportunity to answer allegations

  (3) It is not necessary for the Commissioner to hold any hearing and no person is entitled as of right to be heard by the Commissioner, but if at any time during the course of an investigation under this Act it appears to the Commissioner that there may be sufficient grounds to make a report or recommendation that may adversely affect any individual or any portion of the public sector, the Commissioner must, before completing the investigation, take every reasonable measure to give to that individual or the chief executive responsible for that portion of the public sector a full and ample opportunity to answer any allegation, and to be assisted or represented by counsel, or by any person, for that purpose.

Marginal note:Access

• 28. (1) If the Commissioner so requests, chief executives and public servants must provide him or her, or the person conducting an investigation, with any facilities, assistance, information and access to their respective offices that the Commissioner may require for the carrying out of his or her duties under this Act.

• Marginal note:Application

  (2) Subsection (1) applies despite any restriction created by or under any other Act of Parliament on the disclosure of information.

Marginal note:Powers

• 29. (1) In conducting any investigation under this Act, the Commissioner has all the powers of a commissioner under Part II of the Inquiries Act.

• Marginal note:Subpoenas, etc., and right to be represented

  (2) Whenever the Commissioner issues a subpoena or other request or summons to a person in the exercise of any powers referred to in subsection (1), he or she must allow that person to be assisted or represented by counsel, or by any person.

• Marginal note:Notice before entering premises

  (3) Before entering the premises of any portion of the public sector in the exercise of any powers under subsection (1), the Commissioner must notify the chief executive of that portion of the public sector.

Marginal note:Exception

• 30. (1) Sections 28 and 29 do not apply in respect of a confidence of the Queen’s Privy Council for Canada in respect of which subsection 39(1) of the Canada Evidence Act applies or information that is subject to solicitor-client privilege. The Commissioner may not use the confidence or information if it is nevertheless received under section 28 or 29.

• Marginal note:Canada Evidence Act

  (2) Nothing in this Act is to be construed as limiting the application of the Canada Evidence Act to investigations conducted by the Commissioner.

Marginal note:Canadian Broadcasting Corporation

31. With respect to the Canadian Broadcasting Corporation, in making a request referred to in section 28 or in exercising the powers in section 29, the Commissioner must consider whether doing so will unduly disrupt the gathering and dissemination of news and information by the Corporation.

Marginal note:Self-incrimination

32. No public servant shall be excused from cooperating with the Commissioner, or with a person conducting an investigation, on the grounds that any information given by the public servant may tend to incriminate the public servant or subject him or her to any proceeding or penalty, but the information, or any evidence derived from it, may not be used or received to incriminate the public servant in any criminal proceeding against him or her, other than a prosecution under section 132 or 136 of the Criminal Code.

Marginal note: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 sections 23 and 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.

• Marginal note:Restriction

  (2) The Commissioner may not, in the course of an investigation commenced under subsection (1), use a confidence of the Queen’s Privy Council for Canada in respect of which subsection 39(1) of the Canada Evidence Act applies, or information that is subject to solicitor-client privilege, if the confidence or information is disclosed to the Commissioner.

Marginal note:Information outside public sector

34. If the Commissioner is of the opinion that a matter under investigation would involve obtaining information that is outside the public sector, he or she must cease that part of the investigation and he or she may refer the matter to any authority that he or she considers competent to deal with it.

Marginal note:Remittal of information

• 35. (1) If the Commissioner has reasonable grounds to suspect that information obtained in the course of an investigation may be used in the investigation or prosecution of an alleged contravention of any Act of Parliament or of the legislature of a province, he or she may, in addition to or in lieu of continuing the investigation, remit the information, at that point in time, to a peace officer having jurisdiction to investigate the alleged contravention or to the Attorney General of Canada.

• Marginal note:Restriction

  (1.1) If the information relates to the Royal Canadian Mounted Police, the Commissioner may remit the information only to the Attorney General of Canada.

• Marginal note:No further remittal of information

  (2) To maintain the separation of investigations carried out under this Act and those carried out for law enforcement purposes, after information has been remitted under subsection (1) in relation to any matter, the Commissioner may not — except in accordance with a prior judicial authorization — remit to any peace officer or to the Attorney General of Canada any further information in relation to that matter that the Commissioner obtains in the course of his or her investigation into that matter and in respect of which there is a reasonable expectation of privacy.

REPORTS

Marginal note:Request for notice of action

36. In making a report to a chief executive in respect of an investigation under this Act, the Commissioner may, if he or she considers it appropriate to do so, request that the chief executive provide the Commissioner, within a time specified in the report, with notice of any action taken or proposed to be taken to implement the recommendations contained in the report or reasons why no such action has been or is proposed to be taken.

Marginal note:Report to appropriate Minister or governing council

37. If the Commissioner considers it necessary, he or she may report a matter to the Minister responsible for the portion of the public sector concerned or, if the matter relates to a Crown corporation, to its board or governing council, including, but not limited to, when the Commissioner is of the opinion that

• (a) action has not been taken within a reasonable time in respect of one of his or her recommendations; and

• (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 substantial and specific danger to the life, health or safety of persons, or to the environment.

Marginal note:Preparation of report

• 38. (1) Within three months after the end of each financial year, the Commissioner must prepare and submit to Parliament an annual report in respect of the activities of the Commissioner during that financial year.

• Marginal note:Content

  (2) The annual report must set out

  • (a) the number of general inquiries relating to this Act;

  • (b) the number of disclosures received and the number of those that were acted on and those that were not acted on;

  • (c) the number of investigations commenced under this Act;

  • (d) the number of recommendations that the Commissioner has made and their status;

  • (e) whether there are any systemic problems that give rise to wrongdoings;

  • (f) any recommendations for improvement that the Commissioner considers appropriate; and

  • (g) any other matter that the Commissioner considers necessary.

• Marginal note:Special reports

  (3) The Commissioner may, at any time, make a special report to Parliament referring to and commenting on any matter within the scope of his or her powers and duties under this Act if, in his or her opinion, the matter is of such urgency or importance that a report on it should not be deferred until the time provided for transmission of the annual report.

• Marginal note:Transmission of reports

  (4) Every report to Parliament made by the Commissioner shall be made by being transmitted to the Speaker of the Senate, and to the Speaker of the House of Commons, for tabling in those Houses.

• Marginal note:Reference to committee

  (5) After it is transmitted for tabling, every report of the Commissioner stands referred to the committee of the Senate, the House of Commons or both Houses of Parliament that may be designated or established for the purpose of reviewing the Commissioner’s reports.