What kind of disclosure is protected?
The Act protects any person who, while acting in good faith and on the basis of reasonable belief, discloses information regarding a wrongdoing that has or will occur in relation to a public body.
Under the Act, a wrongdoing s.4 includes:
- a contravention of a Québec law, of a federal law applicable in Québec or of a regulation made under such a law;
- a serious breach of the standards of ethics and professional conduct;
- a misuse of funds or property belonging to a public body, including the funds or property it manages or holds for others;
- gross mismanagement within a public body, including an abuse of authority;
- any act or omission that seriously compromises or may seriously compromise a person’s health or safety or the environment; and
- directing or counselling a person to commit any of the above wrongdoings.
The Act does not apply to disclosures made for personal purposes, those made questioning the merits of policies and program objectives of the Government or of a public body, or those questioning the merits of the investment, fund management or debt management activities of the Caisse de dépôt.
Under the Act, public bodies s.2 include all government departments, and bodies and persons appointed or designated by the Government or by the National Assembly, as well as public-funded bodies, bodies subject to the Financial Administration Act, and government corporations (including the Commission de la construction du Québec and the Caisse de dépôt et placement du Québec).
The Act also covers school boards, general and vocational colleges and University-level educational institutions, as well as public institutions and private institutions under agreement within the meaning of the Act respecting health services and social services as well as the regional council established under the Act respecting health services and social services for Cree Native persons chapter S-5, and childcare centres, day care centres benefiting from subsidized childcare spaces and home childcare coordinating offices governed by the Educational Childcare Act chapter S-4.1.1. Persons disclosing information related to these types of public bodies may communicate this information with the Minister of Families in accordance with Chapter VII.2 of the Educational Childcare Act chapter S-4.1.1, s.6.
The Act also applies to the National Assembly according to the rules prescribed by the Office of the National Assembly s.3.
Who is eligible for protection?
The Act protects any person, whether a public servant or not. However, in order to be protected under this Act, information regarding a wrongdoing must be disclosed to to one of the following designated persons:
- The Public Protector s.6
- The Minister of Families, if the subject-matter relates to childcare centres, day care centres benefiting from subsidized childcare spaces or home childcare coordinating offices governed by the Educational Childcare Act s.6, or
- The officer responsible for disclosures within a given public body, if the disclosure is made by a member of the personnel of that public body s.6.
DISCLOSURE TO THE PUBLIC
As an exception, a disclosure of wrongdoing may be made to the public only if the wrongdoing poses a serious and imminent risk to a person’s health or safety, or to the environment and cannot, given the urgency of the situation, be disclosed following standard procedures. Prior to doing so, the information must first be communicated to a police force of the Anti-Corruption Commissioner.
The Act applies despite other restrictions imposed by the law including duties of confidentiality, duties of loyalty, professional secrecy and despite those restrictions imposed by the Act respecting the protection of personal information in the private sector chapter P‑39.1 and the Act respecting Access to documents held by public bodies and the Protection of personal information chapter A‑2.1.
How are whistleblowers protected?
The Act prohibits any kind of reprisal or threat of reprisal against a person that has cooperated or made a disclosure in good faith s.30. Anyone who wishes to disclose information regarding a wrongdoing may request that their identity be kept confidential s.6.
Under the Act, a reprisal s.31 is defined as:
- the demotion, suspension, dismissal or transfer of a person referred to in that section or any other disciplinary measure or measure that adversely affects such a person’s employment or conditions of employment; or
- if such a person is the holder of parental authority over a child attending a childcare establishment, depriving the person of any right or subjecting the person to differential treatment or suspending or expelling the person’s child.
Under the Act, any person who knowingly discloses information that is false or misleading or commits an act of reprisal against a person due to their disclosure of wrongdoing is guilty of an offence and is liable to a fine ranging from $2000 - $20 000. Corporations found guilty of these offences may be liable to a fine ranging from $10 000 to $250 000.
Persons who hinder or attempt to hinder the Public Protector, the Minister responsible for municipal affairs or a designated officer in the exercise of the functions of the office refuses to provide any information or a document they are required to provide or refuses to make it available, or conceals or destroys any document relevant to an audit or investigation is guilty of an offence and is liable to a fine of $4,000 to $20,000.
How should disclosures be made?
Under the Act, a person making a disclosure may communicate any information that may be useful in demonstrating that a wrongdoing has or will occur s.8.
In order to disclose a wrongdoing, persons may fill the online form and follow the procedures listed at https://protecteurducitoyen.qc.ca/en/make-a-complaint/how-to-make-a-complaint.
The provincial government created a new email address, firstname.lastname@example.org, encouraging workers in the health and social science networks to report any incidents of wrongdoings.
s. 33 of the Act respecting Access to documents held by public bodies and the Protection of personal information applies nonetheless.
Any person may contact the Public Protector to obtain information or access to legal advice regarding the possibility of making a disclosure, disclosure procedures, and information regarding reprisals against persons who have disclosed information in good faith s.9 and s.26.
The Public Protector determines, up to his or her discretion and on a case-by-case basis whether a particular situation warrants access to legal advice. In addition, the Public Protector determines to what extent and the time of the access to legal advice s.26.