Criminal Code

Overview

The Criminal Code (RSC 1985, c. C-46, s. 425.1) protects employees from threats and reprisals for disclosing an offence to a law enforcement officer that they believe to have been, or is in the course of being committed. 

What kind of disclosure is protected?

The Act s.425.1(a) protects any employee who has or is about to disclose information regarding an offence committed contrary to any provincial or federal Act or regulation, by the employer, an officer of the employer, an employee of the employer, or any of the employer’s directors.

Who is eligible for protection?

In order for an employee to be protected, they must disclose the information to a person whose duties include the enforcement of federal or provincial laws s.425.1.

The Federal Court of Appeal tightened the protection criteria in 2013, stating that the provision does not protect employees who make “reckless complaints” to public authorities with “impunity” and without regards to the employer’s internal mechanisms or respect for work colleagues. Specifically, the Court refused to protect an employee who made a “hasty and vexatious” complaint prior to verifying the measures taken or waiting for the results of the internal mechanisms.

The Act does not protect employees who make reckless complaints to public authorities or who fully disregard an employer’s internal whistleblowing procedures Anderson v. IMTT-Québec Inc (2013 FCA 90).

How are whistleblowers protected?

The Act prohibits any kind of reprisal against an employee who has made a protected disclosure under the Act s.425.1. The Act also prohibits employers from compelling such employees to abstain from providing such information s.425.1(a).

Under the Act, a reprisal s.425.1 is categorized as a disciplinary measure, a demotion, or any other adverse effect or threat to the employment of the employee. 

Any employer who knowingly takes any kind of reprisal against an employee who has disclosed information to persons whose duties include the enforcement of federal or provincial law is guilty of either s.425.1(2):

  • an indictable offence and liable to imprisonment for a term no more than five years s.4 25.1(2)(a); or
  • an offence punishable on summary conviction s.425(2)(b).

How should disclosures be made?

Be careful! Despite presenting some challenges for follow ups, one of the best protections for whistleblowers is their anonymity. Be cautious when providing any information through electronic means, especially emails! Read the security tips section.

In order to be protected, the employee must disclose the information to a person whose duties include the enforcement of federal or provincial laws s.425.1. For more information on how to disclose information regarding a criminal offence, contact local law enforcement authorities.