What kind of disclosure is protected?
A disclosure of a wrongdoing will be protected if it is made by a public servant in good faith s.2(1):
- in accordance with this Act;
- in the course of parliamentary proceedings;
- in the course of a procedure established under any other Act of Parliament; or
- when lawfully required to do so.
Under the Act, wrongdoings are defined as a contravention to any federal or provincial statute and regulations, misuse of public funds or assets, gross mismanagement and serious breaches of codes of conduct, or an act or omission threatening the life, health or safety of persons, or the environment s.2(1)
The Act does not protect disclosures of special operational information under the Security of Information Act that provides for a specific regime for such disclosure.
Who is eligible for protection?
The Act protects public servants who, while acting in good faith and on the basis of reasonable belief, have disclosed information regarding a wrongdoing committed or about to be committed by a public sector organization s. 12.
Under the Act, a public servant is defined as any person employed in the public sector, every member of the Royal Canadian Mounted Police and every chief executive s.2(1) .
A list of departments that constitute the public sectors.2(1) may be found in Schedule I and Schedule I.1 to Schedule V of the Financial Administration Act s. 2(1) and in Schedule 1 of the Public Servants Disclosure Protection Act.
Public sector does not include the Canadian Forces, the Canadian Security Intelligence Service or the Communications Security Establishment. These agencies should have developed internal procedures for their members. Moreover, some disclosures might be protected under the Security of Information Act.
In order to be protected, a public sector employee must disclose the wrongdoing or potential wrongdoing only to designated officials, such as a supervisor, a senior officer designated for the purpose, the Public Sector Integrity Commissioner or the Auditor General of Canada s.12 and s.14.
A disclosure concerning the Office of the Public Sector Integrity Commissioner may be made to the Auditor General of Canada s.14.
Nothing in this Act affects public servants’ obligations to disclose or report under any other act s.18.1.
Disclosures to the public:
An employee may disclose a wrongdoing to the public only if there is not enough time to mitigate the issue through internal procedures. An employee must believe, on reasonable grounds, that the wrongdoing constitutes a serious offence or poses an imminent risk of danger to the life, health and safety of an individual, or to the environment s.16.
An employee may not disclose a wrongdoing to the public if the information is protected under privacy statutes and any restriction created by any other federal statute s.16 (1.1).
The Act prohibits public sector employees from knowingly making a false or misleading statement, either orally or in writing, to any designated official in the course of a disclosure of a wrongdoing s.40.
How are whistleblowers protected?
The Act prohibits any kind of reprisals against public servants who have disclosed information s.19.
In addition, the Act prohibits employers from taking certain measures against employees who, on good faith and on the basis of reasonable belief, disclosed to the designated officials s.42.1(1). The following measures are prohibited s.42.1(1):
- taking a disciplinary measure against the employee;
- demoting the employee;
- terminating the employment of the employee;
- taking any measure that adversely affects the employment or working conditions of the employee; or
- threatening to take any measure referred to above.
The above provision does not restrict an employee’s rights at law or under an employment contract or collective agreement s.42.1(2). For the purposes of s.42.1(1) only, the term “employer” does not include employers in the public sector. Therefore, s.42.1(1) applies to employers and employees generally.
Any person who knowingly takes a reprisal against an employee for having disclosed information regarding a wrongdoing is guilty of an offence and liable to a fine.
How should disclosures be made?
A public servant may make a disclosure of wrongdoing to the Senior Officer in their organization, or directly to the Office of the Public Sector Integrity Commissioner of Canada.
In order to make a disclosure, a public servant must gather documentation to support their allegations and submit the disclosure of wrongdoing to the Office of the Public Sector Integrity Commissioner of Canada:
- By submitting it on the online form
- By sending it through secure fax transmission at 613-946-2151
- By delivering it in person or by mail to 60 Queen Street, 4th Floor, Ottawa, Ontario K1P 5Y7
In order to disclose a wrongdoing, a public sector employee must not provide any more information than is necessary, and must follow the prescribed best practices for the handling of the information s.15.1.
A public servant can make an anonymous disclosure of wrongdoing but the response from the Office may be limited. The Act does not provide a mechanism to make anonymous disclosures and it is difficult for the Office to determine whether the information is provided by a public servant in good faith.
A public servant who is considering making a disclosure or a complaint for reprisals, but does not have access to free legal advice, may apply for financial aid from the Commissioner. If a public servant does not have access to legal advice at no cost to them, the Commissioner may provide the public servant with access to legal advice s. 25.1(2).
The Commissioner is prohibited against dealing with a complaint of reprisal if a person or body acting under another Act of Parliament or collective agreement, other than law enforcement, is dealing with that same complaint s.19.3(2).