Public Servants Disclosure Protection Act, Bill C-25
The new Liberal Federal Government of Paul Martin introduced
this bill for first reading amid considerable fanfare. Unfortunately
it doesn't provide much help for the traditional whistleblower,
who wants to draw public attention to waste or mismanagement
in government by contacting members of the opposition, or
the media.
With few exceptions (note s.13, below), whistleblowers are
only entitled to report up the line within the government
and to the new Public Service Integrity Commissioner, and
action can be taken against them if they have not followed
the dictates of the Act. (note the combined operation of s.
15 and the definition of “reprisal” in s.2). Public
servants reporting “wrongdoings” directly to the
media, parliamentarians, or the public would face disciplinary
action or termination of employment (note s.9), with no apparent
general public interest defence.
The provisions in question are the following:
2. The following definitions apply in this Act.
“reprisal” means any of the following measures
taken against a public servant by reason that the public
servant has, in good faith, disclosed a wrongdoing under
section 11 or 12 or in the course of a parliamentary proceeding
or an inquiry under Part I of the Inquiries Act, or has,
in good faith, cooperated in an investigation carried out
under this Act:
(a) a disciplinary measure;
(b) the demotion of the public servant;
(c) the termination of employment of the public servant;
(d) any measure that adversely affects the employment
or working conditions of the public servant; and
(e) a threat to take any of the measures referred to
in any of paragraphs (a) to (d).
8. This Act applies in respect of the following wrongdoings:
(a) a contravention of any Act of Parliament or of the
legislature of a Province, or of any regulations made under
any such Act, if the contravention relates to the official
activities of public servants or any public funds or assets;
(b) a misuse of public funds or a public asset;
(c) a gross mismanagement in the public sector;
(d) an act or omission that creates a substantial and specific
danger to the life, health or safety of persons or to the
environment;
(e) a serious breach of a code of conduct established under
section 5 or 6; and
(f) the taking of a reprisal against a public servant.
9. In addition to, and apart from, any other sanction provided
for by law, a public servant is subject to appropriate disciplinary
action, including termination of employment, if he or she
(a) commits a wrongdoing;
(b) makes a disclosure that is frivolous or vexatious or
in bad faith; or
(c) subject to section 13, makes a disclosure other than
in the course of a procedure established under this or any
other Act of Parliament or when otherwise lawfully required
to do so.
13. A public servant may make a disclosure other than in
accordance with this Act if he or she believes on reasonable
grounds that there is not sufficient time to make the disclosure
under
this Act and
(a) a serious offence under an Act of Parliament is being
or is about to be committed by another public servant in
the purported performance of that other public servant’s
duties; or
(b) another public servant is, in the purported performance
of that other public servant’s duties, doing anything,
or omitting to do anything, or is about to do anything or
omit to do anything, that creates an imminent and serious
danger to the life, health or safety of persons or to the
environment.
14. Section 11, subsection 12(1) and section 13 do not apply
to a public servant who is a person permanently bound to secrecy
within the meaning of subsection 8(1) of the Security of Information
Act if the disclosure involves special operational information
within the meaning of that subsection.
15. No person shall take any reprisal against a public servant.
17. Each chief executive must
(a) subject to any other Act of Parliament and to the principles
of procedural fairness and natural justice, protect the
identity of persons involved in the disclosure process,
including that of persons making disclosures, witnesses
and persons alleged to be responsible for wrongdoings; and
(b) establish procedures to ensure the confidentiality
of information collected in relation to disclosures of wrongdoings.
See: Public Servants Disclosure Protection
Act
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