Presentation
Public Sector Integrity Commissioner
60 Queen Street, 7th floor
Ottawa ON K1P 5Y7
(613) 941-6400
1-866-941-6400
WWW.PSIC-ISPC.GC.CA
Presentation Outline
I.Why a Disclosure Regime
II.Background
III.Our Mandate
IV.Legislative Framework
V.Implementation Factors
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I. Why a Disclosure Regime?
•Canadians expect the highest standards of conduct within theirpublic institutions.
•The vast majority of public servants serve Canadians with integrity,honesty and pride, a disclosure regime is a safe mechanismallowing public servants who believe that something is wrong orneeds further examination to come forward.
•Canadians expect that when mistakes are made or where there is awrongdoing, that corrections will be made effectively and withtransparency.
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Historical Context
•Treasury Board Policy on the Internal Disclosure of Wrongdoing inthe Workplace adopted in 2001, established the Public ServiceIntegrity Office (PSIO).
•In 2003, a Working Group consisting of experts from outsideGovernment recommended a legislative approach to increasecredibility and effectiveness of the disclosure regime and toprovide the necessary independence.
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II. Background
II. Background
Historical Context
•The first Public Servants Disclosure Protection Act (PSDPA),introduced in October 2004 and received Royal Assent in November2005, but never came into force.
•The Federal Accountability Act, introduced in April 2006 andreceived Royal Assent in December 2006, brought significantamendments to the PSDPA.
•PSDPA as amended by Federal Accountability Act, came into forceon April 15, 2007.
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II. Background
Objectives of the PSDPA
•Recognizing that the federal public administration is essential to theCanadian parliamentary democracy framework, the PSDPA:
–enhances confidence in public institutions by protecting publicservants who act with integrity and who come forward withinformation about possible wrongdoing in the federal publicsector; and
–encourages a collective commitment to contribute to a culture ofright doing.
•Strikes a balance between the principles of freedom of expressionand duty of loyalty to the employer.
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III. Our Mandate
Serving all Canadians
•Commissioner established as independent Agent of Parliament.
•Guardian of public interest and public trust.
•Keeping the public informed through transparency and public reportsto Parliament.
•Centre of Expertise:
–Working jointly with the public sector to prevent problemsthrough education and promotion of ethical practices;
–Pro-active to effectively resolve cases.
–World leader.
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III. Our Mandate
Protecting Public Servants
•Office is a safe alternative allowing public servants to come forwardif they suspect possible wrongdoing.
•Exclusive jurisdiction to protect public servants from possiblereprisals.
•Confidentiality of disclosure process and investigations.
•Procedural fairness and natural justice to all persons involved.
•Commissioner can grant access to free legal advice.
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III. Our Mandate
Jurisdiction
•Federal “public sector” includes core public administration, separateagencies and parent Crown corporations.
•Jurisdiction over approximately 400,000 employees (in addition, membersof the public, not just public servants, can report a possible wrongdoing tothe Commissioner).
•Canadian Forces, Canadian Security Intelligence Service, CommunicationsSecurity Establishment are excluded but must establish their own regimes.
•PSDPA creates two main areas of responsibility:
A) Disclosure Process; and
B) Reprisal Complaints Process.
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IV. Legislative Framework
A)Disclosure Process
•Public servants can make a protected disclosure of wrongdoingeither to:
–their organization’s designated senior officer;
–their supervisor; or
–directly to the Commissioner.
•There is no requirement to exhaust internal avenues beforegoing to the Commissioner.
•Public disclosures, for example, to the media, are still permittedbut under exceptional circumstances only.
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IV. Legislative Framework
A) Disclosure Process
•Definition of “Wrongdoing” :
–Violation of any federal or provincial law or regulations;
–Misuse of public funds or assets;
–Gross mismanagement;
–Serious breach of a code of conduct;
–An act or omission that creates a substantial and specificdanger to the life, health and safety of persons or theenvironment; or
–Knowingly directing or counselling a person to commitwrongdoing.
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IV. Legislative Framework
A) Disclosure Process
Safeguards to avoid duplication of processes:
Restrictions:
Commissioner may not deal with a disclosure when a person orbody acting under another Act of Parliament is dealing with thesubject-matter, other than as a law enforcement agency.
The Commissioner must refuse to deal with a disclosure when thesubject-matter of the disclosure relates solely to a decision that wasmade in the exercise of an adjudicative function.
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IV. Legislative Framework
A) Disclosure Process
Discretionary Right to Refuse
The Commissioner may refuse to deal with a disclosure or to commence aninvestigation or cease an investigation if:
a)the disclosure has been or could be more appropriately dealt withaccording to a procedure provided by another Act of Parliament;
b)the disclosure is not sufficiently important;
c)the disclosure was not made in good faith;
d)the length of time that has elapsed is such that it would serve no usefulpurpose;
e)the subject-matter of the disclosure results from a balanced andinformed decision-making process on a public policy issue; or
f)there is a valid reason for not dealing with the disclosure.
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IV. Legislative Framework
A) Disclosure Process
Investigations:
•Purpose is to make recommendations to bring corrective measures.
•Conducted as informally and expeditiously as possible.
•Has investigative powers under Part II of the Inquiries Act.
•Restrictions:
-Access to cabinet confidences and solicitor-client privileges isrestricted.
-Investigations limited to public sector only.
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IV. Legislative Framework
A)Disclosure Process
•Importance of using all appropriate tools, formal and informal, toresolve cases effectively with a view of preserving the public trust inthe integrity of federal institutions.
•The use of alternative dispute resolution (ADR) could beenvisaged, with the consent of parties, at various stages of thedisclosure process:
-to facilitate the screening of allegations;
-identify causes of conflicts;
-resolve differences of opinion or interpretation on specificissues; and
-identify options for resolution.
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IV. Legislative Framework
A)Disclosure Process
Reporting Obligations
•Report findings and make recommendations for correctivemeasures to chief executives.
•Power to present special reports to the Minister / Board of aCrown Corporation if delays in implementing recommendationsor if required by urgency of situation.
•Report to Parliament within 60 days of finding of wrongdoing,including chief executive’s response to any of theCommissioner’s recommendations.
•Power to present special reports at any time to Parliament.
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B) Reprisal Complaints Process
Reprisal Protection
•Preventing reprisals is a collective responsibility.
•Reprisals against public servants who make in good faith aprotected disclosure or who are witnesses in a disclosure processare clearly prohibited.
•“Reprisal” includes disciplinary sanction and any measure thatadversely affects the employment or working conditions of thepublic servant.
IV. Legislative Framework
IV. Legislative Framework
B) Reprisal Complaints Process
•Commissioner has exclusive jurisdiction to deal with reprisalcomplaints from public servants.
•Public servants must file complaints within 60 days of reprisal.
•Commissioner has 15 days to decide if investigation is warranted.
•Commissioner can refer at any time a complaint to a conciliationprocess.
•Investigations as informal and expeditious as possible.
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IV. Legislative Framework
B) Reprisal Complaints Process
Safeguards to avoid duplication of processes:
Discretionary Right to Refuse:
Commissioner may refuse to deal with a complaint if:
-it has been or could be more appropriately dealt with accordingto a procedure provided by another Act of Parliament orthrough collective agreement;
-it is beyond jurisdiction of Commissioner; or
-complaint not made in good faith.
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IV. Legislative Framework
B) Reprisal Complaints Process
Restriction:
Commissioner may not deal with a complaint when a person or bodyacting under another Act of Parliament or a collective agreement isdealing with the subject-matter, other than as a law enforcementagency.
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IV. Legislative Framework
B) Reprisal Complaints Process
Public Servants Disclosure Protection Tribunal
•After investigation, Commissioner decides if a referral to the PublicServants Disclosure Protection Tribunal is warranted.
•Tribunal composed of four Federal Court judges.
•Tribunal has power to order remedial measures and disciplinarysanctions.
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V. Implementation Factors
Complementary Roles
•There are several other independent bodies that carry out oversight orinvestigative functions, for example:
–Auditor General
–Privacy Commissioner
–Access to Information Commissioner
–Canadian Human Rights Commission
–Public Service Commission of Canada / Public Service Staffing Tribunal
•Chief executives play a key role in establishing effective internalorganizational disclosure regimes.
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V. Implementation Factors
Considerations for Success
•Key leadership role in promoting integrity and transparency.
•Important implementation role by providing education,communication and outreach.
•Horizontal integration and complementary roles of severaloversight mechanisms.
•Shared responsibilities between Commissioner andstakeholders to prevent and deal with wrongdoings andprotect public servants.