Public Servants Disclosure Protection Act, Bill C-25

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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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