Presentation Public Sector Integrity Commissioner

60 Queen Street, 7 th floor Ottawa ON K1P 5Y7 (613) 941-6400 1-866-941-6400 WWW.PSIC-ISPC.GC.CA

Presentation Outline

I.

II.

III.

IV.

V.

Why a Disclosure Regime Background Our Mandate Legislative Framework Implementation Factors 2

I. Why a Disclosure Regime?

• Canadians expect the highest standards of conduct within their public institutions.

• The vast majority of public servants serve Canadians with integrity, honesty and pride, a disclosure regime is a safe mechanism allowing public servants who believe that something is wrong or needs further examination to come forward.

• Canadians expect that when mistakes are made or where there is a wrongdoing, that corrections will be made effectively and with transparency.

3

II. Background

Historical Context

• Treasury Board

Policy on the Internal Disclosure of Wrongdoing in the Workplace

adopted in 2001, established the Public Service Integrity Office (PSIO).

• In 2003, a Working Group consisting of experts from outside Government recommended a legislative approach to increase credibility and effectiveness of the disclosure regime and to provide the necessary independence. 4

II. Background

Historical Context

• The first

Public Servants Disclosure Protection Act

introduced in October 2004 and received Royal Assent in November 2005, but never came into force. (PSDPA), • The

Federal Accountability Act

received Royal Assent in December 2006, brought significant amendments to the PSDPA. , introduced in April 2006 and • PSDPA as amended by

Federal Accountability Act

, came into force on April 15, 2007. 5

Objectives of the PSDPA

II. Background

• Recognizing that the federal public administration is essential to the Canadian parliamentary democracy framework, the PSDPA: – enhances confidence in public institutions by protecting public servants who act with integrity and who come forward with information about possible wrongdoing in the federal public sector; and – encourages a collective commitment to contribute to a culture of right doing.

• Strikes a balance between the principles of freedom of expression and duty of loyalty to the employer. 6

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 reports to Parliament.

• Centre of Expertise: – Working jointly with the public sector to prevent problems through education and promotion of ethical practices; – Pro-active to effectively resolve cases. – World leader. 7

III. Our Mandate

Protecting Public Servants

• Office is a safe alternative allowing public servants to come forward if they suspect possible wrongdoing. • Exclusive jurisdiction to protect public servants from possible reprisals. • Confidentiality of disclosure process and investigations.

• Procedural fairness and natural justice to all persons involved.

• Commissioner can grant access to free legal advice.

8

III. Our Mandate

• • • •

Jurisdiction

Federal “public sector” includes core public administration, separate agencies and parent Crown corporations. Jurisdiction over approximately 400,000 employees (in addition, members of the public, not just public servants, can report a possible wrongdoing to the Commissioner). Canadian Forces, Canadian Security Intelligence Service, Communications Security Establishment are excluded but must establish their own regimes.

PSDPA creates two main areas of responsibility: A) Disclosure Process; and B) Reprisal Complaints Process.

9

• •

IV. Legislative Framework

•

A) Disclosure Process

Public servants can make a protected disclosure of wrongdoing either to: – – – their organization’s designated senior officer; their supervisor; or directly to the Commissioner.

There is no requirement to exhaust internal avenues before going to the Commissioner.

Public disclosures, for example, to the media, are still permitted but under exceptional circumstances only.

10

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 specific danger to the life, health and safety of persons or the environment; or – Knowingly directing or counselling a person to commit wrongdoing.

11

IV. Legislative Framework

A) Disclosure Process

Safeguards to avoid duplication of processes: Restrictions: Commissioner may not deal with a disclosure when a person or body acting under another Act of Parliament is dealing with the subject-matter, other than as a law enforcement agency.

The Commissioner must refuse to deal with a disclosure when the subject-matter of the disclosure relates solely to a decision that was made in the exercise of an adjudicative function. 12

IV. Legislative Framework

A) Disclosure Process

Discretionary Right to Refuse The Commissioner may refuse to deal with a disclosure or to commence an investigation or cease an investigation if: a) the disclosure has been or could be more appropriately dealt with according 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 useful purpose; e) the subject-matter of the disclosure results from a balanced and informed decision-making process on a public policy issue; or f) there is a valid reason for not dealing with the disclosure.

13

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 is restricted. - Investigations limited to public sector only.

14

• •

IV. Legislative Framework

A) Disclosure Process

Importance of using all appropriate tools, formal and informal, to resolve cases effectively with a view of preserving the public trust in the integrity of federal institutions. The use of alternative dispute resolution (ADR) could be envisaged, with the consent of parties, at various stages of the disclosure process: to facilitate the screening of allegations; identify causes of conflicts; resolve differences of opinion or interpretation on specific issues; and identify options for resolution.

15

IV. Legislative Framework

A) Disclosure Process

• • • • Reporting Obligations Report findings and make recommendations for corrective measures to chief executives. Power to present special reports to the Minister / Board of a Crown Corporation if delays in implementing recommendations or if required by urgency of situation.

Report to Parliament within 60 days of finding of wrongdoing, including chief executive’s response to any of the Commissioner’s recommendations.

Power to present special reports at any time to Parliament. 16

IV. Legislative Framework

B) Reprisal Complaints Process

Reprisal Protection • Preventing reprisals is a collective responsibility.

• Reprisals against public servants who make in good faith a protected disclosure or who are witnesses in a disclosure process are clearly prohibited.

• “Reprisal” includes disciplinary sanction and any measure that adversely affects the employment or working conditions of the public servant.

17

IV. Legislative Framework

B) Reprisal Complaints Process

• Commissioner has exclusive jurisdiction to deal with reprisal complaints 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 conciliation process.

• Investigations as informal and expeditious as possible.

18

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 according to a procedure provided by another Act of Parliament or through collective agreement; it is beyond jurisdiction of Commissioner; or complaint not made in good faith.

19

IV. Legislative Framework

B) Reprisal Complaints Process

Restriction: Commissioner may not deal with a complaint when a person or body acting under another Act of Parliament or a collective agreement is dealing with the subject-matter, other than as a law enforcement agency.

20

IV. Legislative Framework

B) Reprisal Complaints Process

Public Servants Disclosure Protection Tribunal • After investigation, Commissioner decides if a referral to the Public Servants Disclosure Protection Tribunal is warranted.

• Tribunal composed of four Federal Court judges.

• Tribunal has power to order remedial measures and disciplinary sanctions.

21

V. Implementation Factors

Complementary Roles

• There are several other independent bodies that carry out oversight or investigative 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 internal organizational disclosure regimes.

22

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 several oversight mechanisms.

Shared responsibilities between Commissioner and stakeholders to prevent and deal with wrongdoings and protect public servants.

23