Public Servants Disclosure Protection Act (Canada)

The Act

The Public Servants Disclosure Protection Act (PSDPA) came into force on April 15, 2007. The Act creates two distinct processes: a disclosure process; and a reprisal complaints process. It also creates two new bodies: the Office of the Public Sector Integrity Commissioner (PSIC) and the Public Servants Disclosure Protection Tribunal.

The Act defines wrongdoing as a contravention of any Act of Parliament

Act of Parliament

An Act of Parliament is a statute enacted as primary legislation by a national or sub-national parliament. In the Republic of Ireland the term Act of the Oireachtas is used, and in the United States the term Act of Congress is used.In Commonwealth countries, the term is used both in a narrow...

or of the legislature of a province, or of any regulations made under any such Act; a misuse of public funds or a public asset; a gross mismanagement in the public sector; an act or omission that creates a substantial and specific danger to the life, health or safety of persons, or to the environment, other than a danger that is inherent in the performance of the duties or functions of a public servant; a serious breach of a code of conduct

Code of Conduct

A code of conduct is a set of rules outlining the responsibilities of or proper practices for an individual, party or organization. Related concepts include ethical codes and honor codes....

established under the PSDPA; and knowingly directing or counseling a person to commit a wrongdoing.

Under the Act, reprisal means any measures taken against a public servant because he or she has made a protected disclosure or has, in good faith

Good faith

In philosophy, the concept of Good faith—Latin bona fides “good faith”, bona fide “in good faith”—denotes sincere, honest intention or belief, regardless of the outcome of an action; the opposed concepts are bad faith, mala fides and perfidy...

, cooperated in an investigation into a disclosure. It can include any measures that could adversely affect the employment or working conditions of the person, or a threat to take any of these measures or to direct a person to do so.

Key highlights of the PSDPA are as follows:

• The Treasury Board must establish a code of conduct applicable to the public sector. As well, every Chief Executive must establish a code of conduct applicable to the portion of the public sector for which he or she is responsible.

• Any public servant or member of the public can disclose in confidence information about a suspected wrongdoing in the public sector.

• Public servants who make a good faith disclosure and those who cooperate in investigations are protected against reprisals.

• The identity of the person who made the disclosure and of the witnesses and the persons against whom disclosures are made must be protected to the extent possible.

• The right to procedural fairness and natural justice

Natural justice

Natural justice is a term of art that denotes specific procedural rights in the English legal system and the systems of other nations based on it. Whilst the term natural justice is often retained as a general concept, it has largely been replaced and extended by the more general "duty to act fairly"...

of all persons involved in a disclosure process and a reprisal complaint must be respected, including those against whom an allegation or complaint is made.

• PSIC has broad investigative powers under Part 11 of the Inquiries Act.

• The purpose of investigations under the Act is to bring the existence of wrongdoings to the attention of Chief Executives and to make recommendations concerning corrective measures.

• PSIC has exclusive jurisdiction to investigate reprisal complaints from public servants.

• Investigations into disclosures of wrongdoing and reprisal complaints are to be conducted as informally and expeditiously as possible.

• PSIC may apply to the Public Servants Disclosure Protection Tribunal, which can determine whether reprisals have been taken place and impose corrective measures and disciplinary actions.

The PSDPA applies to all employees in the federal public sector

Public sector

The public sector, sometimes referred to as the state sector, is a part of the state that deals with either the production, delivery and allocation of goods and services by and for the government or its citizens, whether national, regional or local/municipal.Examples of public sector activity range...

. It excludes the Canadian Security Intelligence Service

Canadian Security Intelligence Service

The Canadian Security Intelligence Service is Canada's national intelligence service. It is responsible for collecting, analyzing, reporting and disseminating intelligence on threats to Canada's national security, and conducting operations, covert and overt, within Canada and abroad.Its...

(CSIS), the Communications Security Establishment (CSE) and the Canadian Forces. However, these organizations must create comparable disclosure protection regimes.

Reference

The full text of the PSDPA on the Justice Department's website.
The PSDPA Explained (in plain English) on the FAIR website.

Criticism of the Act

The primary source of independent information about whistleblower legislation in Canada is the Federal Accountability Initiative for Reform (FAIR) a registered charity that provides support for whistleblowers. The following web page provides extensive information about the PSDPA and its implementation:
The Public Servants Disclosure Protection Act

In early 2007 FAIR published an analysis of the PSDPA before it came into force, listing the concerns that FAIR had expressed in its testimony to Parliament during passage of the Act. In February 2011 FAIR published an updated analysis, benefiting from its observations during four years of implementation. This document lists more than two dozen significant shortcomings under the following eight headings:

1) The scope of the law is very narrow

For members of the Armed Forces, CSIS or the RCMP, the protection from reprisals is either limited or non-existent
Government misconduct involving the private sector cannot be investigated properly
The law does not address private sector misconduct at all

2) The range of avenues (for seeking investigation and redress) has been restricted rather than expanded

All means of access to our normal courts are blocked
There is little protection against bullying and harassment – for any employee
Going public or disclosing to the media is strictly prohibited in most circumstances

3) The coverage of wrongdoing excludes most real-life situations

Restrictive definition of wrongdoing
Jurisdictional reasons for refusal to deal with disclosures
Other vague and subjective reasons for refusal to deal with disclosures

4) The provisions for investigations and corrective action are weak

The Commissioner is restricted to a reactive, fragmented approach
There is no reliable mechanism to correct wrongdoing or discipline wrongdoers

5) Most complaints of reprisal are likely to be rejected

Jurisdictional reasons to reject a complaint of reprisal
Short time limit to file a complaint
Definitional reasons for rejection of a complaint
The Commissioner need not refer any case to the tribunal
Non-government whistleblowers effectively have no protection

6) The tribunal is unlikely to protect anyone

Near-impossible burden of proof
Lack of legal assistance
No access to courts
Inadequate penalties and remedies

7) The entire process is shrouded in impenetrable secrecy

Access to Information
Misclassification of documents
Secret hearings
Decisions need not be filed with federal Court
Gag orders

8) The legal strategy is perverse and ill-conceived

The law is unwieldy, complex and costly

Reference

The full text of this analysis (a 26-page .pdf file) is available on the FAIR website:

What's wrong with the PSDPA

Implementation red flags

The agency created to administer the PSDPA – the Office of the Public Sector Integrity Commissioner (OPSIC) – has had a troubled history. During its first three years of operation it found no cases of wrongdoing in the federal public service, and no cases of reprisal against any whistleblower. Out of more than two hundred cases received only a handful were investigated, and none of these investigations found anything amiss. Critics claimed that it is implausible that there is no wrongdoing to be found: the agency is mandated to protect about 400,000 public servants working within a system that disposes of more than half a billion dollars each day. In addition some individuals who were turned away by OPSIC (such as veteran Sean Bruyea) have since been vindicated by other means.

Reference

Surprise resignation of Integrity Commissioner

In October 2010 the head of OPSIC, Public Sector Integrity Commissioner Christiane Ouimet, unexpectedly resigned less than halfway through her 7-year term, following media reports that she was under investigation by Canada's Auditor General. The Auditor General's report, published in December 2010, was highly critical of Ouimet and concluded that the commissioner had failed to do her job, had been an abusive manager, and had taken reprisals against former staff members. For more than two months Ouimet refused to attend a parliamentary committee that summoned her to appear and explain her actions. When she finally did appear she claimed that she had been victimized by the Auditor General's intensive investigation, that she had done nothing wrong, and that the Auditor General's findings were incorrect. There was further controversy about Ouimet's departure when it became known that the government had paid her more than $500,000 'severance' to resign, with a gag order that prohibits her from criticizing the government (or vice versa). Critics claimed that she had been rewarded for incompetence and misconduct, and paid to keep quiet.

Reference

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