Federal Accountability Act (S.C. 2006, c. 9)
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Assented to 2006-12-12
PART 3OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS, ADMINISTRATIVE TRANSPARENCY AND DISCLOSURE OF WRONGDOING
2005, c. 46Public Servants Disclosure Protection Act
Amendments to Act
202. (1) Paragraph 22(a) of the Act is replaced by the following:
(a) provide information and advice regarding the making of disclosures under this Act and the conduct of investigations by the Commissioner;
(2) Paragraphs 22(g) and (h) of the Act are replaced by the following:
(g) review the results of investigations into disclosures and those commenced under section 33 and report his or her findings to the persons who made the disclosures and to the appropriate chief executives;
(h) make recommendations to chief executives concerning the measures to be taken to correct wrongdoings and review reports on measures taken by chief executives in response to those recommendations; and
(i) receive, review, investigate and otherwise deal with complaints made in respect of reprisals.
203. Sections 24 and 25 of the Act are replaced by the following:
Marginal note:Right to refuse
24. (1) The Commissioner may refuse to deal with a disclosure or to commence an investigation — and he or she may cease an investigation — if he or she is of the opinion that
(a) the subject-matter of the disclosure or the investigation has been adequately dealt with, or could more appropriately be dealt with, according to a procedure provided for under another Act of Parliament;
(b) the subject-matter of the disclosure or the investigation is not sufficiently important;
(c) the disclosure was not made in good faith or the information that led to the investigation under section 33 was not provided in good faith;
(d) the length of time that has elapsed since the date when the subject-matter of the disclosure or the investigation arose is such that dealing with it would serve no useful purpose;
(e) the subject-matter of the disclosure or the investigation relates to a matter that 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 subject-matter of the disclosure or the investigation.
Marginal note:Adjudicative decisions
(2) The Commissioner must refuse to deal with a disclosure or to commence an investigation if he or she is of the opinion that the subject-matter of the disclosure or the investigation relates solely to a decision that was made in the exercise of an adjudicative function under an Act of Parliament, including a decision of the Commissioner of the Royal Canadian Mounted Police under Part IV or V of the Royal Canadian Mounted Police Act.
Marginal note:Notice of refusal
(3) If the Commissioner refuses to deal with a disclosure or to commence an investigation, he or she must inform the person who made the disclosure, or who provided the information referred to in section 33, as the case may be, and give reasons why he or she did so.
Marginal note:Delegation
25. (1) The Commissioner may delegate to any employee in the Office of the Public Sector Integrity Commissioner any of his or her powers and duties under this Act, except
(a) the power to delegate under this section;
(b) the power to decide not to deal with a complaint filed under subsection 19.1(1);
(c) the power in section 20.2 to approve or reject a settlement;
(d) the power in section 20.4 to apply to the Tribunal;
(e) the power in section 20.5 to dismiss a complaint;
(f) the duties in paragraphs 22(g) and (h) to review the result of investigations, to report findings and to make recommendations;
(g) the power in section 24 to refuse to deal with a disclosure or to commence an investigation, the power in that section to cease an investigation and the duty in that section to provide reasons;
(h) the power to issue, in the exercise of any powers referred to in subsection 29(1), a subpoena or other request or summons to appear before the Commissioner or a person appointed to conduct an investigation;
(i) the power in section 33 to commence an investigation;
(j) the power in section 34 to refer a matter to another authority;
(k) the power in subsection 35(1) to remit information;
(l) the power to request that a chief executive provide notice as referred to in section 36; and
(m) the power in section 37 and the power and duties in section 38 to make a report.
Marginal note:Restriction concerning certain investigations
(2) The Commissioner may not delegate the conduct of an investigation that involves or may involve information relating to international relations, national defence, national security or the detection, prevention or suppression of criminal, subversive or hostile activities, except to one of a maximum of four officers or employees of the Office of the Public Sector Integrity Commissioner specifically designated by the Commissioner for the purpose of conducting those investigations.
Marginal note:Access to legal advice
25.1 (1) The Commissioner may provide access to legal advice to
(a) any public servant who is considering making a disclosure of wrongdoing under this Act;
(b) any person who is not a public servant who is considering providing information to the Commissioner in relation to any act or omission that may constitute a wrongdoing under this Act;
(c) any public servant who has made a disclosure under this Act;
(d) any person who is or has been involved in any investigation conducted by a senior officer or by or on behalf of the Commissioner under this Act;
(e) any public servant who is considering making a complaint under this Act regarding an alleged reprisal taken against him or her; or
(f) any person who is or has been involved in a proceeding under this Act regarding an alleged reprisal.
Marginal note:Condition
(2) The Commissioner may provide the access to legal advice only if the public servant or person satisfies the Commissioner that they do not have other access to legal advice at no cost to them.
Marginal note:Additional condition
(3) In addition to the condition referred to in subsection (2), the Commissioner may provide access to legal advice to a public servant referred to in paragraph (1)(a) or a person referred to in paragraph (1)(b) only if the Commissioner is of the opinion that the act or omission to which the disclosure or the information relates, as the case may be, likely constitutes a wrongdoing under this Act and that the disclosure or the provision of the information is likely to lead to an investigation being conducted under this Act.
Marginal note:Maximum payment
(4) The maximum amount that may be paid by the Commissioner under this section for legal advice provided or to be provided to any particular public servant or person in relation to any particular act or omission that may constitute a wrongdoing or reprisal is $1,500.
Marginal note:Maximum value
(5) If, for the purpose of this section, the Commissioner chooses to provide access to legal advice to any particular public servant or person in relation to a particular act or omission that may constitute a wrongdoing or reprisal through legal counsel employed in his or her office, the monetary value of the time spent by them in providing the legal advice may not be more than $1,500.
Marginal note:Deemed amount
(6) If the Commissioner is of the opinion that there are exceptional circumstances, the maximum amount provided for in subsections (4) and (5) is deemed to be $3,000.
Marginal note:Factors
(7) In determining the amount to be paid for legal advice, or the monetary value of the time to be spent providing it, as the case may be, the Commissioner must take into account
(a) the degree to which the public interest may be affected by the subject-matter of the disclosure or the information provided; and
(b) the degree to which the public servant or person seeking the legal advice may be adversely affected as a result of his or her involvement in making the disclosure, providing the information, making the complaint or participating in the investigation or the proceeding, as the case may be.
Marginal note:Grants and contributions
(8) For the purpose of providing access to legal advice under this section, the Commissioner may make grants or contributions in accordance with terms and conditions approved by the Treasury Board.
Marginal note:Solicitor-client basis
(9) The relationship between the public servant or person to whom access to legal advice is provided under this section and the legal counsel providing the advice is that of solicitor and client.
204. Subsection 26(1) of the Act is replaced by the following:
Marginal note:Purpose of investigations
26. (1) Investigations into disclosures and investigations commenced under section 33 are for the purpose of bringing the existence of wrongdoings to the attention of chief executives and making recommendations concerning corrective measures to be taken by them.
205. (1) Subsection 27(1) of the English version of the Act is replaced by the following:
Marginal note:Notice to chief executive
27. (1) When commencing an investigation, the Commissioner must notify the chief executive concerned and inform that chief executive of the substance of the disclosure to which the investigation relates.
(2) Subsection 27(3) of the English version of the Act is replaced by the following:
Marginal note:Opportunity to answer allegations
(3) It is not necessary for the Commissioner to hold any hearing and no person is entitled as of right to be heard by the Commissioner, but if at any time during the course of an investigation it appears to the Commissioner that there may be sufficient grounds to make a report or recommendation that may adversely affect any individual or any portion of the public sector, the Commissioner must, before completing the investigation, take every reasonable measure to give to that individual or the chief executive responsible for that portion of the public sector a full and ample opportunity to answer any allegation, and to be assisted or represented by counsel, or by any person, for that purpose.
206. Subsection 28(1) of the Act is replaced by the following:
Marginal note:Access
28. (1) If the Commissioner so requests for the purposes of an investigation, chief executives and public servants must provide him or her, or the person conducting the investigation, with any facilities, assistance, information and access to their respective offices that the Commissioner may require.
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