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2 Overview 1.Why a disclosure regime? 2.Legislative framework 3.Disclosure process 4.Reprisal complaint process 5.Commissioner’s Office 6.Three guiding principles: Inform, Protect and Prevent 7.Responsibilities of Chief Executives

3 1. 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 to come forward in good faith when they believe that something is wrong. See Preamble of the Public Servants Disclosure Protection Act (PSDPA).

4 2. Legislative framework Historical background One Act, two distinct mechanisms: disclosure of wrongdoing and protection from reprisals Jurisdiction over the federal public sector Allows public servants and the general public to disclose potential wrongdoing in the federal public sector PSIC – exclusive jurisdiction to investigate reprisal complaints Disclosure process and investigations: confidential. Key principles: procedural fairness and natural justice. Tough penalties for offences under the Act (for ex. for those who wilfully impede investigations or who commit reprisal)

5 3. Disclosure process - definition What is a ‘wrongdoing’? (PSDPA, s. 8) (a)A contravention of any Act of Parliament or of the legislature of a province, or of any regulations made under any such Act; (b)A misuse of public funds or a public asset; (c)A gross mismanagement in the federal public sector; (d)An act or omission that creates a substantial and specific danger to the life, health and safety of persons, or the environment, other than a danger that is inherent in the performance of the duties or functions of a public servant; (e)A serious breach of a code of conduct established under this Act; (f)Knowingly directing or counselling a person to commit a wrongdoing set out in any of paragraphs (a) to (e).

6 3. Disclosure process Public servants can make a protected disclosure of wrongdoing either to: –their organization’s designated senior officer (exception available for small organizations); –their supervisor; or –directly to the Commissioner. Public disclosures permitted under exceptional circumstances Confidentiality provisions Safeguards to avoid duplication of processes and restrictions Commissioner’s Reports

7 3. Disclosure process - Investigations The purpose of investigations is to bring the existence of wrongdoing to the attention of chief executives and to make recommendations concerning corrective measures (PSDPA, s. 26 (1)). Investigations are to be conducted as informally and expeditiously as possible (PSDPA, s. 26 (2)). The Commissioner has investigative powers under Part II of the Inquiries Act (PSDPA, s. 29 (1)).

8 3. Disclosure process – Informal case resolution Informal case resolution (ICR) adapts the concepts of alternative dispute resolution to the requirements of the Act in the course of investigation of disclosures. A decision to use ICR must be consensual. The process is controlled by PSIC to ensure that the public interest and the provisions of the Act are respected at all times. ICR expands the scope of tools available to PSIC to help resolve a case. ICR process may be used at any time, including during an investigation, in collaboration with the parties.

9 4. Reprisal complaint process - Definition What is a reprisal? (PSDPA, s. 2 (1)) Any of the following measures taken against a public servant because he/she has made a protected disclosure or has, in good faith, cooperated in an investigation: (a) a disciplinary measure; (b) the demotion of the public servant; (c) the termination of employment of the public servant, including, in the case of a member of the Royal Canadian Mounted Police, a discharge or dismissal; (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).

10 4. Reprisal complaint process Reprisals are expressly prohibited. Complaint must be filed no later than 60 days after the day on which the public servant knew, or in the Commissioner’s opinion, ought to have known, that the reprisal was taken. Fifteen days to decide if an investigation is warranted. Possible reference to conciliation at any time. Investigations are to be conducted as informally and expeditiously as possible. Safeguards to avoid duplication of processes and restriction. Possible application to the Public Servants Disclosure Protection Tribunal

11 5. The Commissioner’s Office Mandate: to establish a safe and confidential mechanism enabling public servants and the general public to disclose wrongdoing committed in the public sector; to protect from reprisal public servants who have disclosed wrongdoing and those who have cooperated in investigations. Ultimate goal: to enhance public confidence in our public institutions and in the integrity of public servants. Guided at all times by the public interest. Three guiding principles: Inform, Protect and Prevent

12 6. Three guiding principles – TO INFORM The Office was not created to replace existing mechanisms. The Office is very active in reaching out, but much remains to be done. We have to ensure that stakeholders understand what we do, why we do it, and how we do it. Our Annual Report – a key means of reaching out to all public servants. Focus now – regional public servants and Web redesign.

13 6. Three guiding principles – TO PROTECT Protect against reprisals public servants who make a disclosure or cooperate in an investigation. Subject to any other Act of Parliament and to the principles of procedural fairness and natural justice, protect the identity of all persons involved in a disclosure. Protect the information obtained and created in a disclosure. Protect the integrity of our public institutions by investigating wrongdoing and providing recommendations to chief executives with a view of correcting the situations. Protect the interests of those against whom an allegation is made and whose reputations and careers may be at stake. Protect the public interest.

14 6. Three guiding principles – TO PREVENT Key to carrying out our mandate is prevention. A pure enforcement model alone does not work, nor does it alone achieve the goal of building confidence in our public institutions. The Office does not confine itself to two options: investigate or close the file. The Office is responsible for identifying vulnerabilities and responding to them to prevent wrongdoing from occurring. The Office promotes ethical behaviour and supports an environment in which concerns can be brought forward freely and dealt with effectively. We strive to ensure that wrongdoing will be avoided to the extent possible, through information and early intervention.

15 7. Responsibilities of Chief Executives Promote employee awareness about the PSDPA. Designate a senior officer and establish internal procedures to manage disclosures (exception for smaller organizations). Protect the identity of persons involved in the disclosure process. Ensure the confidentiality of information collected in relation to disclosures of wrongdoings. Protect from reprisals employees involved in disclosure process. Take corrective measures based on Commissioner’s or Senior Officer’s recommendations. Prepare annual reports to TBS on all internal disclosures. Establish internal code of conduct that must be consistent with new TB code of conduct.

16 Conclusion We are all responsible for ensuring that our public institutions reflect our Canadian values and comply with the highest ethical standards. The integrity of our public institutions: It’s everyone’s business!