OGGO Committee Report

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Committee Report

Tenth Report

Standing Committee on Government Operations and Estimates (OGGO)

44th Parliament, 1st Session

Study

Bill C-290, An Act to amend the Public Servants Disclosure Protection Act

In accordance with its Order of Reference of Wednesday, February 15, 2023, your committee has considered Bill C-290, An Act to amend the Public Servants Disclosure Protection Act, and agreed on Tuesday, June 20, 2023, to report it with the following amendments:

Title

That Bill C-290 be amended by replacing the long title on page 1 with the following:

“An Act to amend the Public Servants Disclosure Protection Act and to make a consequential amendment to the Conflict of Interest Act”

Clause 3

That Bill C-290, in Clause 3, be amended by replacing lines 1 and 2 on page 2 with the following:

““protected disclosure” means a disclosure that is made, on the basis of reasonable belief, by a public servant”

That Bill C-290, in Clause 3, be amended by deleting lines 3 to 9 on page 2.

That Bill C-290, in Clause 3, be amended by replacing lines 10 to 31 on page 2 with the following:

“(4) The definition “reprisal” in subsection 2(1) of the Act is replaced by the following:

“reprisal” means any listed measure taken against a public servant because the public servant

(a) has refused to commit a wrongdoing;

(a) has made a protected disclosure;

(b) has witnessed another public servant making a protected disclosure;

(d) has been mistaken for a public servant who is in a situation described in any of paragraphs (a) to (c);

(e) has, on the basis of reasonable belief, cooperated in an investigation into a disclosure or an investigation commenced under section 33; or

(f) is associated with a public servant who is in a situation described in any of paragraphs (a) to (e). (“représailles”)”

(5) Subsection 2(1) of the Act is amended by adding the following in alphabetical order:

“listed measure” means, in relation to a public servant,

(a) a disciplinary measure;

(b) their demotion;

(c) the termination of their employment, including, in the case of a member of the Royal Canadian Mounted Police, a discharge or dismissal;

(d) any measure that adversely affects their employment or working conditions including, but not limited to:

(i) the mandatory assignment or deployment of the public servant;

(ii) any form of reprimand;

(iii) any form of discrimination;

(iv) the infliction of emotional distress;

(v) any act or omission that causes any psychological injury to the public servant

(e) a threat to take any of the measures referred to in any of paragraphs (a) to (d). (“mesure énumérée”)”

Clause 4

That Bill C-290, in Clause 4, be amended by replacing line 34 on page 2 with the following:

“(b.‍1) an abuse of authority, which has such meaning as may be prescribed;”

That Bill C-290, in Clause 4, be amended by replacing line 36 on page 2 with the following:

“(c.‍1) political interference in the public sector, “political interference” having such meaning as may be prescribed;”

That Bill C-290, in Clause 4, be amended by adding after line 36 on page 2 the following:

“(c.2) foreign interference in the public sector, “foreign interference” having such meaning as may be prescribed;”

New Clause 4.1

That Bill C-290 be amended by adding after line 2 on page 3 the following:

“4.1 The Act is amended by adding the following after section 10:

10.1 The Treasury Board may establish policies respecting the duty set out in subsection 10(1).”

That Bill C-290 be amended by adding after line 2 on page 3 the following:

“4.1 Subsection 10(3) of the Act is replaced by the following:

(2.1) Each chief executive must designate one or more persons to be responsible in addition to the senior officer for receiving disclosures of wrongdoings made by public servants employed in the portion of the public sector for which the chief executive is responsible.

(3) A person designated under subsection (2) or (2.1) may be a person who is employed in a portion of the public sector other than the one for which the chief executive is responsible.”

Clause 5

That Bill C-290, in Clause 5, be amended by

(a) replacing line 5 on page 3 with the following:

“(a) provide, on request, non-financial support — including information on appropriate resources and recourse mechanisms — to a public servant who has made”

(b) replacing lines 14 to 16 on page 3 with the following:

“volved in the disclosure process, including that of any person referred to in paragraph (a), any other witness and any person alleged to be responsible for a wrongdoing;”

New Clause 5.1

That Bill C-290 be amended by adding after line 16 on page 3 the following new clause:

“5.1 The Act is amended by adding the following after section 11:

11.1 The Treasury Board may establish policies regarding the duties set out in subsection 11(1).”

Clause 6

That Bill C-290, in Clause 6, be amended by replacing line 17 on page 3 to line 3 on page 4 with the following:

“6 Section 12 of the Act is replaced by the following:

12 A public servant may disclose to any of the following persons any information that the public servant believes could show that a wrongdoing has been committed or is about to be committed, or that could show that he or she has been asked to commit a wrongdoing:

(a) the public servant’s supervisor;

(b) any person who is at a higher level than the public servant’s supervisor in the line of reporting for the portion of the public sector in which the public servant is employed;

(c) the senior officer designated by the chief executive of the portion of the public sector in which the public servant is employed; or

(d) any person designated under subsection 10(2.1) by the chief executive of the portion of the public sector in which the public servant is employed.”

New Clause 6.1

That Bill C-290 be amended by adding after line 3 on page 4 the following:

“6.1 The Act is amended by adding the following after section 12:

12.1 (1) A senior officer must refuse to deal with a disclosure if the senior officer is of the opinion that the subject-matter of the disclosure is within the jurisdiction of the Conflict of Interest and Ethics Commissioner under the Conflict of Interest Act and must refer the matter to the Conflict of Interest and Ethics Commissioner.

(2) If a senior officer refuses to deal with a disclosure under subsection (1), the senior officer must inform the person who made the disclosure and give reasons why he or she did so.”

Clause 10

That Bill C-290, in Clause 10, be amended by replacing line 2 on page 5 with the following:

“reasonably believes that a reprisal has been taken against them may”

That Bill C-290, in Clause 10, be amended by deleting line 11 on page 5.

Clause 12

That Bill C-290, in Clause 12, be amended by replacing lines 23 to 33 on page 5 with the following:

“12 Paragraph 19.3(1)(d) of the Act is replaced by the following:

(d) the complaint was not made on the basis of reasonable belief.”

New Clause 12.1

That Bill C-290 be amended by adding after line 33 on page 5 the following:

“12.1 Section 19.4 of the Act is amended by adding the following after subsection (3):

(3.1) If, under paragraph 19.3(1)(a) or (b), the Commissioner refuses to deal with a complaint or if subsection 19.3(2) applies, the Commissioner must also provide the complainant with information on, as applicable,

(a) the procedure under which the complaint has been adequately dealt with;

(b) any procedure under which the complaint could more appropriately be dealt with; or

Clause 13

That Bill C-290, in Clause 13, be amended by replacing line 34 on page 5 to line 7 on page 6 with the following:

“13 Subsection 19.4(5) of the Act is replaced by the following:

(5) Subsection (4) does not apply if the Commissioner has decided not to deal with the complaint for the reason that it was not made on the basis of reasonable belief.”

Clause 19

That Bill C-290, in Clause 19, be amended by replacing lines 6 and 7 on page 7 with the following:

“21.01 (1) A complainant may apply to the”

Clause 22

That Bill C-290, in Clause 22, be amended by replacing line 36 on page 7 to line 1 on page 8 with the following:

“22 Subsection 21.4(3) of the Act is replaced by the following:

(3) If the Tribunal is of the opinion that a person who has been identified as being a person who may have taken the alleged reprisal is directly affected by a determination of the Tribunal, the Tribunal must add that person as a party.”

Clause 25

Clause 25 is deleted.

Clause 26

That Bill C-290, in Clause 26, be amended by replacing line 24 on page 8 with the following:

“26 Paragraph 24(1)(c) of the Act is replaced by the following:

(c) the disclosure was not made on the basis of reasonable belief or the information that led to the investigation under section 33 was not provided on the basis of reasonable belief;”

That Bill C-290, in Clause 26, be amended by adding after line 24 on page 8 the following:

“(2) Section 24 of the Act is amended by adding the following after subsection (3):

(4) If the Commissioner refuses to deal with a disclosure or to commence an investigation, he or she must provide the person who made the disclosure with information on the most appropriate procedures for dealing with the disclosure.”

Clause 30

That Bill C-290, in Clause 30, be amended by replacing line 4 on page 9 with the following:

“30 Section 34 of the Act is replaced by the following:

34 If the Commissioner is of the opinion that a matter under investigation would involve obtaining information from the Canadian Forces, the Canadian Security Intelligence Service or the Communications Security Establishment, the Commissioner must cease that part of the investigation and may refer the matter to any authority that the Commissioner considers competent to deal with it.”

Clause 33

That Bill C-290, in Clause 33, be amended

(a) by replacing line 26 on page 9 with the following:

“by department and region, as well as by type of wrongdoing, and the number of them that”

(b) by replacing line 30 on page 9 with the following:

“duration of each investigation, the various case outcomes for all investigations and a summary of”

That Bill C-290, in Clause 33, be amended by adding after line 34 on page 9 the following:

“(2.01) The Commissioner must conduct an annual survey to determine the extent to which public servants who have made protected disclosures of wrongdoings under this Act felt protected and supported in the disclosure process and include the results of the survey in the report under subsection (2).”

Clause 34

That Bill C-290, in Clause 34, be amended by replacing line 4 on page 10 with the following:

“writing, to a supervisor, a person referred to in paragraph 12(b), a senior officer, a person designated under subsection 10(2.1), the”

Clause 38

That Bill C-290, in Clause 38, be amended by replacing lines 15 to 18 on page 11 with the following:

“disclose the identity of a person making a disclosure and of a witness, with the consent of that person.”

Clause 40

Clause 40 is deleted.

New Clause 40.1

That Bill C-290 be amended by adding after line 4 on page 12 the following new clause:

“40.1 The Act is amended by adding the following after section 51.3:

Regulations

51.4 The Governor in Council may make regulations prescribing anything that by this Act is to be or may be prescribed.”

New Clause 42

That Bill C-290 be amended by adding after line 14 on page 12 the following:

“Coming into Force

42 This Act comes into force on the first anniversary of the day on which it receives royal assent.”

That Bill C-290 be amended by adding after line 14 on page 12 the following new clause:

“42 The portion of section 68 of the Conflict of Interest Act before paragraph (a) is replaced by the following:

68 If a matter is referred to the Commissioner under subsection 12.1(1) or 24(2.1) of the Public Servants Disclosure Protection Act, the Commissioner shall”

Your committee has ordered a reprint of Bill C-290, as amended, as a working copy for the use of the House of Commons at the report stage.

A copy of the relevant Minutes of Proceedings (Meetings Nos. 61, 63, 64, 66, 67, 71, 73 and 74) is tabled.