Protection Guarantees for Whistleblowers

In recent weeks, the Act to facilitate the disclosure of wrongdoings relating to public bodies (the "Act"), which came into effect on May 1, 2017, has been in the headlines following the widely publicized decision by Minister André Lamontagne to dismiss a government agronomist who leaked confidential documents claiming that the private sector had interfered in a public study on pesticide use.

In light of these circumstances, it is important to review the primary objectives of the Act and the elements to consider before divulging any type of information.

The Act firstly seeks to facilitate the disclosure of wrongdoings by public bodies by their employees and establishes a protection regime against reprisals. Under the Act, any person may make a disclosure to the Public Protector, in accordance with the procedure it determines, even in cases in which the person is subject to the obligation of professional secrecy, with the exception of lawyers and notaries.

For whistleblowers to avail themselves of the guarantees of protection set out in the Act, the facts they disclose must not be publicly released or disseminated through the media. Under specific conditions, a person may disclose information to the public providing he or she has reasonable grounds to believe that a wrongdoing committed or about to be committed poses a serious risk to a person's health or safety or the environment. In such cases, the whistleblower must first communicate the information to a police force or the Anti-Corruption Commissioner.

Section 4 of the Act defines the incidents that constitute wrongdoings, including serious breaches of standards of ethics and professional conduct and gross mismanagement within a public body.

It should be noted that, as stipulated in section 5, the Act does not apply to disclosures made for personal purposes rather than in the public interest.

In addition, section 30 prohibits reprisals against a person who has made a disclosure or agreed to cooperate in an investigation conducted on the basis of a disclosure. Under section 31, reprisals include demotion, suspension, dismissal and transfer. Any person who believes a reprisal has been taken against him or her may file a complaint with the Public Protector, which will examine whether the complaint is founded and, where appropriate, submit recommendations. Penal provisions were also established for any person who contravenes section 30 of the Act.

An individual who seeks to disclose wrongdoings relating to a public body and benefit from the guarantees of protection set out in the Act must therefore first contact the Public Protector.