L-6.1 - Anti-Corruption Act

À jour au 2 décembre 2011

Ce document a valeur officielle.

chapter L-6.1

Anti-Corruption Act

CHAPTER I PURPOSE AND SCOPE

1. The purpose of this Act is to strengthen actions to prevent and to fight corruption in contractual matters within the public sector. It establishes the office of Anti-Corruption Commissioner as well as the mission and powers of the Commissioner. It also establishes a procedure to facilitate the disclosure of wrongdoings to the Commissioner.

2011, c. 17, s. 1.

2. For the purposes of this Act, a wrongdoing means

(1)  a contravention of a federal or a Québec law or of a regulation made under such a law, if the contravention pertains to corruption, malfeasance, collusion, fraud or influence peddling in, for example, awarding, obtaining or performing contracts granted, in the exercise of their functions, by a body or a person belonging to the public sector;

(2)  a misuse of public funds or public property or a gross mismanagement of contracts within the public sector; or

(3)  directing or counselling a person to commit a wrongdoing described in paragraph 1 or 2.

2011, c. 17, s. 2.

3. For the purposes of this Act, the following are bodies and persons belonging to the public sector:

(1)  any public body, government agency or government enterprise within the meaning of the Auditor General Act (chapter V-5.01);

(2)  the Université du Québec and its constituent universities, research institutes and superior schools, within the meaning of the Act respecting the Université du Québec (chapter U-1);

(3)  any university-level institution referred to in paragraphs 1 to 11 of section 1 of the Act respecting educational institutions at the university level (chapter E-14.1), other than those mentioned in paragraph 2;

(4)  any general and vocational college established under the General and Vocational Colleges Act (chapter C-29);

(5)  any school board governed by the Education Act (chapter I-13.3) or the Education Act for Cree, Inuit and Naskapi Native Persons (chapter I-14), and the Comité de gestion de la taxe scolaire de l’île de Montréal;

(6)  any private institution accredited for purposes of subsidies under the Act respecting private education (chapter E-9.1);

(7)  any other educational institution more than half of whose expenditures are provided for in the budgetary estimates tabled in the National Assembly otherwise than under a transferred appropriation;

(8)  any childcare centre, any day care centre benefiting from subsidized childcare spaces and any home childcare coordinating office referred to in the Educational Childcare Act (chapter S-4.1.1);

(9)  any public institution or private institution that is a party to an agreement referred to in the Act respecting health services and social services (chapter S-4.2);

(10)  the regional council established under the Act respecting health services and social services for Cree Native persons (chapter S-5);

(11)  any municipality or any body referred to in section 18 or 19 of the Act respecting the Pension Plan of Elected Municipal Officers (chapter R-9.3);

(12)  any regional conference of elected officers established under the Act respecting the Ministère des Affaires municipales, des Régions et de l’Occupation du territoire (chapter M-22.1) or any local development centre established under the Act respecting the Ministère du Développement économique, de l’Innovation et de l’Exportation (chapter M-30.01); and

(13)  any agency described in paragraph 4 of section 4 of the Lobbying Transparency and Ethics Act (chapter T-11.011).

2011, c. 17, s. 3.

CHAPTER II ANTI-CORRUPTION COMMISSIONER

DIVISION I ESTABLISHMENT AND MISSION

4. The office of Anti-Corruption Commissioner is established.

The mission of the Commissioner is to ensure, on behalf of the State, the coordination of actions to prevent and to fight corruption in contractual matters within the public sector. The Commissioner exercises the functions conferred on the Commissioner by this Act, with the independence provided for in this Act.

2011, c. 17, s. 4.

5. The Government appoints a Commissioner, chosen from a list of at least three persons declared qualified to hold the office by a selection committee formed for that purpose. The Commissioner must, in particular, meet the conditions set out in subparagraphs 1 and 2 of the second paragraph of section 12.

The Government determines the remuneration, employee benefits and other conditions of employment of the Commissioner.

The Commissioner is appointed for a fixed term that cannot exceed five years. On expiry of the term, the Commissioner remains in office until reappointed or replaced.

2011, c. 17, s. 5.

6. If the Commissioner is absent or unable to act, the Minister may appoint a person to replace the Commissioner for the period the Commissioner is absent or unable to act.

If the office of Commissioner is vacant following a resignation or otherwise, the Minister may appoint an interim Commissioner for a period which cannot exceed 18 months.

2011, c. 17, s. 6.

7. The Commissioner is a peace officer for the whole territory of Québec.

The Commissioner must take the oath set out in Schedule I before a judge of the Court of Québec.

2011, c. 17, s. 7.

8. The Government also appoints an Associate Commissioner for Audits. The Associate Commissioner is responsible for coordinating, with the independence provided for in this Act, the audit teams designated by the Government.

Sections 5 and 6 apply, with the necessary modifications, to the Associate Commissioner.

The Associate Commissioner, who may not be a peace officer, must take the oath set out in Schedule II before a judge of the Court of Québec.

2011, c. 17, s. 8.

DIVISION II FUNCTIONS AND POWERS

9. The Commissioner has the following functions:

(1)  to receive, record and examine disclosures of wrongdoings for the purpose of providing appropriate follow-up action;

(2)  to direct or coordinate the activities of any investigation unit made up of members of the Commissioner’s personnel or designated by the Government, as the case may be;

(3)  to order investigations, on the Commissioner’s own initiative, in order to detect the commission of wrongdoings;

(4)  to make recommendations to the Chair of the Conseil du trésor and to the Minister of Municipal Affairs, Regions and Land Occupancy concerning any measure with respect to the awarding of contracts whose conditions are determined by an Act under their administration;

(5)  to make recommendations to the Minister and to any body or person belonging to the public sector on any measure to prevent and to fight corruption; and

(6)  to assume an educative and preventive role in the fight against corruption.

The Commissioner may also conduct or assign any investigation or any further investigation requested by the Director of Criminal and Penal Prosecutions.

In addition, the Commissioner exercises all other functions assigned by the Government or the Minister.

2011, c. 17, s. 9.

10. The Associate Commissioner has the following functions:

(1)  to coordinate the activities of any audit team designated by the Government;

(2)  to ensure that the audit teams carry out their mandates in their respective fields of competence; and

(3)  to inform the Commissioner of any matter under audit that the Associate Commissioner believes could more appropriately be dealt with by an investigation or a proceeding relating to a penal or criminal offence under a federal or a Québec law.

2011, c. 17, s. 10.

11. An act, document or writing is binding on or may be attributed to the Commissioner or the Associate Commissioner only if it is signed by them or, to the extent provided in the delegation of signature instrument, by a member of the Commissioner’s personnel. The delegation instrument must be published in the Gazette officielle du Québec but takes effect upon its signing by the Commissioner.

In any civil or penal proceeding, any document purporting to be signed by the Commissioner or the Associate Commissioner is evidence of its contents and of the capacity of the signatory, in the absence of proof to the contrary.

2011, c. 17, s. 11.

12. Members of the Commissioner’s personnel are appointed in accordance with the Public Service Act (chapter F-3.1.1).

A person must meet the following minimum requirements to be hired as a member of the personnel of the Commissioner and remain as such:

(1)  be of good moral character; and

(2)  not have been convicted anywhere of an offence for an act or omission that is either an offence under the Criminal Code (R.S.C. 1985, c. C-46) or an offence, referred to in section 183 of that Code, under any of the Acts listed in that section and that is related to the employment.

The requirements set out in subparagraphs 1 and 2 of the second paragraph apply to the members of both the audit teams and the investigation units designated by the Government.

2011, c. 17, s. 12.

13. Subject to the Associate Commissioner’s duties and responsibilities under this Act, the Commissioner defines the duties and responsibilities of the personnel of the Commissioner and directs their work.

2011, c. 17, s. 13.

14. The Commissioner may designate persons as investigators from among the personnel of the Commissioner.

Those investigators act within a specialized investigation unit under the authority of the Commissioner. They are peace officers for the whole territory of Québec and must take the oaths set out in Schedules A and B to the Police Act (chapter P-13.1) before the Commissioner.

The Commissioner, in exercising the functions of office, is authorized to administer, throughout Québec, the same oaths as a commissioner for oaths appointed under the Courts of Justice Act (chapter T-16).

2011, c. 17, s. 14.

15. The audit teams designated by the Government continue to carry out their mandates in their field of competence within their respective department or body, in accordance with their responsibilities and powers under the law. In addition, they must

(1)  inform the Associate Commissioner of any matter under audit that they believe could more appropriately be dealt with by an investigation or a proceeding relating to a penal or criminal offence under a federal or a Québec law; and

(2)  report to the Associate Commissioner on any action taken in the case files sent to them by the Associate Commissioner.

2011, c. 17, s. 15.

16. The investigation units designated by the Government continue to carry out their mandates in their field of competence, within their respective department or body, in accordance with their responsibilities and powers under the law. In addition, they must

(1)  carry out any investigation requested by the Commissioner and inform the Commissioner of the start of any penal or criminal investigation;

(2)  provide the Commissioner with any information useful to the Commissioner’s functions; and

(3)  report to the Commissioner on the progress made in investigations.

2011, c. 17, s. 16.

17. The Commissioner, the Commissioner’s personnel, the Associate Commissioner and the audit teams or investigation units designated by the Government may, in the exercise of their functions and in keeping with the constitutional requirements regarding privacy, exchange information, despite the Act respecting Access to documents held by public bodies and the Protection of personal information (chapter A-2.1) and any other communication restrictions under other laws of Québec.

2011, c. 17, s. 17.

18. The Commissioner must inform the Director of Criminal and Penal Prosecutions at the very start of any penal or criminal investigation and request advice from the latter.

2011, c. 17, s. 18.

19. A request by the Commissioner or the Associate Commissioner not to undertake or to suspend an investigation or an audit suspends any prescription provided for under Québec law for a period of two years or until that request is withdrawn, whichever comes first.

2011, c. 17, s. 19.

DIVISION III IMMUNITY

20. No judicial proceedings may be brought against the Commissioner, the Commissioner’s personnel, the Associate Commissioner or members of the audit teams or investigation units designated by the Government for an act or omission in good faith in the exercise of their functions under this Act.

2011, c. 17, s. 20.

21. Except on a question of jurisdiction, no recourse under article 33 of the Code of Civil Procedure (chapter C-25) or extraordinary recourse within the meaning of that Code may be exercised, nor any injunction granted, against the Commissioner, the Commissioner’s personnel, the Associate Commissioner or members of the audit teams or investigation units designated by the Government in the exercise of their functions under this Act.

Any judge of the Court of Appeal may, on a motion, summarily annul any decision rendered, order issued or injunction granted contrary to the first paragraph.

2011, c. 17, s. 21.

DIVISION IV REPORT TO THE PUBLIC

22. The Commissioner reports to the public on the status of the Commissioner’s activities at least twice yearly and within an interval of not more than eight months. The Commissioner may, in particular, report on recommendations made under subparagraphs 4 and 5 of the first paragraph of section 9.

The Commissioner may also publish a report on any matter within the Commissioner’s authority, if the Commissioner considers the matter important enough to warrant it.

2011, c. 17, s. 22.

DIVISION V FINANCIAL PROVISIONS AND ANNUAL REPORT

23. The fiscal year of the Commissioner ends on 31 March.

2011, c. 17, s. 23.

24. Each year, the Commissioner submits to the Minister the budgetary estimates for the following fiscal year in accordance with the form, content and schedule determined by the Minister.

2011, c. 17, s. 24.

25. Not later than 31 July each year, the Commissioner submits an annual management report to the Minister, who lays it before the National Assembly within 30 days after it is received if the Assembly is sitting or, if it is not, within 30 days of resumption.

The report must include the following information:

(1)  the number of disclosures of wrongdoings received and the number looked into;

(2)  the number of case files referred for audit;

(3)  the number of investigations requested by the Commissioner;

(4)  the number of arrests made;

(5)  the number of convictions obtained; and

(6)  any other information the Minister requires.

2011, c. 17, s. 25.

CHAPTER III DISCLOSURE OF WRONGDOINGS

DIVISION I PROCEDURE FOR DISCLOSURE

26. Any person who wishes to disclose a wrongdoing may do so by disclosing information to the Commissioner that the person believes could show that a wrongdoing has been committed or is about to be committed, or that could show that the person has been asked to commit a wrongdoing.

2011, c. 17, s. 26.

27. Any person making a disclosure of wrongdoing may do so despite the Act respecting Access to documents held by public bodies and the Protection of personal information (chapter A-2.1), the Act respecting the protection of personal information in the private sector (chapter P-39.1), any other communication restrictions under other laws of Québec and any duty of loyalty or confidentiality that may be binding on the person, in particular, with respect to an employer or a client.

This Act does not however authorize a person making a disclosure to communicate information to the Commissioner that is protected by professional secrecy between an advocate or a notary and a client.

2011, c. 17, s. 27.

28. Upon receipt of a disclosure of wrongdoing, the Commissioner must designate a member of the Commissioner’s personnel to examine it and determine what action should be taken.

2011, c. 17, s. 28.

29. After the disclosure of wrongdoing has been examined, the Commissioner may decide no further action is required if the matter is frivolous or does not fall within the Commissioner’s mission. In that case, the Commissioner so informs the person who made the disclosure.

If the Commissioner decides to take further action regarding the disclosure, the Commissioner sends the case file to the Associate Commissioner or to the investigation units concerned, as the case may be.

2011, c. 17, s. 29.

30. The Commissioner and the Associate Commissioner ensure that the rights of all persons involved as a result of disclosures of wrongdoings are respected, including persons making disclosures, witnesses and persons alleged to be responsible for wrongdoings.

2011, c. 17, s. 30.

DIVISION II PROTECTION AGAINST REPRISALS

31. The Commissioner and the Associate Commissioner must take all necessary measures to protect, to the extent possible, the identity of persons making a disclosure.

2011, c. 17, s. 31.

32. It is forbidden to take a reprisal against a person who has disclosed a wrongdoing or has cooperated in an audit or an investigation regarding a wrongdoing, or again to threaten to take a reprisal against a person so that he or she will abstain from making such a disclosure or cooperating in such an audit or investigation.

2011, c. 17, s. 32.

33. The demotion, suspension, termination of employment or transfer of a person referred to in section 32 or any disciplinary or other measure that adversely affects the employment or working conditions of such a person is presumed to be a reprisal.

2011, c. 17, s. 33.

34. Any person who contravenes section 32 is guilty of an offence and is liable to a fine of

(1)  $2,000 to $20,000, in the case of a natural person; and

(2)  $10,000 to $250,000, in the case of a legal person.

For any subsequent offence, the amounts are doubled.

2011, c. 17, s. 34.

35. Any person, such as a director or an officer of a legal person or of an employer, who, by an act or omission, helps a person to commit an offence under section 34 or who, by encouragement, advice or consent or by an authorization or order, induces another person to commit such an offence is guilty of the same offence.

2011, c. 17, s. 35.

CHAPTER IV AMENDING PROVISIONS

FINANCIAL ADMINISTRATION ACT

36. (Amendment integrated into c. A-6.001, Schedule 1).

2011, c. 17, s. 36.

TAX ADMINISTRATION ACT

37. (Amendment integrated into c. A-6.002, s. 62).

2011, c. 17, s. 37.

38. (Amendment integrated into c. A-6.002, s. 62.0.1).

2011, c. 17, s. 38.

39. (Amendment integrated into c. A-6.002, s. 69.1).

2011, c. 17, s. 39.

40. (Amendment integrated into c. A-6.002, s. 69.8).

2011, c. 17, s. 40.

LABOUR CODE

42. (Amendment integrated into c. C-27, Schedule I).

2011, c. 17, s. 42.

ACT RESPECTING CONTRACTING BY PUBLIC BODIES

48. (Amendment integrated into c. C-65.1, s. 1).

2011, c. 17, s. 48.

50. (Amendment integrated into c. C-65.1, heading of Chapter VI and heading of Division I of Chapter VI).

2011, c. 17, s. 50.

51. (Amendment integrated into c. C-65.1, heading of Division II of Chapter VI and s. 22.1).

2011, c. 17, s. 51.

52. (Amendment integrated into c. C-65.1, s. 23).

2011, c. 17, s. 52.

53. (Amendment integrated into c. C-65.1, s. 25).

2011, c. 17, s. 53.

54. (Amendment integrated into c. C-65.1, Chapter VIII.1, ss. 27.1 to 27.4).

2011, c. 17, s. 54.

ACT RESPECTING LABOUR STANDARDS

55. (Amendment integrated into c. N-1.1, s. 3.1).

2011, c. 17, s. 55.

56. (Amendment integrated into c. N-1.1, s. 122).

2011, c. 17, s. 56.

57. (Amendment integrated into c. N-1.1, s. 140).

2011, c. 17, s. 57.

POLICE ACT

58. (Amendment integrated into c. P-13.1, s. 126).

2011, c. 17, s. 58.

ACT RESPECTING LABOUR RELATIONS, VOCATIONAL TRAINING AND WORKFORCE MANAGEMENT IN THE CONSTRUCTION INDUSTRY

59. (Amendment integrated into c. R-20, s. 4).

2011, c. 17, s. 59.

60. (Amendment integrated into c. R-20, subdivision 3, ss. 15.1 to 15.7).

2011, c. 17, s. 60.

61. (Amendment integrated into c. R-20, s. 85).

2011, c. 17, s. 61.

62. (Amendment integrated into c. R-20, s. 85.0.1).

2011, c. 17, s. 62.

65. (Omitted).

2011, c. 17, s. 65.

CHAPTER V TRANSITIONAL AND FINAL PROVISIONS

66. Despite section 5, the Anti-Corruption Commissioner who is in office on 12 June 2011 becomes, on the same conditions and for the remainder of the term of office, the Commissioner appointed under this Act.

2011, c. 17, s. 66.

67. An audit team or an investigation unit designated by Order in Council 114-2011 (2011, G.O. 2, 956, in French only) constitutes a team or unit designated by the Government within the meaning of this Act.

2011, c. 17, s. 67.

68. Subject to the rights provided for under the Labour Code (chapter C-27), the certified association representing all employees of the Commission de la construction du Québec on 31 August 2011 continues to represent all employees of the Commission who are not referred to in section 85 of the Act respecting labour relations, vocational training and workforce management in the construction industry (chapter R-20) as it reads on 1 September 2011.

The collective agreement applicable on 31 August 2011 continues to apply to those employees until it is replaced.

2011, c. 17, s. 68.

69. Despite the coming into force of section 61, the certified association representing all employees of the Commission de la construction du Québec on 31 August 2011 also represents all employees of the Commission who are referred to in section 85 of the Act respecting labour relations, vocational training and workforce management in the construction industry (chapter R-20) as it reads on 1 September 2011, except for the purpose of entering into a collective agreement.

The association ceases to represent employees who are not referred to in that section 85 as soon as another association is certified under the Labour Code (chapter C-27) to represent the employees or, failing that, on 1 March 2012.

2011, c. 17, s. 69.

70. The collective agreement applicable to all employees of the Commission de la construction du Québec on 31 August 2011 continues to apply to the employees who are referred to in section 85 of the Act respecting labour relations, vocational training and workforce management in the construction industry (chapter R-20) as it reads on 1 September 2011, until it is replaced by a collective agreement between the employer and the association newly certified to represent those employees.

If no association has been certified to represent those employees on 1 March 2012, the collective agreement ceases to apply to those employees even if it has not been replaced.

2011, c. 17, s. 70.

71. The association certified to represent the employees referred to in section 85 of the Act respecting labour relations, vocational training and workforce management in the construction industry (chapter R-20) as it reads on 1 September 2011 succeeds, where applicable, to the rights and obligations of the certified association representing those employees on 31 August 2011.

The first paragraph does not apply to rights and obligations toward an organization with which the association whose rights and obligations are succeeded to is affiliated.

The assets of the association whose rights and obligations are succeeded to are transferred, in proportion to the number of employees it no longer represents, to the successor association.

2011, c. 17, s. 71.

72. The Commission des relations du travail may, on a motion, resolve any difficulty arising from the application of any of sections 68 to 71, including one that may arise from the rule set out in the third paragraph of section 71. It may also, in the same manner and if warranted by the circumstances, extend a time limit set by section 69 or 70.

The provisions of the Labour Code (chapter C-27) that pertain to the Commission des relations du travail and its commissioners and to their decisions and the exercise of their powers apply, with the necessary modifications.

2011, c. 17, s. 72; 2011, c. 30, s. 71.

73. The Minister of Public Security is responsible for the administration of this Act.

2011, c. 17, s. 73.

74. (Omitted).

2011, c. 17, s. 74.

SCHEDULE I

(Section 7)

OATH OF OFFICE

I, (name), declare under oath that I will fulfill my duties as Anti-Corruption Commissioner with honesty and justice and in conformity with the Code of ethics of Québec police officers (chapter P-13.1, r. 1) and that I will not accept any sum of money or benefit of any kind for what I do or may do in the discharge of the duties of my office, other than what is allowed me by law.

I further declare under oath that I will not reveal or disclose, unless duly authorized, anything that may come to my knowledge in or in connection with the discharge of my duties.

2011, c. 17, Schedule I.

SCHEDULE II

(Section 8)

OATH OF OFFICE

I, (name), declare under oath that I will fulfill my duties as Associate Commissioner for Audits with honesty and justice and that I will not accept any sum of money or benefit of any kind for what I do or may do in the discharge of the duties of my office, other than what is allowed me by law.

I further declare under oath that I will not reveal or disclose, unless duly authorized, anything that may come to my knowledge in or in connection with the discharge of my duties.

2011, c. 17, Schedule II.