P-32 - Public Protector Act

À jour au 1^er avril 2011

Ce document a valeur officielle.

chapter P-32

Public Protector Act

DIVISION I APPOINTMENT

1. On motion by the Prime Minister, the National Assembly shall appoint a person called the “Public Protector” and fix his salary.

To be valid, such an appointment must be approved by two-thirds of the members of the National Assembly.

1968, c. 11, s. 1; 1968, c. 9, s. 90.

2. The term of office of the Public Protector shall be five years; he shall remain in office, notwithstanding the expiration of his term, until reappointed or replaced.

1968, c. 11, s. 2.

3. The Public Protector may resign at any time by giving notice in writing to the President of the National Assembly.

He shall not be dismissed except by a resolution of the National Assembly approved by two-thirds of its members.

1968, c. 11, s. 3; 1968, c. 9, s. 90.

4. The Government shall appoint two Deputy Public Protectors upon the recommendation of the Public Protector, one of whom shall exercise mainly the functions vested in the Public Protector and provided for in the Act respecting the Health and Social Services Ombudsman (chapter P‐31.1).

The other Deputy Public Protector shall be mainly responsible for the functions of the Public Protector provided for in this Act.

The Government shall fix their salary, which shall not be reduced subsequently. The maximum duration of their term of office is five years but they shall remain in office at the end of that term until re-appointed or replaced; the Government may dismiss them before the expiration of their term, but only for cause.

1968, c. 11, s. 4; 2005, c. 32, s. 269.

5. Before entering upon their duties, the Public Protector and the Deputy Public Protectors shall take the oath prescribed in the schedule.

The Public Protector shall fulfill his obligation under this section before the President of the National Assembly, and the assistant, before the Public Protector.

1968, c. 11, s. 5; 1968, c. 9, s. 90; 1987, c. 46, s. 1; 1999, c. 40, s. 225; 2005, c. 32, s. 270.

6. The Public Protector shall devote his time exclusively to the duties of his office and shall not hold any other office, place or employment unless authorized to do so by the National Assembly; a Deputy Public Protector also shall devote his time exclusively to the duties of his office and he also shall not hold any other office, place or employment unless authorized by the Public Protector.

1968, c. 11, s. 6; 1968, c. 9, s. 90; 2005, c. 32, s. 271.

7. When the Public Protector ceases to perform his duties or is unable to act, one of the Deputy Public Protectors designated by the Government shall replace him until another Public Protector is appointed in accordance with section 1 or until the Public Protector resumes his duties, as the case may be.

When the Public Protector ceases to perform his duties or is unable to act, when the Deputy Public Protectors are in similar circumstances or if no Deputy Public Protector is in office, the Public Protector shall be replaced by a person appointed temporarily for such purpose by the Government which, if need be, shall fix the salary, additional salary, fees and allowances of such person.

When the Public Protector ceases to perform his duties, the National Assembly shall appoint another Public Protector in accordance with section 1 within 30 days if it is in session or, if it is not, within 30 days from the opening of the next session.

1968, c. 11, s. 7; 1968, c. 9, s. 90; 1999, c. 40, s. 225; 2005, c. 32, s. 272.

8. When the Public Protector or a Deputy Public Protector ceases to perform his or her duties after having performed them for not less than five years or upon resignation before the expiration of such period by reason of a permanent disability preventing him or her from usefully performing his or her duties, he or she shall be entitled to an annual pension equal to one-quarter of the salary that he or she was receiving when he or she ceased to perform his or her duties.

If he or she ceases to perform his or her duties after having performed them for not less than 10 years or upon resignation during a second five-year term by reason of such a disability, the pension shall be equal to one-half of the salary.

If he or she ceases to perform his or her duties after having performed them for not less than 15 years or upon resignation during a third five-year term by reason of such a disability, the pension shall be equal to three-quarters of the salary.

If he or she ceases to perform his or her duties before the expiration of his or her term, upon resignation for any other reason than such a disability or upon dismissal, he or she shall be entitled to an annual pension equal to the pension to which he or she would have entitled under the preceding paragraphs if he or she had completed his or her term, reduced in such proportion as the months remaining in his or her term are of the number of months included in the relevant period.

The disability contemplated in the preceding paragraphs must be established, in the case of the Public Protector, to the satisfaction of the President of the National Assembly and, in the case of a Deputy Public Protector, to the satisfaction of the Government.

From the first day of the month following the death of the Public Protector or of a Deputy Public Protector, whether in office or after having ceased to perform his or her duties, there shall be paid to the surviving married or civil union spouse of the Public Protector or of his or her assistant during widowhood, an annual pension equal to one-half the pension which he or she was receiving or to which he or she would have been entitled on ceasing to perform his or her duties.

Subject to the provisions of the preceding paragraph, the pensions contemplated in this section shall be for life; they shall be paid out of the Consolidated Revenue Fund in equal monthly instalments and shall be inalienable and unseizable.

1968, c. 11, s. 8; 1968, c. 9, s. 90; 1982, c. 17, s. 61; 1987, c. 46, s. 2; 2002, c. 6, s. 150; 2005, c. 32, s. 273.

9. Section 8 shall not apply to the Public Protector if he is or becomes a judge of the Court of Québec, but the years during which he was Public Protector shall be counted for the purposes of his pension as a judge; the same shall apply to a Deputy Public Protector.

1968, c. 11, s. 9; 1977, c. 20, s. 138; 1988, c. 21, s. 117; 2005, c. 32, s. 274.

10. The payment of a pension under section 8 to a person who has already been Public Protector or Deputy Public Protector shall cease if and while the beneficiary holds temporarily or permanently a position, office or employment to which is attached a remuneration paid by the Government or by a bureau, commission or board under the jurisdiction of the Government.

1968, c. 11, s. 10; 1977, c. 5, s. 14; 2005, c. 32, s. 275.

10.1. The Government may, by regulation, render the special measures provided in Chapter VII.1 of Title I of the Act respecting the Government and Public Employees Retirement Plan (chapter R‐10) and the regulations thereunder applicable, in whole or in part and adapted as required, to the pension plan of the Public Protector and the Deputy Public Protectors, for the purposes of partition and assignment of benefits between spouses.

The Government may also, for such purposes, include in the regulations special provisions for the establishment and assessment of benefits accrued under the pension plan of the Public Protector and the Deputy Public Protectors, and for the reduction of benefits under the plan by reason of payment of the sums awarded to the spouse.

1990, c. 5, s. 8; 2005, c. 32, s. 276.

DIVISION II STAFF OF THE PUBLIC PROTECTOR

11. The public servants and employees required for the application of this Act and the Act respecting the Health and Social Services Ombudsman (chapter P‐31.1) shall be appointed by the Public Protector; their number shall be determined by the Government which shall fix the standards according to which they shall be remunerated. They may be dismissed by the Government but only on the recommendation of the Public Protector.

The public servants and employees of the Public Protector, before assuming their duties, shall take the oath prescribed in the schedule before the Public Protector.

1968, c. 11, s. 11; 1987, c. 46, s. 3; 1999, c. 40, s. 225; 2005, c. 32, s. 277.

12. The Public Protector shall define the duties of the Deputy Public Protectors and of the public servants and employees of the Public Protector.

He shall direct their work and may delegate to them in writing each of his powers except those assigned to him by sections 26.1, 26.2, 27, 27.3, 27.4 and 28.

1968, c. 11, s. 12; 1987, c. 46, s. 4; 2005, c. 32, s. 278.

DIVISION III JURISDICTION

13. The Public Protector shall intervene, subject to sections 18 to 19.1, whenever he has reasonable cause to believe that a person or group of persons has suffered or may very likely suffer prejudice as the result of an act or omission of a public body, its chief executive officer, its members or a person holding an office, employment or position accountable to the chief executive officer.

The Public Protector shall intervene on his own initiative or at the request of any person or group of persons acting on his or its own behalf or on behalf of another person.

The Public Protector shall also exercise the functions assigned to the Health and Social Services Ombudsman in accordance with the Act respecting the Health and Social Services Ombudsman (chapter P‐31.1).

1968, c. 11, s. 13; 1977, c. 5, s. 14; 1987, c. 46, s. 5; 2005, c. 32, s. 279.

13.1. (Replaced).

1984, c. 39, s. 600; 1987, c. 46, s. 5.

14. For the purposes of this Act, a public body is

(1)  a department;

(2)  any body, other than the Conseil exécutif and the Conseil du trésor, whose staff is appointed in accordance with the Public Service Act (chapter F-3.1.1).

1968, c. 11, s. 14; 1987, c. 46, s. 5; 2000, c. 8, s. 242.

15. For the purposes of this Act, the following are held to be public bodies:

(1)  every person, except the chief electoral officer, designated by the National Assembly to hold an office accountable to it, where the law provides that the person’s staff is appointed in accordance with the Public Service Act (chapter F‐3.1.1);

(2)  the services contemplated in Divisions III and V of Chapter IV of the Act respecting the National Assembly (chapter A‐23.1);

(3)  the staff of the secretariat of the Conseil du trésor;

(4)  the Public Curator;

(5)  the Autorité des marchés financiers;

(6)  the Agence de l’efficacité énergétique;

(7)  the Institut national d’excellence en santé et en services sociaux;

(8)  the Agence du revenu du Québec.

1968, c. 11, s. 15; 1977, c. 5, s. 14; 1978, c. 15, s. 140; 1979, c. 48, s. 138; 1983, c. 55, s. 161; 1987, c. 46, s. 5; 1997, c. 36, s. 12; 1999, c. 40, s. 225; 2000, c. 8, s. 179, s. 242; 2002, c. 45, s. 549; 2004, c. 37, s. 90; 2006, c. 46, s. 27; 2010, c. 15, s. 75; 2010, c. 31, s. 153.

16. Every body or person performing, by delegation, the duties of a public body or person contemplated in section 13 is held to be part of that public body or person for the purposes of this Act.

1968, c. 11, s. 16; 1987, c. 46, s. 5; 1999, c. 40, s. 225.

17. The members of a public body are accountable to its chief executive officer for the purposes of this Act.

1968, c. 11, s. 17; 1987, c. 46, s. 5.

18. The Public Protector cannot intervene in respect of an act or omission of

(1)  a public body or a person, where the person or group whose interests would be concerned by the intervention has a legal remedy that can adequately correct the prejudicial situation within a reasonable time;

(2)  a public body or a person, where the person or the group whose interests would be concerned by the intervention has omitted or failed, without any reasonable excuse, to pursue a remedy contemplated in paragraph 1 within the proper time;

(3)  a public body or a person who or which, in the particular case, is bound to act judicially;

(4)  a person referred to in section 49, 106 or 268 of the Police Act (chapter P-13.1), while he was acting as a peace officer;

(5)  a public body or a person, performed in the course of labour relations with the person or group whose interests would be concerned by the intervention;

(6)  a member of the office staff of a Minister.

1968, c. 11, s. 18; 1987, c. 46, s. 5; 1988, c. 75, s. 240; 2000, c. 12, s. 327.

19. Where more than one year has elapsed since the person or group whose interests would be concerned by the intervention had knowledge of the facts on which the intervention is based, the Public Protector shall refuse to intervene, unless he considers that the circumstances brought forward by the person or group are exceptional.

The Public Protector shall also terminate an intervention or refuse to intervene where any remedy pursued before the Supreme Court of Canada or any court referred to in section 1 of the Courts of Justice Act (chapter T-16), by the person or group whose interests are concerned by the intervention, pertains to the facts on which the intervention is based.

1968, c. 11, s. 19; 1987, c. 46, s. 5.

19.1. The Public Protector may terminate an intervention or refuse to intervene where, in his opinion,

(1)  the person or group applying for his intervention refuses or neglects to furnish the information or documents contemplated in section 20;

(2)  the application for intervention is frivolous, vexatious or made in bad faith;

(3)  an intervention is not expedient in view of the circumstances.

1987, c. 46, s. 5.

19.2. Where the Public Protector terminates an intervention or refuses to intervene, he shall notify the interested person or group of his decision, giving the reasons therefor and, in the case of paragraph 1 of section 18, indicating what remedies are available.

1987, c. 46, s. 5.

19.3. The Public Protector may be a party to any motion to the Superior Court under articles 453 to 456 of the Code of Civil Procedure (chapter C-25) pertaining to his competence and powers.

1987, c. 46, s. 5.

DIVISION IV APPLICATIONS FOR INTERVENTION

1987, c. 46, s. 6.

20. Every person who applies for the intervention of the Public Protector shall

(1)  give his name, address and telephone number, and the name, address, telephone number and social insurance number of each person whose interests are concerned by the application;

(2)  state the facts justifying the application;

(3)  provide the Public Protector with any other information or document which the Public Protector considers necessary for a clear understanding of the facts.

Where he considers it necessary, the Public Protector may require that the application for intervention be made in writing.

1968, c. 11, s. 20; 1987, c. 46, s. 6.

21. The Public Protector, the Deputy Public Protectors and the public servants and employees of the Public Protector must lend their assistance in the formulation of an application for intervention to any person who so requires.

1968, c. 11, s. 21; 1977, c. 5, s. 14; 1987, c. 46, s. 6; 2005, c. 32, s. 280.

22. Every person holding an office, position or employment in a place where a person is deprived of his freedom shall, when the latter person gives him a writing intended for the Public Protector, transmit the writing forthwith to the Public Protector without reading it.

Similarly, where he receives a writing from the Public Protector intended for the person deprived of his freedom, he shall give it to that person.

1968, c. 11, s. 22; 1987, c. 46, s. 6.

DIVISION V INTERVENTION

1987, c. 46, s. 7.

23. Where the Public Protector deems it expedient to intervene, he shall give the author of the act or omission or, if the latter is a public body, the chief executive officer thereof, an opportunity to be heard and, where appropriate, shall invite him to remedy the prejudicial situation.

Where an intervention addressed to the author of the act or omission, and to his superiors if deemed expedient by the Public Protector, has failed to remedy the prejudicial situation, the Public Protector shall give the chief executive officer of the public body an opportunity to be heard and, where appropriate, shall invite him to remedy the situation.

1968, c. 11, s. 23; 1987, c. 46, s. 7.

24. Every intervention by the Public Protector shall be in private.

It may include an investigation if that is deemed expedient by the Public Protector.

1968, c. 11, s. 24; 1987, c. 46, s. 7.

25. For the conduct of an investigation, the Public Protector, the Deputy Public Protectors and the public servants and employees of the Public Protector whom the Public Protector designates in writing for such purpose shall have the powers and immunity of commissioners appointed under the Act respecting public inquiry commissions (chapter C‐37), except the power to impose imprisonment.

Articles 307, 308 and 309 of the Code of Civil Procedure (chapter C‐25) apply, adapted as required.

1968, c. 11, s. 25; 1978, c. 15, s. 140; 1987, c. 46, s. 7; 2005, c. 32, s. 281.

DIVISION VI NOTICES, RECOMMENDATIONS AND REPORTS

1987, c. 46, s. 8.

26. Where, after acting pursuant to Division V, the Public Protector is of opinion that no prejudicial situation exists or that the prejudicial situation brought to his attention has been adequately remedied, he shall promptly notify the interested parties.

1968, c. 11, s. 26; 1978, c. 15, s. 140; 1984, c. 39, s. 601; 1987, c. 46, s. 8.

26.1. The Public Protector shall notify in writing the chief executive officer of a public body where he is of opinion that the public body or a person accountable to the chief executive officer

(1)  has not complied with the law;

(2)  has acted in an unreasonable, unjust, arbitrary or discriminatory manner;

(3)  has failed in its or his duty or has been guilty of misconduct or negligence;

(4)  has committed an error of law or of fact; or,

(5)  in the exercise of a discretionary power, has acted for an unjust purpose, has been actuated by irrelevant motives or has failed to give reasons for its or his discretionary act when it or he should have done so.

1987, c. 46, s. 8.

26.2. Where the Public Protector sends a notice to the chief executive officer of a public body, he may add any recommendation he deems useful and ask to be informed of the measures actually taken to remedy the prejudicial situation.

1987, c. 46, s. 8.

27. Where, after making a recommendation to the chief executive officer of a public body, the Public Protector is of opinion that no satisfactory measure has been taken within a reasonable time by the chief executive officer to remedy the situation adequately, he may notify the Government in writing and, if he deems it expedient, he may relate the case in a special report or in his annual report to the National Assembly.

1968, c. 11, s. 27; 1968, c. 9, s. 90; 1987, c. 46, s. 8.

27.1. The Public Protector shall promptly inform the person or group whose interests are concerned of the results of his intervention.

1987, c. 46, s. 8.

27.2. The Public Protector shall, at least once yearly, transmit to the chief executive officer of a public body a summary report stating the number of interventions involving the public body or a person accountable to the chief executive officer during the period covered by the report, and the nature and outcome of each intervention.

1987, c. 46, s. 8.

27.3. The Public Protector may, so as to remedy prejudicial situations he has noted in the course of his interventions, avoid the recurrence of such situations or prevent similar situations, call to the attention of the chief executive officer of a public body or to the attention of the Government the necessity of such legislative, regulatory or administrative reform as he deems to be in the public interest.

If the Public Protector deems it expedient, he may explain the situation in a special report or in his annual report to the National Assembly.

1987, c. 46, s. 8.

27.4. The Public Protector, where he deems it to be in the public interest, may comment publicly on a report he has submitted to the National Assembly or on any intervention he has made.

He may also comment publicly on any past intervention or on any intervention in progress where he deems it to be necessary in the interest of the person, group, public body, chief executive officer, public servant, employee or officer involved.

1987, c. 46, s. 8.

28. On or before 30 September each year, the Public Protector shall transmit to the President of the National Assembly a report to the Assembly of his activities during the preceding calendar year.

The report shall set out the cases in respect whereof the Public Protector made a recommendation pursuant to section 26.2 or issued a notice pursuant to section 27 and, where such is the case, the corrective measures taken by the authority concerned.

1968, c. 11, s. 28; 1968, c. 9, s. 90; 1968, c. 23, s. 8; 1987, c. 46, s. 8.

29. Any report to the National Assembly transmitted to the President of the National Assembly by the Public Protector shall be tabled by the President within three days of its receipt if the Assembly is in session or, if not, within three days of resumption.

Every such report shall be published and distributed by the Québec Official Publisher, subject to such conditions and in such manner as the Public Protector considers appropriate.

1968, c. 11, s. 29; 1987, c. 46, s. 8.

DIVISION VII MISCELLANEOUS

30. No legal proceedings shall lie against the Public Protector, the Deputy Public Protectors and the public servants and employees of the Public Protector by reason of official acts done in good faith in the performance of their duties.

1968, c. 11, s. 30; 2005, c. 32, s. 282.

31. No extraordinary recourse provided in articles 834 to 850 of the Code of Civil Procedure (chapter C‐25) shall be exercised and no injunction shall be granted against the Public Protector, the Deputy Public Protectors or the public servants and employees of the Public Protector acting in their official capacity.

1968, c. 11, s. 31; 2005, c. 32, s. 283.

32. A judge of the Court of Appeal, upon motion, may annul summarily any writ, order or injunction issued or granted contrary to section 30 or 31.

1968, c. 11, s. 32; 1979, c. 37, s. 43.

33. Every person who, without being duly authorized, discloses information obtained by him in the performance of his duties as Deputy Public Protector, or public servant or employee of the Public Protector, is guilty of an offence and liable to a fine of $300 to $1,000.

1968, c. 11, s. 33; 1987, c. 46, s. 9; 1990, c. 4, s. 687; 2005, c. 32, s. 284.

33.1. Every person who contravenes any of the provisions of section 22 is liable to a fine of $300 to $1,000.

1987, c. 46, s. 9; 1990, c. 4, s. 688.

33.2. (Repealed).

1987, c. 46, s. 9; 1990, c. 4, s. 689; 1992, c. 61, s. 466.

34. Notwithstanding any Act inconsistent herewith, no person may be compelled to give evidence with respect to information obtained by him in the performance of his duties as Public Protector or Deputy Public Protector, or as public servant or employee of the Public Protector, nor to produce any document containing such information.

Notwithstanding section 9 of the Act respecting Access to documents held by public bodies and the Protection of personal information (chapter A‐2.1), no person has a right of access to such a document.

1968, c. 11, s. 34; 1987, c. 46, s. 10; 2005, c. 32, s. 285.

35. No civil action shall be taken by reason or in consequence of the publication of a report of the Public Protector under this Act, or the publication, made in good faith, of an extract from or summary of such report.

1968, c. 11, s. 35.

35.1. The Public Administration Act (chapter A‐6.01), except subparagraph 6 of the first paragraph and the second paragraph of section 9, sections 10 to 23, subparagraph 3 of the second paragraph and the third paragraph of section 24, sections 25 to 28 and 46, the third paragraph of section 57 and sections 64 to 66, 74, 75 and 78, applies to the Public Protector. The report referred to in section 24 of the said Act shall be included in the annual report of the Public Protector.

The strategic plan adopted by the Public Protector pursuant to section 8 of the Public Administration Act shall be tabled in the National Assembly by the President of the National Assembly.

2000, c. 8, s. 180; 2006, c. 29, s. 39.

35.2. The Public Protector may, by regulation, determine the terms of the contracts the Public Protector is authorized to conclude.

The regulation comes into force on the date of its approval by the Office of the National Assembly. The regulation shall be published in the Gazette officielle du Québec.

2000, c. 8, s. 180.

35.3. The provisions of the Financial Administration Act (chapter A‐6.001) applicable to budget-funded bodies, except sections 30 and 31, apply to the management of the financial resources of the Public Protector.

2000, c. 15, s. 141.

36. The Public Service Act (chapter F‐3.1.1) shall not apply to the Public Protector, a Deputy Public Protector or the public servants and employees of the Public Protector.

1968, c. 11, s. 36; 1978, c. 15, s. 140; 1983, c. 55, s. 161; 2005, c. 32, s. 286.

37. A public servant or employee of the Public Protector may apply for his transfer to a position in the public service or participate in a competition for promotion in accordance with the Public Service Act (chapter F-3.1.1) if, immediately before being appointed to the staff of the Public Protector, he held a position, with permanent tenure, in the public service.

The first paragraph applies also to any public servant or employee of the Public Protector who has already been appointed on a permanent basis to the public service and who, on 23 June 1987, holds a regular position, with permanent tenure, on the staff of the Public Protector.

1968, c. 11, s. 41; 1987, c. 46, s. 11.

37.1. Section 35 of the Public Service Act (chapter F-3.1.1) applies to every person contemplated in section 37 who participates in a competition for promotion to a position in the public service.

1987, c. 46, s. 11.

37.2. Where a person contemplated in section 37 applies for a transfer or a competition for promotion, he may apply to the chairman of the Conseil du trésor for an opinion as to the classification he would be assigned in the public service. The opinion must take into account the person’s classification in the public service on the date on which he left and the experience and formal training he has acquired since that date.

Where a person is transferred pursuant to section 37, the deputy minister or the chief executive officer of the agency shall assign a classification to him in accordance with the opinion contemplated in the first paragraph.

Where a person is promoted pursuant to section 37, his classification shall take into account the criteria described in the first paragraph.

1987, c. 46, s. 11; 1996, c. 35, s. 19.

37.3. Where the Public Protector partly or completely ceases his activities or in the case of a lack of work, a person referred to in section 37 is entitled to be placed on reserve in the public service and to retain the classification he had before the date on which he left.

In such a case, the chairman of the Conseil du trésor shall, where required, assign a classification to the person, taking into account the criteria described in the first paragraph of section 37.2.

1987, c. 46, s. 11; 1996, c. 35, s. 19.

37.4. A person placed on reserve according to section 37.3 shall remain with the Public Protector until the chairman of the Conseil du trésor can place him.

1987, c. 46, s. 11; 1996, c. 35, s. 19.

38. (This section ceased to have effect on 17 April 1987).

1982, c. 21, s. 1; U. K., 1982, c. 11, Sch. B, Part I, s. 33.

SCHEDULE

OATH

I declare under oath that I will fulfill my duties with honesty, impartiality and justice and that I will not accept any other sum of money or advantage for anything I will do in the discharge of my duties other than what may be allowed me by law.

I further declare under oath that I will not disclose, unless duly authorized, any information I may obtain in the discharge of my duties.

1968, c. 11, Schedule A; 1977, c. 5, s. 14; 1987, c. 46, s. 12; 1999, c. 40, s. 225.

SCHEDULES A-B

(Replaced).

1968, c. 11, Schedule B; 1987, c. 46, s. 12.

REPEAL SCHEDULE

In accordance with section 17 of the Act respecting the consolidation of the statutes (chapter R-3), chapter 11 of the statutes of 1968, in force on 31 December 1977, is repealed, except sections 37 and 42, effective from the coming into force of chapter P-32 of the Revised Statutes.