On December 2, 2015, one week after the final report of the
Commission of Inquiry on the Awarding and Management of Public
Contracts in the Construction Industry (commonly known as the
"Charbonneau Commission") was tabled, the National
Assembly introduced Bill 87 entitled An Act to facilitate the
disclosure of wrongdoings within public bodies. The Bill comes
in response to the 8th recommendation of the Charbonneau
Commission's report and provides for the establishment of a
general regime to protect whistleblowers within public bodies in
Quebec. In addition, the Bill contains a list of acts that are
considered to be wrongdoings, which the government is trying to
encourage individuals to disclose (commonly referred to as
The new regime will be aimed at government departments, bodies
with government appointed personnel, government enterprises
(Hydro-Québec, Investissement Québec,
Loto-Québec, the Société des alcools du
Québec and Société Innovatech), the Commission
de la construction du Québec, the Caisse de
dépôt et de placement du Québec, school boards,
universities and public hospitals. For the time being, the regime
proposed by the Bill does not apply to private enterprises.
The definition of "wrongdoing", worded broadly,
includes any contravention of a law or regulation applicable in
Quebec, any serious breach of the standards of ethics and
professional conduct, or any gross mismanagement within a public
body, whether committed or about to be committed.
In addition, a "wrongdoing" will also include
directing or counselling a person to commit a wrongdoing, in line
with sections 21 and 22 of the Criminal Code.
The Bill provides for three disclosure mechanisms: the first and
the second respectively consist in disclosure to the Public
Protector or the officer designated within the public body to deal
with disclosures (position to be created). The Public Protector may
then conduct an investigation and, depending on its conclusions,
refer the matter to a police force or the Anti Corruption
Commissioner, while the officer designated within the public body
to deal with disclosures reports to the highest ranking
administrative official, who then takes appropriate corrective
The third mechanism raises concerns, as it consists in direct
disclosure to the public under specific circumstances. Even though
the provision states that the information must first be
communicated to the police or the Anti-Corruption Commissioner, it
would allow any "person (who) has reasonable cause to believe
that a wrongdoing committed or about to be committed poses a
serious risk to a person's health or safety or to the
environment and cannot, given the urgency of the situation, contact
(the Public Protector or the officer designated within that body to
deal with disclosures) (to) disclose to the public any information
he or she considers reasonably necessary to avoid that risk
The Bill provides for severe fines for any person or public body
taking a reprisal (demotion, suspension, dismissal or transfer or
any other disciplinary measure or measure that adversely affects
such a person's employment or conditions of employment) against
a whistleblower, that is, up to $250,000. These fines would be in
addition to the provisions of the Criminal Code, which
imposes sanctions for reprisals by private companies and other
entities against whistleblowing employees.
This is the first version of the Bill and will be commented on
by the Parliamentary Committee and, quite possibly, amended before
it is assented to. Among other things, the mechanism authorizing
the disclosure of information directly to the public, either
through traditional media or through social media, will most likely
raise questions and spark debates. Finally, the current version of
the Bill does not provide for any measures against ill-intentioned
whistleblowers, who would abuse the regime by departing from its
objective, among other things, to tarnish the reputation of a
public body or one of its officials or executive officers.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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