Performance of Statutory Duties

SECOND SESSION, FORTY-FIFTH PARLIAMENT

BILL S-____

An Act to amend the Criminal Code, the Public Service Superannuation Act and the Federal Courts Act (performance of statutory duties)

His Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

PART 1 — CRIMINAL CODE

1 The Criminal Code is amended by adding the following after section 122:

Systemic non-performance of a statutory duty 122.1 (1) Every public officer who, without lawful excuse, fails to perform a statutory duty within the period fixed by law commits an offence where (a) the officer, or the office the officer heads, has been given a written notice identifying the duty and the day the period expired; and (b) the failure continues for 60 days after the day the notice is given. Standard (2) An offence is committed under subsection (1) only where the failure constitutes a marked departure from the standard of a reasonably diligent public officer in the circumstances. No proof of purpose required (3) For greater certainty, it is not necessary to prove that the public officer acted for a purpose other than the public good, dishonestly, corruptly, or for personal benefit. Excuses that are not lawful excuses (4) None of the following constitutes a lawful excuse for the purposes of subsection (1): (a) the volume of requests, applications or files before the office; (b) the number, availability, assignment, absence or turnover of personnel; (c) the state of records, systems or information technology; (d) the allocation of money to the office or within it; or (e) the assignment of the duty to another person, office or authority. Lawful excuse (5) It is a lawful excuse that performance was prevented by an event beyond the control of the public officer that the officer could not reasonably have provided against. Punishment (6) Every person who commits an offence under subsection (1) is guilty of (a) an indictable offence and liable to imprisonment for a term of not more than two years; or (b) an offence punishable on summary conviction. Pattern of non-performance 122.2 (1) Every public officer who heads an office commits an offence where three or more defaults described in subsection 122.1 (1) occur within that office within any period of twelve months, and the officer, having been given written notice of the first of them, fails to take reasonable steps to prevent the others. Punishment (2) Every person who commits an offence under subsection (1) is guilty of an indictable offence and liable to imprisonment for a term of not more than two years. Prohibition order (3) Where a person is convicted of an offence under section 122.1 or 122.2, the court may, in addition to any other punishment, make an order prohibiting that person from holding any office in the federal public administration for a period of not more than five years. Definitions 122.3 In sections 122.1 and 122.2, public officer means a person who holds an office or employment in the federal public administration and who is responsible, alone or with others, for the performance of the statutory duty; (fonctionnaire public) statutory duty has the same meaning as in the Statutory Duty Compliance Act. (obligation légale)

2 Section 122.1 applies only in respect of a failure occurring on or after the day on which this Part comes into force, and no notice given before that day has effect for the purposes of paragraph 122.1 (1) (a).

PART 2 — PUBLIC SERVICE SUPERANNUATION ACT

3 The Public Service Superannuation Act is amended by adding the following after section 8:

Forfeiture on conviction 8.1 (1) A contributor who is convicted of an offence under section 122, 122.1 or 122.2 of the Criminal Code, arising out of conduct that occurred while the contributor held an office or employment to which this Act applies, is entitled to (a) a return of contributions; or (b) in the discretion of the Treasury Board, the whole or any part specified by the Treasury Board of any benefit to which the contributor would have been entitled under this Act had the conviction not been entered, except that in no case shall the capitalized value of the benefit be less than the amount of the return of contributions referred to in paragraph (a). Equivalence (1.1) Subsection (1) is enacted so that a contributor under this Act stands in the same position, on conviction for an offence arising out of the conduct of the contributor's office or employment, as a contributor under subsection 11 (4) of the Royal Canadian Mounted Police Superannuation Act stands on compulsory retirement by reason of misconduct. Return of the contributor's own contributions (2) A contributor described in subsection (1) is entitled to be paid, in a lump sum, an amount equal to the contributions made by the contributor in respect of that period, together with interest, less any amount already paid to the contributor in respect of that period. Survivors and dependants preserved (3) Nothing in this section affects an allowance payable to a survivor or a child. Effect of appeal (4) This section does not apply until the time for appealing the conviction has expired or, if an appeal is taken, until the conviction is affirmed.

4 Nothing in section 8.1 of the Public Service Superannuation Act, as enacted by section 3 of this Act, applies in respect of conduct occurring before the day on which that section comes into force.

Historical note — verified 3 September 2026. The mechanism this Part restores is not new. It is in force today for members of the Royal Canadian Mounted Police: Dismissal for misconduct 11 (4) A contributor who is compulsorily retired from the Force by reason of misconduct is entitled to (a) a return of contributions; or (b) in the discretion of the Treasury Board, the whole or any part specified by the Treasury Board of any benefit to which he or she would have been entitled under this section … except that in no case shall the capitalized value of the benefit be less than the amount of the return of contributions referred to in paragraph (a). — Royal Canadian Mounted Police Superannuation Act, RSC 1985, c R-11, s. 11 (4) The Public Service Superannuation Act once carried a definition of "misconduct" in subsection 3 (1). It was repealed by section 53 (1) of S.C. 1999, c. 34 (the Public Sector Pension Investment Board Act, Bill C-78), in these words, taken from Canada Gazette, Part 3, vol. 22, no. 3: "The definition ''misconduct'' in subsection 3(1) of the Public Service Superannuation Act is repealed." In the current consolidation the word now appears once, as the note of its own repeal. In the Canadian Forces Superannuation Act it does not appear at all. A constable therefore forfeits the employer-funded portion of a pension for misconduct. A deputy minister does not. This Part removes that difference, and the question Parliament has never answered is why the difference was created in 1999.

PART 3 — FEDERAL COURTS ACT

5 Section 18.1 of the Federal Courts Act is amended by adding the following after subsection (3):

Mandamus for an expired statutory period (3.1) Where the applicant establishes that a federal board, commission or other tribunal was required to perform a statutory duty within a period fixed by law and that the period has expired without the duty being performed, the Federal Court shall order the federal board, commission or other tribunal to perform the duty, and the balance of convenience is not a consideration. Time for performance (3.2) An order under subsection (3.1) shall state the day by which the duty is to be performed, being not later than 30 days after the day the order is made. Continuing supervision (3.3) Where the duty is not performed by the day stated, the Court may, on the applicant's motion, remain seized of the matter, require written reports on a schedule it fixes, appoint a person to supervise performance at the expense of the federal board, commission or other tribunal, and make any further order necessary to secure performance, including an order for contempt against a named officer personally served with the order. Limit (3.4) Nothing in subsection (3.3) authorizes a person appointed under that subsection to make a decision that the statutory duty requires the federal board, commission or other tribunal to make.

COMING INTO FORCE

6 This Act comes into force on the day on which the Statutory Duty Compliance Act comes into force.