ARCHIVED - Overhauling Oversight: Ombudsman White Paper

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A Compromised Mandate

This Office has yet to succeed entirely in getting the mandate it should have. In large measure, this is because of an exaggerated fear within the Canadian Forces of outside interference with military autonomy. The original mandate was revised in 2001, and this improved our ability to help. Still, in spite of our persistent and repeated efforts to implement a full service program, there remain people who wish to make use of an ombudsman but who cannot do so because of jurisdictional limitations on the Office, most notably those who have complaints relating to Veterans Affairs Canada, the Military Police as well as many CF members who are forced into the grievance process.

There is unfortunately little appetite by senior leaders to find solutions to technical jurisdictional issues involving our mandate. The Judge Advocate General (JAG), who is the key legal advisor to the chain of command, showed us his hand when he bluntly declared to us months after my appointment in 1998 that  “the field was occupied” and that there was no room for the kind of independent oversight we were pursuing. The last seven years have shown that, in fact, not only was the field unoccupied but it proved to be fertile and ready to accommodate an office to truly serve the needs of the troops. Unfortunately, all too often, senior leadership has not been able to divorce itself from the JAG mindset and help us work the field and provide the Office with the tools for it to really flourish.

In many ways, and despite our successes, the Ombudsman’s Office is still a work in progress. We are short of information-gathering tools. But most significantly, the Office of the Ombudsman is not entrenched in law. It has been the progeny of orders crafted in internal administrative documents and Ministerial Directives. This Office can be wiped out with the stroke of a Minister’s pen or crippled by the reversal of a directive. While we have enjoyed the independence that we have insisted on, our independence is the product of goodwill or political reality and therefore knows no security. If an ombudsman’s office, confined in these ways, had been created for good reason it would be tolerable. Unfortunately, our constrained mandate and our vulnerability are each the product of jurisdictional infighting, the lethargy of bureaucracy, and an indefensible resistance to civilian oversight.

I will discuss these matters in detail below, but for now there is a critically important point that needs to be made. Having observed the work that this Office has done during the few years of its operation, I am more persuaded now than ever that the ombudsman model is capable of improving not only the lives of those who serve within DND/CF, but also the institution itself, including its credibility and status. Even with its compromised mandate, the Office of the DND/CF Ombudsman has already demonstrated the value of civilian oversight. Any discussion of the future of this Office in particular, and the fortunes of civilian oversight of the military in general, has to begin with that appreciation.

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Demonstrating Value

The past seven years have produced a crush of success stories, touching the lives of many. There is little need to describe any of those success stories in detail. They are illustrated in the vignettes captured in the Annual Reports that the Office of the Ombudsman has filed since its inception. A quick tour of the past seven years is enough to make the point. That tour shows the use of ombudsmanship to obtain necessary medical attention and counselling for members. It shows ombudsmanship being used to secure compassionate leaves for members as well as pensions, and benefits, and moving allowances, and ex gratia payments for those whose entitlements are ensnared in bureaucracy or challenged by delay or denial. A quick tour shows the use of ombudsmanship to achieve the relocation of members so that they are nearer their families, or ailing parents or medical facilities required by their family members. It shows ombudsmanship complementing the grievance process by helping to overcome delay and serving as a channel for information. And on and on, case after case. Literally thousands of members have found redress by resorting to the services of the Office of the Ombudsman for problems that would not have been solved as expeditiously or at all without that intercession. Over the past seven years, responding to individual complaints, the Office has made an unquestionable contribution to the quality of life of CF members and their families, fulfilling Chief Justice Dickson’s hopes for such an office.

While much of the office’s work has been on the individual level, ombudsmanship has also tackled systemic challenges through major investigations. Hundreds of recommendations arising out of dozens of investigations have resolved long-standing problems and contributed to an improved military. Ombudsmanship has helped move the Canadian Forces closer to a more humane and effective approach to operational stress injuries, including post-traumatic stress disorder. It has served as a catalyst to improve Boards of Inquiry and the investigation of training deaths and accidents. Ombudsmanship has provided measures to improve the treatment of the families of soldiers killed in the line of duty. It has addressed problems of environmental exposure. It has secured apologies to help close the book on long-standing grievances like the Suffield experiments, in which soldiers were intentionally exposed to chemical warfare agents including mustard gas, the unfortunate Poulin affair, 14 or the tragic and avoidable Lapeyre-Wheeler debacle. 15 It has helped to flush away decades of bureaucratic obstacles, thereby securing compensation for the Suffield victims and repayment for claw-backs taken from the Richmond Military Automated Air Traffic System trainees. And, in the days before our mandate was so limited, we secured procedures to ensure the sensitive treatment of sexual offence victims by the Military Police.

For those who are paying attention, ombudsmanship has also done its part to encourage appropriate attitudes. It has done so by challenging the fictitious stereotype that expects John Wayne resilience in the face of brutality or tragedy, and that writes off more human responses as weakness or cowardice; by tackling discrimination against women and aboriginal members, and deploring wherever it has been identified, the insensitive ethos of the disposable soldier; by exposing cases of unthinking bureaucracy or the rule-based mentality that too often prevent the resolution of human problems that could otherwise be resolved with imagination and motivation.

The impact that all of this has had on the quality of life of the members, on their morale, on esprit de corps, or on retention of soldiers at a time of critical staff shortages, cannot be underestimated. To be sure, these gains have at times come at the cost of embarrassment on the part of some of those carrying the weighty responsibilities of command, and I know this has been painful. Where the Canadian Forces has endorsed solutions or accepted criticism as constructive, however, and where it has worked for improvement, the repute of the Canadian Forces has not suffered; it has been enhanced and leadership strengthened.

Without question, the value of civilian oversight in the form of ombudsmanship has been amply demonstrated. The question is not whether it is a wise and appropriate tool, but whether it is being used as widely and wisely as it should be.

14. Final Report, Allegations Against the Canadian Forces, Complainant: Captain Bruce Poulin. Special Report of the DND/CF Ombudsman, August 13, 2001.

15. When a Soldier Falls: Reviewing the Response to MCpl Wheeler’s Accidental Death. Special Report of the DND/CF Ombudsman, December 20, 2004.

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A Gap in Oversight – Veterans Affairs

Wreath laid at Winnipeg’s Remembrance Day ceremony honouring the veterans who were tested with chemical agents during World War II. These soldiers finally received recognition in 2004 after the Ombudsman investigated their plight.

Denying to veterans access to the Ombudsman to address all of their issues, makes little practical sense. The door should notclose on them once the scope of their problem reaches into the realm of Veterans Affairs Canada. The stereotype of a veteranmay well be the wizened, elderly gentleman giving a shaky but dignified salute beside a memorial—someone who is far removedin time and life-experience from his military days—but the reality is that Veterans Affairs Canada administers benefits forthose who only hours or days before, were members of the Canadian Forces. All former members, even those who have beendischarged for decades, maintain a close connection to the institution, not only because their military experiences areetched in their character but also because their personal welfare remains tethered to the government they served. Theirfinancial security, their mental and physical health, and their sense of belonging are all inextricably linked to themilitary.

Since the inception of this Office, there have been more than 250 occasions when we have had to turn veterans away because ofrestrictions on our mandate; the complaints relate to everything from delays in pension applications because of inadequate documentation, pension appeal problems, benefit denials, delays in receiving health information, long-term care crises to operational stress injuries and debilitating service-related maladies. The Suffield episode, one of the few cases where the Office of the Ombudsman was able to assist a group of veterans, shows how serious veterans’ problems can be. Veterans were being refused pensions because of moribund national security concerns and lost documentation. All of this was tragic, pitiful and preventable, but for decades nothing was done. Nothing was done until the victims were permitted resort to an ombudsman.

Canada’s veterans do not have a classical ombudsman of their own. Instead, they rely upon those who work within government for Veterans Affairs, or they depend on the intercession of the Canadian Legion. To be sure, the Canadian Legion is a magnificent organization that has done its best to establish committees and to liaise with government administrators, often with great effect, but it is not an institutionalized ombudsman. It does not have the powers of proactive investigation, the resources, nor the professional staff, nor does it have the power to report officially to the government and the public. It was inevitable that veterans would call, as they have, for the creation of an ombudsman’s office or an inspector general to assist them. 16 It is a call that must be answered.

So what answer does the Office of the Ombudsman receive when it asks for the mandate needed to help these people to whom weall owe so much? It is not a response based in compelling reason or principle. The answer is that the Office of the Ombudsmanis a product of an internal directive from the Minister of National Defence, while veterans’ matters fall within the jurisdiction of the Minister of Veterans Affairs. Technically this is true, but it is no adequate answer to those who could use the assistance of the Office. Access to the Office of the Ombudsman could be granted simply by the Minister of Veterans Affairs signing a Ministerial Directive. Or, more appropriately, a Canadian Forces/Veterans Affairs Ombudsman’s office having co-ordinate jurisdiction could be entrenched in statute, with the Ombudsman reporting to the Minister of National Defence on DND/CF issues, and to the Minister of Veterans Affairs on issues related to Veterans Affairs Canada. The truth is that departmental organization is a technical obstacle, not an impediment to doing the right thing, and it is a maxim of good government that technical obstacles never be allowed to impede doing the right thing. Instead, technical obstacles should bemanaged and overcome.

16. See “Modern veterans say they are forgotten, need ombudsman.”  Stephen Thorne, Canadian Press Ottawa, 2004; May 5, 2004, 3:30 p.m., Proceedings of the House of Commons Subcommittee on Veterans Affairs of the Standing Committee on National Defence and Veterans Affairs.

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Continue to Part Four


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