ARCHIVED - Overhauling Oversight: Ombudsman White Paper

This page has been archived on the Web

Information identified as archived is provided for reference, research or recordkeeping purposes. It is not subject to the Government of Canada Web Standards and has not been altered or updated since it was archived. Please contact us to request a format other than those available.

The Need for Oversight

Every institution has its share of problems and challenges, but there are special ones endemic in a military organization like the Canadian Forces. Necessarily, military organizations have daunting power over their members. Those members are called upon to undertake work that is both physically and mentally taxing—at times even physically and mentally debilitating. This generates inordinate levels of stress that not only take a human toll but also can impede the effectiveness of military institutions that are dependent on positive morale. Retention, recruitment, focus and effort all suffer.

Problems and challenges can also be acute in a military institution because of the “military culture” with its traditions of blind unquestioning obedience, of closed access to information, and of a highly regimented command structure that relies on layers of fixed orders and directives. This creates a bureaucratization unparalleled in civilian life.

It is within this kind of organization that the chain of command is taxed with work that is so crucial that it engages national security and international peace and justice. Officers given this kind of responsibility acquire an understandable zeal to do their job well. Unfortunately, some of those who take on commitments of this magnitude can become single-minded, even blinkered, in extreme cases treating human beings as mere troops or military tools—abstracting them and forgetting their humanity. Administration can become wooden, rule bound and order-obsessed, even when those rules and orders reveal themselves as problematic and there are means of remedy available. In a misguided effort to maintain the authority they need to do their job, military institutions can become closed and resistant to change.

It is also notorious that military organizations tend to be conservative. In its report on Achieving Administrative Efficiency, a Minister’s Advisory Committee spoke of a “cultural aversion to programmatic risk” that feeds “resistance to all but the most incremental change.1

When change is advocated in a conservative institution, an entrenched “no can do” attitude can too easily undermine initiative and progress. This can put a premium on keeping problems from the public eye so that meddlesome political interference or public criticism does not undermine the mission. In the faith that they are internal matters best handled within the command structure, military organizations are often apt, in the face of criticism, to circle the wagons.

So, when soldiers have real problems and are treated unfairly they can run into unreasonably rigid administrators working within a closed, highly bureaucratic, conservative, and at times, even insensitive institution. They can run into bias and stereotype. What makes the problems so intransigent is that those who give short shrift to these problems do so with the authority of their own consciences.

The contributions that an impartial, outside agency can make are obvious given that problems often emerge from a widespread culture of defensiveness within a largely closed society.

1. Advisory Committee on Administrative Efficiency, Achieving Administrative Efficiency: Report to the Minister of National Defence, August 21, 2003, p. iv.

Table of Contents

Establishment of Civilian Oversight and the Office of the Ombudsman

The choice to establish civilian oversight of the Canadian military was the product of experience. It was June 9, 1998, when I was asked to set up an ombudsman’s office for DND/CF. That initiative occurred in the wake of several highly publicized reports on sexual harassment and sexual assault within the military. While that was the immediate context, the idea that there should be an oversight agency had been several years in the making and was borne of a series of scandals and a growing appreciation that there were profound problems in the Canadian military.

The most dramatic impetus for change was the Somalia affair. Canadian troops were deployed to that war-torn country in 1993 to assist in peacekeeping and the delivery of aid. Just as a similar assignment for American soldiers would ultimately shake American foreign policy, Somalia would change the face of military government in Canada. The catalyst for change was the discovery that military commanders failed to “halt, destructive murderous events,2 including the tormenting and killing of Shidane Arone, a teenage Somali caught stealing from a Canadian compound. In the many months that followed the Somalia deployment, whistle blowers began to open the door to the secret vault that hid the Canadian military, painting an unflattering picture that caused great public anguish. The diminishing stature of the military, coupled with downsizing and restructuring, were dashing military morale and problems of leadership were emerging. Grievances and complaints were mounting but they were not being dealt with in a timely, fair and equitable fashion. Something had to be done. Old systems were not working.

In November 1995, Brigadier-General (retired) Larry T. Doshen was retained by DND/CF to study the issue. While he considered  “a classical Ombudsman would be the most effective mechanism of complaint resolution,” he decided not to recommend it because he believed this would be prohibitively expensive. 3 That belief, unsubstantiated at the time, has proven wrong. Instead he recommended improvements to the grievance process. This contributed ultimately to legislative initiatives that I will discuss on the next page.

In 1996, BGen (ret’d) Doshen was asked to submit a follow-up paper. 4 As its name suggests, this second paper – an implementation plan for an “organizational ombudsman5 – proposed an ombudsman. The suggestion met with immediate resistance within the military chain of command, who were concerned that the informal mediation efforts of even an organizational ombudsman would erode military authority and leadership. 6 For this reason, the Armed Forces Council, one of the highest military advisory boards, decided to shelve the proposal. 7

When the decision whether to have an ombudsman was left within the military, it is not surprising that the idea was scuttled. This is not the last time this boogeyman of resistance—preserving the integrity of military command—would growl louder than it should. While that concern has its place, giving it exaggerated and misplaced emphasis has proven to be a discouraging impediment to the accomplishment of fully effective civilian oversight of the military.

In 1996, sparked in part by the Somalia affair and catapulted forward by the leak of embarrassing video recordings of degrading and racist hazing rituals occurring in the Canadian Airborne Regiment, 8 Minister of National Defence Doug Young resolved to undertake a complete review of leadership and management of the Canadian Forces. The former Chief Justice of Canada, The Right Honourable Brian Dickson, chaired a committee whose report, on March 14, 1997, recommended a military ombudsman who would report to the Minister of National Defence. 9 He identified the need for “CF members [to] be given a voice, consistent with the appropriate authority of the chain of command so that their concerns can be independently investigated and if necessary dealt with.”  He made two critically important points. First, that the needs of military oversight go beyond the military justice system and the military police; they must embrace a myriad individual issues in which members of the Canadian Forces need a voice to obtain redress. Second, Chief Justice Dickson, a war hero and jurist, balked at the suggestion that an ombudsman’s office would undermine military authority. “Such a mechanism,”  he said, “would strengthen the chain of command.10

A few weeks later, on March 25, 1997, Minister Young submitted  “The Young Report” to the Prime Minister. He recommended the establishment of an ombudsman’s office. No doubt influenced by “chain of command authority” objections from within the military, he compromised on the Dickson recommendation, suggesting that the ombudsman report to the Chief of the Defence Staff. 11

On June 30, 1997, several weeks after the Young Report was tabled, the Commission of Inquiry submitted its final report into the Somalia affair, sparking renewed attention to problems in the military. The Commission of Inquiry did not puppet the watered-down Young Report recommendation. Indeed, appreciating the urgency of the task, it even “one-upped” Chief Justice Dickson, calling for the establishment of an Inspector General, reporting to Parliament. The Somalia Commission, in the interests of Canada and its international reputation, stressed the need for a truly independent, impartial, transparent and objective officer. To secure that goal it eschewed having that officer report to the Chief of the Defence Staff, or even solely to the Minister of National Defence. 12

In the meantime, the Government of Canada had begun drafting Bill C-25, An Act to Amend the National Defence Act. Preparations were well advanced, and by September 1997, the Bill was introduced into Parliament. No provision was made in that Bill for either an Inspector General or an Ombudsman. Ignoring the advice that was coming in, policy makers, no doubt in close consultation with Canadian Forces leaders, rested content to restructure the grievance process and set up the Military Police Complaints Commission.

Yet, events conspired to overcome that reticence. In the months that followed the release of the Somalia Commission of Inquiry report, public concern about the military was mounting with new leaks about the sexual harassment of female soldiers. The Government of Canada, embattled over the matter, decided to respond. It did not wait for the passage of the National Defence Act amendments; it decided to announce an additional initiative. It promised to create an Ombudsman’s office. On June 9, 1998, Minister of National Defence Art Eggleton appointed me as DND/CF Ombudsman to operate independently of the chain of command in fulfilling this role, and to report directly to him. I was tasked with designing the office and presenting to the Minister a proposal for its functioning. I spent much of the next several months studying what authority and structure this Office would need to become an effective oversight mechanism. On January 20, 1999, I presented The Way Forward – An Action Plan for the Office of the Ombudsman to the Minister of National Defence. The report contained 67 recommendations for the establishment of an effective and independent Ombudsman’s Office.

2. D.J. Bercuson, Ph.D, FRSC, A Paper Prepared for the Minister of National Defence, University of Calgary, March 25, 1997.

3. Larry T. Doshen, Report on the Study of Mechanisms of Voice/Complaint Resolution in the Canadian Forces, November 30,1995, p. ii.

4. Larry T. Doshen, Canadian Forces Organizational Ombudsman Implementation Plan, July 10, 1996.

5. An organizational ombudsman is generally understood to mean someone who works within an organization to assist peoplewith resolving problem, by referral and mediation. The classical or legislative ombudsman is an independent agent whoinvestigates complaints and makes findings and non-binding recommendations aimed at rectifying maladministration andameliorating systemic problems.

6. Organizational Ombudsman Implementation Plan, Briefing Notes to Personnel Policy Board (PPB) October 9, 1996, p. 7.

7. Karol W.J. Wenek, Internal document provided to my office, dated January 14, 1997.

8. Controversially, the Canadian Airborne Regiment, a storied unit of the Canadian Forces, was disbanded as though theproblem was confined to that unit.

9. Recommendations of the Special Advisory Group on Military Justice and Military Police Investigation Services, March 14,1997.

10. Ibid., pp. 65–66.

11. The Ombudsman was also to report to the Deputy Minister of National Defence, rather than to the Minister. Together thesesuggestions would have deprived the Office of not only its independence but also much of its stature.

12. Dishonoured Legacy: The Lessons of the Somalia Affair, Report of the Commission of Inquiry into the Deployment ofCanadian Forces to Somalia, Public Works and Government Services of Canada, Ottawa, 1997, p. ES-1.

Table of Contents

The Ombudsman’s Model

The central theme in The Way Forward is that the Office of the Ombudsman should not be a mere “organizational ombudsman” –someone who is seen as an employee of the organization performing the soft tasks of assisting complainants resolve their ownproblems by pointing out appropriate procedures and options, and in some cases by mediating. My main concern, whichexperience has shown to be well founded, was that many complainants are frightened or intimidated and feel as though they are out of options. They do not have the means to gather the information they often require to get to the truth. There is fear ofreprisal and repression or stigma for those who break ranks. At the same time that my office was being built, an alternativedispute resolution program was being formed internal to DND/CF to assist members in informal dispute resolution. I knew thatwhat was required to fill the needs of military members was not merely an “organizational ombudsman” who might simply duplicate this kind of service. What was required was someone who could command the trust of those members who feel toobetrayed by events to trust  “the system,” and who could cut to the heart of problems with proactive investigation.

Instead, following on precedents adopted in other countries, including Israel, Germany and Australia, I recommended a “classical ombudsman” model, which in addition to the kinds of tasks performed by an organizational ombudsman would receivecomplaints, gather the necessary facts, and recommend solutions unconstrained by developed protocols and systems. I wanted the Office to be several things. I wanted it to be independent and impartial, able to assure confidentiality and to protect complainants. I wanted it to have credible review and investigative powers so it could get the information required for fairand effective resolutions. I wanted it to be able to make meaningful recommendations and to court the public opinion that isoften necessary to achieve the moral suasion I knew would be required to have an impact on serious issues. I wanted the kindof full-service mechanism that could assist in resolving the full panoply of problems that Chief Justice Dickson identifiedas arising in the military, without getting bogged down in jurisdictional battles with other dispute settlement bodies orwith objections by the chain of command that I was acting outside of my mandate. And I wanted the Office to have the statureand permanence needed to enable it to gain the trust of soldiers and the respect of the chain of command – I wanted it to becreated by law. In short, I didn’t want the Office to be window dressing or a cheering section for all things coming from thechain of command. I wanted the Office to make a difference in the lives of soldiers, sailors and air men and women.

Table of Contents

Limiting Principle for Civilian Oversight

One thing I was extremely mindful of from the outset was the need to avoid intruding inappropriately on military governance. Within the sphere of military matters, the Chief of the Defence Staff must be in a position to make ultimate decisions, and those in the chain of command must answer to the Chief of the Defence Staff, not to an ombudsman or any other kind of civilian authority. This is a principle that cannot be breached; civilians cannot direct military commanders how to run the military.

What civilian oversight can do, however, is offer an outside perspective, untinctured by military culture, unrestrained by command responsibilities and thereby capable of seeing the whole picture from a different and important angle. By mediating, making recommendations and using moral suasion, civilian oversight can cause those in positions of military responsibility to sit back and re-evaluate things, profiting from the fresh view that civilian oversight can bring. If the civilian overseer is right, those in positions of military responsibility are apt to do the right thing. They will do the right thing not because anyone is telling them to, as there is no one purporting to have that authority. They will do what is right because they will reflect on the problem with a new orientation and come to appreciate that things should have been handled differently, or because public disapproval will convince those in ultimate authority that an error has been made and correction should be ordered. It is the use of moral suasion, reason and public pressure that enable improvement to occur without authorizing the civilian oversight body to interfere in the management of the military.

So, when I put forward the blueprint for an effective office, I wanted an office that would not undermine the chain of command but rather do as Chief Justice Dickson had predicted – “strengthen the chain of command13  by assisting in resolving those problems that can undermine the faith in the institution by those who serve in it. Giving members a voice and a quick, efficient means to solve problems reduces dissatisfaction, improves morale, and thereby reinforces the commitment of soldiers. After all, it is easier to take direction from a chain of command that is perceived to act fairly and reasonably than it is to blindly obey those who direct matters in a rigid or narrow-minded way by virtue solely of the force of their authority. It is a truism that obedience can be forced but respect must be earned, and with respect comes not only obedience but also loyalty.

13. Ibid., pp. 65-66.

Table of Contents


Continue to Part Three

Date modified: