Overhauling Oversight: Ombudsman White Paper
Pockets and Moments of Resistance
If fully effective civilian oversight is to be achieved, more needs to be done than merely removing jurisdictional impediments preventing ombudsmanship from addressing the full panoply of problems that arise within the Canadian Forces. What is also required is the support of those within the military. There has to be a culture of cooperation and an acceptance of the wisdom of civilian oversight. There has to be a willingness to change and improve and to accept criticism. For the most part, there has been sufficient cooperation to enable the Office of the Ombudsman to do its work and I am grateful for the support I have typically received. Still, as I have noted on many occasions, there remain pockets of resistance from key and powerful senior leaders. There have also been moments of resistance from quarters where support can normally be counted on. The history of this office has been one long, continuing struggle for acceptance.
Resistance and the Mandate
Discomfort and at times hostility within the Canadian Forces to the Ombudsman performing a role of civilian oversight has been evident at every stage in the development of the Office’s mandate. As described above, immediately upon assuming the post, I began to craft a blueprint for what the Office required. I studied ombudsmanship intently, identifying the basic principles required for it to be effective in carrying out its role of working to improve the welfare of the members of DND/CF and of the institution as a whole. I reviewed military oversight in other countries and discussed with other military ombudsman the experiences they have had and the pitfalls they have encountered. I tapped their wisdom to identify what a recipe for success would look like. On January 20, 1999, I presented my report, The Way Forward – An Action Plan for the Office of the Ombudsman, to the Minister of National Defence. This was when I first encountered the kind of resistance that has periodically compromised the ability of the Office to be as effective as it can be.
In spite of the case that I made, Departmental legal advisers, after consultation with Canadian Forces lawyers and commanders, prepared a mandate that bore no relationship to the principles I had identified. The initial draft mandate I was offered crafted an ineffective, feeble authority for the Office. The proposed mandate would have cast the Ombudsman, as a senior JAG lawyer once put it to me, as a “consigliere
” -type backroom intervener gently offering the chain of command non-intrusive nuggets of advice from time to time. The mandate would have prevented the Ombudsman from conducting investigations. The Ombudsman was to be confined to making informal inquiries, and was to refer matters back to the chain of command with a recommendation for a board of inquiry or summary investigation. This was not civilian oversight. The Office was treated as if it was to be cosmetic, a mere pretence of civilian involvement while the military would continue to decide military matters, without accountability or real input. To make matters worse, in spite of what was widely understood at the time to be a military culture that was resistant to oversight and change, the mandate was not to be supported by any directive to members and the chain of command to co-operate with the Office. Instead, only a platitudinous promise in a directive from the Minister that CF authorities would be collegial and collaborative was included.
I could not accept this. Faced with our hopelessly conflicting positions, the Minister of National Defence asked that we enter into negotiations with military and departmental lawyers about the mandate for the Office.
Negotiation is not only frequently, but also typically, an appropriate choice for resolving issues. The problem with requiring an ombudsman to negotiate his mandate, however, is obvious. Negotiations are about compromise. Instead of producing decisions based on what authorities and tools will make the office as effective as possible, everything gets sawed off. Worse still, the exercise I was assigned was to achieve compromise with representatives of an institution who did not believe in the need for, or desirability of, civilian oversight. Philosophically, they just did not want an ombudsman. That had been made plain when the Canadian Forces rejected the Doshen recommendation for an organizational ombudsman because of concerns that even this kind of watered down oversight would undermine the authority of the chain of command. It was confirmed when the Judge Advocate General informed my Office that “the field was occupied” with respect to military justice. I was asked to negotiate with people who did not want an ombudsman. I was asked to have my authority and powers agreed to by the very people I should be overseeing.
Given that dynamic, I was not surprised to see the military and departmental lawyers who were representing the chain of command take negotiating positions that would have left the Office of the Ombudsman as little more than a public relations exercise. Military lawyers argued, for example, that I should have no powers of investigation, claiming untenably that giving the office powers of investigation would cause a conflict with the military police. They made this argument even though I never asked for the power to investigate offences. There was no air of reality to the claimed conflict. The argument was a contrived effort to render the office impotent.
Even at the end of this process, I knew that the authority and tools I was to be left with were simply too circumscribed to meet the needs of an ombudsman’s office, but we had to get on with it. The Minister decreed that we would begin with an imperfect mandate and that based on experience gained over the next six months, the mandate would be reviewed, revised, and incorporated into a regulation giving it force of law. For the next six months, I studied the operation of the Office, identifying gaps in authority and the tools that we required. At the end of the six months, I furnished a report and draft regulations that addressed the deficiencies in the Directives.
The draft regulations I prepared were circulated by DND lawyers to a wide range of “interested parties
” for their input. Seeking input is of course unobjectionable. What was dispiriting is that this was done without notice to our Office, and without enabling us to make our case. Meanwhile, the Chain of Command and its legal advisors, including the Judge Advocate General, were fully aware of our efforts, and they were able to marshal resistance. Officers in the Canadian Forces posed operational objections. Protests about undermining the authority of the chain of command were voiced in response to a number of the powers that I sought, even though none enabled me to direct or interfere with military decisions. The JAG, for its part, wanted all military justice matters to be strictly off-limits, and argued for an aggressive form of privilege that would keep reams of information from the Ombudsman. The MPCC and Grievance Board wrote a joint letter arguing that we should not be authorized to deal with military police complaints or grievance matters, or to review their processes. The Grievance Board argued that my Office should be restricted from becoming involved in any issue that could become the subject of a grievance.
The Provost Marshal wanted us to have no jurisdiction relating to military police, even though our Office was created in part because of concerns about how unsatisfactorily military police had been dealing with sexual offence complaints and even though we had already issued a report that had led to constructive changes in the treatment of victims during investigations. The Provost Marshal also wanted us to stay away from all issues that could become criminal investigations. The list of self-interested objections to a process that would increase the accountability of everyone affected forced us back to the negotiating table.
While this time only Departmental legal advisers sat across from us during the negotiations, their function was not simply to listen to our pitch and decide on behalf of the Minister whether we had made out our case for the jurisdiction and tools we had identified. Instead they attempted shuttle diplomacy, running each and every item back to the military lawyers who represented the chain of command, or to the newly appointed officials from the MPCC and the Grievance Board. Resistance to our mandate was heavy. In the end, agreement could not be reached, and the Minister retained an independent third party. He did an admirable job but his function was not to identify the tools the Office would require to optimize its performance. He adopted the role of mediator between what were presented as conflicting interests. We made gains. Most notably the Minister endorsed the right of the Ombudsman to issue public reports and to accept complaints from applicants to the CF. But there were also losses, most notably the imposition of the serious restrictions on our jurisdiction relative to the MPCC and the grievance process.
Sadly, resistance to oversight did not end with the settlement of the mandate.
Canadian Forces Grievance Board
During negotiations for our mandate, the MPCC and Grievance Board wrote a joint letter claiming that the Minister of National Defence did not have lawful authority to give the Ombudsman any role relating to grievances or the grievance process, or with respect to Military Police complaints. They claimed that giving the Ombudsman such authority contradicted their statutory jurisdiction and authority. The Minister referred the matter to Department of Justice lawyers who disagreed, and we ultimately secured limited authority in the Ministerial Directives to deal with complaints that are eligible for grievance if there are compelling circumstances for doing so, and we were empowered to review the grievance process and the military police complaints process to ensure that they were operating effectively.
In spite of this, and in spite of a clear subsequent rebuke by the Minister of their position when they reasserted it, the CF Grievance Board continued to maintain that it was immune from even the limited process-based oversight that we were provided with, arguing that, as an independent agency, its employees are not DND/CF employees and therefore are not bound by a Minister’s directives relating to our jurisdiction. This position has impeded investigations. We have also experienced problems from the Grievance Board in accessing information. We have been told these problems are the product of a “communications challenge.
” I was not convinced of this. These are problems of resistance, based on the persisting belief that we do not have legitimate jurisdiction over Grievance Board issues. I felt obliged to raise this as a problem in my Office’s 2002-2003 Annual Report.
Technical Objections
Far too often, the Ombudsman’s authority to investigate matters is challenged by JAG lawyers. Instead of taking an approach that will assist in resolving complaints, they periodically subject the Ministerial Directives to strict, narrow and at times unrealistic construction. For example, during the Smith investigation 46 we were investigating a public statement about a pending criminal investigation and learned that the statement may have been made after legal advice was received. When we inquired further, we were met with the objection that we do not have jurisdiction to investigate the work of military legal advisers. In fact, we were not investigating the work of the military legal advisers. We were investigating whether making a public statement about a pending criminal investigation was problematic.
There is an unflattering irony when an ombudsman is met with a highly technical objection to his authority. An ombudsman is meant to overcome technicality and narrow-minded rule-driven thinking, but at times the mandate for the Ombudsman is being subjected to this very kind of treatment, thereby impeding the Ombudsman’s work. This would not happen in a culture of support.
Solicitor-client Privilege
Claims of solicitor-client privilege have also impeded the Office. While it is settled that solicitor-client privilege does apply to government legal advisers advising government agencies, an aggressive approach to privilege can unnecessarily and inappropriately undermine investigations. A moment’s reflection shows why. Few decisions of consequence are made in the military without legal advice. For example, my Office recently referred a case dealing with complaints of harassment and unfair treatment to the Assistant Deputy Minister (Human Resources – Military) for an attempted resolution. Officials in that office immediately turned the file over their lawyers and refuse to meet with my investigators to discuss resolving the case until lawyers for the military have reviewed it and given an opinion on its merits. Our role is to review decision-making. If a military ombudsman is met with solicitor-client objections when exploring the basis for decisions or the development of policies, practices and regulations, access to a good deal of useful and necessary information would be lost.
The fact is that the Canadian Forces are using solicitor-client privilege in a self-serving way. When members or the chain of command consult with JAG in the course of their duties before acting, the human being doing the consulting is not the client. The Canadian Forces is. While it is true that legal privilege does exist even between government lawyers and the departments being advised, the Ombudsman is not an outsider. The Office of the Ombudsman is independent of the chain of command but is part of the military apparatus. In a very real sense, to invoke privilege against a DND Ombudsman is like one arm of an organization invoking it against another arm of the same organization. Moreover, the Ombudsman is the delegate of the Minister of National Defence. Invoking solicitor-client privilege against the Ombudsman is like invoking that privilege against the Minister himself. Can you imagine a general saying, “Sorry Minister, but I cannot answer your question because we acted on legal advice from the JAG.
” In truth, use of solicitor-client privilege to shield information from the Ombudsman where the client is the Canadian Forces is an opportunistic subterfuge calculated to hide information, but it is a subterfuge we are being met with.
To illustrate this, we can return to the complaint in the Smith investigation concerning the public release of information relating to a criminal investigation. The person who released that information claimed that he relied on legal advice when he was explaining why he felt it was appropriate to make the statement he did. When the Office tried to verify that the member had indeed relied on legal advice, the legal adviser who gave the relevant advice invoked solicitor-client privilege in the name of the member to deny us access to it. This should not have happened. First, the privilege belonged to the Canadian Forces, not the member. Second, and in any event, it is well settled that where a person relies on legal advice to justify his actions, he is deemed to waive his privilege because a person cannot at that same time rely on and shield advice. This is what the member had done. Third, the legal officer who made the decision that privilege applied was hopelessly conflicted. He was the one who gave the relevant advice in the first place. The information should have been handed over.
After meeting with this objection we appealed to the JAG for the information we needed for our investigation and for the release of the names of others who received relevant advice. Although we knew the relevant information was not privileged we thought the most efficient way to secure it against objection was to obtain waivers from these individuals. We needed their names to do so. Yet we were told that the names of those who the advice was given to were themselves privileged. If these persons had been the real clients in the relevant legal relationships, there may have been something to the argument. These people had secured the advice, however, not in their own right but in the course of carrying out their duties as members of the Canadian Forces, for the purpose of carrying on those duties. The real client was the Canadian Forces itself. Not only were the names not privileged but no waivers were forthcoming from the Canadian Forces, even though we expressed the need for this information. Instead we were met with a dismissive response informing us that in the view of the JAG office we had sufficient information to complete our investigation within our mandate.
As a result of the risks that trumped up applications of solicitor-client privilege pose to investigations, we negotiated a protocol during the last round of negotiations with the intercession of the mediator. It calls for the Canadian Forces to conduct a balancing exercise between competing interests before claiming privilege. Since then, however, nothing has changed. Solicitor-client privilege continues to be used at every conceivable opportunity to impede cooperation.
Privacy Legislation
The most novel and creative technical impediment being manufactured to deny us access to information is the improper use of the Privacy Act. When we were conducting the Lapeyre-Wheeler investigation 47 relating to the investigation of the death of a soldier during a training exercise, we were initially denied information by the Director Land Personnel, citing privacy legislation. We had to elicit the support of the then-Director Access to Information and Privacy, who agreed that the Ombudsman was entitled to the information in unedited and unsealed form as he was acting as a delegate of the Minister when conducting an investigation.
Notwithstanding that this principle has been established, at the time of writing this White Paper the Office of the Ombudsman is being stonewalled in another investigation it is undertaking. Ironically, the investigation is at the request of the Chief of the Defence Staff, and relates to the treatment within the Canadian Forces of six snipers who had been attached to the American armed forces in Afghanistan in 2002. The Office has been told that transcripts of testimony from a Board of Inquiry relating to the complaint cannot be furnished to the Office without being screened and edited as if the Ombudsman had made a request under the Access to Information Act. We were surprised to learn this, after someone in DND/CF sent us a completely unedited copy of the Board of Inquiry Report and an extremely personal and confidential psychiatric report on one of the snipers, without his consent. The Office has since been receiving heavily edited transcripts at a snail’s pace and at great expense to the military. The context of edited information has left the investigators wondering whether some of the information being protected is even truly personal information.
The Office has also been attempting to obtain copies of the snipers’ unit’s War Diaries (official records generated for historical purposes during deployment). Initially the Office was told that it could not access them for privacy reasons. Then it was told it could. Then the investigator discovered that some of the documents are in the possession of the CF National Investigation Service (CFNIS). The CFNIS is now once again telling the Office that the War Diaries must be reviewed for privacy reasons, and, at one point, they suggested that the Ombudsman identify the information the investigator wants, which they would furnish to us if they believed it to be relevant.
All of this is intensely frustrating. As indicated, while the Ombudsman is independent from the chain of command, the Ombudsman is not an outsider. The Ombudsman is the delegate of the Minister. Would the Minister be given edited documents based on privacy concerns? As indicated, the Office is an arm of the institution, working for its betterment. National security and operational issues aside, it should have access to institution records. I have unsuccessfully appealed to the highest levels of DND/CF for assistance and support on this issue. Unfortunately, my efforts have fallen on deaf ears. I have recently met and written to the Privacy Commissioner to alert her of my concerns regarding DND/CF’s abuse of the Privacy Act.
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46. Complaint of inappropriate public comment during ongoing CFNIS investigation by the chain of command to protect the integrity of the investigation. Special Report of the DND/CF Ombudsman December 7, 1999.
Reaction to Reports
For the most part the recommendations the Office has made in its reports have been well received. By far, most of those recommendations have been accepted and implemented. Typically the Office has enjoyed the co-operation of the highest levels of the chain of command. The Office has not, however, gained easy or universal acceptance and at times its support is softer than it should be. This is understandable at a human level. The support tends to become soft when the Ombudsman releases reports that criticize or embarrass. This is not a pleasant part of the job, but when problems are identified, the Ombudsman has a duty to report them. Progress depends on acceptance of the process of exposing errors, faults and inappropriate procedure, as painful as this can be.
For this reason, it is always discouraging to find those within the chain of command who do not accept the Ombudsman’s role. I do not want to dredge up old examples and risk re-opening old wounds to illustrate. There is no gain to be made by doing so. I understand that there will unquestionably be peaks and valleys as the Office works its way into the consciousness of the entire institution. Still, until those in all positions of authority truly come to accept not only the wisdom in having civilian oversight but the value of constructive criticism, the ombudsman’s contributions will be less than they can be and opportunities will be lost.
Part of the buy-in needed to achieve optimal results requires a “can-do
” attitude. I have spoken about military culture and its penchant for a rule mentality, and I have spoken about the complications that bureaucracy can pose. There have been occasions where we have been advised that our recommendations cannot be implemented because they would set an unwanted precedent, or that they would be contrary to military regulations, or that they are precluded by Treasury Board rules and regulations, or that further study is needed. If there were truly buy-in, these kinds of objections would largely wash away.
First, there should be no fear of precedent if the precedent is a wise one. Precedents can mark the path for positive change. As for military regulations standing in the way, this is the weakest of rationales for inaction. Military regulations are within the control of the military. If they stand in the way of appropriate solutions, modify them. As for Treasury Board regulations, we do extensive research to ensure recommendations can be implemented before making them. In any event, while the Canadian Forces must respect Treasury Board guidelines, it has an important role to play in making sure those guidelines do not become administrative hurdles to wise decisions. Where those guidelines present a problem, the proper course of action is for the Canadian Forces to go to the Treasury Board for exemption or modification of those rules, not to rely on them as a basis for inaction. As for further study, it is certainly prudent before important decisions are made to get the facts, but rare will be the occasion where Ombudsman’s investigations are too incomplete to support decision-making. Further study is all too often a euphemism for tactical delay.
In truth, for these reasons, few of these explanations for rejecting or delaying recommendations are credible on their own. They can too easily become excuses. What are needed are two things—an honest appraisal and response to the wisdom of ideas, and a can-do attitude where change is warranted. In the end, it is all a question of attitude and buy-in. The Office of the Ombudsman cannot fulfill its mission without more buy-in within the Canadian Forces.
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