ARCHIVED - Overhauling Oversight: Ombudsman White Paper

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Securing Credibility and Needed Authority

So, a fully effective ombudsman’s office has to be independent. It has to be able to operate without having to clear jurisdictional obstacles that are thrown opportunistically in the way of effective resolution. And a fully effective ombudsman’s office has to be credible, both to the members who rely upon it and to those who are subject to its oversight. The best way, the only way, to achieve this fully is by entrenching a military ombudsman’s office in statute. The military ombudsman should be provided for in the National Defence Act and the Department of Veterans Affairs Act.

I will deal first with why independence requires the Ombudsman’s powers to be based on statutory authority. To be sure, the Office of the Ombudsman has been able to function effectively as a delegate of the Minister of National Defence, even though its authority depends on administrative directives and a standing order for co-operation issued by the CDS. Still, not having the security of independent tenure is inappropriate. A military ombudsman must be critical not only of decisions and actions taken under the watch of the CDS, but also under the watch and at times, with the approval of, the Minister. Having an ombudsman so dependent on the goodwill of those who may take offence to what must be said in the interests of the institution is simply unhealthy. To be truly effective and worthwhile, independence cannot exist from moment to moment as a matter of indulgence. It must exist as a legislated entitlement. The Office of the Ombudsman must be created by statute.

Then there is the question of jurisdiction. As I have recounted in the many preceding pages, even the overly constrained authority given to the Office has been unstable, precisely because the Office is not supported by statute. Both the MPCC and, more notoriously, the CF Grievance Board have sought from time to time to exploit their statutory standing in order to resist the operation of the Ministerial Directives. They have argued that an Ombudsman whose authority is based on delegated authority is incapable in law of reviewing anything that is touched on by statute, or that involves oversight of statutorily created bodies. They also rely on their own legislated frameworks and independence from the department to contend that having a delegate of the Minister intrude on their territory creates the aura of political interference. Placing the Office in a statute will remove any possibility for this kind of objection.

I have also urged that it makes no practical sense to deprive former CF members of access to an ombudsman to inquire into matters related to Veterans Affairs, given that the Office of the Ombudsman DND/CF is already up and running and entirely capable of serving their needs. Yet because the Office of the Ombudsman is the delegate of the Minister of National Defence while veterans’ benefits are administered by Veterans Affairs Canada, the Ombudsman cannot assist with these matters. This lamentable situation is caused by a jurisdictional problem that can be overcome by putting the Office in a statute. Giving the Office of the Ombudsman statutory authority will enable it to fulfill the kind of full service role that it should have and it will meet a pressing need.

Then there is the related issue of credibility. Whether grounded in statute or not, an ombudsman depends on the buy-in both of complainants and of those subject to oversight. I have always believed that the performance of an ombudsman’s office can break down resistance, but the reality is that performance alone cannot eliminate resistance. This is because, while ombudsmanship can avoid the acrimony of litigation, there are those who are embarrassed by recommendations made or who are so conservative that they resent any vehicle of change. Getting buy-in from these people is difficult enough without having to do it in the face of a lingering sense on their part that the Ombudsman is some kind of illegitimate intruder, poking around where he does not belong. Housing the Office in statute would give the Ombudsman the unequivocal support of law, which can only reduce the penchant for resentment and resistance.

Finally, there is the need to ensure that the Ombudsman has the tools required. These things can be provided for by statute, including and most pressingly, a clear declaration that while the Office of the Ombudsman is independent of the chain of command it is still part of the Department of National Defence and Canadian Forces, and therefore should never be denied information on the basis of claims of privilege and privacy legislation.

There are therefore compelling reasons for entrenching the Office of the Ombudsman DND/CF in statute. Paradoxically, its exclusion from the statutory regime developed in Bill C-25 was the direct result of the very kind of resistance to civilian oversight that makes civilian oversight necessary. This kind of objection should be swept aside, not rewarded. When the statute was being drafted, accumulating recommendations for an ombudsman or Inspector General were ignored because of the “bogeyman” of interference with the chain of command. But for that opposition, the Office of the Ombudsman would already have been in the statute. Moreover, there is no legal reason why the Office cannot be so included. In every other jurisdiction that has a military ombudsman, the authority is provided for by statute. But perhaps most significantly, since the Minister of National Defence initially created the Office, it has demonstrated its value. It has shown that it can resolve problems expeditiously. It can save money. It can improve the quality of life for members, and it can aid in the improvement of the institution. The office has earned its wings. It should be institutionalized as a matter of merit. Reliance on the MPCC and giving exclusive jurisdiction to the grievance process is wasteful in a cash-craving and important institution. Canadians deserve better and even though not everyone in the chain of command agrees, so too does the Canadian Forces.

Then there is the delicate matter of honouring broken promises. One of the key things that prompted us to agree to an enfeebled mandate during the last round of negotiations was the promise that the mandate we did have, as imperfect as it was, would be entrenched in legislation. That promise was made to fulfill the undertaking given to me in 1999 that the Office would be included in regulations after the initial six-month review. Because the mandate was not settled after six months, that deadline was not met and hence we waited while negotiations dragged on for many months. At the end of that process when agreement was reached the matter was left with the legal advisor we had negotiated with to consult department drafters. The only remaining issues appeared to be technical. Shortly after, a change in the head departmental legal advisors, and an abrupt change of minister, derailed the process. When we continued to push for a mandate in law, we were told the matter would be revisited during the Five Year Review provided for in Bill C-25, in 2003. We prepared the case. Then, when the Five Year Review got underway, we were excluded from the process.

The decision to exclude the Office of the Ombudsman DND/CF from the Five Year Review was based on a perplexingly narrow legal interpretation of the review provisions in s.96(2) of Bill C-25. While it is true that Bill C-25 does not mention the Office of the Ombudsman (for the obvious reason that the Office was created outside of the Bill after it was drafted), the purpose in providing for the Five Year Review was to examine the effectiveness of oversight within the military. There is no way to do that rationally or effectively without considering the role of the body that is responsible for the lion’s share of dispute settlement – the Office of the Ombudsman. There is no way to consider the effectiveness of the MPCC and the CF Grievance Board without looking at the role the Office of the Ombudsman plays in process review and in supporting dispute settlement. The exclusion of the Office from the review was an irrational, hyper-technical choice that confounded Chief Justice Lamer, but he was obliged to respect his mandate. The effect was that he had to attempt to craft solutions to the problems that beset the statutory organizations without considering the contribution the Office of the Ombudsman could play. Sadly, the narrow mandate for the Five Year Review harmed both its credibility and its utility. And all of this happened because of legal advice furnished to the Minister on behalf of persons who are opposed to civilian oversight. There is unflattering irony in this regrettable story. A comprehensive and credible evaluation of the state of military oversight did not happen during the Five Year Review because of the same kind of narrow, legalistic, technical “no can do” attitude that has created a legacy of problems within the Canadian Forces.

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Notwithstanding the trials and tribulations and the occasional disappointments, it has been a privilege to serve the last seven years as the DND/CF Ombudsman. Indeed, it was a distinct honour to have been the first such Ombudsman, and to have been involved in the development of the Office. It has been an even greater privilege to work with so many committed and talented colleagues whose efforts enabled me to sign my name to so many success stories. Of course, I am disappointed that I did not secure a statutory mandate during my tenure, but unless self-interested or insecure resistance can trump reason indefinitely, this will happen sooner or later. It should, of course, be done imminently so that the Office of the Ombudsman for DND/CF can fulfill its full potential, not in its own interests, but in the interests of the institution and its members.

It is the importance of the mission of the Office of the Ombudsman that has caused me to speak frankly here and in the past. I know it will upset many. I take no pleasure in it. My responsibility to do so is, however, a matter of trust. In the same way, it is the importance of that mission and the trust reposed that should motivate political and military leaders to support unequivocally the changes I now call for. The shape and authority of an ombudsman’s office should not be a question of negotiation or of trade-offs. It should be a matter of doing what is right.

As I say, new pages are turning as I leave this Office. It will be up to others to ensure that those pages turn forward and not back.

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