ARCHIVED - The Way Forward

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Appendix I – Recommendations

  1. The Ombudsman should have complete operational control and discretion in the exercise of the Office’s functions, duties, policies, procedures, expenses and responsibilities.
     
  2. When the Minister of National Defence issues a general policy directive to the Ombudsman, it shall be made public and tabled in Parliament.
     
  3. The DND/CF Ombudsman should be funded directly from Treasury Board.
     
  4. In the alternative, the budget for the Ombudsman’s Office should appear as a separate line from other departmental expenditures. Further, the Minister of National Defence should approve the Ombudsman’s budget based on an individual assessment of the needs of the Office conducted by an agency outside of the DND to be appointed by the Ombudsman.
     
  5. To ensure transparency, openness and accountability, the Ombudsman’s budget shall be reported publicly in the Annual Report.
     
  6. The Ombudsman’s Office should be resourced to fulfil its functions. The Ombudsman’s Office should be able to spend and account for its funds directly.
     
  7. The Ombudsman should have the sole authority to appoint employees to his Office, outside of federal public service restrictions.
     
  8. The Ombudsman should have the sole authority to set the terms and conditions of employment for all of the employees in his Office. Employees of the Ombudsman’s Office should be answerable solely to the Ombudsman.
     
  9. The Ombudsman should be provided with the specific authority to appoint employees to his Office, pursuant to an amendment to the regulations of the National Defence Act. In the alternative, that the Public Service Commission should be petitioned and the approval of the Governor in Council be sought, for an exemption under section 41 of the Public Service Employment Act for all positions established by and all appointments made by the Ombudsman. The exemption should be from all provisions of the Act, which would interfere with the Ombudsman’s unfettered ability to select employees for his or her Office.
     
  10. The Ombudsman should have complete authority to determine the composition of his staff, including any current or former DND/CF representation on staff and the employment of military and civilian personnel as advisors.
     
  11. The Ombudsman should, within one year of beginning his operations, establish a DND/CF advisory committee. The advisory committee will meet on a regular basis to provide the Ombudsman with advice on how to deal with issues within the context of the DND/CF. The representation of this committee should be determined by the Ombudsman, having regard to the need to ensure broad based representation within the constituency.
     
  12. The Ombudsman should be free to contract for the professional services of persons having technical or specialized knowledge of any matters, required to advise and assist him or her in carrying out his or her duties. Such persons will be remunerated as contracted by the Ombudsman, subject to the budgetary constraints of his or her Office, with provision to seek approval for special funding for such contracts, directly from the Minister.
     
  13. The Ombudsman should be free to appoint an Independent Legal Advisor, to provide legal advice to the Ombudsman on all matters of law pertaining to the Office.
     
  14. The Ombudsman’s Legal Advisor should be from outside of the DND/CF and the federal public service and independent of the combined legal services organization, composed of the office of JAG and the DOJ/DLSU.
     
  15. The Ombudsman should have access to the legal staff of the JAG and DOJ/DLSU to provide information and expertise on specific matters.
     
  16. The Ombudsman should have the sole authority to delegate to a member of the Ombudsman’s Office any of the Ombudsman’s powers, duties or functions, except the power to delegate and the duty to submit an Annual Report.
     
  17. The Ombudsman’s decisions, recommendations and reports should be final and not subject to being challenged, reviewed, quashed or called into question by any authority or in any Court.
     
  18. The National Defence Act should be amended to specifically provide that the Ombudsman and persons acting under his direction are immune from criminal or civil proceedings for anything done, reported or said in good faith while carrying out their duties and that for the purposes of any law relating to libel or slander, anything said or any information supplied or any document produced in good faith in the course of an investigation by the Ombudsman or his staff or any report made in good faith by the Ombudsman and any fair and accurate account of the report, made in good faith in a newspaper or any other publication or in a broadcast, is privileged.
     
  19. In the alternative, a regulation should be passed pursuant to the National Defence Act to specifically provide that the Ombudsman and persons acting under his direction are immune from criminal or civil proceedings for anything done, reported or said in good faith while carrying out their duties and that for the purposes of any law relating to libel or slander, anything said or any information supplied or any document produced in good faith in the course of an investigation by the Ombudsman or his staff or any report made in good faith by the Ombudsman and any fair and accurate account of the report, made in good faith in a newspaper or any other publication or in a broadcast, is privileged.
     
  20. DND should fund outside counsel to represent any member of the Ombudsman’s Office, named in a civil proceeding. In the absence of immunity, the DND will also be financially responsible for indemnifying all members of the Ombudsman’s Office for civil liabilities incurred while acting in good faith, in the carrying out of their duties.
  21. The Ombudsman and members of his staff should swear an oath of secrecy and confidentiality.
     
  22. Correspondence from any person who resides on any CF base, wing or formation, who is deployed by the CF or who is in detention, incarceration or hospitalized must be forwarded immediately to the Ombudsman, unopened and unread. The same treatment must be accorded any correspondence flowing from the Ombudsman’s Office to such persons. All communications, including e-mail, telephone and cellular phone communications, between such persons and the Ombudsman or any member of his staff must be treated as confidential and not subject to interception.
     
  23. Communications between the Ombudsman and any person should not be covered or counted under any restrictions on that person’s right to send letters or other documents or to receive or make telephone calls.
     
  24. Severe sanctions should follow against anyone who opens correspondence or takes any other action to intrude on the confidentiality of communications between another person and the Ombudsman.
     
  25. Strict procedures should be put in place in the Ombudsman’s Office to ensure confidential handling of all complaints including all documentation provided to the Ombudsman’s Office in the course of dealing with a complaint.
     
  26. Mechanisms should also be created to ensure that all records of internal and external communications to or by the Ombudsman or his staff are not accessible to anyone outside of the Office including the DND. This should include all records of internal and external phone calls, e-mails and cellular phone communications.
     
  27. In addition to having access to the DND/CF computer systems, the Ombudsman’s Office should have a separate computer system by which complainants can access the Office. This system should not be subject to monitoring and its files must not be accessible by any outside source including the DND/CF.
     
  28. All investigations conducted by the Ombudsman’s Office should be conducted in private.
     
  29. The Ombudsman and members of his staff should be bound not to disclose any matter coming to the Ombudsman’s attention except in so far as is necessary for the purpose of an investigation or to substantiate findings or recommendations of the Ombudsman in a particular case.
     
  30. The Ombudsman should be free to establish clear policies for the confidential storage and retention of case files and all records in possession of the Office, including telephone records. The Ombudsman should also be free to establish clear guidelines for the destruction of closed files, after specific periods of time have elapsed.
     
  31. Until such time as the Ombudsman’s Office obtains an exemption from the Access to Information and Privacy Acts, the Ombudsman may establish a Coordinator for Access to Information and Privacy Act requests separate from the DND/CF Access to Information Coordinator.
     
  32. The necessary legislative steps required to bring my Office within the exemption accorded by section 24 of the Access to Information Act should be taken. In the alternative, the necessary legislative or regulatory steps should be taken to bring my Office within the exemption provided by section 16(1)(c) of the Act.
     
  33. All necessary legislative or regulatory steps be taken to bring my Office within available exemptions to the disclosure of information under the Privacy Act.
     
  34. The National Defence Act should be amended to declare that the Ombudsman and any member of his staff are exempt from being compelled to testify or to produce documents in any judicial or quasi-judicial or administrative proceeding, except where required for the prosecution of anyone for interfering with an Ombudsman’s investigation, for providing false or misleading information to the Ombudsman or for enacting a reprisal on anyone who makes a complaint to the Ombudsman or for perjury.
     
  35. In the alternative, a regulation should be passed pursuant to the National Defence Act to declare that the Ombudsman and any member of his staff are exempt from being compelled to testify or to produce documents in any judicial or quasi-judicial or administrative proceeding, except where required for the prosecution of anyone for interfering with an Ombudsman’s investigation, for providing false or misleading information to the Ombudsman or for enacting a reprisal on anyone who makes a complaint to the Ombudsman or for perjury.
     
  36. All Regular Force members, Reserve Force members, former service members, civilian employees, their parents, spouse or next of kin may bring a complaint or issue to the direct attention of the Ombudsman’s Office, without charge.
     
  37. The Ombudsman has jurisdiction to issue recommendations concerning individual and systemic issues and injustices.
     
  38. The Minister of National Defence should consider consulting the Minister of Veterans Affairs and issue a directive to the Ombudsman with respect to the Ombudsman’s jurisdiction over matters that fall within the mandate of the Department of Veterans Affairs.
     
  39. The Minister of National Defence should issue a directive to the Ombudsman in respect of the Ombudsman’s jurisdiction over NPF employees, cadets, DND/CF contractors or any other group or agency.
     
  40. The Ombudsman’s Office should be resourced to set-up three regional offices in addition to the office in Ottawa, one in Western Canada, one in Atlantic Canada, and an office in Europe, to act as a front line resource for issues and complaints originating from those areas. These offices will not be located on DND property. The Ombudsman will review the requirement for regional offices on a regular basis, and make further recommendations as he or she sees fit.
     
  41. The Ombudsman should be a direct source of information, referral and education to assist individuals to access existing channels of assistance and redress within the DND/CF.
     
  42. The Ombudsman will determine whether the complainant has sufficient personal interest in any matter complained about to the Ombudsman, or if not, whether other special circumstances exist, to warrant invoking the mandate.
     
  43. The Ombudsman, at his or her discretion, will not, absent special circumstances, formally invoke his or her mandate if an adequate remedy or right of appeal already exists whether or not the complainant has availed himself or herself of the remedy or right of appeal.
     
  44. The Ombudsman will consider whether it is in the public interest to invoke his or her mandate in respect of any complaint made to him or her.
     
  45. The Ombudsman will not investigate any complaint that is deemed by him or her to be frivolous, vexatious or trivial.
     
  46. The Ombudsman shall investigate any matter when requested to do so by the Minister of National Defence.
     
  47. The Ombudsman may invoke his or her mandate in any circumstances where he or she deems it appropriate.
     
  48. The Ombudsman may investigate any matter in any manner he or she deems fit.
     
  49. All members of the DND/CF shall co-operate fully with the Ombudsman, who may compel any person to give any information relating to the matter being investigated by the Ombudsman, and to furnish him or her forthwith with any such information, in any form requested, including under oath, if the Ombudsman so determines; and to produce forthwith any documents, objects or things which in the Ombudsman’s opinion relate to any such matter and which may be in the possession or under the control of that person.
     
  50. Any member who fails to cooperate fully with the Ombudsman’s Office, or who fails to abide by the provisions of any regulation created in respect of the Office, shall be subject to severe sanction.
     
  51. The Ombudsman’s Office will respect the principles of natural justice and procedural fairness.
     
  52. Absent special circumstances, the Ombudsman will notify all involved parties of his or her intention to investigate any matter that falls within his or her mandate, and give them the opportunity to respond.
     
  53. Subject to full co-operation from all parties, the Ombudsman shall aim to complete investigations within 60 days of invoking his or her mandate.
     
  54. The Ombudsman’s Office has immediate and direct access to all personnel records held by the DND/CF.
     
  55. Absent special circumstances, the Ombudsman will keep all involved parties informed of the progress and disposition of a case.
     
  56. No member of the DND/CF shall make any public comment on any matter upon which the Ombudsman has invoked his or her mandate, without the Ombudsman’s written consent, until the conclusion of the investigation.
     
  57. The Ombudsman’s Office should be empowered to investigate in any circumstances where there is an alleged act of retribution or reprisal against anyone who makes a complaint or against anyone who assists in making a complaint to the Ombudsman’s Office or against anyone who cooperates with the Ombudsman’s Office in the investigation or resolution of any complaint.
     
  58. Where, in the opinion of the Ombudsman, there are reasonable grounds to believe that a civilian member of the DND is responsible for acts of reprisal or retribution, a report should be made to the person’s department head and/or their supervisor, recommending appropriate disciplinary and administrative sanctions.
     
  59. The regulations of the National Defence Act should be amended to make it a specific offence for any member of the CF to engage in an act of retribution or reprisal against anyone who makes a complaint or anyone who assists in making a complaint to the Ombudsman’s Office or against anyone who cooperates with the Ombudsman’s Office in the investigation or resolution of any complaint.
     
  60. Where, in the opinion of the Ombudsman, there are reasonable grounds to believe that a member of the CF is responsible for acts of reprisal or retribution, a report should be made where appropriate, to the Provost Marshal recommending the laying of a charge under the National Defence Act.
     
  61. In circumstances where a department head or supervisor (in the case of civilian DND members) or the Provost Marshal (in the case of Canadian Forces Members), declines to take the action recommended by the Ombudsman in response to a finding of an act of retribution or reprisal, they should provide written reasons for their decision, to the Ombudsman.
     
  62. Any person who willfully makes any false statements to or misleads or attempts to mislead the Ombudsman or any other person in the exercise or performance of his or her functions and duties shall be subject to severe sanction.
     
  63. The investigation and reporting procedures in such cases should be identical to those outlined above under the heading “Protection from Reprisal”.
     
  64. Any person who without lawful justification or excuse willfully obstructs, hinders or resists the Ombudsman or any other person in the exercise or performance of his or her functions or duties, shall be subject to severe sanction.
     
  65. The investigation and reporting procedures in such cases should be identical to those outlined above under the heading “Protection from Reprisal”.
     
  66. The Ombudsman should report annually to Minister of National Defence, and may also, at his discretion, report at other times as he deems fit. All such reports should be public documents.
     
  67. The Ombudsman may review the implementation of any recommendations made by him or her and may report publicly to the Minister on the progress made in implementing those recommendations.

 

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