ARCHIVED - The Way Forward

This page has been archived on the Web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.

A Blueprint for an Effective and Credible DNC/CF Ombudsman

There are several common denominators to all effective Organizational Ombudsmen, whether from the civilian or military fields. They are as follows:
 

  • Independence and Impartiality;
     
  • Confidentiality;
     
  • A credible review and investigative process.
     

The first two are dealt with in this chapter. The third point is the topic of the next chapter.
 

Independence and Impartiality

Principle

Independence is the hallmark of the Ombudsman institution – it is the foundation upon which this Office must be built. Since my appointment, and throughout the consultation process I was constantly reminded of the importance of actual and perceived independence. The message was overwhelming. For this office to achieve the high level of credibility required to meet the needs of its constituency, it must first and foremost be an independent and impartial agency.134 I was constantly reminded during the consultation process that a high degree of independence is required to set-up a credible arms-length agency which will be able to conduct business free from actual and perceived interference:
 

  • If not independent better stop now. (Telephone interview with Lieutenant-Kolonel Plugge from the Office of the Inspector General of The Netherlands, November 6, 1998)
     
  • Independence is crucial. (Brigadier-General (ret’d) Uzi Levtzur, Israeli Defence Force Soldiers’ Complaints Commissioner, November 9, 1998)
     
  • Independence is a feature of a quasi-judicial organization and is crucial for the Ombudsman’s Office. (Meeting with Professor Ed Ratushny, Ottawa University Law Faculty, October 19, 1998)
     
  • Il y a des choses sur lesquelles tu ne pourras pas faire de compromis : ton indépendance et la perception de ton indépendance. (Meeting with the Honourable Mr Justice Gilles Létourneau, September 30, 1998)
     
  • There is a need for someone with credibility, independence and a voice as to what is happening – an unbiased view. (General Comments, Velika Kladusa, Bosnia, November 11, 1998)
     
  • There is a need for an Ombudsman if he is independent and has no bias. (Meeting 1 AMS Technicians, 4 Wing Cold Lake, September 15, 1998)
     
  • L'ombudsman indépendant pourrait s'occuper efficacement et équitablement des droits, intérêts, problèmes et plaintes des membres des Forces canadiennes. (Ombudsman pour les Forces Canadiennes: Un besoin urgent, le 2 mai, 1997)
     
  • You must be totally independent and neutral. (Meeting with Ms. Isabelle Massip, Department of Foreign Affairs and International Trade Ombudsman, August 18, 1998)
     
  • If you lose the independent flavour of the Ombudsman, you will lose credibility as a separate entity. (Meeting with DCDS, Ottawa, August 12, 1998)
     
  • Not only need to be independent, need to have the people believe you are independent. Sailors will believe what they believe. Beware of not looking like another part of the system. (Meeting with Senior Officers and Senior Union Staff, CFB Halifax, October 26, 1998)
     
  • Ombudsman has to be completely independent. (Meeting with Senior Officer, CFB Gagetown, October 29, 1998)
     
  • Have to be seen as having independence and neutrality. (Meeting with an ADM, Ottawa, August 18, 1998)
     
  • Confidentiality and independence are crucial for your office to be effective and credible. (Luncheon – NATO, Brussels, November 4, 1998)
     
  • Need independence, need to be outside military structure. (Meeting with Senior Civilian at NDHQ, September 22, 1998)
     
  • Independence is the most critical determinate of an Ombudsman’s effectiveness. (Mr. Kent D. Anderson, Occasional Paper #41, International Ombudsman Institute)
     
  • The real measure of his success won’t be in the number of complaints brought to his attention, but in the level of independence he’ll be given. (Editorial, Ottawa Sun, June 11 1998 at page 13)
     

The need for independence and impartiality was also discussed in-depth in the Report of the Committee on the Concept of the Ombudsman.135 The Committee136 had a mandate to evaluate the need for a Federal Ombudsman.137 It recommended the creation of the Office, noting that: “[b]y definition, an effective Ombudsman must possess a high degree of independence”.138
 

Independence is needed to ensure actual and perceived impartiality and to establish an arms-length relationship between the Ombudsman’s Office and that of the Minister’s. This will serve to safeguard against suggestions that the Minister could interfere in the Ombudsman’s decision-making ability. This perception of independence and protection from interference by government is crucial and requires strong safeguards to foster confidence in the Ombudsman’s neutrality. The importance of these principles was recognized by the Auditor General in his recent report on the Canadian Human Rights Commission (CHRC) and the Canadian Human Rights Tribunal (CHRT). The Auditor General’s report noted that:
 

In certain instances the perception of the independence of the Commission and the Tribunal from the government is strained. These instances involve major cases where government, as the employer, is the respondent before the Tribunal and where additional major funding is required for lengthy hearings. In such instances, the Treasury Board is both the approver of requests for such funds and the respondent to the case being heard.139
 

Although the report did not find any evidence that the government was using funding controls to interfere with the Commission or the Tribunal’s functions, it did note that there was an absence of legislative safeguards to ensure the CHRC and the CHRT’s organizational independence.140
 

An Ombudsman who is perceived as being independent and impartial will be able to maximize accessibility for all members and offer an additional and distinct mechanism of voice. Potential complainants will be able to reach their Ombudsman assured that their complaints will be considered on their merit – free from interference or influence of any kind.
 

Table of Contents

 

Implementation

Relationship Between the Ombudsman and the MND

The Ombudsman must be free to exercise complete operational control.141
 

  • You need to be on an island. You need to do everything you can to retain control of your administrative decisions. This serves as protection for you and for the Minister who can isolate himself from the perception of interference in the running of your office. (Meeting with Mr. Dan Dupuis, Director General Investigations and Reviews, Office of the Information Commissioner of Canada, December 10, 1998.)
     
  • Cannot have any interior people, such as the Minister, the CDS, the DM or anybody else looking over your investigations and your operations. (Meeting with Lieutenant-Kolonel Günter Schoof, Embassy of the Federal Republic of Germany, Ottawa, December 7, 1998)
     
  • Should not compromise administrative independence to DND. (Meeting with an ADM, Ottawa, August 12, 1998)
     

To achieve this goal, the Ombudsman must be given complete autonomy regarding the conduct of daily operations. If one were to make an analogy with the private sector, the Minister, as the person to whom the Ombudsman reports, could be seen as Chair of the Board who gives the general policy direction of the office. The Ombudsman would be acting as the chief executive officer, having supervision over, and direction of, the daily operations of the Office and of its staff.
 

This means the Minister may set the general policy directives for the Office. Once the directive has been issued, the day-to-day running of the operations of the Office shall be the sole responsibility of the Ombudsman. It is the Ombudsman who has the discretion and authority to make all other decisions. These would include invoking the mandate,142 prioritizing cases, determining whether and how investigations will be done, hiring of staff, how the budget shall be allocated and when to issue public reports.
 

I therefore recommend that:
 

The Ombudsman should have complete operational control and discretion in the exercise of the Office’s functions, duties, policies, procedures, expenses and responsibilities.
 

Another important aspect of operational independence is the reporting relationship between myself as the DND/CF Ombudsman and yourself, as the Minister. Given that my mandate is not defined by legislation, it is imperative that the DND/CF members and members of the public be made aware of any general policy directives that are issued by yourself to my Office. The best vehicle for assuring this public awareness is to table any such directives in the House of Commons. Transparency and accountability require that the DND/CF members and members of the public be informed specifically of when directives are issued to my Office and their content. This openness will take away the basis for any suggestion that there may be or has been any undue influence or interference in the functions of my Office and will serve as an important safeguard to the overall independence of my Office.143
 

I therefore recommend:
 

When the Minister of National Defence issues a general policy directive to the Ombudsman, it shall be made public and tabled in Parliament.
 

Funding

Since my Office will be receiving actual complaints from the DND/CF members, I will be in the best position to assess their needs and accordingly how and where the resources of this Office should be allocated. This financial and operational independence is needed to guarantee an effective and credible office that will be able to be an agent of change for the DND/CF members.
 

During our consultations we encountered many questions about to the funding of our Office. Some individuals were sceptical of the office having independence if I, as Ombudsman, reported to the Minister and were funded from the DND budget:
 

  • We have spent more money of things much less important. I think it’s a good thing to spend money on setting up the Ombudsman’s office and it must be given the resources to work. (Meeting with 1 AMS Group, 4 Wing Cold Lake, September 15, 1998)
     
  • You need independent funding from the department in order to maintain the independence of the office. (Meeting with 2PPCL1 Officers, Winnipeg, September 17, 1998)
     
  • They will not give you the budget you need. (Meeting with Me Simon Noël, Q.C., Hull, September 22, 1998)
     
  • You can be controlled by being granted inefficient resources, as we are given, and it will create a perception problem, and in this game perception is everything. (General Comments, Velika Kladusa, Bosnia, November 11, 1998)
     
  • Will the people who control your budget control you guys? Will they dictate your response as well? (Meeting with Technical Staff, CFS Leitrim, November 25, 1998)
  • Is your budget coming out of our next pay raise? (Meeting with Personnel from 402 Squadron, Winnipeg, September 16, 1998)
     
  • Make sure you have enough money to operate. (Meeting with Mr. Ron Stewart, Correctional Investigator, Correctional Investigator Canada, Ottawa, December 16, 1998)
     
  • If don’t go all the way – don’t go at all. (Meeting with Senior NCMs, Edmonton, September 1, 1999)
     
  • Is this just another smoke and mirror, throwing out money with no consideration for the soldiers? (Luncheon with Officers, Edmonton, September 1, 1998)
     
  • Votre budget vient-il de notre budget? Je ne voudrais pas que vous puisiez des fonds de mon commandant. Si vous venez de ma paie ou de mon augmentation salariale, je ne suis pas certain que j’ai besoin d’un Ombudsman. (Rencontre avec les Employés Civils de la 3ème Escadre, Bagotville, le 29 octobre, 1998)
     
  • The Minister should fund you the same way he funds us - in an inefficient way which will have you doing less with less. (Meeting with members at Golan Heights, Israel, November 7, 1998)
     
  • A properly funded and operated office will be dollars well spent and increase combat capability. (Meeting with 1 CAD Personnel, Winnipeg, September 16, 1998)
     
  • If don’t have the resources, pack up your stuff and go home. (Meeting with Senior NCMs and Civilian Personnel, 8 Wing Trenton, September 8, 1998)
     
  • Who pays your salaries? The fact that DND is paying, don’t you think the Minister will be able to lean on you? You should be paid from an independent source. (Standing Luncheon with Canadian Forces School of Administration and Logistics Personnel, CFB Borden, September 28, 1998)
     

It is apparent that safeguards have to be put in place. Such safeguards would, in turn, ensure financial and operational independence and achieve a more correct perception that the funding of my Office is not a source of control or influence from the government. A perception to the contrary would undoubtedly hinder the credibility of my Office.
 

Other arms-length agencies that require independence and the perception of independence have addressed this concern by receiving their funds directly from Treasury Board. These agencies include the RCMP External Review Committee, the Office of the Information Commissioner of Canada and the Office of the Commissioner of Official Languages.
 

The Correctional Investigator reports to, and is funded by, the Ministry of Solicitor General Canada. It was reported that some offenders “were critical of the fact that the Correctional Investigator is paid by the same system that they were grieving” and felt the Correctional Investigator should be paid by an outside source.144
 

I have recently been advised that any funding request is to be sent directly to the Minister of National Defence’s Office for approval. While on a temporary basis I find this arrangement to be fully satisfactory, to ensure independence and to address the concerns that the Ombudsman’s Office may be influenced by an outside source once we are operational, the budget for my Office should be allocated directly from Treasury Board. I note, in passing, that every request for funds since my appointment was favourably received and we did not encounter any difficulty whatsoever in obtaining same.
 

In the alternative, the Ombudsman’s budget should figure on a separate line from departmental expenditures and the amount of the budget should be determined and assessed by an independent agency outside of the DND. This outside independent assessment agency should be chosen by the Ombudsman in a public, transparent and accountable fashion to preserve the independence and impartiality of the office.
 

In order to enhance transparency and accountability, the budget for my Office will also be included as part of my Annual Report.145 This will ensure that the members of the DND/CF and the public are kept informed of my Office’s expenditures and are able to verify the efficiency and effectiveness of my Office. The importance of keeping the public informed of the cost effectiveness and performance of an organization such as my Office, was highlighted by the Auditor General in his recent report on the CHRC and the CHRT:
 

While bodies such as the Commission and Tribunal need to be independent of government, appropriate accountability procedures for the expenditure of public funds are necessary. Parliament needs information that provides assurance that the members of such bodies are working diligently within their mandate, and that the agencies are operating effectively and efficiently.146
 

I therefore recommend that:
 

The DND/CF Ombudsman should be funded directly from Treasury Board.
 

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.
 

To ensure transparency, openness and accountability, the Ombudsman’s budget shall be reported publicly in the Annual Report.
 

In order for my Office to be an effective and credible instrument of change, it must also be funded in such a way that it does not control or limit the operational challenges that lie ahead. The Office must be funded for it to accomplish its objectives and meet the needs of the DND/CF members otherwise “[c]onstraints can amount to an erosion of the Ombudsman’s independence”.147
 

Therefore I recommend that:
 

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.
 

Staffing

Ombusman as Sole Authority Employer
Principle

Regardless of the strength and efficiency of any Ombudsman, he or she will be unable to run an effective Office by him or herself. I will be required, in many cases, to delegate my powers and to rely on my staff to ensure a smooth day-to-day running of my Office.148 My staff will be responsible for direct dealings with members of the DND/CF who bring their complaints to my Office, as well as for the investigation of complaints. In many cases they will also work to help facilitate the resolution of complaints. Ombudsman staff often perform work that is sensitive, delicate or confidential.149 My staff will also be responsible for carrying out and adhering to the Office policies and procedures, which assure the important qualities of independence, neutrality and confidentiality. In short, the Ombudsman’s staff serves as the backbone of the Office.
 

Because of the great degree of reliance that an Ombudsman must place on his or her staff, it is important that the staff share the same high degree of integrity, neutrality and independence, as the Ombudsman. It flows from this that I must be given the freedom to select the best qualified persons for the positions in my Office. I must also be free to select staff members in whom I can place my trust and whose loyalty I can be assured of:
 

The delicate and sensitive nature of the Ombudsman’s work requires a high degree of trust and confidence in staff because much is delegated to them, so the Ombudsman should be free of civil restraints in hiring and firing.150
 

The selection of staff is an integral part of the perceived independence of the Ombudsman’s Office. “When the office is set up it must reflect the independence of the Ombudsman.”151 I was appointed as the Ombudsman by yourself, as the Minister of National Defence, from outside of the DND and the chain of command and outside of the restrictions of the Federal Public Service Commission. This was done in order to ensure my neutrality and independence and that I was truly at arms-length from both the DND/CF and the federal government as a whole. To maintain this arms-length relationship between my Office, and the DND/CF and the federal government, my Office must be treated as a separate office and employer. My Office’s employees must be selected by myself, as the Ombudsman and according to the terms and conditions of employment, which I have set for my Office. These employees must be answerable solely to myself as the Ombudsman and not to any other government department or anyone within the DND/CF.
 

The selection of my staff must also be done outside of any DND/CF or federal government public service restrictions. My staff must appear independent and possess objectivity. They must be loyal to my Office and not to any other cause or authority. In order to ensure the independence and loyalty of my employees, I must, as the Ombudsman, retain the sole power to appoint staff and to set the terms and conditions of employment.
 

My staff’s duties will not be limited to the day-to-day operations of my Office. My employees will also serve to advise and counsel me on specific issues. I must be able to rely on their judgment and experience. This requires the freedom to select those persons whom I feel possess the unique qualities and characteristics that can best meet the needs of my Office. I must retain the sole power to appoint and remove staff to ensure that I can have full confidence in my employees and in return I will have absolute loyalty from them.152
 

The relationship between independence and control over resources and staffing, was also recognized by the committee, studying the concept of a Federal Ombudsman for Canada:
 

In another sense, independence is also dependent on appropriate arrangements, relating to such questions as salary and pension rights, the term of appointment and the method of removal and the degree to which an Ombudsman is given power to control the human and financial resources allocated to his office. The Committee has concluded that such arrangements should be made.153
 

The Committee also concluded that the need for adequate staff was directly related to the Ombudsman’s ability to maintain a credible Office:
 

The appropriate initial approach, we believe, is to strike a balance. Failure to provide a staff adequate for the prompt acknowledgement and referral of all complaints received and for the investigation of those requiring that type of treatment, would place the credibility of the office at risk, both with the public and the bureaucracy.154
 

The American Bar Association Ombudsman Committee recommendations for the establishment of Ombudsmen offices by state and local governments, sets out 12 essential features for an Ombudsman’s office. One of these features is: “(6) freedom of the Ombudsman to employ his own assistants and to delegate to them without restrictions of civil service and classification acts”.155
 

The importance of the relationship between my independence and my ability to control the terms of employment of those who work for my Office, became readily apparent, during my initial attempts to staff my Office and also during the writing of this report.
 

As indicated earlier, as the Ombudsman, I have been appointed to a renewable three-year term, subject only to “good behaviour”. During the initial consultation and set up phase, it was necessary for me to hire staff to perform administrative duties and staff to perform research and advisory duties and to assist in the writing of the Action Plan. This staff was set up on a temporary basis, with a permanent staff to be hired once the mandate of the Office was formally established. A director of communications, a senior policy advisor and three lawyers were hired as researchers/policy advisors to assist in the consultation process and the drafting of the Plan. Administrative staff was also provided in the form of two civilian and two military personnel on secondment from the CF and a temporary receptionist, provided through a private agency. The involvement of the military personnel in the setting- up of the Office and the consultation process was strictly on an administrative and support basis, given the potential for conflict that might arise due to their continued employment with the DND. My administrative and support staff were not directly involved in drafting my Action Plan or my recommendations.
 

In order to provide for a temporary staff for my Office, resort had to be made to a hodgepodge of programmes and temporary contracts to procure positions for my staff. Two staff members (my senior policy advisor and an experienced counsel) were brought into my Office through the Interchange Canada Programme on terms of twelve and six months respectively. Interchange Canada is a developmental programme that promotes and facilitates the exchange of employees through assignments, between the public service and organizations in other sectors located in Canada. Although this is a relatively fast method of staffing, it allows positions to be staffed on a temporary basis only and requires the written agreement of both the host and sponsoring organizations.
 

Another key staff member, my director of communications, was originally brought in as a specified term-employee through a position with the VCDS organization, pursuant to the exceptional provisions of the Public Service Employment Act.
 

My two remaining policy advisors had to be brought in as casual contracts for a maximum of three months less a day. These contracts were extended to the maximum time allowed and they are set to expire on February 8, 1999. An attempt is currently being made to bring these employees back on longer term positions. Work descriptions have been prepared and permission was sought from the Public Service Commission to allow us to directly name these two policy advisors for appointment to the longer term positions. This permission, however, was declined. We will be forced to post the positions and proceed through the public competition process, which includes advertising on the Internet and relying on the Public Service Commission to screen applicants and provide us with a list of candidates, who will be available to us to select from. This could potentially be a lengthy and time-consuming process. There is also the concern that my two current employees, despite being completely qualified for the positions, may not meet the technical requirements of the Commission or there may be other candidates who are given priority status by the Commission. Consequently, I could be deprived of the opportunity of hiring these valued and experienced employees, who have already demonstrated their skill, loyalty and commitment to my Office.
 

An additional concern for the hiring of my operational staff is one of time constraints. We have committed to the members of the DND/CF and the Canadian public to officially open the doors of my Office for regular business, as soon as my mandate is sanctioned. This commitment creates an additional pressure. Other than the attempts to retain my current temporary staff, no staffing action will take place until we are given the green light to proceed. If hiring is done pursuant to the Public Service Commission, positions will then have to be classified, work descriptions will need to be prepared, position numbers established and priority lists reviewed. Competitions through the Public Service Commission will take at a minimum several months to run. I have been advised that we may be required to look within the DND first and then inside the public service for qualified candidates.
 

I cannot emphasize too much the adverse impact on perceptions of my independence if I am forced to staff my Office solely from within the DND and/or the federal public service. Members of the DND/CF are looking to my Office to act as a third party outside of DND and government, to whom they can bring their problems. This perception of my Office will be shattered if the staff who will be dealing with these problems and working with me are limited to federal public servants, including DND employees.
 

During the drafting of this report, when the issue of my operational staff was raised within the DND, a directive emanated from within NDHQ that all of my Office’s staff were to be hired on terms only and there were to be no permanent positions for my Office. This directive was issued without consultation with myself and prior to my report and recommendations even being completed.
 

The impact of this directive is to place distinct limitations on the type of staff who will be available for appointment to my Office. By restricting positions in my Office to contract terms only, ironically, many qualified persons from both the public service and the private sector will be eliminated as potential candidates. There will undoubtedly be persons who have a wealth of knowledge and experience, who will likely be unwilling to leave existing permanent positions for contract terms. Due to this direction, my ability to attract and maintain qualified personnel is greatly compromised. It is also unlikely that many persons, especially those in the private sector, could obtain permission to leave their present positions for three-year secondment terms. At least one very experienced potential candidate has expressed that they will not be prepared to leave their permanent position for a contract term.
 

There is also the concern that persons on secondment from the DND/CF or other federal government positions, may not appear or in fact may not be, completely independent and loyal solely to the Ombudsman’s Office. Such persons clearly will be cognizant of how their performance within this Office will effect their positions when they return to their permanent government departments or CF posting. “As a member, there could be retribution when that person returns to the Canadian Forces and that member has dealt with thorny issues and contentions.”156 Obvious concerns about the potential for conflict of interest also exist. “This person could potentially be going back to the unit being investigated”.157 Putting serving members on a secondment or posting to the Office was also seen as a risk to confidentiality. “Putting serving members in your office on secondment is a problem because they can go back to the unit and can call people they know in the organization”.158
 

This restriction on the hiring of staff directly prevents any long term continuity and consistency from being established within the Ombudsman’s Office. Although I was appointed as Ombudsman for a renewable three-year term, clearly, it is anticipated that the Office itself, as an institution, will survive my current term. By tying all staffs’ tenure to my current term, their knowledge and experience, which may eventually be required to assist in handing over the Office to a new Ombudsman, will be eliminated.
 

The importance of maintaining experienced investigators and avoiding high staff turnover was also emphasized by the Auditor General’s report on the CHRC, which highlighted concerns by stakeholders about the thoroughness of the investigations done by the Commission.159 The Report noted that due to downsizing of regional offices and centralizing investigations, there had been a high turnover of investigative staff within the CHRC:
 

Because staff from the regions did not accept transfers to the National Capital Region, the Commission had to hire 14 new investigators. Since 1995, 15 investigators have left the unit that handles most complaints, six within a year of being hired. As a result, a series of investigators often work on the same case. The Commission told us it takes about a year for an investigator to become fully functional. Currently 14 of the 22 investigators in this unit have less than a year’s experience.160
 

Any staffing restrictions will also have a direct impact on the confidence which members of the DND/CF will have in my organization. Members of the DND/CF are looking for a permanent body, which can develop continuity and a foundation of experience and knowledge to effectively deal with their problems. Concerns have already been expressed during my consultations about the duration of my three-year term and the potential that my Office may exist as a temporary, short-term mechanism only:
 

  • How long have you been hired for? Is this a permanent thing or a quick fix? (Comments, Velika Kladusa, Bosnia, November 11, 1998)
     
  • We are more wondering how long the office will be set up for? (Comments, Velika Kladusa, Bosnia, November 11, 1998)
     
  • You say that you are independent of the chain of command, are you politically independent. Can a new Minister throw you out? (Meeting at Camp Holopina, Coralici, Bosnia, November 12, 1998)
     
  • Heard the Ombudsman’s office is a temporary office. (Meeting with 411 Squadron, 4 Wing Cold Lake, September 15, 1998)
     
  • Ombudsman should be here to stay. Should be a permanent position. (Meeting with members at HMCS TORONTO, September 22, 1998)
     

As the difficulties which I have already experienced in regard to staffing my Office demonstrate, outside restrictions and limits on the ability of an Ombudsman to select his staff and to set the terms and conditions of employment, are clearly unacceptable. They will directly interfere with the Ombudsman’s degree of control over the staffing and the ultimate functioning of his office, including his ability to select the best suited and best qualified candidates for the positions in his office.
 

I therefore recommend that:
 

The Ombudsman should have the sole authority to appoint employees to his Office, outside of federal public service restrictions.
 

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.
 

Implementation

Pursuant to section 8 of the Public Service Employment Act, except as provided in the Act, the Public Service Commission has the exclusive right and authority to make appointments to or within the public service. This appointment extends to persons for whose appointment there is no other authority in or under any other Act of Parliament. The Act also provides in section 11 that appointments shall be made from within the federal public service, except where, in the opinion of the Commission it is not in the best interests of the Public Service to do so.
 

Furthermore, the Commission retains the power to revoke or overrule any appointment where persons lack the necessary qualifications for the job or the appointment would be in contravention of the terms and conditions of the Act. The Commission may also direct that an appointment not be made.161
 

The effect of the Public Service Employment Act would be to place numerous restrictions and limitations on my ability to select the best persons for my own staff. It would also restrict my hiring of staff to federal public servants, unless the Commission gives me express permission to hire from the private sector. As I have already emphasized, outside restrictions and limitations on the staff I may hire, (especially restrictions which will limit my staff to federal public servants) will call into question my Office’s perceived independence and impartiality.
 

The Public Service Employment Act does recognize that there will be situations where the numerous technical restrictions of the Act should not apply. Mechanisms do exist within the Act to accord my Office the authority to hire it’s own employees, free from the Act’s restrictions. Specifically under section 8 of the Act, the Commission will not have the authority to appoint employees to my Office if I am given the authority to appoint my own employees “in or under any act of Parliament”.162 Additionally, under section 41 of the Act, the Commission may, with the approval of the Governor in Council, exclude “a position or person or class of positions or persons in whole or in part” from the operation of any of the provisions of the Act. This power may be exercised where the Commission decides that it is “not practicable or in the best interests of the Public Service” to apply the Act or any of its provisions.163
 

I therefore recommend that:
 

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.
 

Civilian vs. Military Staff

The importance of the selection of staff who work in the Ombudsman’s Office and the impact which this has on the perceptions of neutrality and independence became very clear when views were sought from members of the DND/CF about where my Office’s staff members should be hired from.
 

Many members of the DND/CF strongly vocalized the need for my Office to maintain its independence and be free from any military staff or personnel. Having military staff on board was seen by some as a direct threat to my Office’s neutrality, independence and confidentiality. Revealingly, since my appointment in June 1998, many DND/CF members, who have called my Office to file a complaint, have asked the staff member who had answered the phone as to his or her background, indicating that if the staff member or the person who would ultimately have carriage of the matter was either a military member or former member, that they did not wish to continue the conversation. Concern was also expressed during the consultation that the use of military personnel would “taint” the Office and result in many of the same problems experienced in the redress of grievance system. It was clearly felt in many cases that the current system lacked neutrality and confidentiality:
 

One of the problems with our grievance system was because they had to appear unbiased… but everyone suspected they weren’t. (Meeting with 1 CAD Personnel, Winnipeg, September 16, 1998)
 

What confidentiality will there be? I would not grieve against my CO or XO or even my ex-CO or ex-XO, because they all know one another and can access information. (Meeting on HMCS TORONTO, September 22, 1998)
 

Many persons consulted expressed cynicism and disbelief at the ability of a military staff to assure confidentiality and neutrality in dealing with their problems. Many expressed strong advice that in setting up the office we “keep it clean from military personnel”:
 

  • Sacrilege to have one member in uniform. Are you going to be seen as independent, if you have but one military person, where is the impartiality? (Meeting at 1 CMBG, Edmonton, September 1, 1998)
     
  • No military persons investigating so we have an independent party, neutral looking at our issues. (Visit and Tour I CER to View Sub-Unit and Region, Lunch with Brigade Officers, Land Forces West, Edmonton, September 1998)
     
  • Civilians can ask hard questions and not fear retribution. (Meeting with Personnel, Edmonton Family Resource Centre, Land Forces West, Edmonton, September 2, 1998)
     
  • Use civilians, at least they’ll do a better job than the guys who’ll use the system against you. (Meeting with Junior Ranks, MARLANT Forces, Halifax, October 26, 1998)
     
  • No military people whatsoever, they will talk. (General Conversation with Soldiers, Attendance at 2 Royal Canadian Regiment Training Exercise, Combat Training Centre, Gagetown, October 29, 1998)
     
  • By the time someone calls you, they have lost confidence in the system. They won’t want to talk to military personnel. (Meeting with 2PPCLI Junior Ranks, Winnipeg, September 17, 1998)
     
  • Your staff cannot be a serving military; it would defeat the purpose. (Meeting with HOTEF, 12 Wing Shearwater, October 27, 1998)
     
  • Better to have someone who knows nothing of military culture and learns. (Meeting with Junior NCMs, 8 Wing Trenton, September 8, 1998)
     
  • If you have military answering the phone it will look like it is going through the chain of command. (Working Lunch with Wing Commander and Wing Council, 8 Wing Trenton, September 8, 1998)
     
  • Guard not to be tainted with military person. (Meeting with Wing Council, 8 Wing Trenton, September 8, 1998)
     
  • There should be no military, should be totally separate from the military. (Meeting at Velika Kladusa, Bosnia, November 11, 1998)
     
  • If a member goes to the Ombudsman with a problem, tired of the “Good Old Boys System”, if he must deal with a senior rank or junior NCM, he will not feel safe. (Meeting at Velika Kladusa, Bosnia, November 11, 1998)
     
  • Be all civilian. (Tour of Bozanski and Petrovac, Bosnia, November 13, 1998)
     
  • If you put any Senior Officers on your staff, we will all be doomed. (Luncheon, Geilenkirchen, Germany, November 6, 1998)
     

On the other hand, it was clearly recognized by some that the Ombudsman's staff would require either their own military knowledge and experience, or they must have ready access to this. Military experience is required not only to understand technical terms and acronyms but also to understand military culture and place complaints about unfairness or injustice in this context:
 

  • Need to have someone who does intake, who understands the military acronyms because it is hard enough to call and go through your case without having to explain the context and culture and give an overview of the military. (Meeting with NCM Reserve MP, Edmonton, September 2, 1998)
     
  • Need someone to understand the Forces, we have our own terminology, culture, abbreviations, life-experiences – different approach is enhanced when you put the uniform on. (Meeting Area Support Unit – Edmonton Transportation Coy, September 2, 1998)
     
  • You’ll need to pick members who can look at policies not as black and white but as living types of documents. (Meeting with 1 CAD Personnel, Winnipeg, September 16, 1998)
     
  • People in Ottawa don’t necessarily know what we do. How can you understand if you’re not military? (Meeting at Officer’s Mess, LFWATC, Wainwright, September 3, 1998)
     
  • Civilians don’t have a clue about military culture. (Meeting with Technical Staff, CFS Leitrim, November 25, 1998)
     
  • As a civilian you cannot grasp what it is to be military. (Meeting with Junior Officers and Civilian Personnel, CFB Halifax, October 26, 1998)
     
  • I am leery that you won’t understand our problems as you and your people have never served in the military. (Comments, Velika Kladusa, Bosnia, November 11, 1998 )
     
  • No problem, as long as they are paid by your office. (Meeting with Wing Council, 8 Wing Trenton, September 8, 1998)
     
  • Need someone who knows precisely what it is we need to have to do our job properly. (Meeting with Wing Council, 8 Wing Trenton, September 8, 1998)
     
  • How will your office understand military life? How will you understand how we work? If you come sail with us, go out in the field, eat with us, then you might understand! (HMCS - TORONTO, Main Cafeteria and Wardroom, September, 22, 1998)
     
  • Serving members – certainly! (Meeting with Technical Staff, CFS Leitrim, November 25, 1998)
     

Some of those consulted recommended the use of retired military personnel as staff members. “If you have military on board they would need to be retired and outside the chain of command”.164 They suggested that the use of retired members would ensure that this component of the staff had “no axe to grind” and would have “no career ambitions which could be stifled”.165 There was considerable concern expressed however that retired members would lack a current knowledge and understanding of today’s conditions and culture in the military. Some members believed that retired members “don’t know what is going on today” and “they would be out of touch”166 with the issues. Many felt that the use of retired members would result in the Office being staffed by former higher-ups in the chain of command whose loyalty would not lie with the junior ranks. We were repeatedly warned to “stay away from the old boys network”:167
 

  • If you're gonna use retirees, don’t put in a bunch of Generals – don’t become a retirement home for Generals. (General Comments, Working Lunch, Officers Mess, Halifax, October 26, 1998)
     
  • There should be no military in your organization. If you use military retired Officers, you will be seen as another creation of an organization for retired Generals. (Meeting with Senior Officer, Land Forces West, Edmonton, September 1, 1998)
     
  • No retired people –all these guys look after each other. (Meeting with Junior Ranks, MARLANT, Halifax, October 26, 1998)
     
  • Prevent people from retiring to a nice jammy job in Ottawa. (Meeting with Junior Ranks, MARLANT, Halifax, October 26, 1998)
     
  • If you use retired Generals, it’s gonna be an old boys club. (Coffee and Meeting with Staff, Combat Training Centre, CFB Gagetown, October 29, 1998)
     
  • Not retired. If a guy gets out and is pissed off, can cause more harm than good. (Meeting with Technical Staff, CFS Leitrim, November 25, 1998)
     
  • Not retired Colonels. (Meeting with Commanding Officer, CFS Leitrim, November 25, 1998)
     
  • Careful in using ex-military would be building perception of parallel military system. (Meeting with Senior NCMs and Civilians, 8 Wing Trenton, September 8, 1998)
     
  • Ex-military have gone through, not sympathetic in their opinions. (Meeting with Junior NCM’s, 8 Wing Trenton, September 8, 1998)
     
  • Don’t become a dumping ground for retired Generals. They didn’t solve problems when they were in the system. (Meeting with Administrative Staff, CFS Leitrim, November 25, 1998)
     
  • It’s too easy for a Brigadier-General to resign and look for a job. He has management qualifications. He’s a Mr. but he’s still a General. (Meeting with Administrative Staff, CFS Leitrim, November 25, 1998)
     

A compromise solution which emerged during the consultation process and which serves the need to have military knowledge and experience, was to use military personnel in an arms-length advisory capacity. It was recommended by many that my Office should maintain a strictly civilian organization with input as honest brokers across the country from various ranks in the form of military advisors or an advisory board:
 

  • Need experience of people who understand military but don’t take the decision. Get perspective from people not emotionally involved. (Meeting with members, Bihac, Bosnia, November 12, 1998)
     
  • You are correct in saying that we need a civilian agency, but you need a military person who understands what it’s like to be out to sea for six months, and can advise you. (Meeting with Junior Officers and Civilian Personnel, CFB Halifax, October 26, 1998)
     
  • I think you need outside perception to look in, need technical advisor, will be perception of some kind to have someone there – need technical advisors but do not defeat the purpose of why an Ombudsman was put in place. (Meeting with Wing Council, 8 Wing Trenton, September 8, 1998)
     
  • Have military personnel on administrative level not decision level. (Meeting with Senior NCMs and Civilians, 8 Wing Trenton, September 8, 1998)
     
  • With regard to staff, a combination of military and civilian or civilian with military advisors would be good. Because the military is very different from that of a civilian employer. (Meeting with Operations Staff, CFS Leitrim, November 25, 1998)
     
  • Use military advisors but they must take off the uniform. (Meeting with Community Association Representatives, Combat Training Centre, Gagetown, October 29, 1998)
     

The general consensus was that such advisors must come from all ranks and should be selected by myself in a neutral fashion, rather than using persons who may be "hand-picked" because of the particular interests that they might represent. “Beware – if you have a panel of military advisors they will choose who they will send.”168 Such military advisors must also be persons who are capable of being independent and impartial in their tasks. Military advisors, it was felt, must also represent all three elements of the military – Army, Navy and Air Force, as they have different concerns and issues169 and they must also come from all different ranks. This representation in military advisors should also include representatives who can give advice on the experiences and issues facing reservists and DND civilian personnel and should include representation from unions. Representation should also be sought from the chaplaincy and Military Family Resource Centres:
 

  • Need somebody who takes care of the junior ranks, someone who takes care of the senior ranks and someone for officers. (Meeting with Junior Ranks, MARLANT, Halifax, October 26, 1998)
     
  • A Colonel would look at problems from an officer’s standpoint, don’t want this. (Meeting with Technical Staff, CFS Leitrim, November 25, 1998)
     
  • But I don’t want some schmucky General or Colonel. We’re little guys, if he’s gonna fight on our behalf, we should have direct input. (Meeting with Technical Staff, CFS Leitrim, November 25, 1998)
     
  • Serving members would be ok if there is a mixture of ranks. (Meeting with Technical Staff, CFS Leitrim, November 25, 1998)
     
  • The retired civilian employees would also want representation. (Meeting with Military and Civilian members, Halifax, October 28, 1998)
     
  • If you have military advisors in office, not all officers and all ranks. (Meeting with Junior NCMs, 8 Wing Trenton, September 8, 1998)
     
  • Reservists have different needs – will you have staff who is familiar with this issue. (Working Lunch with Wing Commander and Wing Council, 8 Wing Trenton, September 8, 1998)
     
  • Need one of each rank and one of each element to get impartiality. It will be different from each region they come from. (Tour of Bozanski and Petrovac, Bosnia, November 13, 1998)
     
  • Should have representatives from all three, Air, Army and Navy. (Meeting with Junior NCMs, 8 Wing Trenton, September 8, 1998)
     
  • You need representation from the three elements in your office. (Meeting with Senior Officers and Senior Union Staff, CFB Halifax, October 26, 1998)
     
  • On top of military you also need to have civilian employees. The Military think in a box and don’t see what’s outside their organization. (Meeting with Operations, CFS Leitrim, November 25, 1998)
     
  • Hire military spouses, they know what it’s about. (Meeting with Administrative Staff, CFS Leitrim, November 25, 1998)
     

The use of military advisors would allow members of my Office to have access to the required knowledge and experience of military culture, in carrying out their tasks. At the same time, the ultimate decision-making power would be retained by myself, as the Ombudsman, and my civilian staff. I would be free to seek advice in a general fashion from advisors on the unique experiences of DND/CF members. Confidentiality and neutrality would still be preserved, as these members would not have access to my Office’s files, including the identity of complainants and they would therefore not have direct input into my recommendations in a specific case. It was felt by many that this model would best serve to allay concerns about the lack of independence, neutrality and confidentiality that might ensue by having military personnel handle specific case files.
 

The need for both an actual and apparent independent, neutral and confidential office will have to be delicately balanced against the need for military knowledge and experience. This requirement also demonstrates the need for the Ombudsman to have absolute and complete freedom to appoint his staff members and/or to consult and hire advisory staff, where required.
 

I therefore recommend that:
 

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.
 

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.
 

Accessing Professional Services

From time to time, despite the knowledge and experience of the Ombudsman and his carefully selected staff, issues may arise that require a specialized knowledge or skill to resolve them. These issues may concern the day-to-day running of the Office or the handling of a specific complaint of unfairness or injustice. In such cases, I will be required to retain professional services of persons having the necessary knowledge or skill to deal with the problem. For example, Mr. David Bazay, CBC Ombudsman, has the ability to retain experts to validate his research and opinions and considers this to be an invaluable resource.170 I should be free to contract the professional services of any persons having the technical or specialized knowledge of any matter, required to advise and assist me in carrying out my duties.171 I must also have the freedom to contract for the payment of such services, subject to the normal budgetary constraints of my Office, with provision for me to seek approval for special funding directly from you.
 

I therefore recommend that:
 

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/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.
 

Other Ombudsmen Models
Civilian

Provincial

The need for an Ombudsman to be completely independent and free to hire qualified and experienced staff who will be loyal solely to his or her office, has been recognized in the models established by provincial Ombudsmen offices.
 

The Ombudsman of British Columbia, for example, has the authority to appoint staff, as is necessary to perform the duties of the office. Appointments are done by the Ombudsman in accordance with the Public Service Act of British Columbia and the Ombudsman is designated as a deputy minister for the purposes of the Act. Ms. Dulcie McCallum, the British Columbia Ombudsman, comments that she is able to “do what I want, I can hire or fire.” The Ombudsman has complete control over the hiring for her office including whether competitions are held within or outside of the public service. The Ombudsman’s staff are treated as public servants for purposes of benefits but they are not subject to the provincial public service collective agreement. Ms. McCallum commented that this independence of the Ombudsman’s staff is essential given the highly confidential work they are involved in. “They can’t investigate an agency as intended if they come from there.” “They will come with a mentality of being easier on government and may not be as critical.” She commented that the Ombudsman cannot have any sign of partiality or hint of bias in his or her staff, they must be “squeaky clean”.172 The British Columbia Ombudsman also has the power to make a special report to the Legislative Assembly where the amounts provided for the establishment of her office or the services provided by the Public Service Employees Relation Commission are inadequate. 173
 

The Ombudsman of New Brunswick has the unfettered power to appoint such assistants and employees as she deems necessary for the efficient carrying out of her functions under the Act. 174 She comments that “I hire who I want and so should you. It should read like most other Ombudsman’s Acts – you too should be exempt from the Public Service and hire freely who you want." 175
 

The Ontario Ombudsman also has the power, subject to approval by the Lieutenant-Governor in Council, to hire such employees as is necessary for the efficient operation of her office and she may determine their salary, remuneration and terms and conditions of their employment. The way the office is set up, the Ombudsman employs her own employees.176
 

Under the Civil Servant Employee Act of Nova Scotia, some of the Nova Scotia Ombudsman staff is unionized, while others are exempt. The Nova Scotia Ombudsman, Mr. Douglas Ruck, Q.C., recommended that anyone in my Office should not belong to any public service union due to conflict of interest – “What if there was a walk-out?” 177
 

Federal

Office of the Information Commissioner

The Federal Information Commissioner has the authority to appoint his own employees in accordance with the Public Service Employment Act.178 The Commissioner hires his own employees directly. The Director General of Reviews and Investigations for the Commissioner’s office commented to my staff that “I don’t just hire within the Public Service. I hire the best. I hire who I want. This is very important.” He noted that “there are good people within the Public Service but need the flexibility to hire who you want”.179 He also stressed that the office relies on staff who are willing to make a long term commitment to the job, as they invest considerable time and financial resources in training investigators.
 

Office of the Correctional Investigator

Prior to the enactment of the Corrections and Conditional Release Act, the Correctional Investigator was limited to hiring staff for terms only. Under section 165(1) of the Act, the Correctional Investigator was specifically granted the authority to appoint his own employees under the Public Service Employment Act.180 The office is treated as a separate employer for purposes of the Public Service Employment Act and thus can hire directly without going through the Commission. It was felt that this was of great benefit as the office was not restricted to hiring from the Public Service Commission lists and it saved much time and delay.181
 

Military

Different Military Ombudsmen’s offices have adapted different models of staffing, particularly, when dealing with the issue of balancing the need for independent civilian personnel against the need for military knowledge and experience.
 

Parliamentary Commissioner for the German Armed Forces

The German Parliamentary Commissioner for the Armed Forces has the authority to select her own staff and the composition of her staff is her prerogative.182 The office has a staff of approximately 60 persons, with approximately half of these employees consisting of higher-intermediate and higher service personnel, directly concerned with the review of matters brought to the attention of the Commissioner.183 The Commissioner’s staff are members of the German Bundestag Administration, within which they form a separate Directorate-General, entitled “Parliamentary Commissioner for the Armed Forces”. This staff is under the sole supervision of the Parliamentary Commissioner with regard to their work and falls under the supervision of the Secretary – General of the German Bundestag, as the head of the Bundestag Administration, in regard to service regulations.184 The Commissioner’s staff includes administrative specialists, lawyers and investigators.185
 

Australian Defence Force Ombudsman

The Australian DFO, which is part of the Commonwealth Ombudsman’s office, is staffed by members of the Australian Public Service. There are no military personnel involved in reviews by the Defence Force Ombudsman.186 The Commonwealth Ombudsman has approximately 80 employees in total, with approximately three investigators assigned to the Defence Force Ombudsman matters, as well as other areas.187 The ADF complaints resolution agency, however has a larger unit with about 28-30 persons, including some reservists on staff.188
 

Inspector General for the Netherlands

The total strength of the Inspector General’s staff is 29 persons, including support personnel. The numbers of military personnel and civilians are 16 and 13, respectively. The 14 staff positions are divided among the Inspector General, the Chief of Staff, 11 staff officers and the Deputy Chief of Staff. The positions of Inspector General and Chief of staff rotate among the three services; the remaining officers include two commanders from the Royal Navy, six Lieutenant Colonels and one Major from the Royal Army, two wing-commanders from the Royal Air Force and one Ombudsman for the civilians, employed by the Ministry of Defense.189
 

Israeli Defence Force Soldiers' Complaints Commissioner

The Commissioner’s office has a staff of approximately fifty. Half of his staff are lawyers and the other half consists of field investigators, including both senior and junior staff members. The posting to the Ombudsman’s office is for three to four years. Investigators consist of military personnel, with senior investigators being comprised of Lieutenant Colonels and Junior Investigators being comprised of Lieutenants. All personnel consists of officers. There are no soldiers, with the exception of one junior investigator who is a lawyer.190
 

Table of Contents

 

Independent Legal Advice

Principle

An independent Ombudsman’s Office requires an independent legal advisor. Given the many different and complex cases which my Office will be expected to review, ongoing legal advice will be necessary on a variety of issues. My counsel will play an important role as an advisor on specific cases, as well as on issues dealing with the overall set-up and operations of the Office. Examples of the types of issues on which I will require ongoing legal advice include: issues of jurisdiction, legal liability, the lawful exercise of my powers of investigation, the legality of specific practices or policies which are the source of complaint and access to information and privacy matters, as they apply to the unique context of my Office. Given the important role that my legal counsel will play, it is imperative that this legal advice is available to me on an ongoing basis from a strictly independent and confidential source with no potential for any apparent or real conflict of interest.
 

Therefore I recommend that:
 

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.
 

Implementation

Traditionally legal advice has been provided to the DND/CF from the Judge Advocate General’s (JAG) Office and by agreement through the Federal Department of Justice Legal Operations Division. These offices have the responsibility of providing legal advice to the Minister of National Defence, the Deputy Minister and the CDS on military law and public law issues.
 

The JAG has, over time, served as legal advisor to the Governor General, the Minister of National Defence and the Department of National Defence on all matters of military law. Where legal issues have been broader than military law or have involved interests beyond the department and Canadian forces, the JAG’s duties have been carried out in conjunction with the Department of Justice.191 The “JAG gives legal advice to DND/CF on everything from soup to nuts”. 192
 

Because of the many duties and functions which the JAG has served within the DND/CF, there have been inevitable instances arising in which the JAG has appeared to be or was felt to be in a conflict of interest. Many of these situations have arisen where the office of the JAG has attempted to serve different departments and interests within the DND/CF, which at times had conflicting interests. As a result of the Somalia Commission Inquiry, this concern was focused on the involvement of the JAG in various roles related to military justice and conflicts which arose in this context. 193 The Somalia Commission concluded that the duties and functions of JAG should be clearly defined and delineated in amendments to the National Defence Act:
 

It is proposed that the role and functions of the Judge Advocate General (JAG) be set out in statute in order to eliminate potential conflicts of interest and to strengthen the institutional independence of its constituent parts[…]194
 

The government responded to these recommendations with new amendments to the National Defence Act in the area of military justice. These amendments stress the need for clear, separate and independent roles for the JAG:
 

Although the National Defence Act established the positions of key authorities in the military justice system, clarification and clear separation of the roles of these authorities is required. This reform will strengthen the system by improving its transparency, accountability and perception of impartiality.195
 

The government has thus clearly recognized the unlimited potential for conflict of interest when an office such as JAG attempts to serve the multitude of different interests within a government department such as the DND. This potential for conflict would be exacerbated greatly if the JAG were asked to advise and/or represent the interests of an outside third party such as my Office, while at the same time remaining loyal to and advising the DM and CDS and other interests within the DND organization.196 We must avoid turning back the clock and repeating history, just when the legislator is attempting to fix the problem of conflict of interest in relation to the JAG.
 

The Canadian Bar Association (CBA) Code of Professional Conduct specifically provides that:
 

[t]he lawyer shall not advise or represent both sides of a dispute, and, save after adequate disclosure to and with the consent of the clients or prospective clients concerned, should not act or continue to act in a matter when there is or there is likely to be a conflicting interest.197
 

The CBA defines conflict of interest and provides the rationale for the rule, in its guiding principles:
 

A conflicting interest is one which would be likely to affect adversely the lawyer’s judgement on behalf of or loyalty to a client or prospective client, or which the lawyer might be prompted to prefer to the interests of a client or prospective client.198
 

The reason for the rule is self-evident. A lawyer owes to his client his undivided loyalty. The client or the client’s affairs may be seriously prejudiced unless the lawyer’s judgment and freedom of action on the client’s behalf are as free as possible from compromising influences:
 

Conflicting interests include, but are not limited to the duties and loyalties of the lawyer or a partner or professional associate of the lawyer to any other client, whether involved in the particular transaction or not, including the obligation to communicate information.199
 

The Supreme Court of Canada has also adopted a high standard for counsel when faced with conflict of interest situations:
 

In dealing with the question of use of confidential information, we are dealing with a matter that is usually not susceptible of proof. As pointed out by Fletcher Moulton J. in Rakusen, “that is a thing which you cannot prove”. (at page 841) I would add or “disprove”. If it were otherwise, then no doubt the public would be satisfied upon proof that no prejudice would be occasioned. Since, however, it is not susceptible of proof, the test must be such that the public represented by the reasonable informed person would be satisfied that no use of confidential information would occur. That in my opinion, is the overriding policy that applies and must inform the court in answering the question.200
 

One of the greatest areas for the appearance of partiality or lack of independence, is in the area of the JAG office’s role in the military justice system. A recent example, can be seen in the decision of the Court Martial Appeal Court of Canada, in R. v. Lauzon rendered September 18, 1998, which dealt with a constitutional challenge to the independence of Military Court Martial Judges. The court in the Lauzon case concluded that:
 

[t]he organizational and institutional relationship among the Minister, the Judge Advocate General and the members of his or her Office who represent the Executive, and the military trial judges who hear the Department's cases does not in our view, afford sufficient guarantees of institutional impartiality and independence. A reasonable person who became aware of the prevailing state of the law and the embarrassingly close relationship which exists between the Executive and the judiciary could only conclude, or at least would be justified in perceiving and believing, that the Presidents of the Standing Court Martial are not free from pressure by the Executive at the institutional level. In other words, such a person could reasonably conclude that the military trial judges act through the Executive, with the Executive and for the Executive […]
 

[…] It is therefore almost inevitable that relations between the Executive and the judiciary will become confused, if we remember that military trial judges, like legal officers, also belong to the Office of the Judge Advocate General who argues cases before them […]201
 

Under Bill C-25, the JAG is delegated the superintendence of the military justice system. The JAG will be officially responsible for undertaking regular reviews of the military justice system and must report directly to the Minister on the administration of military justice in the Canadian forces.202 My Office will be asked to look into matters of alleged injustice or unfairness in the context of the military justice system. This role of the Ombudsman’s Office, as a general oversight and review mechanism for the military justice system, has already been recognized by the Department:
 

In addition, an office of the Ombudsperson is being set up outside of the chain of command to provide information, advice and guidance to military members who have complaints related to military justice (or any other work related matter) which they believe cannot be dealt with through existing channels.203 (Emphasis added).
 

In such cases, my Office should not be forced to seek legal counsel from the same office which is directly accountable to the Minister for the military justice system’s administration.
 

Under the new amendments, the offices of the Director of Military Prosecutions and the Director of Defence Counsel Services, although separate offices, both come under the general supervision of the JAG.204 The JAG has the power to issue general instructions or guidelines in writing in respect of defence counsel services, as well as in respect of prosecutions.205 With respect to prosecutions, the JAG also retains the power to issue instructions or guidelines in writing in respect of particular prosecutions, with copies to be made public unless it is not within the interests of military justice. Copies of such guidelines are also to be provided to the Minister.
 

There is a clear and obvious potential for conflict of interest where my Office is asked to look into alleged miscarriages of justice or unfairness in the context of a military prosecution or services provided in the defence of such a prosecution. Where legal advice is necessary, my Office should not be forced to turn to the same office that is responsible for general supervision of the departments, where the alleged miscarriage of justice or unfairness occurred. Furthermore, there is also the potential that the alleged miscarriage of justice or unfairness in question may have flowed from a guideline or instruction issued directly from the office of the JAG. This would result in one of the clearest cases of conflict of interest.
 

An additional problem with relying on the JAG for independent counsel, stems not just from the potential for conflict in any individual case but also from the direct adverse impact which this would have on perceptions of my Office’s independence and neutrality. It was clear from our consultations, that members of the CF directly associate the office of the JAG with representing the interests of the DND/CF.
 

In addition to the JAG, the position of the DND/CF legal advisor was established by a preliminary letter of service agreement dated January 9, 1998 and signed by the CDS, the DM-DND and the DM Justice.
 

This agreement provides that all legal services required by DND/CF will be provided by “a combined legal services organization” consisting of two parts: the Office of the JAG and the office of the DND/CF Legal Advisor (DND/CF LA).206 The DND/CF LA is appointed jointly by the CDS and the DM’s of National Defence and Justice and is currently a DOJ legal advisor.207 The DND/CF LA consists of two divisions led by Deputy Legal Advisors of equivalent rank and status. The head of one division is a legal officer of the rank of Colonel and the head of the other is a DOJ legal advisor.208
 

The Departmental Legal Services Unit (DLSU) was set up to provide legal services to DND on public law issues including labor law, administrative law and the Canadian Charter of Rights and Freedoms. Legal subject areas covered by the DND/CF Legal Advisor include: materiel (including procurement and contracting, real property and environmental law), human rights, access to information and privacy, and labour law issues relating to civilian personnel, including pensions and finance.209
 

The DLSU for the DND/CF is structured to work together with JAG for the provision of legal services to the DND/CF. The agreement for the provision of legal services provides that DLSU members shall have similar direct access to DND/CF clients as the Deputy LA/CF and DND, Deputy Judge Advocate General and Canadian Forces Legal officers and that the DLSU will be co-located with the office of the JAG.210 The agreement also stipulates that Justice Legal Advisors may be assigned to Directorates within the office of JAG or under the military Deputy Legal Advisor, although they will still be considered part of the DLSU. Similarly, legal officers from JAG may be assigned to Directorates within the office of the DND/CF LA, although they will still be considered part of the office of JAG.
 

Due to its mandate to provide legal services to the DND/CF on public law issues, there is a real potential for actual and apparent conflict of interest if the DND/CF LA were also required to provide ongoing legal services to my Office. One of the purposes of the insertion of a DOJ legal services unit into the DND was to ensure that the department received legal advice on public law issues, which was consistent with that received by all other government departments.211 Given that my mandate extends to systemic problems, which may originate from within the DND or outside the organization but still within government, I will be asked to review policies and decisions made by government officials both within and outside of DND (as they are applied to the DND/CF members). It is a fundamental conflict that I must receive my legal advice from the same advisors who are serving the government departments, involved in the cases I may be dealing with or which may be impacted by my recommendations.
 

There is the potential for a conflict of interest in all of the areas in which the DND/CF LA provides legal advice to the DND, including human rights, access to information and privacy and civilian labour issues. All of these areas come within the mandate of my Office and are areas in which complaints are likely to be received. In fact because my Office is mandated to deal with any type of complaint of individual or systemic injustice or unfairness, the potential for conflict is unlimited.
 

Much of the same logic and reasoning, which dictates that the JAG should not act as legal counsel to my Office, also applies to the DND/CF Legal Advisor. The DND/CF Legal Advisor performs his responsibilities as a representative of the Minister of Justice and the Attorney General of Canada within the DND/CF and members of the DLSU remain employees of the DOJ. However, in the eyes of potential complainants, the DND/CF Legal Advisor will be seen to be a part of the DND and associated directly with JAG. This is especially the case when one considers that these two units are expected to work together hand and hand and will have an intermingling of members in each other’s departments. The office of the DND/CF LA is in fact located within DND offices in the Constitution Building in Ottawa, only furthering the perception, however incorrect, that this office exists as part of the DND organization.
 

Although members of the DLSU within DND/CF are not within the chain of command, they are employees of the federal government, DOJ. The DND/CF Legal Advisor reports directly to the DM DOJ. As employees of the federal government, members of the DLSU will be viewed as public servants and as such they will not be considered completely neutral and independent. Members of my staff and especially, my legal advisors must be seen to be as completely impartial and independent as myself. Perceptions are crucial, for if my Office is not perceived to be fair and impartial, persons will not turn to it for help. Being required to seek legal advice from the federal public service, in fact will undermine my ability to present myself as a third party who is truly outside of and independent from government. Quite simply, the Ombudsman is supposed to provide a place to turn which is outside of the normal government bureaucracy. Consequently, the legal advice, which I rely on, must also come from outside of government.
 

The JAG and the DND/CF LA have the combined responsibility of providing legal advice to the DND/CF on legal matters concerning military law and public law, including civilian labor issues. Their combined services are meant to serve the interests of the DND/CF and the Government of Canada as a whole. My Office is meant to serve as an outside third party, who must consider the interests of all parties involved, including the individual complainant and the DND/CF and the government as a whole, and make recommendations based on fairness. This will require balancing all of the interests involved in a particular issue. In order for me to successfully achieve this, my investigators and my legal advisors must be completely independent and free to act only in the interests of fairness. This independence also requires that I have absolute control over who is responsible for providing legal advice and services to my Office.
 

I therefore recommend that:
 

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.
 

Although for the reasons stated above, the office of the JAG and the DOJ/DLSU should not be in-house independent counsel for the Office of the Ombudsman, I do recognize that they can be a valuable source of legal information and experience, particularly on the application of laws in the DND/CF context. Consequently, although it is imperative that my Office retain its own independent legal advisor, the services of the JAG and the DOJ/DLSU will still be used by my Office as a resource on a consultative basis.
 

I therefore recommend that:
 

The Ombudsman should have access to the legal staff of the JAG and DOJ/DLSU to provide information and expertise on specific matters.
 

Other Ombudsmen Models

The recognized need for and importance of independent legal advice can be seen upon examination of a number of other Ombudsmen’s models which have in-house legal counsel.
 

The Ombudsman Association (TOA) advises Organizational Ombudsmen that they should emphasize the desirability to have independent counsel outside of the organization which they represent. They advise that both the Ombudsman and his employer, must recognize that the needs of the Ombudsman will not always be the same as those of corporate counsel (or other counsel who represent the organization which the Ombudsman works within).212
 

Civilian
Provincial

The Alberta Ombudsman has its own in-house counsel. The report of the Alberta Ombudsman’s office refers to some of the work which its counsel embarked on by consulting with the Department of Labour and other government officials to clarify the role of the Ombudsman within the new Health Professions Act of Alberta.213 The Alberta Ombudsman placed great emphasis on the importance of his in-house counsel, “I rely on her implicitly”.214 It was also stressed that “you need someone affiliated with the office”, as the legalities and interpretation of the law can be complex, especially when jurisdictional issues arise.215
 

The Ontario Ombudsman’s report refers to her own “Policy, Legal Research and Communications” department, which includes two legal advisors, an analyst/investigator and a policy advisor and research assistant.216 The Ontario Ombudsman can also contract an outside independent counsel to provide advice on any issue that may arise.217 The Nova Scotia Ombudsman uses external counsel as its source of legal advice.218 It should be noted that the Québec Ombudsman does not have a legal department, however 90 percent of their staff has legal training (lawyers and paralegals).219
 

Federal

Office of the Information Commissioner

The office of the Information Commissioner has its own internal counsel. The Director General of Reviews and Investigations for the office, commented to my staff that “this is a must”. Where the office seeks advice on issues requiring special expertise, they contract out to outside independent counsel.220
 

Office of the Official Languages Commissioner

The Commissioner has three independent in-house counsel, which are not part of a Department of Justice Legal Services Unit. This need for independent counsel is felt to be important because the “perception of impartiality is crucial”. Further, counsel to the Information Commissioner requires a particular expertise, knowledge and skill in relation to language issues.221
 

Office of the Correctional Investigator

The Correctional Investigator’s office has in-house counsel in an LA-1 position who deals with daily issues and who also functions part-time as an investigator. The Correctional Investigator’s office does not rely on Department of Justice counsel because the Department provides advice to Correctional Services Canada and it is recognized that this would be a direct conflict of interest. If the office requires representation in Federal Court or before a Commission of Inquiry (as was the case during the Arbour Commission), independent private counsel is retained. Based on his considerable experience of more than twenty years in the Ombudsman field, the Correctional Investigator commented that my Office would likely need to have independent in-house counsel, hired from outside.222
 

Military
Parliamentary Commissioner for the German Armed Forces

The German Parliamentary Commissioner has lawyers on her staff to deal with jurisdictional issues, as well as administrative specialists.223
 

Australian Defence Force Ombudsman

The Ombudsman’s office has a Director Policy who provides legal advice, although they sometimes seek outside assistance from the Australian Government Solicitor and the Attorney General’s Department.224
 

Inspector General for the Netherlands

The Inspector General for the Netherlands does not have legal counsel on staff. However, they have noted that having such representation would clearly be desirable; “having legal representation has always been our big fight”.225
 

Israeli Defence Force Soldiers' Complaints Commissioner

The IDF Soldiers' Complaint Commissioner has a unique system in which independent legal advice is provided to the Ombudsman and on a continual basis directly to investigators, as they proceed with their investigation of each complaint. The Commission has two departments – inquiry and legal. The legal department consists of eight lawyers and the inquiry department consists of nine investigators – four senior and five junior.
 

Complaints are reviewed by the legal department upon receipt and are assessed as to what type of investigation will be required. The investigation is carried out by one of the senior or junior investigators in the inquiries department in consultation with an assigned counsel in the legal department. If there is a legal problem, the file is transferred over to the legal department. When the investigation is complete, the investigator makes recommendations based on his findings and then the file is reviewed by counsel in the legal department who verifies the legal aspects of the case. It is only after the report on the file is reviewed by the head of the legal department, that it is forwarded to the Commissioner.
 

The Commission established its own legal counsel department in 1972. The IDF also has a Judge Advocate General system and the Soldier's Complaints Commissioner refers some cases to the JAG office. The Soldier's Complaints Commissioner however is separate from the IDF JAG and does not rely on the JAG for legal advice.226
 

Table of Contents

 

Delegation of Powers

It is important for the smooth functioning of the office that the Ombudsman have the authority to delegate to any member of his or her staff the powers, duties and functions of the Ombudsman, except the power to delegate and the duty to submit an annual report.
 

I therefore recommend that:
 

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.
 

Immunities

Principle

Complete independence and impartiality require immunity from review of my decisions and recommendations and immunity from civil or other proceedings against myself and my staff. Because of the importance of my independence, these characteristics of the Office should be specifically recognized in a legislative framework, establishing the Office, for example, through regulation to the National Defence Act. There are limits however to the extent to which a regulation will be able to ensure immunity from review or immunity from civil or criminal liability. Regulations would serve to ensure that my decisions and recommendations are not subject to challenge within the DND/CF organization but would likely be insufficient to prevent challenge from outside of the DND/CF through court proceedings.
 

Immunity from Review

I report directly to you as the Minister of National Defence. I do not report or answer to anyone within the chain of command. As such my Office will act as an avenue of “last resort” for those members of DND/CF who feel they have been subject to unjust or unfair treatment. My decisions, findings and reports must be considered final. They must not be subject to review or question by any authority,227 except by yourself, as the Minister of National Defence. Because the Ombudsman has no enforcement power and his reports are expressions of opinion, there should be no basis for judicial review of the Ombudsman’s work.228 “Since no one receives anything by right from the Ombudsman and since the Ombudsman cannot issue a binding order to any agency, judicial review would serve mainly to harass and delay the Ombudsman.” 229
 

Issues of jurisdiction will be dealt with by clear statements contained in my Office’s enabling authority. Where jurisdiction is in question, judicial review may be appropriate, if no other resolution can be found.
 

I therefore recommend that:
 

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.
 

Immunity from Civil and Criminal Liability

It has been noted that “the Ombudsman is an attractive target for the people criticized or served”.230 The Ombudsman and his staff must be protected from civil or criminal proceedings being brought against them for any acts, which are performed in good faith, in the course of carrying out their duties. This protection is specifically afforded to federal bodies, which perform Ombudsman functions, as well as all provincial Ombudsmen, in their enabling legislation. 231 This immunity is essential to protect the Ombudsman and his staff or anyone else acting under the Ombudsman’s authority, from harassment when dealing with controversial issues or making a finding seen as favorable to an unpopular position.232
 

Injustice and unfairness are often matters of judgement which present as “gray” rather than “black and white”. In order to be effective in resolving such matters, it will be necessary for my Office to become involved in controversial issues, where there are often two or more sides being taken. In many cases, different persons will have stakes in particular outcomes and a variety of different interests may come into play. To be truly independent and neutral, both my staff and I must be free from pressure to take any side on a particular issue. This includes the freedom to conduct ourselves in all matters without fear of potential lawsuit or other proceeding being brought against us by persons who disagree with an approach that has been taken or a finding or recommendation which I have made.
 

Immunity from civil proceedings will also prevent my staff from being diverted from their tasks by having to defend themselves in complex and time-consuming lawsuits. Immunity allows the Ombudsman “to focus resources on receiving and investigating complaints rather than defending suits.”233 My Office will be expected to become involved in many highly litigious matters, such as cases of alleged sexual harassment or sexual assault. I must be free to deal with such cases and make recommendations without fear of being drawn into potential time-consuming and costly litigation.
 

Civil litigation and defending lawsuits is not only extremely time-consuming but also extremely costly. If sufficient protection from potential lawsuit does not exist for my Office, DND/CF will be forced to bear the high costs of defending such suits. Given the unique position of my Office as being at arms-length from the DND/CF, outside legal representation would be required, at considerable expense to taxpayers. Without sufficient protection against civil liability, provision must also be made to cover the high cost of indemnifying the employees of my Office, including myself as the Ombudsman, against any potential liability for acts done in good faith during the course of carrying out our duties.
 

One of the Ombudsman’s most valuable and powerful tools to effect change, is the power of public comment.234 In many cases, I expect that it will be unnecessary to resort to this power, as issues will be resolved informally through my powers of conciliation and persuasion. In some instances, however, it will be necessary for me to bring matters to the attention of persons higher up in government and ultimately yourself, as the Minister of National Defence. As one who is responsible for highlighting injustice and unfairness and seeking change, I have a duty to do what I can to persuade those in power that my recommendations to achieve fairness should be followed. Where this persuasion has proved unsuccessful, in the pursuit of fairness, I will be required to bring matters to the attention of the public in specific cases. In such cases, my independence requires that I be free to comment publicly on matters without fear of consequence. This freedom requires that my Office be immune from any threat of consequence through a potential libel or slander suit or any other civil action.
 

I therefore recommend that:
 

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.
 

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.
 

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.
 
____________________
 

134. Setting Up An Ombudsman Office: A Checklist (Basic Principles, Statutory Provisions, Organization and Practices), supra, note 2 at section 2.l.1. “As an impartial and politically non-partisan investigator of complaints, the Ombudsman must not only be free from interference in his function but he must also be perceived as being free from interference. This prevents problems of perception from developing.” See also: William K. Reid, C.B., The Protection of Citizens as “Consumers” of Government Services: Occasional Paper #52, International Ombudsman Institute, January 1995 at page 2, “Most important, independence is paramount."; Essential Characteristics of a Classical Ombudsman, supra, note 10 at page 2. "There will be no public trust in decisions made by a body investigating Government if that body is perceived to be biased and if it is seen as a creature of Government. Ombudsmen are independent so they may be impartial. Their findings and decisions are based on examination and analysis of the facts and law. They must be independent and avoid even the appearance of serving the interests of the organizations they investigate if complainants are to trust the results of their investigations."
 

135. Report of the Committee on the Concept of the Ombudsman, supra, note 43 at page 33.
 

136. The committee was made up of Deputy Ministers and senior civil servants selected by the then Prime Minister The Right Honourable Pierre Elliot Trudeau.
 

137. The 1977 Report actually lead to the Ombudsman Act, Bill C-43 (April 5, 1978), supra, note 43.
 

138. Ibid. at page 33.
 

139. Auditor General of Canada Annual Report 1998.
 

140. Ibid. at para. 10.27.
 

141. Report of the Committee on the Concept of Ombudsman, supra, note 43 at pages 33-34. “In another sense, independence is also dependent on appropriate arrangements relating to such questions as salary and pension rights, the term of appointment and the methods of removal, and the degree to which an Ombudsman is given power to control the human and financial resources allocated to his office.”
 

142. This issue of invoking the mandate is subject to the recommendation concerning “MND Directed Investigations”. For in-depth discussion on this point, see Chapter 4 under sub-heading "The Mandate" at page 138 of this Report.
 

143. Report of the Auditor General, supra, note 139 at para. 10.27 which stresses the importance of strong safeguards to ensure independence in the context of the CHRC and the CHRT.
 

144. Towards A Just, Peaceful and Safe Society: The Corrections and Conditional Release Act Five Years Later, supra, note 82 at page 45.
 

145. See for example Australian Commonwealth Ombudsman, Annual Report, 1997-1998; Information Commissioner Annual Report 1997-1998 at pages 66-68; Office of Privacy Commissioner 1997-1998 Annual Report at pages 102-103; CHRC 1997 Annual Report at pages 71-73; Saskatchewan Ombudsman - Annual Report 1997 at page 6; Ontario Ombudsman - Annual Report 1997/98 at page 13; British Columbia Ombudsman Annual Report 1997 at page 28; Office of the Ombudsman of Alberta, 31st Annual Report 1997 at page 7; Protecteur du citoyen du Québec Annual Report 1996-1997 at page 117.
 

146. Report of the Auditor General, supra, note 139, para. 10.92.
 

147. Setting Up An Ombudsman Office: A Checklist (Basic Principles, Statutory Provisions, Organization and Practices), supra, note 2 at s. 3.1.2.
 

148. See: Provincial Ombudsman statutes, which specifically provide for the delegation of the Ombudsman’s powers to staff. Although powers of recommendation, delegation and reporting are usually reserved to the Ombudsman, most other powers can be delegated to staff. Alberta's Ombudsman Act, R.S.A., c.O-7 s. 26; British Columbia's Ombudsman Act, R.S.B., c.340 s. 30; New Brunswick's Ombudsman Act, R.S.N.B. c.O-5 s. 9; Ontario's Ombudsman Act, R.S.O. c.O-6 s. 26. See also: Auditor General Act, R.S.C. 1985, c.A-17, s. 18.
 

149. Essential Characteristics of a Classical Ombudsman, supra, note 10 at page 3.
 

150. Dean M. Gottehrer, Ombudsman Legislative Resource Document: Occasional Paper #65, International Ombudsman Institute, March 1998.
 

151. Meeting with Ontario Ombudsman Legal Staff, September 9, 1998.
 

152. Essential Characteristics of a Classical Ombudsman, supra, note 10 at page 3.
 

153. Report of the Committee on the Concept of the Ombudsman, supra, note 43 at pages 33-34.
 

154. Ibid. at page 39.
 

155. Essential Characteristics of a Classical Ombudsman, supra, note 10 at Appendix A; American Bar Association Administrative Law Section Ombudsman Committee Resolutions at page 11.
 

156. Meeting with CAD “A” Staff, Winnipeg, September 14, 1998.
 

157. Meeting with 2PPCLI Junior Ranks, Winnipeg, September 17, 1998.
 

158. Meeting with 4 Air Defence Regiment, 4 Wing Cold Lake, September 15, 1998. 
  

159. Report of the Auditor General, supra, note 139 at paragraph 10.58.
 

160. Ibid.
 

161. Public Service Employment Act, R.S.C. 1985, c. P-33 s. 6(2).
 

162. This wording implies that at a minimum a regulation under the National Defence Act would be required, to specifically provide the Ombudsman’s office with the authority to appoint it’s own employees. A more in-depth legal analysis may however conclude that a legislative amendment would be required.
 

163. An exemption under section 41 of the Act would require the support of the Governor in Council and the willingness on behalf of the Public Service Commission to enact such. Under section 41(2) of the Act, the Commission would retain the power (subject to approval by the Governor in Council) to go back and re-apply any provisions of the Act to any position or person who was previously excluded.
 

164. Meeting at Officer’s Mess, LFWATC, Wainwright, September 3, 1998.
 

165. Meeting with Senior Officer, Land Forces West Edmonton, September 1, 1998.
 

166. Meeting with 15 AMS, 15 Wing, Moose Jaw, September 17, 1998.
 

167. Meeting with Senior Officer, Land Forces West, Edmonton, September 1, 1998.
 

168. Meeting with 4 Air Defence Regiment, 4 Wing, Cold Lake, September 15, 1998.

 

169. Meeting with 15 AMS, 15 Wing, Moose Jaw, September 17, 1998. See also: Meeting with Canadian Air Division, 1 Personnel, Winnipeg, September 16, 1998.
 

170. Meeting with Mr. David Bazay, CBC Ombudsman, September 9, 1998.
 

171. Ombudsman Legislative Resource Document: Occasional paper #65, supra, note 150.
 

172. Telephone interview with Ms. Dulcie McCallum, British Columbia Ombudsman, by a member of my staff, December 15, 1998.
 

173. British Columbia's Ombudsman Act, supra, note 148, s. 8.
 

174. New Brunswick's Ombudsman Act, supra, note 148, s. 8(1).
 

175. Telephone interview with Ms. Ellen King, Ombudsman of New Brunswick, by a member of my staff, December 16, 1998.
 

176. Ontario's Ombudsman Act, supra, note 148, s. 8(1). Meeting with Ontario Ombudsman Legal Staff, September 9, 1998.
 

177. Meeting with Mr. Douglas Ruck, Q.C., Nova Scotia Ombudsman, October 28, 1998.
 

178. Public Service Employment Act, supra, note 161.
 

179. Meeting with Mr. Dan Dupuis, Director General Investigations and Reviews, Office of the Information Commissioner of Canada, December 10, 1998.
 

180. Corrections and Conditional Release Act, supra, note 72, s. 165(1).
 

181. Meeting with Mr. Ron Stewart, Correctional Investigator Canada, and Mr. Ed McIsaac, Executive Director, December 16, 1998.
 

182. Meeting with Lt.-Kol. Schoof, Defence Attaché – Embassy of the Federal Republic of Germany, Ottawa, December 7, 1998.
 

183. Karl Gleumes, The Parliamentary Commissioner for the Armed Forces: Her Role in Exercising Parliamentary Control over the Federal Armed Forces and Processing Petitions from Service Personnel, supra, note 89 at page 17.
 

184. Ibid.
 

185. Meeting with Lt.-Kol. Schoof, Defence Attaché – Embassy of the Federal Republic of Germany, Ottawa, December 7, 1998.
 

186. Correspondence to Lt.-Col. P. Pellicano, DPCR, NDHQ from Lt.-Col. P.R. Tyrell, Assistant Defence Advisor and Australian Army Senior Standardisation Representative, Ottawa, dated November 2, 1998.
 

187. Telephone interview with Ms. Susan Matthews, Director of Investigations, Australian Commonwealth Ombudsman, by a member of my staff, December 16, 1998.
 

188. Ibid.
 

189. The Function of the Inspector General of the Dutch Armed Forces, supra, note 109 at pages 5-6.
 

190. Meeting with Brig.-Gen. (ret'd) Uzi Levtzur, I.D.F. Soldier's Complaints Commissioner, November 9, 1998.
 

191. Amendments to the National Defence Act, Issue Paper No. 2: Key Actors in the Military Justice System, Department of National Defence, 1997.
 

192. Meeting with JAG, August 13, 1998.
 

193. Meeting with Me Simon Noël, Q.C., September 22, 1998.
 

194. A Commitment to Change: Report on the Recommendations of the Somalia Commission of Inquiry, supra, note 39 at page 105.
 

195. Issue Paper No. 2, Key Actors in the Military Justice System, supra, note 191 at page 4. See also: Bill C-25, which received Royal Assent on December 10, 1998.
 

196. The Honourable Mr. Justice Gilles Létourneau commented on JAG's conflict of interest in providing advice to the Ombudsman and the need for counsel outside of DND. (Meeting with The Honourable Mr. Justice Gilles Létourneau, September 30, 1998). See also: Notes of Meeting with Me Simon Noël, Q.C., September 22, 1998. Both The Honourable Mr. Justice Létourneau and Me Noël commented on the need for the Ombudsman’s counsel to be outside of JAG because of conflict of interest.
 

197. Canadian Bar Association Code of Professional Conduct, August 1987, Chapter V at page 17. It should be noted that each of the respective provinces has a provincial equivalent of this standard, for example see, The Law Society of Upper Canada Rules of Professional Conduct, Rule 5.
 

198. Ibid.
 

199. Ibid. Chapter V, Guiding Principles 1 through 3 at page 17. See also: The Law Society of Upper Canada Rules of Professional Conduct, Rule 5 which adds the following to Guiding Principle #1, “or which the lawyer might be prompted to prefer to the interests of a client or prospective client.”
 

200. MacDonald Estate v. Martin, [1990] S.C.J. 41, per Sopinka J. at page 16.
 

201. R. v. Lauzon, [1998] C.M.A.J. 5.
 

202. Amendments to the National Defence Act, Bill C-25, given Royal Assent December 10, 1998, s. 9.2 and s. 9.3.
 

203. Amendments to the National Defence Act, Bill C-25, Background and Amendment Highlights: Issue Paper No. 8: Oversight and Review at page 2.
 

204. Amendments to the National Defence Act, Bill C-25, given Royal Assent December 10, 1998, s. 165.17 and s. 249.2.
 

205. Ibid.
 

206. Preliminary Letter of Agreement Between the Department of Justice (DOJ) and the Department of National Defence (DND) and the Canadian Forces (CF) Regarding the Provision of Legal Services, signed January 9, 1998.
 

207. Ibid. at page 3, para. 9.
 

208. DND/CF Legal Advisor and JAG Organizational Charts, Provided by Me Yves Côté, Q.C., DND/CF Legal Advisor, November 3, 1998.
 

209. Preliminary Letter of Agreement, supra, note 206, at pages 2-3, para. 6, and note 3.
 

210. Ibid. at page 5, para.14, note 2.
 

211. Meeting with Me Yves Côté, Q.C., DND/CF Legal Advisor, November 3, 1998.
 

212. Mr. Wendall Jones, Ombudsman, Sandia National Laboratories, The Ombudsman Association (TOA) Course, Ombuds 101, Presentation on Confidentiality, October 21-23, 1998.
 

213. Office of the Ombudsman of Alberta, 31st Annual Report, supra, note 145 at page 5.
 

214. Interview with Mr. Scott Sutton, Alberta Ombudsman, September 4, 1998.
 

215. Ibid.
 

216. Ontario Ombudsman, Annual Report 1997-98, supra, note 145.
 

217. Meeting with Ontario Ombudsman Legal Staff, September 9, 1998.
 

218. Meeting with Mr. Douglas Ruck, Q.C., Nova Scotia Ombudsman, October 28, 1998.
 

219. Meeting with Me Daniel Jacoby, Q.C., Protecteur du citoyen du Québec, August 19, 1998.
 

220. Meeting with Mr. Dan Dupuis, Director General Investigations and Reviews, Office of the Information Commissioner of Canada, December 10, 1998.
 

221. Meeting with Mr. Gilbert Langelier, Assistant Director General, Investigations Branch Office of the Commissioner of Official Languages, August 18, 1998.
 

222. Meeting with Mr. Ron Stewart, Correctional Investigator of Canada, and Mr. Ed McIsaac, Executive Director, December 16, 1998.
 

223. Meeting with Lt.-Kol. Schoof, Defence Attaché – Embassy of the Federal Republic of Germany, Ottawa, December 7, 1998.
 

224. Telephone interview with Ms. Susan Matthews, Director of Investigations, Commonwealth Ombudsman, Australia, December 15, 1998.
 

225. Telephone interview with Lt.-Kol. Plugge from the Office of the Inspector General of the Netherlands, by a member of my staff, November 6, 1998.
 

226. Meeting with Brig.-Gen. (ret'd) Uzi Levtzur, I.D.F. Soldier's Complaints Commissioner, November 9, 1998.
 

227. See: Corrections and Conditional Release Act, supra, note 72, s. 187; British Columbia's Ombudsman Act, supra, note 148 s. 28; New Brunswick's Ombudsman Act, supra, note 148 s. 23; Ontario's Ombudsman Act, supra, note 148 s. 23; Alberta's Ombudsman Act, supra, note 148, s. 22 and s. 23; and Alberta's Ombudsman, 31st Annual Report supra, note 145 at page 6.
 

228. Ombudsman Legislative Resource Document: Occasional paper #65, supra, note 150.
 

229. Essential Characteristics of a Classical Ombudsman, supra, note 10 at page 4.
 

230. Ibid.
 

231. See: Access to Information Act, R.S.C. 1985, c.A-1 s. 66; Privacy Act, R.S.C. 1985 c.P-2, s. 74; Corrections and Conditional Release Act, supra, note 72, s. 188 and s. 190; Alberta's Ombudsman Act, supra, note 148 s. 24(1); British Columbia's Ombudsman Act, supra, note 148, s. 29(1); New Brunswick's Ombudsman Act, supra, note 148 s. 24(1); Ontario's Ombudsman Act, supra, note 148, s. 24(1). See also: Recommendations of the “Report of the Committee of the Concept of Ombudsman” and Recommendations of the American Bar Association Administrative Law Section, Ombudsman Committee (recommendation #12), Published in Appendix A of Essential Characteristics of a Classical Ombudsman, supra, note 10 at page 12.
 

232. Ombudsman Legislative Resource Document, supra, note 150.
 

233. Essential Characteristics of a Classical Ombudsman, supra, note 10 at page 4.
 

234. The issues of public reporting and public comment are dealt with in detail in Chapter 4 under sub-heading "Reporting" at page 177 of this Report.
 

Table of Contents

 

Continue to Part Five

Date modified: