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A Credible Review and Investigative Process

During the course of the consultation, we examined a variety of Ombudsmen models in several fields, including Military Ombudsmen in other nations.308 We then identified the best operational practices from each, selected those that are most suited to the unique requirements of DND/CF, and distilled them into several principles and powers that are most likely to ensure that the Office is credible to all stakeholders from day one.
 

The overriding principle is that this Office will attempt to resolve issues using low level and informal means at all points throughout the process, where it is practical and appropriate to do so.
 

Table of Contents
 

Access to the Ombudsman's Office

Constituency, Core Jurisdiction and Mandate

As indicated above, certain public policy parameters had been established prior to my appointment. My recommendations regarding the Ombudsman’s constituency, jurisdiction and mandate mirror these parameters.
 

I therefore recommend that:
 

All Regular Force members, Reserve Force members, former service members, civilian employees, their parents, spouse or next of kin may bring a complaint or issue to the direct attention of the Ombudsman’s Office, without charge.
 

The Ombudsman has jurisdiction to issue recommendations concerning individual and systemic issues and injustices.
 

The DND/CF has undergone significant personnel reductions over the past several years. The effective strength of the Regular Force will be reduced to approximately 60,000 by March 31, 1999. The Reserve will be reduced to approximately 30,000 and the number of civilian employees will also be reduced to approximately 20,000 Full Time Equivalents (FTE) by April 1, 1999.309 It is important to note that although civilian employees are represented as 20,000 FTE’s, this figure could be higher in terms of actual constituents on account of job sharing programmes, part time and/or contractual employment within the DND/CF.310 Moreover, these figures do not factor in past members and their dependants. Notwithstanding the massive reduction in personnel undertaken by the Department, the Ombudsman’s constituency base is, in factual terms, vast.
 

I believe that the issue of constituency remains, however, an outstanding public policy matter specifically where other Departments may share and/or have competing jurisdictions. By using the terms “former” or “past” members to define the DND/CF Ombudsman’s constituency, the CF Veterans fall within the scope of the Ombudsman’s constituents. Consequently, there may be an overlap of jurisdiction, mandate and representation. If the Ombudsman is mandated to receive all matters brought to his or her attention from past members (including Veterans and their dependents), this would substantially increase the cost of operating the office and the necessary resources to carry out the mandate.311 The Minister of National Defence should consider addressing this matter with the Minister of Veterans Affairs in order to determine whether or not the DND/CF Ombudsman would be mandated to deal with issues which fall under the jurisdiction of the Department of Veterans Affairs (DVA). I will postpone intervening in an issue which would appear to fall within the purview of DVA until I receive further direction from you on this point.
 

I therefore recommend that:
 

The Minister of National Defence should consider consulting the Minister of Veterans Affairs and issue a directive to the Ombudsman with respect to the Ombudsman’s jurisdiction over matters that fall within the mandate of the Department of Veterans Affairs.
 

We have already received requests for assistance from Non Public Fund (NPF) employees, cadets and DND/CF contractors. It is not clear whether these groups fall within my jurisdiction. As a public policy issue, you may wish to consider if these, or any other groups, fall within my jurisdiction. I will postpone intervening in an issue directly involving these groups until I receive further direction from you on this point.
 

I therefore recommend:

The Minister of National Defence should issue a directive to the Ombudsman in respect of the Ombudsman’s jurisdiction over NPF employees, cadets, DND/CF contractors or any other group or agency.
 

Table of Contents

 

Mechanisms of Access and Initial Contact

It is essential that all constituents have unfettered, direct, and private access to my Office, free of charge. Members must be able to access my Office easily and confidentially. Even the lowest ranking member in a remote unit should be able to access the Ombudsman directly and privately, rather than through official channels.312
 

The Minister's Monitoring Committee on Change in the Department of National Defence and the Canadian Forces, recently observed that "the CF Leadership will need to explain and promote actively the benefits of the new arrangements (third-party intervention and mediation function of the organization Ombudsman) within the context of a "learning organization (…)".313 I would add that it is also incumbent upon me to promote the existence and operations of the Office of the DND/CF Ombudsman as well as its benefits for the organization and its members to maximize stakeholders’ accessibility to my Office.
 

We intend to set up the following vehicles to achieve these goals:
 

  • A toll-free number, accessible from anywhere in the world. We are looking at additional methods of contact for personnel deployed abroad. Any records generated would not be accessible by the DND/CF;
     
  • E-mail access independent of any DND/CF system including Internet access;314
     
  • A regular programme of visits to bases, formations and wings, which will include both an educational component on the operations of the Ombudsman’s Office as well as opportunities for personnel to meet with us informally off-base on a confidential basis.
     

Table of Contents

 

Regional Representation

Our consultation with members of the DND/CF revealed a virtually unanimous consensus. We must have regional representation to be effective and credible. Suggestions varied from a representative on or near every major CF base, formation or wing, to, at a bare minimum, offices on the east and west coasts. We encountered a widespread feeling that an office based solely in Ottawa would be perceived as remote and/or as an extension of NDHQ. There was some cynicism that “a bunch of suits from Ottawa” would or could not understand their particular and sometimes very local issues:
 

  • Ottawa is a long way from the hangars down below. (Meeting with a Senior Officer, Edmonton, September 1, 1998)
     
  • Ottawa is out of touch from the rest of us. (Meeting with NCMs, Edmonton, September 2, 1998)
     
  • There is a certain perception problem with the Ottawa/Toronto driven policies. If you want to have credibility here in the West, you need local representatives. The representatives must understand the "West mentality", which is different than in the East. (Civilian Employee, LFWATC Wainwright, September 3, 1998)
     
  • It is a must to have a regional representative. Talking to a phone will not do it; face to face would be much better. (36 CBG Members, LFAA, Halifax, October 28, 1998)
     
  • If there are no regional offices you will be just a bunch of bureaucrats up in Ottawa. (Meeting with Dockyard Workers, CFB Halifax, October 26, 1998)
     
  • The national issues and policies can be dealt with from Ottawa, but personal matters need regional representation. (Meeting with Junior NCMs, CFB Gagetown, October 29, 1998)
     

The rationale underlying regionalisation is obvious and compelling. Regional offices will be crucial in terms of local knowledge, contacts and networking, education, outreach and timely response and resolution of complaints. They will in all likelihood be cost-effective.
 

There are 3,000 members deployed at any one time in Europe and the Middle East. During our consultations, we heard of the unique issues that they face, and that many of them felt strongly that they needed a European-based Ombudsman’s Office that would address those issues:
 

  • You will need to be accessible. Will you have a representative in Europe? Face to face is most important. (Meeting with members at NATO, Brussels, November 4, 1998)
     
  • What is unique about this place is that there is a general feeling that people are abandoned here. Out of sight, out of mind from Ottawa. (Meeting with Senior Officers, NATO, Brussels, November 4, 1998)
     
  • You should have a presence in Europe. I would like to see you have an office in the area. You have to be, have a presence. It is important to be here, things happen in operations and can be nipped in the bud at a lower level. (Meeting with Senior Officers at SHAPE, Belgium, November 5, 1998)
     
  • There is a need for regional offices. (Meeting at Caolopina, Bosnia, November 12, 1998)
     

We were also told by many during the consultation that every major base, formation and wing in Canada should have access to a local office.315 While I am persuaded by the logic of the argument, I have decided to err on the side of caution at this time, at least until we have the opportunity to undertake a cost/benefit analysis. I intend to revisit this issue as operational requirements dictate. I have therefore decided to recommend that initially we set up two regional offices in Canada and one in Europe.
 

In order to ensure confidentiality and independence, and to convey a consistent message to stakeholders the regional offices should be physically located outside DND property, just as my Office in Ottawa is physically separate from NDHQ.
 

I therefore recommend that:
 

The Ombudsman's Office should be resourced to set-up three regional offices in addition to the office in Ottawa, one in Western Canada, one in Atlantic Canada, and an office in Europe, to act as a front line resource for issues and complaints originating from those areas. These offices will not be located on DND property. The Ombudsman will review the requirement for regional offices on a regular basis, and make further recommendations as he or she sees fit.

 

The Mandate

Preliminary Involvement

One of the first questions we asked during the consultation process was at what point should the Office get involved in a complaint or issue. We heard a wide variety of opinions, ranging from the view that we should not get involved in any manner until all other avenues had been exhausted, to the position that the complainant should have the option of having the Office directly involved from the outset. Some, particularly junior ranks, thought the Office should replace or act as an alternative to existing mechanisms.
 

This is an extremely sensitive area. As noted, there are significant expectations within the DND/CF that my Office will be a panacea for problems and injustices, real or perceived. Chief of Review Services (CRS) staff anticipate that we will receive approximately 8,000 contacts in our first operational year. We cannot possibly deal with each and every one in an identical manner. Even if we chose to do so, the resource implications would be staggering. In keeping with the practice of virtually all Ombudsmen, I will not normally become involved in an issue or complaint until all existing mechanisms are exhausted.
 

We must develop an operating framework that most effectively and efficiently targets those situations that lend themselves to fruitful intervention at a specified juncture, or where my Office can intervene in a manner that results in meaningful and tangible change to the greatest benefit for the greatest number of members. At the same time, we must attempt to resolve issues at the first possible opportunity and at the lowest possible level, while doing everything we can to avoid being inundated by issues we cannot effectively deal with, or which can be effectively dealt with by existing mechanisms.
 

Information, Referral and Education

One of the functions of all Ombudsmen, organizational or otherwise, is to educate the complainant as to what options are available and refer him or her to the appropriate channel or mechanism. There are a plethora of organizations and agencies both within and without the DND/CF designed to resolve problems and injustices; ranging in scope from Military Family Resource Centres to the future Military Police Complaints Commission. One of the roles of my Office will be to direct individuals and groups who contact my Office to the right place to go for help with their particular issue, and give existing mechanisms the opportunity to resolve issues in the first instance.
 

I therefore recommend that:
 

The Ombudsman should be a direct source of information, referral and education to assist individuals to access existing channels of assistance and redress within the DND/CF.
 

Ombudsman's Exercise of Discretion

Sufficient Personal Interest

My Office cannot handle 8,000 complaints and treat each one in an identical manner. I will have to assess each case on its merits when determining whether or not to invoke my mandate. I intend to refer to the following guidelines to assess and prioritize each case, based on the premise that I retain discretion as to whether or not to invoke the mandate in any particular instance. I need to guard against my Office being used for improper purposes, such as malicious and vexatious complaints, nor can it become clogged with frivolous matters. In the event that I do not invoke the mandate, I will inform the complainant of my reasons for not doing so.
 

Although my Office is mandated to deal with both individual and systemic injustices, where individual complaints are brought forward, the complainant who deals with my Office should normally be the person most directly affected by the issue. This will not prevent my Office from dealing with systemic issues in which there is a public interest in having such matters resolved, as I will retain the ultimate discretion to invoke the mandate.
 

I therefore recommend that:
 

The Ombudsman will determine whether the complainant has sufficient personal interest in any matter complained about to the Ombudsman, or if not, whether other special circumstances exist, to warrant invoking the mandate.
 

Use of Existing Mechanisms

There is a possibility that my Office may be able to resolve an issue, prior to making a formal determination whether or not to invoke the mandate, by merely acting as a sounding board and listener to individual problems. This is sometimes enough to resolve an issue in and of itself. According to the background material supplied by NDHQ regarding the setting-up of this Office, this sounding board and listening function also gives the complainant an opportunity to vent their concerns to a neutral party.
 

There may indeed be a valuable opportunity at the point of first contact to educate and assist in ascertaining what options are available. However, we must be cautious before going much further than that at this point in the process. I do not think that we should be attempting to resolve issues by intervening, investigating or engaging in “shuttle diplomacy”, nor should we be taking any other proactive measure at this juncture. As noted below, if we do get involved in every case as the avenue of first resort, we run the risk of undermining existing systems, including the chain of command, by not giving them the chance to do their jobs. Additionally, there are considerable resource implications in getting involved in possibly 8,000 different issues a year. In any case, relatively few of the hundreds of calls and letters we have received to date appear to be resolvable at this level, as most have already been through existing mechanisms and have no further recourse. The majority of these callers require far more than a mere vent for their frustrations, or coaching as to how to manage their particular issue.
 

Many people, particularly in the chain of command, felt very strongly that they deserve the opportunity to try to resolve any problems first. I agree. If the Ombudsman intervenes as soon as a request for assistance is received, albeit informally, it may compromise the chain of command by not giving it the chance to solve the problem. This Office should not circumvent, subvert or override the authority of any existing system as a matter of course, including the chain of command.316 Nor do we intend to replace existing grievance mechanisms for DND civilians, nor in any way interfere in the primacy of collective agreements in the workplace,317 nor indeed any other system in place to resolve issues. These operating procedures demonstrate that commitment.
 

On the same topic, we also heard that we should do everything we could to avoid duplication. Several parties expressed concern that the Office would become yet another avenue of redress, which, when used simultaneously with existing mechanisms, may create even more work for those responsible for resolving complaints in the field. We heard that complainants sometimes used multiple channels at the same time; for example, submitting a complaint through the redress of grievance system and the Canadian Human Rights Commission, as well as simultaneously contacting their elected representatives. While I make no judgment at this time as to whether using all available channels is a proper or desirable practice in all cases, I do not believe that adding the Ombudsman to the list is a positive step.
 

My Office may become involved in an issue or complaint once all other available channels and mechanisms have been exhausted. I emphasize the word may. Given the huge volume of estimated complaints, the Ombudsman must have a strong power of discretion and not hesitate to exercise it. Further, there may be a reluctance in some cases to resolve issues at other forums if the Ombudsman is required to look into each issue that is brought to his or her attention.
 

Therefore, the Ombudsman will not normally consider invoking his or her mandate until all existing mechanisms have been exhausted. However, the Ombudsman may intervene, at his or her discretion, at any time when existing mechanisms fail to address an issue or complaint within a reasonable time, or where other special circumstances exist.
 

I therefore recommend that:
 

The Ombudsman, at his or her discretion, will not, absent special circumstances, formally invoke his or her mandate if an adequate remedy or right of appeal already exists whether or not the complainant has availed himself or herself of the remedy or right of appeal.
 

Public Interest Test

It is very important that I focus the resources of the Office on those areas where my intervention will be of the greatest benefit to the organization and its members, and to the public as a whole. This process will involve the consideration of a variety of factors, including, but not limited to, the timeliness with which the complaint was made, the age of the complaint and the likely cost of investigating the complaint. It may or may not be in the public interest to pursue a given matter. Each case will require careful assessment based on its facts and in regards to factors such as age of complaint, timeliness of complaint and the judicious use of resources.
 

Age of Complaint

Since the announcement of the creation of my Office, and despite widespread publicity that we are not yet operational, we have received hundreds of phone calls and letters requesting assistance. A significant proportion of these relate to events that occurred years, sometimes decades ago.318 We have to construct a mechanism to deal with this, or run the risk of being inundated with historical complaints which we may be inadequately resourced to deal with effectively. This is not to say that these complaints are unworthy of investigation, rather it is a question of using scarce resources to the best possible advantage.
 

Timeliness of Complaint

The Ombudsman should have the discretion not to invoke his or her mandate in respect of any complaint that is not brought to his or her attention within a reasonable time of the issue arising. What is reasonable will largely depend on the circumstances, and will be decided on a case-by-case basis. Obviously, I will take into account if the complaint has been in the process of being dealt with by other mechanisms, whether the complainant is incapacitated, at what point the complainant became aware of the issue, or any other relevant factors.
 

Judicious Use of Resources

We have a duty to ensure that limited resources are used in the most efficient and effective manner possible. A balance must be struck between the degree of alleged injury and the cost of pursuing a matter. For example, if a complaint is dated, of a minor nature, has no systemic implications if justified and will require considerable resources to investigate, then I may choose to exercise my discretion not to investigate. Obviously, I will carefully consider each case prior to making my determination, and keep the complainant fully informed of the reasons for my decision.
 

I therefore recommend that:
 

The Ombudsman will consider whether it is in the public interest to invoke his or her mandate in respect of any complaint made to him or her.
 

Frivolous, Trivial or Vexatious Complaints

We were told on numerous occasions during the consultations that we should not waste resources on investigating frivolous or trivial matters. I agree, and will weed out such cases. However, I am aware that exercising my discretion in these circumstances requires a careful assessment of the facts; a matter that may appear trivial to some may not be to others, particularly the complainant. Further, we must avoid my Office being used for any improper motive or purpose. Matters that are clearly vexatious will be not be considered by my Office, other than possibly under the provisions outlined “malicious and vexatious complaints” below.
 

I therefore recommend that:
 

The Ombudsman will not investigate any complaint that is deemed by him or her to be frivolous, vexatious or trivial.
 

Table of Contents

 

Mandate Invoked

General

After an initial review of a complaint or issue, I will exercise my discretion whether or not to invoke my mandate in any particular case, as indicated above.
 

Special
MND Directed Investigations

There will be situations where it is in the best interests of the DND/CF to have an impartial agency independent of the chain of command investigate issues that arise from time to time. Because of the historic lack of such a body, the DND/CF has, on occasion, resorted to retaining outside civilian investigators to look into these incidents or issues, at considerable cost. The creation of my Office will reduce or eliminate the need to retain such assistance. Furthermore, there is sometimes a perception that the investigators are hand-picked, with a vested interest and somehow beholden to the organization. My Office is independent of the chain of command, and thus is perfectly positioned to cost-effectively conduct these investigations, particularly in light of its unparalleled investigative and legal expertise, mainly civilian staff with non-military backgrounds, and comprehensive knowledge of, and access to, the DND/CF organization.
 

The power to direct an Ombudsman to conduct an investigation is by no means uncommon. For example, the Norwegian Defence Force Ombudsman must investigate when instructed by the Minister of Defence, as must the Parliamentary Commissioner for the German Armed Forces when instructed by the Bundestag. In Canada, the Correctional Investigator may commence an investigation at the request of the Minister of the Solicitor General.319 Even lower levels of government have decided to use this option to resolve issues. For example, the Winnipeg City Council "may refer to the City of Winnipeg Ombudsman a matter that is before Council for consideration, and the Ombudsman shall, subject to any special direction of Council, investigate the matter[…]"320
 

Accordingly, I recommend that:
 

The Ombudsman shall investigate any matter when requested to do so by the Minister of National Defence.
 

Own Motion

All provincial and many Organizational Ombudsmen have the power to self-initiate investigations into issues where no complaint has been made, when the Ombudsman determines it is in the interests of the public or the organization to do so.321 The federal specialty Ombudsmen, such as the Information Commissioner and Official Languages Commissioner, possess a similar capability. This power is an essential tool for obvious reasons. Generally, “own motion” investigations are generated by systemic issues. The power to initiate investigations reinforces my independence and role as a “barometer”, giving me the capacity to pursue matters without a specific complaint being made to me.
 

Accordingly, I recommend that:
 

The Ombudsman may invoke his or her mandate in any circumstances where he or she deems it appropriate.
 

Operating Framework

Low Level Ombudsmandry

When the Ombudsman determines to invoke his or her mandate, the Ombudsman will first, if appropriate to the circumstances of the case, attempt to resolve the matter by traditional low level Ombudsmanry, using the ten points defined by Dr. Rowe, as follows:
 

  • listening/venting;
     
  • providing information;
     
  • reframing issues/developing options;
     
  • referring;
     
  • advice/coaching;
     
  • informal third party intervention;
     
  • looking into a problem;
     
  • formal mediation;
     
  • propose changes to policies and practices;
     
  • monitoring and upward referral of trends.322
     

Our goal is to resolve problems. In spite of the widespread cynicism we encountered regarding “soft” TOA-style Ombudsmanry,323 I believe that there will be many situations that can be resolved or rectified using a low key, collegial approach. My Office will vigorously attempt to use these tools to achieve resolution, provided it is practical and realistic to do so. One of the fundamental strengths of my Office is the ability to access senior personnel, and I envisage working collegially with the chain of command and Divisional System to resolve problems informally, whilst at the same time remaining open and transparent. I will use this access to the fullest in those situations where such efforts are likely to produce resolution.
 

The use of mediation as an effective and efficient means of resolving cases has been recognized by the Ministry of Attorney General for Ontario, which is about to implement a mandatory mediation programme for civil cases, excluding family law matters. The programme is founded on the principle that “Mediation usually leads to quicker resolution of cases and savings of both time and money”, and will provide individuals and businesses involved in civil disputes, with an alternative method to the traditional court process for resolving their disputes.324 The programme is expected to begin in January 1999 in Toronto and the Regional Municipality of Ottawa-Carleton and is expected to expand throughout Ontario over the next several years.325 Mediation has been recognized by stakeholders in the civil litigation process as “a simpler, faster process that helps business avoid the red tape of litigation and gets early resolution of disputes…” and it is anticipated that “it could save Ontario companies millions of dollars in legal fees […]”.326
 

Investigations

The power of investigating is perhaps the greatest and most essential power an Ombudsman has.327
 

Need for Investigative Powers

Fact-Finding

Inevitably, there will be cases where informal mediation, venting, coaching, reframing, giving options, collegiality and other low-key methods will be insufficient to resolve a problem. In those situations, we need to gather the facts (investigate), and craft meaningful solutions based on those facts. To do that, my Office requires written and clear powers to gather these facts. As is clear from the analysis of various Ombudsman’s models elsewhere in this report, virtually all effective and credible Ombudsmen Offices possess investigative powers. All military Ombudsmen that we are aware of possess investigative powers.
 

There is no doubt that the persuasive abilities, the informal collegiality and the goodwill of the Ombudsman are important in fostering solid results. Good mediating skills are an asset. But often the mediator will be successful because of the consequences that will follow for one or both parties should he or she be unsuccessful in resolving a matter. It became very clear that the Ombudsman needs to have at his or her disposal a solid foundation of powers and procedures that give the Office the authority necessary to expedite resolution. Collegiality, and all the other tools in the TOA model, will be rendered ineffective without the existence of clear authorities outlining the responsibilities and powers of all parties, including the consequences of failing to achieve resolution using these means.
 

A successful Ombudsman will operate under an umbrella which will provide him or her with authority, credibility and a wide spectrum of tools that will foster fruitful and results-oriented solutions.
 

The need for investigative powers is most clearly evident from the task you have given me to deal with systemic injustices. The investigation of systemic issues requires far different tools than those available from, for example, the “Between Us” model. Dealing with alleged systemic injustices requires painstaking investigation into policies and their application. The goal is obviously to ascertain whether or not a given policy or practice is unfair, and, if it is, to advance practical recommendations to solve the problem. For example, in 1994 the Official Languages Commissioner (OLC) conducted an investigation into the provision of French language services at CFB Moose Jaw. The investigation was initiated as the result of a complaint in February 1994, and got underway in April 1994. The initial complaint mushroomed into several, all relating to language issues. Two investigators were assigned and completed a detailed fifty page report which included comparisons of language services at other CF establishments.328 One of the investigators was engaged virtually full time for a year on the investigation.329 A draft report with recommendations was supplied to the DND for comment. The DND, obviously recognizing the absolute need for thorough investigation in these cases, critiqued one of the findings (provision of medical services) because the report addressed the issue “in a somewhat incomplete fashion.”330 Eventually, and after much discussion with the OLC, the DND introduced policy changes based on the recommendations. Ultimately, the whole process took over two years.
 

The Federal Court of Canada, in a recent decision, which found that a CHRC investigative report was biased for omitting relevant material information, commented on the importance of fair and thorough investigations:
 

In essence, the investigator must collect the information which will provide an adequate and fair basis for a particular case and which will in turn allow the Commission to balance all the interests at stake and decide on the next step. No relevant facts should be left out. Omissions, particularly, when the information is damaging to the Complainant’s position, only result in casting serious doubts on the neutrality of the investigator.331
 

The fact-finding process is to be considered one of the most crucial steps in an Ombudsman’s work. The facts of a case provide the foundation or pillars for the Ombudsman’s recommendations. Because an Ombudsman does not possess any executive powers, his ability to achieve fairness is dependent upon the strength and credibility of his recommendations. Criticism of investigations as flawed or incomplete, lead to questioning of the strength and credibility of the Ombudsman’s recommendations and will render the office ineffective. My Office requires the investigative tools to establish a fact-finding process which satisfies the conditions of “neutrality and thoroughness”.332 As was noted in the Auditor General’s report on the CHRC, clear and defined investigative standards are essential to ensuring a credible and fair review process.333 In the case of the CHRC, the Auditor General recommended that the government identify and present an integrated set of measures to improve the effectiveness of addressing human rights complaints, including ensuring that specific standards are established and followed, to safeguard the reliability, impartiality and transparency of the investigation, conciliation and decision-making process.334 (Emphasis added)
 

Further, as noted in the supporting documentation to Bill C-25, I have a mandate to deal with the oversight and review of systemic issues arising out of the redress of grievance and military justice systems.335 As an overseer of these newly formed organizations, I will be responsible for ensuring these systems are working equitably. It is only appropriate that my Office is invested with no less authority nor fewer tools than the other channels or mechanisms that form part of the organization I am mandated to oversee.
 

There are other compelling reasons to vest this Office with investigative powers. As noted above under the heading “MND Directed Investigations”, once my Office becomes operational, it will reduce or eliminate the need, created by the absence of an Ombudsman, to retain external investigators to examine certain high-profile and sensitive cases that remain unresolved in spite having been dealt with by existing internal investigative mechanisms. This not only offers an excellent opportunity for cost savings, but also refutes the perception of some that these investigations are somehow influenced by, or beholden to the chain of command. We have been told that investigations done by contracted former civilian police officers or others are perceived to lack credibility because there is an impression that the investigators are hand-picked and would be reluctant to bite the hand that feeds him or her. The establishment of my Office, as an independent overseer outside of the chain of command, will do much to negate this perception, provided we are given the tools to do the job effectively.
 

Once again, I am fully cognizant of the deep-rooted fear felt by some high-ranking officers that the existence of any authority within my Office could seriously undermine the authority of the chain of command.336 We heard many comments during the consultation process about the perceived threat, from both within NDHQ and at the local level.
 

The Minister's Monitoring Committee on Change in the Department of National Defence and the Canadian Forces also noted this fear among some within the CF and added that "these misgivings are not likely to disappear spontaneously".337
 

Concerns about the relationship between the Ombudsman and the chain of command were made very clear during a presentation on implementing a CF Organizational Ombudsman to the Personnel Policy Board (PPB) as far back as on October 9, 1996, during which various models were discussed. There was obvious anxiety from several quarters that the advent of the Ombudsman could gravely weaken the chain of command and the divisional system. The presenter addressed these concerns in two ways. Firstly, he discussed the rationale behind choosing an Organizational Ombudsman over other options, such as an Inspector General, external Ombudsman, military union or an external review committee, because that option was “judged to be significantly less intrusive on the chain of command than the alternatives […]”.338
 

Secondly, the presenter confronted the widespread trepidation about the impact of an Ombudsman with the following, and in my opinion compelling, words:
 

In the first place, the contrasting example and experience of some of the world’s pre-eminent professional military forces the Americans with their IG system, the Germans and Australians with their Ombudsman, the Israelis with their complaints commissioner suggest that neither professionalism nor operational effectiveness would be adversely effected. Second, if we are going to preach a new culture of openness and accountability – whether under the banner of D2000, the Defence Ethics Programme, MCCRT, or any other renewal programme - then we should be prepared to demonstrate our commitment to these policy principles in our accountability practices. Even the chain of command must be accountable in some public way for its performance. Third, it must be emphasized that that the Ombudsman is not an advocate for service members, but a neutral third party, so if the chain of command is functioning fairly - as a matter of fact as well as a matter of faith - then the Ombudsman can only reinforce its authority. In the worst case, if the presence of an independent Ombudsman hovering in the wings has the effect of reminding some leaders that they may be held to account, then such influence may be healthy.339 (Emphasis added)
 

Nonetheless, there is still today widespread acknowledgement by senior ranks that the choice of an Organizational Ombudsman was the least intrusive option open, other than doing nothing at all. As a Senior Officer involved in the set-up of the Office explained:
 

We were looking for a model that would be acceptable to our senior management. The goal was to establish an Ombudsman that would not interfere with the chain of command. We didn’t want an Inspector General because it interferes with the chain of command. It was decided to take the organizational [Ombudsman] because it would not interfere in the chain of command. That was the biggest fear.340
 

In my view, these fears from some in the chain of command are ill-founded, as experience in other jurisdictions clearly shows. The Israeli Defence Attaché in Washington DC rejected the contention that the existence of an Ombudsman is disruptive to the chain of command. “We heard those arguments when we first started this institution (the Soldiers' Complaints Commissioner). You will always have some commanders who say that, but as a whole we believe that it is positive.”341 His views mirror those of the German Defence Attaché in Ottawa, who also has first hand experience of co-existing with an effective Ombudsman. The German Defence Attaché noted that the relationship between the German Parliamentary Commissioner (Ombudsman) and the chain of command depended on whether “she was investigating you or not”. He advised that the Ombudsman does not interfere with the chain of command, but does make individuals a little more careful in their dealings with the people they are commanding. He stated “[…] if you do things correctly you should not have any problems with the Ombudsman (but) if you were to act in any way contrary to the rights of the individual, you’d better think twice”.342
 

The Ombudsman is neutral and impartial. I expect, as well, that in many cases, my Office may, in fact, validate decisions made by the chain of command.343 This does not mean that my Office will be a puppet of the chain of command or its senior officers. If it is, or is perceived to be, then the Office will not be credible in the eyes of its stakeholders. The Ombudsman may assist the chain of command to do its job; he is not here to replace it, nor to excuse it, nor to advocate for it. The same principles of neutrality and impartiality apply equally to the Ombudsman’s relationship with any other party, including a complainant.
 

Feedback from the Consultation

As noted elsewhere in this report, we spoke to, and received input from, thousands of DND/CF members and their families during the consultation process. There was little dispute in one area. Wherever we went, whomever we listened to, the voice of the members was virtually unanimous. The Ombudsman’s Office is doomed to insignificance and ultimate failure unless it has the ability to independently establish all the facts relating to a complaint or issue. Indeed, there was an almost universal assumption that the Office would, as a matter of course, have full investigative powers. The overwhelming consensus was that we must have the powers to do the job, matched only by cynicism that we would not be given those tools because the last thing that senior management wanted was an effective watchdog. There were very few instances where someone seriously argued that under no circumstances should the Office have any investigative capacity.
 

Notable quotes on this subject from our consultation included:
 

  • You’ll be a joke if you don’t have investigative powers. (Meeting with Professor Edward Ratushny, Q.C., University of Ottawa Law Faculty, October 19, 1998)344
     
  • The objectives of your office should be [… to] have the full and proper authority to investigate and not to get stonewalled. (Meeting with Professor Edward Ratushny, Q.C., University of Ottawa Law Faculty, October 19, 1998)
     
  • You should have the investigative powers available. (Telephone interview with NCM at Fort Frontenac, August 26, 1998)
     
  • You would need the following powers, access to documents, subpoena power, evidence under oath, need to have authority to get information from both the military and civilian and also outside agencies dealing with DND/CF. (Meeting with Union Representatives, Edmonton. September 1, 1998)
     
  • Il faut que tu puisses avoir le pouvoir d’enquêter de ta propre initiative. (Meeting with The Honourable Mr. Justice Gilles Létourneau, September 30, 1998)
     
  • Ombudsman should have investigative abilities. (Lunch with Brigade Officers, Edmonton September 1, 1998)
     
  • Investigate in the field, get all sides of the story. (Meeting at Officers Mess, LFWATC, Wainwright September 3, 1998)
     
  • If you have no teeth, you are no good; just another waste of DND dollars. (Meeting with Senior NCM’s, Trenton, September 8, 1998)
     
  • You will need to have the tools to look at both sides of the issues and to make proper, impartial recommendations. (Meeting with 2 RCR Officers and NCMs at Velika Kladusa, Bosnia, November 11, 1998)
     
  • You cannot use MPs in doing an investigation, you need independent investigators. (Meeting with 1 AMS, Cold Lake, September 15, 1998)
     
  • Yes, you need to look into things, you don’t want bogus claims. (Meeting with 1 AMS, Cold Lake, September 15, 1998)
     
  • No problem with Ombudsman having investigative powers. If our guys do their job right, nothing to fear. (Meeting with Military Police, Cold Lake, September 15, 1998)
     
  • You need investigative powers - administrative investigative powers, but not criminal investigative powers. (Meeting at Warrant Officers and Sergeants Mess, September 15, 1998)
     
  • With regard to your investigative powers, if your investigators are not outside the chain of command, then it is pointless to do an investigation since they are not independent. (Meeting at Warrant Officers and Sergeants Mess, September 15, 1998)
     
  • Unless the Ombudsman is given appropriate power or authority, (the changes that have been made to attempt to restore integrity in the system) are completely useless. It is my opinion that the Ombudsman’s office should have complete authority and investigative powers to address any issues and concerns relayed to it by military personnel or civilians. (Letter from Ms. Christina Wheeler, widow of MCpl. Rick Wheeler)
     
  • The military should not investigate itself. A neutral third party, such as the Ombudsman or RCMP should be investigating. (Ex-Member who spoke to the Ombudsman about an alleged series of sexual assaults when she was serving in military)
     
  • The investigative function is absolutely indispensable. Expert investigations produce information regarding the individual and systemic causes of complaints and the recommendations of this office are rooted in this information. (Ms. Virginia Menze, City of Winnipeg Ombudsman, Annual Report 1997-1998)
     
  • You’ve got to have teeth. (Meeting with 402 Squadron Personnel, Winnipeg, September 16, 1998)
     
  • If your investigators can be shut down at any point, you’ll be useless. You’ll have no teeth. (Meeting with 402 Squadron Personnel, Winnipeg, September 16, 1998)
     
  • You need investigative authority. (Leading Seaman, HMCS TORONTO, September 22, 1998)
     
  • We think you would need complete authority to obtain documents and information in order to do your investigation. (Meeting, at CFSAL, CFB Borden, September 28, 1998)
     
  • The last thing we want is another ineffective process. (Meeting with Dockyard Workers, CFB Halifax, October 26, 1998)
     
  • [You] need the power to look into things, to investigate, to understand both sides of an issue in order for your recommendations to have credibility. (Lt.-Kol. Schoof, German Defence Attaché, Ottawa, December 7, 1998)
     
  • You must have the authority to access information and to speak to people. (Meeting with Senior Officer, LFAA Headquarters, Halifax, October 28, 1998)
     
  • You need to have investigative authority; you must be able to get full access to people and documents which are required to get the full story. You should have the power to re-open NIS and MP investigations and to see if they were done correctly. I know of a few botched investigations, which watered down the facts and sent it back to the wing. (Meeting with members at RA Park, LFAA Headquarters, Halifax, October 28, 1998)
     
  • You need to have teeth, to have investigative power and get things done. (Meeting with HT 406 12 Wing, Shearwater, October 27, 1998)
     
  • You need to prove to people that you have teeth. That will give you credibility. (Meeting with HT 406 12 Wing, Shearwater, October 27, 1998)
     
  • You will need investigative authority to look into issues and be able to get both sides before making recommendations. (Meeting with Junior Ranks, CFB Gagetown, October 29, 1998)
     
  • (You) need to have the power to investigate. Need to investigate to get facts and the highest investigative standards, to have credibility. Need professionally and formally trained investigators. If they investigate and rule against the soldier, explain him/her in person. (Meeting with Officers, CFB Gagetown, October, 29 1998)
     
  • It is extremely important to be able to fact find, to look into. (Meeting with Major Kennedy (US Army IG office) and others, Brussels, November 5, 1998)
     
  • Absolument besoin de pouvoirs d’ enquêtes - carte blanche A à Z. (Meeting with Military and Civilian Members, Geilenkirchen, Germany, November 6, 1998)
     
  • Definitely need mandate to investigate. You need the authority to go everywhere, look at everything. You must have full access, carte blanche. You must have recognized investigative authority. (Meeting with Military and Civilian Members, Geilenkirchen, Germany, November 6, 1998)
     
  • You’ll need the power to investigate - you’ll want to compel individuals to forward information and documents. (Meeting with Me Daniel Jacoby, Q.C., Protecteur du citoyen du Québec, August 19, 1998)
     
  • Investigations are important, but not the only tool. (Meeting with Mr. Douglas Ruck, Ombudsman, Province of Nova Scotia, October 28, 1998)
     
  • Need power to investigate, speak to anyone uncurtailed… (Meeting with Ms. Dulcie McCallum, Ombudsman, Province of British Columbia, September 2, 1998)
     
  • If the existing channels cannot handle the problem or do not deal well with it, you want to have the powers to investigate. (Meeting with Military Police Officers, NDHQ, August 28, 1998)
     
  • It is very important to have impartial experts doing the investigations so there are no complaints about the investigations. (Meeting with Mr. Gilbert Langelier, Assistant Director General, Investigations Branch, and Mr. Anthony Kay, Investigator, Office of the Commissioner of Official Languages, August 18, 1998)
     
  • It is important to have the power to tell institutions that are not cooperating that you will subpoena them. Once they realize you have the power to subpoena they normally send over the requested information. If you don’t have the power to subpoena, you will be seen as lame. (Meeting with Mr. Gilbert Langelier, Assistant Director General, Investigations Branch, and Mr. Anthony Kay, Investigator, Office of the Commissioner of Official Languages, August 18, 1998)
     
  • We do not have a division of complaints into formal or informal investigations; the Official Languages Act obliges us to investigate each complaint. (Meeting with Mr. Gilbert Langelier, Assistant Director General, Investigations Branch, and Mr. Anthony Kay, Investigator, Office of the Commissioner of Official Languages, August 18, 1998)
     
  • You should have investigative powers, such as subpoena, should have unimpeded access to people and documents; should have many tools in your box, although (you) don’t have to use (them), you know it’s there. (Meeting with Professor Douglas Bland, Chair of Defence Management Studies Programme, Queens University, August 26, 1998)
     
  • It is important to have investigative authority. (Telephone Interview with Major-General Livne, Israeli Military Attaché, Washington D.C., by a member of my staff, November 27, 1998)
     
  • In your case, the public is expecting you to take control of your investigations; to do this you need the tools. You don’t want to use them but need to have them, if not you will be ineffective. If you end up being a secondary source investigating the investigations done by MPs or NIS, you will lose all credibility. You must have the power to go to the bottom of the problem and do your own investigations. You cannot only review the investigations which were done. (Meeting with Me Simon Noël, Q.C., September 22, 1998)
     
  • In case you missed it, your own Ombudsman was asking for that right to launch investigations on his own say so; yesterday when he said empower the Ombudsman and you shall be empowered. I’m not here to make a pitch for Mr. Marin but I do think it’s fair to say that if he’s not seen as credible, he will be ignored by the press. (Mr. Christopher Thomas, Text of Speech to Defence Ethics Conference, October 21, 1998)
     
  • You need powers to investigate and see all sides of the story. You need formal powers of investigation. If you don’t get the authority, don’t bother doing it. You must have the authority. (Meeting with Mr. Bill Wheeler, relative of the late MCpl. Rick Wheeler, October 29, 1998.)
     

The consensus expressed in the field is reflected in some of the documentation NDHQ supplied to me regarding the setting up of this Office. I particularly noted Lt.-Gen. Dallaire’s comment that:
 

[A]n office that is not empowered to investigate or mediate does not perform Ombudsmanry functions but rather an information and referral service only. The mission of the ombudsman is to assist in complaint resolution by a variety of means, including informal investigations, inquiry and mediation. To deny the Ombudsman’s office any responsibility to investigate, make inquiries or mediate is to gut the function. 345
 

Informal vs. Formal Investigations

Several documents obtained from NDHQ as background material for my Office, advocate that our investigative powers be limited to that of an “informal investigation”, however the term was not defined other than that it “means a written report is not produced.”346 More ominously, the term could infer that the investigative process is casual, less thorough; few if any records are kept; or the consequences are somehow less serious that in a “formal” investigation. A cursory examination of the cases that have already been submitted to my Office make it clear that this is an impractical, indeed, dangerous approach to doing business. It must be noted that the Federal Court of Canada has recently reiterated the importance of investigations being conducted in a "neutral and thorough" fashion.347 (Emphasis added) Many of the issues raised with my Office so far are complex and the parties are often adversarial. Many of the cases submitted to my Office will involve alleged violations of the fundamental human rights of individuals including violations of sexual integrity and sexual harassment. The Auditor General in his report on the CHRC, commented that investigations, which form the basis for decisions involving fundamental human rights, must be “rigorous” and clear standards should be followed for the conduct of such investigations.348 I believe that sound practice and fairness dictates that investigators must keep meticulous records. Meaningful and accountable solutions require a demonstrable factual basis. It is the common practice amongst empowered organizational and military Ombudsmen to conduct investigations in a thorough fashion, and justify their conclusions with a written report. As noted above, the DND was the first to challenge the OLC’s recommendations when their investigators in DND’s opinion, investigated in a less than thorough manner.
 

In my opinion, there is no such thing as an “informal investigation”. An investigation is an investigation. It must be done with professionalism and integrity, and ultimately be able to withstand scrutiny from all parties. It would be manifestly unjust to all concerned if my Office was obliged to investigate issues without the ability to produce a written report to justify my findings. It would severely impact the accountability of my Office. The whole, flawed, concept is diametrically opposed to the principles of openness and natural justice, which are so fundamental to the credibility of the Office. Not completing a thorough, objective investigation is simply wrong. Not producing a report at the end of an investigation exacerbates the problem. Providing the factual foundation and the reasons behind a decision is a crucial aspect of fairness and natural justice. For example, the Auditor General in his report on the CHRC, highlighted that stakeholders in the CHRC process were concerned that Commissioners were not providing sufficient information on the reasons for their decisions. The report recommended that Parliament be provided with specific measures to require clear, complete and timely disclosure of reasons for decisions.349
 

There also may be serious legal implications in either not keeping, or destroying records generated by the Office, particularly in light of impending amendments to the Access to Information Act, which are previously dealt with in some detail elsewhere in this Report.
 

There were some suggestions that I rely on investigations completed by others within the DND/CF upon which to base my recommendations, and that I confine my inquiries to an existing paper trail. While there may be some merit in using these investigations as a starting point, I am not otherwise persuaded by this argument. My tenure as Director at the Province of Ontario, Ministry of the Attorney General, Special Investigations Unit taught me that investigations completed by internal agencies are sometimes an inappropriate basis to make a decision, for several reasons. They rarely exhaustively address issues germane to the matters that the overseer is interested in. The process is cumbersome, time-consuming, and therefore expensive. Further, the investigation often has little credibility with some stakeholders, even when done in good faith, because of perceptions of conflict of interest.
 

I should therefore be allowed to independently verify the investigative work product generated in any given situation, as well as having the option to gather new facts.
 

Even if we ignore the opinions of the vast majority of our constituents, and an overwhelming proportion of outside observers, there are clearly serious dangers inherent in not giving the Ombudsman the investigative powers he or she may need. For example, if the Office is not empowered to investigate, it may become a magnet for vexatious or frivolous complaints. If we are prevented from establishing all the facts using accepted investigative techniques, we would likely inadvertently become an advocate for whomever came to us first, because we would not be able to establish both sides of the story in a methodical and fair manner. If that happened, our credibility and integrity would be fatally compromised.
 

The Ombudsman Association (TOA) style Ombudsman at DFAIT alluded to this problem during the consultation process. She told us that it was crucial to get all sides of the story, but she had problems ensuring she got the full picture. She states that:
 

When people come to see you they don’t necessarily give you the whole story; they give you the bits and pieces they find relevant. Also there is the danger they are unconsciously trying to manipulate you.350
 

As you have made so clear, an Ombudsman must be neutral and impartial. He or she cannot be an advocate and must operate as far as possible in an impartial and non-adversarial way.
 

In order to establish all the facts, we require unimpeded and immediate access to people, documents and places within the organization at any stage when we intervene in an issue. We also require full and immediate co-operation from all members, in order to perform our tasks in a fair, thorough and timely fashion. This co-operation is the key to a successful office, and I am grateful for, and welcome, your commitment to ensure that I “receive the support and co-operation of all levels of the Department and the Canadian Forces”.351 The experience of the CHRC gives a good illustration of how the lack of specific legal authority to compel co-operation during an investigation can lead to a virtual paralysis of the investigation and contribute to significant delays in the review process. Significant delays also result from the Commission not having the legal authority to enforce deadlines. For example, the Commission requests that respondents reply to a complaint within 40 days of notification. The average reply, however, takes 60 days with about 15 percent of respondents taking 90 days or more to reply. In such instances, the Commission’s only recourse is to send additional reminders to provide information.352
 

The Auditor General has recommended that Parliament be presented with measures to establish statutory deadlines for the receipt and disclosure of information to and by the Commission.353
 

It is also important that my authorities are written down where everyone has access to them and understands, up front, their obligations vis-à-vis my Office. The importance of the need for clear defined standards was highlighted by the Auditor General in his review of the CHRC:
 

The Commission needs to have clear and required investigation standards that would allow the Commission and others to ensure accountability and transparency in the investigation and decision process. In addition, clear standards are needed for the disclosure of information to complainants and respondents during investigations and on decisions. Such standards would also help increase the confidence of stakeholders in the Commission. Further, they would help the Commission manage risks arising from a complex and litigious environment where investigations may last on average two years and where there is a high turnover in staff, requiring the Commission to rely on inexperienced investigators.354
 

Sooner or later, there will be an inevitable conflict over exactly what and how my Office can investigate. Occasionally, these issues take considerable time to resolve, thereby bogging down the process and potentially delaying resolution of the complaint itself.355 This need is particularly acute because we operate in a hierarchical military environment, where written rules and regulations govern most aspects of the DND/CF members’ working lives. Ultimately, it is essential for all parties to know exactly what their responsibilities are in respect of this office, as well as vice versa.
 

It is abundantly clear that an effective Ombudsman must have the power to investigate, if necessary, in any manner he or she sees fit.356 That is not to say that possession of powers means they will be used. Most effective Ombudsmen’s offices operate on the principle of “speaking softly but having a big stick”. The powers themselves are rarely, if ever, used. For example, Le Protecteur du citoyen du Québec has sweeping investigative powers, yet he has never had to invoke them.357 The Concordia University Ombudsman rarely uses the powers granted to her. The Norwegian Armed Forces Ombudsman, who has been in existence since 1952, has never had to use his power to report to the Storting if he fails to resolve an issue with the Minister of Defence.358 However, each and every empowered Ombudsman my team and I met with emphasized that the fact that their powers existed was crucial in ensuring that they were able to fulfil their mandates.
 

Furthermore, I report directly to you. I believe that you are entitled to the highest quality work product from my Office. This product is likely to be subject to considerable scrutiny by all parties involved in the issue, including the public and the media. However, I cannot guarantee the highest quality work product without having the proper investigative tools at my disposal to uncover the truth.
 

Recommendations
 

I therefore recommend that:
 

The Ombudsman may investigate any matter in any manner he or she deems fit.
 

All members of the DND/CF shall co-operate fully with the Ombudsman, who may compel any person to give any information relating to the matter being investigated by the Ombudsman, and to furnish him or her forthwith with any such information, in any form requested, including under oath, if the Ombudsman so determines; and to produce forthwith any documents, objects or things which in the Ombudsman’s opinion relate to any such matter and which may be in the possession or under the control of that person.
 

Any member who fails to co-operate fully with the Ombudsman's Office, or who fails to abide by the provisions of any regulation created in respect of the Office, shall be subject to severe sanction.
 

Investigative Conduct and Accountability

The Ombudsman must be as accountable as those he or she oversees. This Office will conduct its investigations impartially, and with the highest standards of integrity and professionalism. We will respect the rights of all involved parties.
 

I therefore recommend that:
 

The Ombudsman's Office will respect the principles of natural justice and procedural fairness.
 

Notification of Investigation

The Ombudsman is neutral. It is only fair that any organization or individual complained about has an opportunity to respond to the complaint. We must get all sides of the story, particularly so if the Ombudsman is considering suggesting recommendations that may imply criticism of the action or omission of any individual or agency.
 

I therefore recommend that:
 

Absent special circumstances, the Ombudsman will notify all involved parties of his or her intention to investigate any matter that falls within his or her mandate, and give them the opportunity to respond.
 

Turnaround Time

It currently takes the Ontario Ombudsman three to nine months to complete investigations, depending on the complexity of the case. The CHRC has also experienced lengthy delays. The federal Auditor General’s report found that the Commission in practice took an average of about ten months to complete initial investigations and in about 26 percent of cases, it took over one year. 359
 

Many of the complaints we heard during the consultations involve chronic delays within existing redress mechanisms. I am determined that we will do everything we can to avoid falling into the trap of endless delays, snail pace investigations and slow response times. As you are aware, during my tenure as Director at the Province of Ontario, Ministry of the Attorney General Special Investigations Unit, I instituted a successful investigation policy, which resulted in the vast majority of our investigations, some of which were fatalities and allegations of serious sexual assault, being completed within 30 days of the SIU being notified of the incident.
 

The federal Auditor General’s report on the CHRC emphasized the need for defined standards of performance delivery:
 

The information the Commission provides on its management of complaints of discrimination could be significantly improved. The commission provides only summary information on the number of complaints filed and their disposition. It could improve it’s performance by providing information on the delivery of services against defined standards. 360 (Emphasis added)
 

I see no reason why we cannot self-impose deadlines in the majority of cases that we look into, subject to caseloads, resources and immediate co-operation from all involved parties. However, given the size and dispersed nature of the organization, it may be prudent to extend the completion deadline to 60 days. I cannot emphasize strongly enough that to achieve this goal, we must have full and immediate cooperation from all members.
 

I therefore recommend that:
 

Subject to full co-operation from all parties, the Ombudsman shall aim to complete investigations within 60 days of invoking his or her mandate.
 

Access to Personnel Files

To facilitate and expedite the investigation of complaints, my Office should have direct and immediate access to all DND/CF personnel files. This will obviate the need to request items on a piecemeal basis and obviously will be essential in ensuring that we can complete our work in a timely and efficient manner. The IDF Soldiers' Complaint Commissioner has ‘real time’ computer access to all such IDF files, which, he advises me, is very important in enabling him to expedite his investigations.361
 

I therefore recommend that:
 

The Ombudsman's Office has immediate and direct access to all personnel records held by the DND/CF.
 

Finding of Fact

Complaint is Not Justified

Once the Ombudsman has gathered all the relevant facts, he or she will make a determination as to whether the complaint is justified. Based on the experience of other empowered offices, I anticipate that the majority of investigations will conclude that the system is justified in treating the complainant the way it did.362 If this is the case, I will advise both the complainant and the person or agency complained about accordingly, as indeed I will do at each stage throughout the process outlined below. Data from cases that fall into this category will be included in my Annual Report, with all identifiers expunged, to protect confidentiality. If the matter is of pressing public interest, the data may be published as part of a special report.
 

Complaint is Justified

If the facts reveal that the complaint is justified, I will attempt to resolve the matter using all the tools available to me, including informal TOA-style resolution techniques, and access to all levels within the DND/CF. I will of course notify all parties if we successfully resolve an issue at this stage. Data from cases resolved at this stage will be included in my Annual Report, or special report if applicable, with all identifiers expunged.
 

We anticipate that the majority of investigations will result in resolution at low levels, without the need to make recommendations to any party.363 However, some investigations will result in recommendations. In those circumstances, I intend to recommend practical and tangible changes, which will benefit the organization as a whole.
 

The first step will be to send a letter providing recommendations to the person or agency directly responsible for remedying the situation, and who is in a position to make a decision on the issue. I will attach a reasonable deadline for a substantive response, in order to ensure timeliness. If the Ombudsman’s intervention is successful and the person agrees to implement the recommendation(s), the data will be included in my Annual Report, or a special report, as appropriate.
 

There may be occasions where I do not receive a response from the decision-maker, or the response received is not satisfactory.
 

If the decision-maker is a member of the DND/CF, I will advise the Chief of Defence Staff (CDS) or Deputy Minister (DM), as appropriate, of my recommendations and request a substantive response with a deadline, in order to give the chain of command a last opportunity to resolve the issue.
 

I will report to you in cases where the decision-maker is not from the DND/CF, or where cases are not resolved at the CDS/DM level. My report will include recommendations requesting a substantive response within a designated time frame.
 

Data from all cases that reach this stage of the process will also be included in my Annual Report, or a special report as appropriate.
 

Notification of All Parties

In accordance with my commitment to openness and transparency, I intend to keep all parties informed as often and as comprehensively as possible, during and at the conclusion of the process outlined above.
 

I therefore recommend that:
 

Absent special circumstances, the Ombudsman will keep all involved parties informed of the progress and disposition of a case.
 

Protecting the Integrity of the Investigation

We must guarantee the integrity of the investigative process. While it is important to keep the public as fully informed as possible, one of the fundamental principles of proper investigation is that all information concerning an incident is kept confidential while the evidence gathering process is ongoing, with few exceptions. It is imperative that witness’ evidence not be tainted by the premature release of information during an investigation, whether the release is inadvertent or otherwise. Any such disclosure may prove fatal to a full and objective investigation. It is also undesirable to have comments made or opinions expressed in the media before my Office has an opportunity to ascertain all the facts and the DND/CF has an opportunity to respond to any recommendation that I may make. This will also avoid any inference that my Office has been influenced by any comments or opinions expressed in the media.
 

To this end, it is inappropriate for any party to comment publicly on any matter upon which the Ombudsman has invoked his or her mandate prior to the conclusion of the case, without my express written consent. Once I have invoked my mandate, I should be solely responsible for balancing the needs of the investigation against the right of the public to be informed on matters of public interest.
 
I therefore recommend:
 

No member of the DND/CF shall make any public comment on any matter upon which the Ombudsman has invoked his or her mandate, without the Ombudsman’s written consent, until the conclusion of the investigation.
 

Table of Contents
 

Protection from Reprisal

During the course of my consultation, one of the most recurring and predominant concerns by civilian and military members of all rank, has been the issue of retribution, reprisal and the perceived lack of support by peers or by Senior Officers. The basic and legitimate apprehension is that by reaching out to the Ombudsman’s office and potentially filing a complaint, retribution will ensue. The underlying assumption is that the complainant will be perceived and labeled as a “whistleblower” or a “troublemaker” or simply, defiant or antagonistic of the existing chain of command. The complainant could, in the process, be subjected to harassment, demotions, censure and even be subjected to a certain degree of persecution.364
 

Where the identity of a complainant becomes known, all steps must be taken to protect the complainant from any direct or indirect repercussions. This protection should extend to any DND/CF member who assists in the making of a complaint or who assists in an investigation or the resolution of a complaint. Any act of retribution or reprisal against such persons must carry severe consequences against those responsible.365 As I noted in my speech at the 1998 Defence Ethics Conference, such backlash not only stifles growth, in the simplest of terms, it is unethical and must be dealt with severely.
 

In order to fully ensure that persons who come forward and contact my Office or who cooperate with my Office are protected, my Office must have the power to investigate any alleged act of retribution or reprisal against such persons. Any such act of retribution or reprisal should be recognized as a serious act of misconduct with severe penalties attached. An example can be taken from regulation 80 of the Australian Defence Force Regulations, which governs the ADF redress of grievance system and which provides that a member shall not:
 

  • prevent or dissuade, or attempt to prevent or dissuade any member from making a complaint or from requesting a referral of a complaint;
     
  • prevent or dissuade or attempt to prevent or dissaude a member from investigating a complaint, referring a complaint or taking any other action in relation to this part;
     
  • cause a member to be victimized, penalized or in any way prejudiced for making a complaint or requesting the referral of a complaint.
     

This regulatory offence carries a penalty of $500 or imprisonment for three months.
 

Where acts of reprisal are found to have occurred within the civilian contingent of the DND, a report should be made to the responsible party’s department head with a copy to the supervisor, recommending appropriate disciplinary and administrative sanctions. Where the responsible party is a member of the Canadian Forces, the Ombudsman will report such acts to the Provost Marshal, along with a recommendation as to whether a charge should be laid under the National Defence Act. Because of the seriousness of such allegations and the overwhelming need to eliminate retaliation and reprisal, written reasons should be provided to the Ombudsman by a department head and supervisor or the Provost Marshal, in each case where no action is pursued (in the case of a civilian member) or no charges are laid (in the case of a member of the Canadian Forces).366
 

I therefore recommend that:
 

The Ombudsman’s Office should be empowered to investigate in any circumstances where there is an alleged act of retribution or reprisal against anyone who makes a complaint or against anyone who assists in making a complaint to the Ombudsman’s Office or against anyone who cooperates with the Ombudsman’s Office in the investigation or resolution of any complaint.
 

Where, in the opinion of the Ombudsman, there are reasonable grounds to believe that a civilian member of DND is responsible for acts of reprisal or retribution, a report should be made to the person’s department head and/or their supervisor, recommending appropriate disciplinary and administrative sanctions.
 

The regulations of the National Defence Act should be amended to make it a specific offence for any member of the Canadian Forces to engage in an act of retribution or reprisal against anyone who makes a complaint or anyone who assists in making a complaint to the Ombudsman’s Office or against anyone who cooperates with the Ombudsman’s Office in the investigation or resolution of any complaint.
 

Where, in the opinion of the Ombudsman there are reasonable grounds to believe that a member of the Canadian Forces is responsible for acts of reprisal or retribution, a report should be made where appropriate, to the Provost Marshal recommending the laying of a charge under the National Defence Act.
 

In circumstances where a department head or supervisor (in the case of civilian DND members) or the Provost Marshal (in the case of Canadian Forces Members), declines to take the action recommended by the Ombudsman in response to a finding of an act of retribution or reprisal, they should provide written reasons for their decision, to the Ombudsman.
 

Malicious or Vexatious Complaints

This Office has a related duty to protect members from malicious or vexatious complaints. There is considerable apprehension in many quarters that an unfounded allegation will have severe consequences on an individual's career until the matter is resolved, and even beyond. Certainly, individuals unjustly accused of wrongdoing are just as enti to fair treatment as any other member of the DND/CF.
 

There is, however, a delicate balance between the rights of all the parties concerned. We do not want to discourage members from coming forward. Additionally, it is often very difficult to prove that a complaint has been laid maliciously. Each instance needs to be investigated very thoroughly.
 

If an investigation of the complaint reveals that the complaint is fabricated or malicious, the Ombudsman may unilaterally abrogate confidentiality and investigate, or refer the matter for investigation to another body, where appropriate. It should be a serious offence to willfully make a false statement to, or mislead, the Ombudsman or his or her staff in the making of a complaint or during the course of an investigation or resolution of any matter.
 

I therefore recommend that:
 

Any person who willfully makes any false statements to or misleads or attempts to mislead the Ombudsman or any other person in the exercise or performance of his or her functions and duties shall be subject to severe sanction.
 

The investigation and reporting procedures in such cases should be identical to those outlined above under the heading “Protection from Reprisal”.
 

Obstruction

It should be clearly stated that any obstruction or hindrance of the Ombudsman or his or her staff in the execution of their duties will not be tolerated. Any such conduct should be the subject of severe sanction.
 

I therefore recommend that:
 

Any person who without lawful justification or excuse willfully obstructs, hinders or resists the Ombudsman or any other person in the exercise or performance of his or her functions or duties, shall be subject to severe sanction.
 

The investigation and reporting procedures in such cases should be identical to those outlined above under the heading “Protection from Reprisal”.
 

Reporting

Informal Barometer

An important function of any Ombudsman is to identify potential or nascent problems within the organization, and bring them to the attention of those empowered to deal with them as soon as possible. Given my broad constituency and the number of complaints my Office is expected to receive, I anticipate that we will become aware of emerging trends and situations that, if ignored, may develop into systemic or individual injustices.367 This may be the case whether or not I determine to invoke my mandate in any particular instance. I will advise you in these cases, while, at the same time, protecting the confidentiality of the complainant. This informal "barometering" will provide the DND/CF with a unique opportunity to deal with issues before they develop into larger, more widespread problems, which are more difficult and costly to remedy.
 

Annual Report

You have already established that the Ombudsman shall submit an Annual Report to you and that you will table this Report in Parliament.368 The Report will include a statistical breakdown, trends, systemic and individual issues and case studies, and any recommendations flowing from them. To preserve confidentiality, we will remove all identifiers prior to submission of the report.
 

Special Reports

During the course of the consultation it was constantly brought to our attention that to be seen as a credible and accountable agency we should provide information and feedback on the operations and activities of our Office on a regular basis. The consensus was that the Ombudsman should also have the authority and the discretion to issue special reports and to take the necessary steps to ensure regular feedback in order to inform members of the DND/CF and the general public of the issues being dealt with:
 

  • We need to be kept informed. (Meeting with 423 Squadron, 12 Wing Shearwater, October 27, 1998)
     
  • Need keep us informed, not just Annual Report. (Luncheon – NATO, Brussels, November 4, 1998)
     
  • You said the ultimate tool was going public. Will this be through annual reports, because it seems too late sometimes? You need more periodic reporting in order to have more impact and quicker response. My suggestion is if beaten all cages and nothing happens; you should go public at that time on each and every issue. (General Comments, Velika Kladusa, Bosnia, November 11, 1998)
     
  • Need more than Annual Report, look at all the issues. (Meeting at the Mess, Drvar, Bosnia)
     
  • It now seems that your Ombudsman can only make an annual report to the Minister. The Ombudsman needs to do Special Reports. (Meeting with Lt.-Kol. Schoof, Defence Attaché, Embassy of the Federal Republic of Germany, Ottawa, December 7 ,1998)
     
  • Need to be informed on what the Ombudsman does. (Meeting with Supply Section, 4 Wing Cold Lake, September 15, 1998)
     
  • Produce reports of some sort regularly, so that we know what your office is doing. (Meeting with the 423 (MH) Squadron, 12 Wing Shearwater, October 27, 1998)
     

Special reports, issued at my discretion, will meet the need of members of the DND/CF and of the general public to be kept informed in a timely fashion of the progress of the Ombudsman’s Office, and the positive changes it will bring to the organization.
 

The practice of issuing special reports on an “as needed” basis is relatively common. For example, the Auditor General of Canada, who, in addition to his mandatory Annual Report to the House of Commons, may also publish up to three additional Reports.369 The Auditor General also has the additional power to make “special reports” to the House of Commons on “any matter of pressing importance or urgency”, that in his opinion should not be deferred until the presentation of his next scheduled report.370
 

The Committee on the Concept of a Federal Ombudsman studied the idea of issuing special reports and concluded that:
 

There are two dimensions to such reports: they are timely; and they focus the attention of Parliament on the particular issues involved, whether they arise from important cases or from matters affecting the operation of the office of the Ombudsman. The authority to issue special reports is an important instrument, without which the effectiveness of an Ombudsman would be very much impaired.371
 

The Committee recommended that:
 

The Ombudsman should be empowered to submit a special report to Parliament on any matter within his jurisdiction, at any time he thinks fit, provided that, if the matter concerns an investigation, he has followed the obligatory reporting sequence recommended earlier.372
 

Any reports issued by my Office should be public documents to ensure openness, transparency and accountability:
 

  • You should make your recommendations public and make the office accountable and transparent. (Meeting with Junior NCMs, CFB Gagetown, October 29, 1998)
     
  • The right to comment publicly is a very important tool – used scarcely but very useful. It is also a good tool as a matter of transparency and accountability. (Meeting with Me Daniel Jacoby, Q.C., Protecteur du Citoyen du Québec, August 19, 1998)
     
  • Need to build trust and understanding, establish open channels of communications and put everything on the table – can’t have hidden agenda or will lose credibility. (Meeting with Me Yves Côté, Q.C., DND/CF Legal Advisor, November 3, 1998)
     
  • You need the power to go public. It’s a question of credibility. (Meeting with Me Simon Noël, Q.C., Hull, September 22, 1998)
     
  • To have more credibility you must report publicly. (Meeting with Junior Officers and Civilian Personnel, CFB Halifax, October 26, 1998)
     
  • Power of public comment is very important. It’s more effective to have independent Ombudsman than someone in uniform trying to convey a message regarding the CF. (Area Briefing, LFAA, Halifax, October 28, 1998)
     
  • Recommendations must be made public, so there is openness and transparency in the process. Strongest tool is the power of public reporting. (Meeting with Lt.-Kol. Schoof, Defence Attaché, Embassy of the Federal Republic of Germany, Ottawa, December 7, 1998)
     

As I remarked upon my appointment, the tool of public comment will be an important one for my Office:
 

If there’s any flaws, systemic or personal or otherwise that I’m not able to get moving or resolved at that low level, I’ll go walk down the hall, knock on the Minister’s desk and here goes the report and it goes out to the press and so I think that’s extremely powerful tool to make sure that things are addressed properly, so I have faith in that, that putting the spot, like the public spotlight on issues should matters not be resolved will make sure that the entire system works and the Ombudsman’s office is effective.373
 

[…] I will be in a position to effect change where the problem happens and I will be able, with the authority and influence of that office, bring it to the attention of the Minister and as well make them public should they not be resolved and so, you know, I think that this is a tremendous tool in the arsenal of the rank and file to get things moving and resolved.374
 

I therefore recommend that:
 

The Ombudsman should report annually to the Minister, and may also, at his discretion, report at other times as he deems fit. All such reports should be public documents.
 

Review of Implementation of Recommendations

It is an increasingly common and effective practice, at least in the Province of Ontario,375 for Coroners juries to publicly review the implementation of recommendations made by them, usually one year after making those recommendations.376 I believe this practice would be useful in cases where I have made recommendations. Not only will this increase the openness, transparency and accountability of the DND/CF, but it will shine a public spotlight on areas where positive change has been effected by the DND/CF.
 

I therefore recommend that:
 

The Ombudsman may review the implementation of any recommendations made by him or her and may report publicly to the Minister on the progress made in implementing those recommendations.
 

Table of Contents
 

Conclusion

The concept of an Ombudsman is not new in either the civilian or military contexts, as can be seen above. However, no two models are identical. An Ombudsman’s model will only be successful in its implementation if it is tailored to meet the demand which led to its creation.
 

The recommendations made in the Action Plan reflect a model which will ensure that while the authority of the chain of command and other avenues of redress are respected, the Ombudsman is empowered to be effective and to develop the credibility he or she needs to operate. The model also provides the authority to the Minister of National Defence to direct the Ombudsman to conduct investigations in areas not necessarily covered by the Office’s mandate. In addition, the Minister has the authority to issue general policy directives to the Ombudsman in relation to the operations of his office, as long as they are made public and tabled in Parliament. This authority does not impede on the day-to-day administration of the office, which is the sole responsibility of the Ombudsman, and which includes the formalities of invoking the mandate, 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. In my view, this strikes a fair balance between the high degree of independence required for the Ombudsman to run a credible office while recognizing appropriate ministerial supervision along with corresponding accountability to Parliament. I make no pretension that the proposal is perfect, and I undertake to revisit the operational requirements of the office in my Annual Report or special reports, if need be.
 

I thank all members of the DND/CF for their contributions and support during this formative stage of the Office, as well as the many others who have assisted us by sharing their views on the future operations of the Office.
 

The consultation, research and writing of this report in the few months I have had would not have been made possible without the help of the energetic and devoted team of professionals in my Office who have supported me throughout. Senior Policy Advisor Gareth Jones, Policy Advisors Barb Finlay, Mimi Lepage and Marc Pilon devoted considerable hours, far beyond the call of duty, to ensure the delivery of a work product of the highest quality. I am also indebted, as usual, to Communications Director Barbara Theobalds and to the Administrative and Support Staff who all put in a team effort and showed their ability to work with very little supervision.
 

Finally, I wish to thank you for the assistance you have given me since my appointment in June 1998. I am grateful for your consistent support and your desire for the Office of the Ombudsman to succeed in effecting positive change within the institution of the DND/CF.
 
____________________

 

308. See: Chapter 2 and also Comparative Study of Ombudsmen Models and other Similar Agencies, Appendix IV of this Report.
 

309. Defence White Paper (1994).
 

310. During the course of the consultation process and as a matter of public policy with respect to my “civilian constituency base”, I met with the UMCC sub-committee (Union Management Consultation Committee) at the National Union meeting held in Ottawa on August 24, 1998. In response to the UMCC’s concerns with respect to potential overlap in representation – and perhaps also in our respective mandates – I invited the UMCC to present me with a common front as to how it viewed my role. I have not yet received a response.
 

311. Veterans Affairs Canada is responsible for Canadians who belong to the following client groups: (1) Armed Forces and merchant navy veterans who served in the First World War, the Second World War or the Korean War; (2) certain civilians who are entitled to benefits because of their wartime service; (3) former (and, in certain cases, current) members of Canada’s Regular Forces (including those who have served in Special Duty Areas), the Reserve Forces of Canada; and (4) survivors and dependants of the above. At the end of 1994-1995, there were an estimated 501,690 veterans in Canada. It is estimated that by year-end 2001, the Department of Veterans Affairs clientele base will be approximately 339,000. It is important to note that this figure does not factor in Canadian Veterans’ families and dependants. Consequently, this constituency base could presumably double, if not triple. (Figures taken from material supplied to my staff, by the Department of Veterans Affairs).
 

312. Much of what follows under this heading was recommended in the Doshen Paper #2, supra, note 26.
 

313. Minister's Monitoring Committee on Change in the Department of National Defence and the Canadian Forces, Interim Report - 1998.
 

314. As previously mentioned in this Report, our computer system can be accessed from DND and, according to a warning that appears each time the computer is booted up, “users are subject to monitoring at any time”. While I accept that there may be valid reasons for this practice within DND in general, I do not believe it is appropriate in respect of my Office, as it may severely compromise actual and perceived confidentiality and independence. We are examining our options to ensure that all our communications and computer systems are not accessible to any agency outside this Office.
 

315. This would reflect the practices of the British Columbia, Ontario and Québec Ombudsmen, who each have a network of offices. During my visit to Esquimalt, a Senior Officer pointed out that while the NIS had a regional office in Edmonton, fifty percent of their work was on the West Coast, which had created some problems.
 

316. Many of the statutes governing Provincial Ombudsmen have provisions to the effect that the Ombudsman may or shall refuse to investigate if the complainant has not availed himself of an existing adequate remedy or right of appeal. See for example, Alberta’s Ombudsman Act, supra, note 148, s. 12(1)(a) and s. 14(1)(a); British Colombia's Ombudsman’s Act, supra, note 148, s. 11 and s. 13(c); Ontario’s Ombudsman Act, supra, note 148, s. 14(4) and s. 17(1); and New Brunswick’s Ombudsman Act, supra, note 148, s. 12(2)(a) and s. 15(1)(a). This is also true of several military Ombudsmen. For example, in a letter to the Canadian Forces Attaché dated December 16, 1998, the Australian Defence Force Ombudsman (DFO) Director of Investigations wrote that “[e]xcept in special circumstances, under the Act the DFO can only investigate a matter after a serving member has exercised his or her right to seek redress of grievance within the Defence Force […] However, we frequently look at delays in the redress process”.
 

317. Public Service Staff Relations Act, R.S.C. 1985, c. P-35 and CFAO 7.07.
 

318. The oldest received to date concerns an issue that arose in 1954 and has still not been resolved.
 

319. Corrections and Conditional Releases Act, supra, note 72 s. 170(1)(1).
 

320. City of Winnipeg Act, S.M. 1989-90, c.10, s. 68(2).
 

321. See: Comparative Study of Ombudsmen Models and other similar Agencies, Appendix IV of this Report.
 

322. Options, Functions and Skills: What an Organizational Ombudsperson Might Want to Know, supra, note 49 at pages 5 - 10.
 

323. See: Chapter 2 - "Ombudsmen Models" under sub-heading "Analysis" at page 41 of this Report.
 

324. Ministry of the Attorney General of Ontario, Fact Sheet, “Ontario’s Mandatory Mediation Programme to begin in Ottawa and Toronto, January 1999”.
 

325. Ibid. A pilot mediation project at the Alternative Dispute Resolution Office in Ottawa, initiated in 1997 has resulted in 66 percent of cases settling within 60 days after mediation. In Toronto, 70 percent of lawyers and parties who participated in a similar project, believed that cases would have settled at a higher cost if they had not been referred to mediation.
 

326. Ms. Catherine Swift, President of the Canadian Federation of Independent Business, quoted in Ministry of the Attorney General of Ontario, Fact Sheet, supra, note 324.
 

327. Mr. Gordon Earle, former Ombudsman, Province of Manitoba, The Ombudsman - An Effective Recourse for Citizens?: Occasional Paper #49, International Ombudsman Institute, January 1994.
 

328. Special Investigation Report Concerning Six Complaints at CFB Moose Jaw, Saskatchewan, Office of the Commissioner of Official Languages, October 1996.
 

329. Meeting with Office of Official Languages, August 18, 1998.
 

330. Special Investigation Report Concerning Six Complaints at CFB Moose Jaw, supra, note 328.
 

331. Canadian Broadcasting Corp. v. Paul, [1998] (F.C.C. Trial Division) 1823, as per Tremblay-Lamer, J. at para. 63.
 

332. Ibid. at para. 59.
 

333. Report of the Auditor General, supra, note 139 at para. 10.75.
 

334. Ibid. at para. 10.123.
 

335. Amendments to the National Defence Act, Issue Papers, Issue Paper #8, Summary at page 2.
 

336. This concern was made clear in a memo from the then Commander MARLANT dated September 26, 1996 in which he comments that: “By its very nature an Organizational Ombudsman will become recognized as a means of circumventing the chain of command”. He adds that he “does not concur with the Ombudsman organization to the extent proposed."
 

337. Minister's Monitoring Committee on change in the Department of National Defence and the Canadian Forces - Interim Report - 1998.
 

338. Briefing Notes to PPB, supra, note 27.
 

339. Ibid. at pages 8-9 (slide presentation).
 

340. Meeting with DPCR staff member, November 8, 1998.
 

341. Major-General Livne, National Post, November 24, 1998 at page A16. This was also confirmed in a telephone interview by a member of my staff, on November 27, 1998.
 

342. Meeting with Lt.-Kol. Schoof, Embassy of the Federal Republic of Germany, Ottawa, December 7, 1998.
 

343. As Brig.-Gen. (ret’d) Doshen wrote in the Doshen Paper # 2, supra, note 26 at page 15 "[…] when the CF Ombudsman supports or reinforces organizational policies and procedures that are fair and equitable, the Ombudsman function serves to strengthen the credibility of the chain of command."
 

344. Professor Ratushny is a Professor of Law at the University of Ottawa. He is an acknowledged expert in public law and civil liberties. He is a former Special Advisor to two Ministers of Justice and has acted as a consultant to numerous federal and provincial agencies. He most recently examined and reported on a matter arising from the APEC inquiry.
 

345. Implementation of MND’s Recommendation DND/CF Organizational Ombudsman (National Office) Minute (4) ADM (Per) page 2, clause 6. Document signed by Lt.-Gen. Dallaire, May 11, 1997.
 

346. Ibid.
 

347. Canadian Broadcasting Corporation v. Paul, supra, note 331 at para. 12.
 

348. Report of the Auditor General, supra, note 139 at paras. 10.63 and 10.74.
 

349. Ibid. at paras. 10.58 and 10.123.
 

350. Meeting with Ms. Isabelle Massip, DFAIT Ombudsman, August 18, 1998.
 

351. Your letter to me dated September 8, 1998, supra, note 242.
 

352. Report of the Auditor General, supra, note 139 at para. 10.44.
 

353. Ibid. at para. 10.123.
 

354. Ibid. at para. 10.75 and Recommendation at para. 10.123.
 

355. See: for example: Special Investigation Report and Concerning Six Complaints at CFB Moose Jaw, supra, note 328. The investigation was prolonged because of a dispute over jurisdiction between DND and the Commissioner.
 

356. Larry Guillot, Ombudsman’s Investigative Procedures: A General Guide for use by Individual Offices, Occasional Paper No. 5, International Ombudsman Institute, August 1979 writes at page 1 that “the Ombudsman’s investigation is the systematic, minute and thorough attempt to learn all the facts about a complaint, a possible pattern of problems and the issue behind it. Indeed, investigation is the backbone of complaint handling by the Ombudsman. Once a complaint is received, nothing can be resolved until there has been a gathering of the facts and information from all the people and things involved, along with ascertaining the relevant laws, policies, procedures and practices normative to the fact.”
 

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

358. Frank Stacey, “Ombudsman Compared” Oxford, 1978 at page 44. We are not aware if this power has been exercised since 1978.
 

359. Report of the Auditor General, supra, note 139.
 

360. Ibid. at para. 10.94, and see also Recommendations at para. 10.123.
 

361. Meeting with Brig.-Gen. (ret'd) Uzi Levtzur, IDF Soldier's Complaints Commissioner, November 9, 1998.
 

362. In meeting with various provincial Ombudsmen, we learned that approximately 80 percent of provincial Ombudsmen’s investigations result in a finding that supports the agency or individual complained against. This may translate into the military field.
 

363. The Manitoba Ombudsman Annual Report 1995. Of the 758 written complaints received by the Manitoba Ombudsman in 1995, only one resulted in a formal recommendation. The remainder were discontinued, resolved or partially resolved.
 

364. See quotes in Chapter 3, specifically under the sub-heading on "Confidentiality", starting at page 96 of this Report.
 

365. See: Alberta's Ombudsman Act, supra, note 148, s. 30; British Columbia's Ombudsman Act, supra, note 148, s. 16. See also: Meeting with Mr. Gilbert Langelier, Assistant Director General, Investigations Branch, Office of the Commissioner of Official Languages.
 

366. This mechanism of ensuring accountability for declining to take action on recommendations is similar to provisions contained in recent amendments to the National Defence Act establishing the Canadian Forces Grievance Board and providing that the Chief of Defence Staff, although not bound by the Board’s recommendations, will be required to provide reasons where he does not act on findings or recommendations of the Board. (See Amendments to the National Defence Act, Issue Paper No 9: Reform of the Canadian Forces Grievance Process, at page 3). See also new amendments to the National Defence Act, s. 250.51 through to s. 250.52 which require reasons to be given where no action is taken in respect of a report on a complaint by the Military Police Complaints Commission.
 

367. We are currently assessing case management software that will allow us to identify potentially systemic issues as quickly as possible.
 

368. The Honourable Art Eggleton, P.C., M.P., Minister of National Defence - Transcript - Introducting the DND/CF Ombudsman, June 9, 1998: “Remember, he’ll be able to report to me and reports made public so that if there are any systemic problems, if there are any difficulties he finds in being able to make sure that justice is done then it’ll become public information and a Minister has to be accountable for that. I will be accountable for that, any successor of mine has to be accountable for that.”
 

369. See: Auditor General Act, supra, note 148, s. 7(1)(2) which provides for three reports (in addition to the Auditor General’s Annual Report) on the work of his office and on whether in carrying on the work of his office, he has received all the information and explanations he required. Such Reports must contain anything he considers to be of significance and of a nature that should be brought to attention of the House of Commons including specific cases which fall within s. 7(2)(a)(f), dealing with misappropriation of government funds.
 

370. Ibid., s. 8.
 

371. Report of the Committee on the Concept of the Ombudsman, supra, note 43 at page 56.
 

372. Ibid.
 

373. Me André Marin, Ombudsman - Transcript - Introducing the DND/CF Ombudsman, June 9, 1998.
 

374. Ibid.
 

375. In a telephone interview with a member of my staff, Dr. Jim Cairns, the Deputy Chief Coroner of the Province of Ontario stated that, since the practice was introduced by the jury at the Christopher Stephenson Inquest in 1992, “from our perspective, the attention the recommendations receive, and the quality of response, is like night and day.”
 

376. Review mechanisms also exist in legislation governing several of the Provincial Ombudsmen.
 

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