ARCHIVED - The Way Forward

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January 20, 1999

The Honourable Art Eggleton, P.C., M.P.
Minister of National Defence
National Defence Headquarters
Mgen G.R. Pearkes Building
101 Colonel By Drive
Ottawa, Canada
K1A 0K2

Dear Minister:

I am pleased to submit, for your consideration, my report The Way Forward - Action Plan for the Office of the Ombudsman. This proposal is based on vast research into various Ombudsmen models, as well as extensive consultation with a cross-section of stakeholders, both inside and outside the Department of National Defence and the Canadian Forces.

In my opinion, the recommendations contained within provide the necessary tools for operating a neutral, independent and credible office that will contribute to positive change within the institution.


André Marin

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The most significant challenge which faces the Office of the Ombudsman is to establish itself quickly as a credible organization capable of initiating positive change. To this end, after my appointment on June 9, 1998, I located in August 1998 an office outside of the Department of National Defence and Canadian Forces (DND/CF) and hired staff to assist me in developing and conducting a consultation. The consultation phase led to the preparation of this report.

The purpose of the consultation was threefold. First, it allowed my staff and myself to familiarize and educate ourselves about the workings of the DND/CF as we had no direct experience with the organization. Second, the consultation gave us an opportunity to present to the employees and members on the general concept of an Ombudsman. Third and most importantly, it allowed us to gather input and ideas for the successful operations of the Office. Whenever possible, we sought to identify if there existed any broader based consensus on some of the issues.

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Public Policy Parameters

Although at the time of my appointment many issues that form the basis for recommendations in this report were left for me to consult on, you had nonetheless set several public policy parameters for the Office of the DND/CF Ombudsman. Some of them were a source of contention1 during the consultation process. Nonetheless, however forceful some participants were at times, in their objections to previously decided public policy issues, it was my position that such issues were beyond the scope of the consultation and were not going to be revisited.

Reporting of Ombudsman

I report directly to the Minister of National Defence and am separate from the chain of command. I will be producing an Annual Report which will be made public. 2

Terms of Employment

I have been appointed to a renewable term of three years "on good behaviour".

Core Jurisdiction and Mandate

Individual and systemic issues and injustices form part of the basic mandate of the Office.

Core Constituency

The Ombudsman will provide services to "Regular Force members, Reserve Force members, former service members, and their spouses, parents, or other designated next of kin, as well as civilian employees". 3

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Methodology for the Consultation

The consultation plan was developed with a view to producing the broadest and most complete information base as possible in a short time period.4 In order to speed up the consultation phase without sacrificing its thoroughness, I created two consultation teams from the Office. I headed one team while Senior Policy Advisor Gareth Jones headed the other.

We met with over 15,000 individuals from the DND/CF between the months of August and December 1998 – civilians and military members from all three elements and of all ranks in various parts of the country and in Belgium, Israel, Germany and Bosnia. In the case of the Military, the meetings were conducted informally and generally scheduled according to members’ rank in order to promote as free flowing and as candid an exchange of ideas as possible.5 Although this method was much more onerous to carry out, it was necessary in order to facilitate members free and unencumbered access to me and my staff. We also met with civilian personnel whenever feasible. The views expressed by the participants were noted and are presented to you along with the Action Plan.6 This record of the discussions allows you to review the input we received.

In addition to the visits to National Defence Headquarters, bases, formations, wings, units, stations, and schools, we also invited input by posting a letter on the Defence Information Network (DIN) and an insert in Esprit de Corps, a magazine which covers military issues. 7 We also published a similar letter in the Maple Leaf, the official newspaper of the DND/CF.8

We also consulted with a variety of civilian and military Ombudsmen and Ombudsmen-like institutions.9 This allowed me to study and compare their respective terms of reference and their operational frameworks. Consequently, I was able to identify features that were most effective in the experiences of other similar types of oversight agencies and adapt those features to the specific needs of the DND/CF. 10 I was also able to identify weaknesses that reduced the efficiency of Ombudsmen’s offices.11 In this same vein, I found particularly instructive the 1998 Report of the Auditor General of Canada in which is published the result of an audit regarding the Canadian Human Rights Commission (CHRC). There are some significant similarities between the operations of the CHRC and the DND/CF Ombudsman. Both are tasked with receiving complaints, conducting investigations and publicly reporting on their operations. Ultimately, the success of the CHRC depends, as it will in the case of the DND/CF Ombudsman, on the credibility it can establish with the government and the public.

The consultation also extended to past members of the DND/CF, as well as leading academics and jurists. We also met with, or spoke to, many individuals who contacted us requesting assistance, and received their views as to how our Office should operate.

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General Approach and Layout of the Action Plan

Ombudsmanry must be viewed as a fluid concept capable of adapting itself to the specific and particular needs of the institution it is intended to serve. The content and layout of the Action Plan reflects this reality. The issues addressed in the Action Plan should be familiar to those in the DND/CF who have worked on the Ombudsman Project as long ago as the early 1990’s. Indeed, upon my appointment, I was presented with a table entitled "DND/CF Complaint Resolution Mechanisms" which I have appended to the Action Plan. It lists some of the outstanding issues as "scope of mandate, inter-relationships, investigative authority, degree of independence (housing, funding, staffing) modality and frequency of reporting, privacy and access considerations, staffing process (remainder of staff) […]".12 All of which are addressed in the Action Plan.

An Ombudsman’s role is to provide an ongoing opportunity to address complaints and concerns, and to foster change where any injustice and unfairness exist. An Ombudsman’s role is to work with existing mechanisms in an impartial and independent manner. In the case of the DND/CF, additional channels of remedy will soon be coming into effect with the passage of Bill C-25 into legislation. The Action Plan not only respects the existence and role of available avenues but reinforces them by allowing every reasonable opportunity to the DND/CF to resolve its own issues before the Office of the Ombudsman formally intervenes. Even when I find that the complaint is justified, under the proposed regime, the DND/CF is given additional opportunities to cure the deficiency before a recommendation is forwarded to you.

Also embodied in the Action Plan is the traditional conciliatory approach of Ombudsmen as opposed to one based on an adversarial process. Furthermore, the Action Plan reflects the fact that the credibility of the Ombudsman is often directly proportional to the credibility of the review and investigative process he or she employs.

Finally, transparency, openness and accountability in the process have all been included in the model I am proposing to you. I view these concepts as essential to building the credibility we require as an oversight body.

As you are aware, one of the roles attributed to Ombudsmen is to serve as a "barometer" or a "reporter", by bringing to the open, concerns and issues affecting people within the organization and proposing viable and reasonable solutions. In many ways, the Action Plan consists of my very first formal act of "barometering" or "reporting", by relaying to you the concerns and issues raised by, amongst others, members of the DND/CF, in the future operations of my Office along with my recommendations to address them.

1. Several examples can be found in Volume I and II, Input from the Consultation: "I’m not supportive of the Ombudsman reporting to the Minister." (Meeting with Mr. Douglas Ruck, Q.C., Nova Scotia Ombudsman, October 28, 1998). Many felt that true independence could not be achieved unless I reported to Parliament: "To keep an air of openness, uncensored reports should go to Parliament. Are the recommendations being screened? Ombudsman should report directly to Parliament." (Meeting with Junior NCMs, 8 Wing Trenton, September 8, 1998). "Report jointly to the Legislature to get rid of the cloud which is hanging over DND/CF." (Meeting with Junior NCMs, 8 Wing Trenton, September 8, 1998). How can you criticize the Minister if you are working for him?" (Meeting with Junior Ranks, CFB Gagetown, October 29, 1998). See, however, "[i]f the DND Ombudsman reported to Parliament he would be the only federal Ombudsman to do so. I feel he should be reporting to the MND.” (Working Lunch with Wing Command and Wing Council, 8 Wing Trenton, September 8, 1998). "Il est important que l’Ombudsman se rapporte à l’autorité la plus élevée, soit le Ministre." (Meeting with Dr. Patrick Robardet, Senior Legal Advisor, Bureau du Protecteur du Citoyen du Québec, December 3, 1998).

2. Patrick Robardet, Setting Up An Ombudsman’s Office (Basic Principles, Statutory Provisions, Organization and Practices). Paper presented at the National Integrity Symposium, Kiev, Ukraine, November 28-29, 1997. "Reporting should, in principle, be made at the highest level; this is required by the notion of maintaining the appearance of independence and the need to secure effectiveness by ensuring support from authorities empowered to direct and implement recommendations."

3. See Backgrounder Documentation, June 9, 1998.

4. Appendix II - List of groups and individuals consulted during the period of August 1998 up to and including January 1999.

5. I appreciate that some participants may have been reluctant to be as candid as they might in an open forum, even with only their peer group present. For this reason, we encouraged all members to contact us directly. A large number of individuals did so.

6. See Volumes I and II, Input from the Consultation.

7. Esprit de Corps – Canadian Military Then and Now, Vol. 6, Issue 8, September 1998.

8. Maple Leaf, Vol. 1, No. 9, September 1998.

9. Appendix II, Part 3 - List of Ombudsmen and Ombudsmen-like institutions consulted during the period of August 1998 up to and including December 1998. In September 1998, I attended the 1998 USOA Annual Conference held in Detroit, Michigan. In attendance were several hundred Ombudsmen and new representatives from all over the world – one being from as far away as Namibia. It was during the course of this Conference that I invited other Ombudsmen to submit ideas, suggestions and recommendations for the setting-up of my Office. Many did so.

10. Dean M. Gottehrer and Michael Hostina, Essential Characteristics of a Classical Ombudsman, 1998. "Some of the most effective Ombudsmen’s offices are most effective because of their Independence and Impartiality, Credibility and Confidentiality."

11. For example, the ability to offer a confidential service is essential to the efficiency of the office: “A lot of Ombudsmen keep records and have exemption to Access to Information – a must. Record keeping lends itself to credibility.” (Ms. Suzanne Belson, Ombudsman Concordia University, August 19, 1998). “I am ATI’able – it’s killing what I’m doing. I need my files protected but it’s not possible […] so I record very little. I do not take notes.” (Ms. Chantal Paradis-Chartier – Ombudsman for the Department of Indian and Northern Affairs, September 23, 1998). - For further discussion on this particular issue, see Chapter 3 sub-heading on "Confidentiality" at page 96 of this Report. Investigative powers are another cornerstone of an Ombudsman’s work. For further discussion on Investigative Powers, see Chapter 4 at page 133 of this Report.

12. Appendix III.

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Continue to Part Two

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