There has been a great deal of discussion concerning the DND/CF Ombudsman1 over the past few days, and a lot of that discussion has been problematic or misleading. Much of that discussion has revolved around two issues or characteristics:
I take the position that the former issue, as it has been discussed in the news media, is neither well articulated nor based upon a thorough or critical analysis of what it means to be ‘independent’. Similarly, the latter issue appears to be a poorly-examined and knee-jerk reaction predicated upon either a lack of understanding or willful blindness of how our constitutional democracy functions.
Several people have been calling for the DND/CF Ombudsman to have greater independence (whatever is actually meant by that) and to report directly to Parliament. Certainly, during his appearance before the Standing Committee on National Defence, former DND/CF Ombudsman, Gary Walbourne, intimated that his position would have been more effective if he had he reported to Parliament. However, he did not really explain how that would make the position more effective in light of its mandate.
His successor, Greg Lick, has apparently changed his tune about that issue. While he initially held the view that “… he could work with the current structure …” he now believes that he should report to Parliament and not to the Minister of National Defence.2
Indeed, in a recent Op-Ed piece, Member of Parliament (from the opposition Conservative Party of Canada), Leona Alleslev – who is a member of the Standing Committee on National Defence – also called for the DND/CF Ombudsman to have greater ‘independence’ and to be made an “independent officer of Parliament”.3
However, amid this frenzied discussion, there has be a lack of precision in the discussion concerning what is meant by ‘independence’ and there has been little, or no, thoughtful reasoning about how an Ombudsman’s status as an ‘officer of Parliament’ would be justified or would improve the current circumstances.
As I have mentioned before, whenever someone speaks of ‘independence’ my first two questions tend to be: (1) From whom? and (2) To what extent?
Independence can often be viewed as occupying a sliding scale: at one end is the limited independence that arises from functioning with limited immediate supervision; at the other end of the spectrum is independence akin to that enjoyed by Canadian judges: security of tenure, security of remuneration, and significant administrative or institutional independence.4
The push for ‘independence’ is nothing new. The first DND/CF Ombudsman, Andre Marin, who left the position in 2005 to become Ontario’s Ombudsman, expressed a similar view in his final report: Overhauling Oversight: Ombudsman White Paper5.
In his ‘parting shot’ as he left the position of DND/CF Ombudsman, Mr. Marin called for the Ombudsman to be entrenched in statute, not unlike the Military Grievances External Review Committee (MGERC) (which was, at the time, called the Canadian Forces Grievance Board or CFGB) and the Military Police Complaints Committee (MPCC). oth of those organizations were created in the 1998 amendments to the National Defence Act6 and their origins were roughly contemporaneous with that of the DND/CF Ombudsman. Certainly, all three offices were created based upon calls for greater transparency and ‘independence’ (again, that word) in the resolution of complaints by, and about, members of the Canadian Forces (CF).
Mr. Marin also called for both the CFGB (now the MGERC) and the MPCC to be placed under the authority of the DND/CF Ombudsman, whose mandate would be expanded, in order to eliminate what Mr. Marin referred to as wasteful or inefficient oversight.
In his White Paper, Mr. Marin repeatedly referred to the importance of ‘civilian oversight’ and the manner in which he used that term made it clear that he was referring to his role as Ombudsman. For example, under the Heading of ‘Establishment of Civilian Oversight and the Office of the Ombudsman’, Mr. Marin wrote:
The choice to establish civilian oversight of the Canadian military was the product of experience. It was June 9, 1998, when I was asked to set up an ombudsman’s office for DND/CF. That initiative occurred in the wake of several highly publicized reports on sexual harassment and sexual assault within the military. While that was the immediate context, the idea that there should be an oversight agency had been several years in the making and was borne of a series of scandals and a growing appreciation that there were profound problems in the Canadian military.7
Later in the report, he wrote:
When the decision whether to have an ombudsman was left within the military, it is not surprising that the idea was scuttled. This is not the last time this boogeyman of resistance—preserving the integrity of military command—would growl louder than it should. While that concern has its place, giving it exaggerated and misplaced emphasis has proven to be a discouraging impediment to the accomplishment of fully effective civilian oversight of the military.8
And later:
What civilian oversight can do, however, is offer an outside perspective, untinctured by military culture, unrestrained by command responsibilities and thereby capable of seeing the whole picture from a different and important angle. By mediating, making recommendations and using moral suasion, civilian oversight can cause those in positions of military responsibility to sit back and re-evaluate things, profiting from the fresh view that civilian oversight can bring. If the civilian overseer is right, those in positions of military responsibility are apt to do the right thing. They will do the right thing not because anyone is telling them to, as there is no one purporting to have that authority. They will do what is right because they will reflect on the problem with a new orientation and come to appreciate that things should have been handled differently, or because public disapproval will convince those in ultimate authority that an error has been made and correction should be ordered. It is the use of moral suasion, reason and public pressure that enable improvement to occur without authorizing the civilian oversight body to interfere in the management of the military.9
Certainly, Mr. Marin was not shy about using his position as DND/CF Ombudsman as a ‘Bully Pulpit’ – presumably that was his take on ‘moral suasion’.
The problem is that Mr. Marin consistently misconstrued the nature of ‘civilian oversight’ of the armed forces. In our constitutional Parliamentary democracy, civilian oversight of the armed forces existed long before the creation of the office of the DND/CF Ombudsman. It predated even the creation of the ‘modern’ National Defence Act in 1950.10 The civilian oversight of the armed forces raised by Her Majesty in Canada is the Minister of National Defence.
That is why the Chief of the Defence Staff has control and administration of the Canadian Forces “… subject to the regulations and under the direction of the Minister …”.11 That is why the Minister “… has the management and direction of the Canadian Forces and of all matters relating to national defence …”.12
That is why it is the Minister, and not the Chief of the Defence Staff (CDS), or the Deputy Minister, or the DND/CF Ombudsman who is accountable to Parliament. But more on that later.
When people discuss complaint resolution within the CF, the term ‘independence’ is often thrown around with great abandon, and with limited effort to define or characterize the term precisely. Moreover, what is often neglected in the discussion is the corollary that the degree of independence enjoyed by a person, office, or organization, often has an inverse relationship with the nature of scope of their accountability.
Judicial independence is an apt example to demonstrate this relationship.
When people discuss the independence of statutory decision-makers or actors, they are often referring – whether they realize it or not – to the degree of institutional independence that a decision-maker might have. Relevant factors regarding administrative or institutional independence include:
This is not an exhaustive list.
A statutory actor can have a large measure of control of its process, its budget, and its organization, and still have less independence than a judge. Where the statutory actor holds his or her position at pleasure or can be removed based upon the discretion of a higher authority, that decision-maker would not benefit from the security of tenure enjoyed by a judge.
Similarly, if the remuneration for the decision-maker is established based upon the discretion of another authority, without recourse to any arm’s length mechanism to determine the appropriate level of remuneration, the decision-maker would not have the same financial security as that enjoyed by a judge.
Canadian judges have a great deal of independence. They benefit from security of tenure. In the case of federally appointed judges, they can only be removed from judicial office upon recommendation of the Canadian Judicial Council13 (or, for military judges, the Military Judges Inquiry Committee14). This occurs rarely.
Judges benefit from financial security. In the case of federally appointed judges, while their remuneration is set by the executive, there is an elaborate process of consultation through a quadrennial committee, in which the interests of judges are represented by one of the three committee members.15
And the judiciary are institutionally separate from the executive and legislative branches of government. They benefit from greater institutional independence than most statutory decision-makers and actors.
And, as a result of this considerable independence, there are limited mechanisms to hold judges accountable. A federally-appointed civilian judge can only be remove from judicial office upon the recommendation of the Canadian Judicial Council (CJC). The CJC is and administrative tribunal16 headed by the Chief Justice of Canada and is comprised of “… the chief justice and any senior associate chief justice and associate chief justice of each superior court or branch or division thereof …” and the Chief Justice of the Court Martial Appeal Court.17 The judgments made by judges are reviewed by judges of higher courts within this judicial hierarchy.
In other words, judges, in the exercise of their judicial office, are accountable only to other judges, typically of higher judicial office or courts.
The DND/CF Ombudsman already enjoys institutional independence. While the Ombudsman is typically selected by a Minister, the appointment is made by the Governor in Council through an Order in Council. The DND/CF Ombudsman’s salary is also set by the executive. The Ombudsman does not enjoy the security of tenure and financial security of a federally appointed judge. But, since the DND/CF Ombudsman is not a judge – or even, technically, a decision-maker – that’s not particularly problematic.
The DND/CF Ombudsman reports directly to the Minister. He is not subject to direction from the CDS or the Deputy Minister. By Ministerial direction, departmental managers and CF leadership are directed to assist the Ombudsman in the exercise of his duties and functions. Clearly, the Ombudsman is not independent of the Minister, but I have yet to see a compelling argument for why the Ombudsman should be independent of the Minister. And remember: it is the Minister who represents the civilian oversight of the armed forces.
Approximately 18 months ago, in a report by Murray Brewster of the CBC, Gary Walbourne, the former DND/CF Ombudsman, complained that his powers relating to financial delegations and management of human resources became a tool that was allegedly used by unspecified Departmental actors to undermine his ‘independence’. He asserted that these constraints limited his capacity to perform his mandated functions. He claimed that this was part of a vendetta or reprisal against him for his blunt criticism of certain Departmental or CF processes.18
Murray Brewster also reported that Mr. Walbourne was the subject of five complaints under the Public Servants Disclosure Protection Act, SC 2005, c 46. The investigation was conducted, unsurprisingly, by the Assistant Deputy Minister – Review Services (ADM (RS)). Four of the five complaints were ‘founded’. Mr. Walbourne contended that these findings were inaccurate and denied any wrong-doing.
Mr. Brewter’s online report alluded to separate complaints that were also made against some of the Ombudsman’s staff members. Among those staff members who were faulted by ADM (RS) was Melanie Chapman, his Director of Investigations. Ms Chapman brought an application for judicial review of those findings. Justice Zinn, of the Federal Court, concluded that Ms Chapman was not afforded sufficient procedural fairness and quashed the finding by ADM (RS): Chapman v Canada (Attorney General), 2019 FC 975.
Specifically, Justice Zinn accepted Ms Chapman’s argument that, had she “… been provided with the [investigator’s] Report and given an opportunity to respond to the investigator’s findings, she would have provided additional evidence to counter some of the statements made by witnesses, she would have asked that other witnesses with additional or contradictory information be interviewed, and she would have corrected some of the factual errors made by the investigator.”
Ultimately, Justice Zinn held that, had Ms Chapman been afforded an opportunity to see the investigator’s report, “… she could have both offered explanations to bolster her own credibility, and pointed out the weaknesses in the evidence that the investigator relied upon.”
As an aside, the process of permitting a respondent (or grievor) to comment on an investigator’s report prior to the report being submitted to the relevant decision-maker is often (but not always) employed in the adjudication of harassment complaints under Defence Administrative Order and Directive (DAOD) 5012-0 and grievances under the CF grievance process. It is surprising that a similar process was not employed here.
In quashing the ADM (RS) finding, Justice Zinn referred the matter back to a different investigator and decision-maker. There was no indication in the CBC report regarding any outcome of a subsequent process, including whether any process was actually followed.
Mr. Walbourne referred to Ms Chapman’s application for judicial review, and its outcome, when he appeared before the Standing Committee on National Defence on 3 March 2021, although he did not refer to her by name.
I note that Mr. Walbourne does not appear to have brought an application for judicial review with respect to the ADM (RS) findings against him.
However, I return to the issue of whether the DND/CF Ombudsman must be independent of the Minister to whom he presently reports. I have yet to see a compelling argument for such independence. After all, the role of the DND/CF Ombudsman is not to hold the Minister accountable. Nor does the DND/CF Ombudsman constitute the civilian oversight of the armed forces raised by Her Majesty in Canada. The Ombudsman exists to assist the Minister with the management and direction of the Department and the CF, functions expressly assigned to the Minister under s 4 of the National Defence Act (NDA).
While there may be some merit in the suggestion that the Ombudsman’s role could be established in statute, and thereby have a clear role defined by Parliament, that is distinct from any argument that the Ombudsman must be independent.
The repeated calls for increased ‘independence’ for the DND/CF Ombudsman and to have that office report to Parliament reminds me of the nuanced – and slightly disingenuous – characterizations that the Military Grievances External Review Committee (MGERC) and the Military Police Complaints Commission (MPCC) promote on their respective websites. In light of Mr. Marin’s recommendation, 16 years ago, that these two institutions should be placed under the Ombudsman’s authority, perhaps some comparison is warranted.
Both of these tribunals were created under the NDA, following the reforms introduced in 1998.19
Under the heading of ‘Mandate, Raison d’être, Mission, Vision, and Values’, the MGERC asserts that it is “… an independent administrative tribunal reporting to Parliament through the Minister of National Defence.”20 (There’s that word ‘independent’ again). Under the heading ‘About the Committee’, we are told that the MGERC “… is an administrative tribunal with quasi-judicial powers, independent from the Department of National Defence (DND) and the Canadian Forces (CF).”21 (Evidently, it is not only ‘independent’, but also ‘quasi-judicial’ – whatever might be meant by that.)
Similarly, under the heading ‘About Us’ on its website, the MPCC states that “While it reports to Parliament through the Minister of National Defence (MND), the Commission is both administratively and legally independent from the Department of National Defence (DND) and the Canadian Armed Forces (CAF). The Commission is not subject to direction from the MND in respect to its operational mandate.”22
So, according to the MGERC and the MPCC, they both report to Parliament … through the Minister. It’s not surprising that the DND/CF Ombudsman might be a little bit jealous of their independence and their supposed direct relationship with Parliament. No wonder that past and present Ombudsmen, and certain Members of Parliament, are calling for the DND/CF Ombudsman to report to Parliament.
But, remember, I did say that these assertions were slightly disingenuous.
And that is because neither the MGERC nor the MPCC report to Parliament. And the Chairpersons of those two organizations are not Officers of Parliament. So, let’s look at what the NDA actually says about those assertions.
These assertions appear to be predicated upon the requirement for the MGERC and MPCC to prepare annual reports.
Section 29.28 of the NDA, which pertains to the MGERC, states:
29.28 (1) The Chairperson shall, within three months after the end of each year, submit to the Minister a report of the activities of the Grievances Committee during that year and its recommendations, if any.
(2) The Minister shall have a copy of the report laid before each House of Parliament on any of the first fifteen days on which that House is sitting after the Minister receives it.
Section 250.17 of the NDA, which pertains to the MPCC, states:
250.17 (1) The Chairperson shall, within three months after the end of each year, submit to the Minister a report of the Complaints Commission’s activities during that year and its recommendations, if any.
(2) The Minister shall have a copy of the report laid before each House of Parliament on any of the first fifteen days on which that House is sitting after the Minister receives it.
What do these provisions mean?
The Chairperson of the MGERC and the MPCC are obliged to report, annually, to the Minister of National Defence. The Minister is obliged to place those reports before Parliament.
The Chairpersons report to the Minister. The MGERC and the MPCC do not ‘report to Parliament’. The Minister is accountable to Parliament and reports to Parliament. That is how responsible government in Canada’s constitutional Parliamentary democracy functions.
I find it interesting that the MGERC and MPCC maintain this fiction. They are not the only offices created under the NDA that must produce an annual report for the Minister, who must then present that report to Parliament. Pursuant to subsection 9.3(2) and (3) of the NDA:
(2) The Judge Advocate General shall report annually to the Minister on the administration of military justice in the Canadian Forces.
(3) The Minister shall have a copy of the report laid before each House of Parliament on any of the first fifteen days on which that House is sitting after the Minister receives it.
However, the Judge Advocate General of the Canadian Forces does not claim to report to Parliament (through the Minister). And that’s because the Judge Advocate General doesn’t report to Parliament. Like the MGERC and MPCC, she reports to the Minister.
However, the MGERC and the MPCC do, arguably, have greater institutional independence than the DND/CF Ombudsman. Obviously, both of these organizations are created under statute. It would take an Act of Parliament to eliminate either organization. A ‘majority government’ that commands the confidence of the House of Commons could, arguably, amend the NDA to eliminate either or both organizations, or to alter their duties, powers, and functions. However, how likely is any government to eliminate an organization that was created in statute to promote ‘transparency and fairness’, particularly when those organizations promote themselves as ‘civilian oversight’ of the CF?
The DND/CF Ombudsman is a creation of Ministerial fiat. The Minister could, without recourse to Parliament, eliminate the position. However, in light of the increasingly politicized nature of the office of the DND/CF Ombudsman, the potential political repercussions that would arise from an arbitrary elimination of the office represent a significant barrier to the exercise of such executive discretion.
Like the MGERC and MPCC, the DND/CF Ombudsman is not a decision-maker. More specifically, none of these offices make binding decisions outside of managing their own processes. While the MGERC might refer to itself as a ‘quasi-judicial tribunal’ (whatever might be implied by that) and both the MGERC and the MPCC would fall within the definition at section 2 of the Federal Courts Act23 of a “federal board, commission, or other tribunal”, neither the MGERC nor the MPCC make binding decisions. Like the DND/CF Ombudsman, they make recommendations to the actual statutory decision-makers.
In light of Mr. Walbourne’s concerns, reported by Murray Brewster approximately 18 months ago, perhaps the most significant distinction that can be drawn between the DND/CF Ombudsman and the MGERC and MPCC is that the Chairpersons of the latter two statutory organizations have a greater degree of control over the requisition of their budgets and delegated spending authority.
However, even then, both the MGERC and the MPCC fall under the authority of the Minister.
In addition to remaining unconvinced of the need for increased independence for the DND/CF Ombudsman (whatever that may entail), I contend that the suggestion that the DND/CF Ombudsman ought to be made an Officer of Parliament or report directly to Parliament is predicated upon either a misconception of how responsible government operates in our constitutional Parliamentary democracy, or some marked naïvety. In either case, the suggestion, absent any meaningful analysis, is absurd.
There are nine Officers of Parliament relevant for such discussion:
What do all these positions have in common? Their roles pertain directly to the functioning of Parliament or our democracy at the federal level. That is why they are responsible to Parliament, and not to a Minister of the Crown.
Do you see any Departmental Ombudsmen in that list? No.
Has anyone pointed to the example of any Ombudsman who reports to Parliament? No.
Why do you suppose that is? Could it be that, in the immortal words of Sesame Street, if you were to start adding Departmental Ombudsmen to this list, some of these things would not be like the others, some of those things just wouldn’t belong?
Departmental Ombudsmen report to the Ministers who are, pursuant to their respective statutes, responsible for the management and direction of those Departments. Where the Minister of National Defence is concerned, he is responsible for the management and direction of both the Department of National Defence and the Canadian Forces.
I suspect that, at least in part, the repeated calls for an ‘independent’ Ombudsman who ‘reports to Parliament’ is fueled by a desire to hold the current Minister of National Defence accountable for his perceived failure to take the appropriate steps in response to the complaint that the DND/CF Ombudsman brought (or attempted to bring) to the Minister’s attention as early as March 2018. And, frankly, there is still much about that particular meeting that remains uncertain or unknown.
However, as I state above, it is not the role of a Departmental Ombudsman to hold a Minister of the Crown accountable.
In a constitutional Parliamentary democracy, predicated upon responsible government, it is Parliament that is responsible for holding a Minister of the Crown accountable.
That is why I find it a bit disingenuous for a Minister of National Defence to suggest that he must never be involved in the examination of allegations of misconduct concerning a sitting CDS, as that would ‘politicize’ the process. While the Minister might not conduct the actual investigation, it falls to the Minister to decide what, if anything, must be done concerning a CDS. And if nothing is done, it falls to the Minister to explain that inaction to Parliament. If Parliament is not satisfied with the Minister’s answers, it then falls to Parliament to take the appropriate action to hold the Minister accountable.
As a corollary, the Prime Minister can also hold a Minister of the Crown accountable, and presumably, will do so when Parliament exerts sufficient pressure. After all – Ministers of the Crown (not unlike the CDS) are ‘at pleasure’ appointments. They can be removed or replaced at the broad discretion of the Prime Minister. Just ask Jody Wilson-Raybould.
Where a government commands the confidence of the House of Commons – as is typically the case where a political party occupies the majority of the seats in the House – it can be difficult for Parliament to hold Ministers of the Crown accountable for errors or inaction. Conceptually, where a government does not presumptively command the confidence of the House – i.e. when it forms a ‘minority government’ – Parliament has an opportunity to bring greater pressure to bear, particularly if it precipitates a vote of non-confidence in the House.
It appears that some Members of Parliament in opposition parties believe that Harjit Sajjan has mismanaged his portfolio as Minister of National Defence. The Liberal Party of Canada is governing with a minority government. If Parliament is unable to hold a Minister of the Crown accountable, where the opposition alleges that the Minister has failed to perform his duties, powers, and functions adequately, and where the Minister belongs to a ‘minority government’, then perhaps the fault does not lie with alleged inadequacies in the powers, functions, and standing of a Departmental Ombudsman. Perhaps the Members of Parliament who are calling for something to be done should be doing something in Parliament.
1. Typically, the position of the Ombudsman for the Department of National Defence and the Canadian Forces is expressed as ‘DND/CAF Ombudsman’. I have opted to characterize the position as the ‘DND/CF Ombudsman’. There is a method to my madness. First, as I have explained previously (and repeatedly), this Blog focuses on the legal dimensions of the armed forces of Her Majesty raised by Canada. Those armed forces are called the Canadian Forces: National Defence Act, RSC 1985, c N-5, s 14 [NDA]. Since 1968, those armed forces consist of a sole ‘service’ called the Canadian Armed Forces: Canadian Forces Reorganization Act, SC 1966-67, c 96, s 2; this Act received Royal Assent 1 February 1968. Prior to the enactment of the Canadian Forces Reorganization Act, the Canadian Forces consisted of three distinct services: the Royal Canadian Navy, the Canadian Army, and the Royal Canadian Air Force. That is why it is the term ‘Canadian Forces’ that is used throughout the NDA, and not the Canadian Armed Forces. Second, Annex A to DAOD 5047-1, which dates to 29 August 2001, and which defines the Ombudsman and sets out his responsibilities, expressly and repeatedly refers to the “…Ombudsman for the Department of National Defence (DND) or the Canadian Forces (CF)”. Therefore, I will stick with the terms used in the policy. After all … words have meaning.
2. The Canadian Press, “Military ombudsman says his office must be independent of defence command structure to be credible”, (14 March 2021), online: The Globe and Mail https://www.theglobeandmail.com/amp/canada/article-military-ombudsman-calls-for-independence-says-predecessor-was-2/.
3. Leona Alleslev, “A reckoning for the Canadian Forces”, (10 March 2021), online: The National Post <https://nationalpost.com/opinion/leona-alleslev-a-reckoning-for-the-canadian-forces>.
4. Valente v The Queen, [1985] 2 SCR 673.
5. Andre Marin, “Overhauling Oversight: Ombudsman White Paper”, (30 March 2005), online: <http://www.ombudsman.forces.gc.ca/assets/OMBUDSMAN_Internet/docs/en/overhauling.pdf>.
6. An Act to amend the National Defence Act and to make consequential amendments to other Acts, SC 1998, c 35, s 96 [Bill C-25].
7. Andre Marin, n 5, 7.
8. Ibid, 8.
9. Ibid, 12.
10. National Defence Act, SC 1950, c 43 [1950 NDA].
11. NDA, n 1, s 18(1).
12. Ibid, s 4.
13. Judges Act, RSC 1985, c J-1, ss 59 to 71.
14. NDA, n 1, ss 165.31 and 165.32.
15. Judges Act, n 13, ss 25 and 26.
16. Canada (Judicial Council) v Girouard, 2019 FCA 148, leave to appeal to the SCC dismissed Canadian Judicial Council v The Honorable Michel Girouard, et al., 2019 CanLII 117826 (SCC).
17. The Chief Justice of the Court Martial Appeal Court is also head of the Military Judges Inquiry Committee, NDA, n 1, s 165.31.
18. Murray Brewster, “Former military ombudsman claims DND vendetta drove him into retirement“, (23 September 2019), online: CBC News <https://www.cbc.ca/news/politics/military-ombudsman-vendetta-1.5288519>.
19. Bill C-25, n 6.
20. Military Grievances External Review Committee, Mandate, Raison d’être, Mission, Vision, and Values, online: <https://www.canada.ca/en/military-grievances-external-review/corporate/about/mandate-mission-vision-values.html> (retrieved 16 March 2021).
21. Military Grievances External Review Committee, About the Committee, online: <https://www.canada.ca/en/military-grievances-external-review/corporate/about.html> (retrieved 16 March 2021).
22. Military Police Complaints Commission, About Us, online: <https://www.mpcc-cppm.gc.ca/01/100/100-eng.aspx> (retrieved 16 March 2021).
23. Federal Courts Act, RSC 1985, c F-7.
