A Word or Two About the DND/CF Ombudsman

 

Over the course of the past week or so, there has been a great deal of discussion about what the DND/CF Ombudsman knew (or did not know) about allegations involving the former Chief of the Defence Staff (CDS), General Jonathan Vance.  There has been some speculation about what the Ombudsman may have told the Minister of National Defence (MND) in 2018 and about what the MND knew (or didn’t know), about what the MND did (or didn’t do), and why.

And there has been a degree of commentary and speculation about what the Ombudsman could and could not do regarding information that came to his attention and the potential impact that such constraints and options may have had on how the allegations were addressed.

Before we examine the decisions and actions (or indecision and inaction) of statutory, constitutional, and Parliamentary actors like the MND and the Prime Minister, let’s first examine the Ombudsman, a position that is neither Parliamentary nor constitutional, and is not directly created by statute.

 

Basis for the DND/CF Ombudsman

First, the Ombudsman is not established by the National Defence Act (NDA).  The office is established under the authority of the NDA – specifically, the MND’s statutory authority under section 4:

4 The Minister holds office during pleasure, has the management and direction of the Canadian Forces and of all matters relating to national defence …[1]

 

The DND/CF Ombudsman was created by policy, not statute.  He is, in effect, an extension of the Minister’s authority.  Granted, the role and responsibilities of the Ombudsman are set out in what is essentially a Ministerial Directive, which will give rise to certain legitimate expectations regarding process, but we must be cautious about exaggerating the nature of the Ombudsman.

 

Independence?

The word ‘independent’ is often used to describe the DND/CF Ombudsman.  But is that actually a correct or meaningful characterization?  Whenever I hear or read someone describe a person or office as ‘independent’, the first two questions that occur to me are: (1) From whom; and (2) To what extent?

The Ombudsman is “…independent from the management and chain of command of the DND and the CF and shall report directly to and be accountable to the Minister.”[2]  Thus, while the Ombudsman may be said to function outside the ‘chain of command’ of the Canadian Forces (CF) (which is headed by the CDS) and outside the management structure of the Department (headed by the Deputy Minister), the Ombudsman is not independent of the MND.  So, let’s look at how the Ombudsman’s ‘independence’ may be characterized.

If we use the factors for judicial independence drawn from Valente v The Queen, [1985] 2 SCR 673 as the ‘high water mark’ for independence, we can examine the extent to which the Ombudsman is actually independent.  Valente identifies three general factors indicative of independence: security of tenure, security of remuneration, and institutional independence.

The Ombudsman is appointed by Order in Council upon the recommendation of the MND.  This is not particularly distinct from the appointment of a judge, such as a military judge.  However, the Ombudsman does not benefit from the security of tenure that one might associate with a judge.  The Ombudsman is a Governor in Council appointee and may be removed from his (or her) position by the same authority.  There is no process for such removal.  Director of Military Prosecutions (DMP) and Director of Defence Counsel Services (DDCS), two positions actually established in the NDA, have greater security of tenure.  Neither of the officers occupying those positions may be removed from their position except in accordance with the processes established under sections 165.1 and 249.18 respectively.

DMP and DDCS may only be removed from office ‘for cause’ on the recommendation of an inquiry committee that is established under regulations made by the Governor in Council.  Those processes, established, respectively, under articles 101.13 and 101.14 of the QR&O, guard against arbitrary removal of DMP and DDCS from their positions.  They provide for transparency and procedural fairness in such decision-making.

The DND/CF Ombudsman does not have such guarantees of security of tenure.  His security can best be characterized as ‘positional’ within a politicized environment.  In light of the perceived (and often inaccurately described) ‘independence’ of the Ombudsman, and the mystique that has grown up around that office, it could be problematic for the MND to pursue the removal of the Ombudsman.  And we must recall that there was commentary in news media in 2017[3] and 2019[4] regarding friction between Gary Walbourne, the (then) Ombudsman, and the current MND.  Indeed, while he was still Ombudsman, Walbourne asserted that his office ought to report to Parliament, and not to the MND.

The apparent criticisms that the then, still serving, Ombudsman levelled against the MND demonstrates the extent, and the limit, of his positional independence.  It would appear that the Ombudsman concluded that he could, publicly, criticize certain aspects of policy and process with a degree of confidence that it would be politically contentious for the MND to remove him for doing so.  However, the same news media reports about this rising tension between the Ombudsman and the MND also demonstrate the limitations on his administrative or institutional independence, discussed below.

Neither does the Ombudsman have the same security of remuneration that is typically attributed to judges.  There is no express consultative process for determining his salary.  There is no provision under the NDA that requires the rates and conditions of his salary be set in regulation.  In effect, his salary is subject to the same protections (or lack thereof) of any other executive position appointed by an Order in Council.

Nor does the Ombudsman have significant institutional independence, despite insistence that his office lies ‘outside’ the Department of National Defence and the Canadian Forces.  He can control his own process, but that is not particularly significant.  Most CF and Departmental actors control their own processes to a similar extent.  He does not dictate his own budget.  Nor does he have any power to compel assistance or compliance from Departmental or CF actors.  Consider what was reported in 2017 by the CBC:

 

The ombudsman’s office has a budget of about $6 million per year and, according to officials, receives about 13,000 calls from active and retired military personnel each year.

It is currently working on 1,900 cases, many of which officials say relate to problems with the transition from military to civilian life.

Walbourne, who took over as ombudsman in April 2014, said he has worked hard to clean up Daigle’s mistakes, but the department’s tight grip on his office’s finances is now being used against him.

He alleged that a pattern has developed whereby defence officials make life more difficult for his office any time it releases a report they don’t like.

“You can almost trend my administrative burdens and the way this office is received with my systemic reviews when I release them and there’s a challenge to the department to change something,” he said.

“The administrative burden gets a little bit more. Things get delayed a little bit. It’s insidious.”

In his letter, Sajjan wrote that Walbourne should contact him directly “if ever you feel that your ability to carry out your duties is being constrained.”[5]

 

While the Ombudsman’s functions include the possibility of ‘investigation’ his powers of inquiry are not as broad and significant as some people may believe.  By Ministerial Directive, the Ombudsman is entitled to assistance from Departmental and CF actors[6].  Failure to assist the Ombudsman, without justification for such refusal, can purportedly be enforced under the DAOD.[7]  However, there are limits on this obligation, such as where “… any legal requirements or compelling operational or security priorities … dictate otherwise …”.[8]  Ultimately, if the Ombudsman believes that he is not being afforded the assistance to which he is entitled under the Ministerial Directives, his principal recourse for remedy is the Minister.[9]  Alternatively, the Ombudsman may publish a report if he “… considers that it is in the public interest to do so in order to preserve the respect and co-operation that is to be accorded to the office of the Ombudsman and to prevent occurrences of similar situations.”[10]

In other words, the Ombudsman may either seek the intervention of the Minister if his efforts are being frustrated or, alternatively, he may use his power to ‘name and shame’ publicly.  But if the Minister is not inclined to intervene on behalf of the Ombudsman, and if ‘naming and shaming’ might have consequential effects that the Ombudsman may wish to avoid, he has limited recourse, which tends to highlight the limitations of his so-called ‘independence’.

Perhaps most significantly, the Ombudsman’s powers of inquiry are not as robust as those granted to inquisitorial actors established by the NDA. Unlike Boards of Inquiry[11], investigations by the Military Police Complaints Commission (MPCC)[12], and hearings conducted by the Military Grievances External Review Committee (MGERC)[13] – on the rare occasions when such hearings are actually held – the Ombudsman has no power to summon or subpoena a witness (and enforce such summons), to administer oaths, or to receive and accept evidence (under oath or by affidavit).

In short – the Ombudsman is not all that ‘independent’.  Nor does he have as robust powers of inquiry as several actors established by the NDA.

And neither is the Ombudsman intended to investigate Code of Service Discipline offences.

 

Investigation and Reporting

The ‘limitations’ identified at section 14 of Annex A of DAOD 5047-1 do not expressly prohibit the Ombudsman from investigating allegations that might describe offences under the Code of Service Discipline.  However, section 15 does impose the following limitation: “The Ombudsman will not purport to perform the function of the Military Police in investigating any matter in which there may be an allegation of criminal activity.”

The allegations against the former CDS that have arisen recently do not appear to suggest that he committed an offence under the Criminal Code.  The allegations suggest that he may have contravened one or more Defence Administrative Orders and Directives (DAOD) – notably DAOD 5019-1 Personal Relationships and Fraternization or DAOD 5012-0 Harassment Prevention and Resolution.  Contravention of such directives could constitute an offence under the Code of Service Discipline – specifically contrary to section 129 of the NDA as ‘conduct prejudicial to good order and discipline’.  However, insofar as those allegations have been discussed publicly, they remain anonymous.

If the term ‘criminal activity’, as it is used in section 15 of the Ministerial Directives, is interpreted as ‘offences under the Criminal Code’, rather than (more broadly) any Code of Service Discipline offence, the prohibition at section 15 would not apply directly.  And none of the limitations at section 14 are expressly triggered.

The application of section 15 is further amplified by Annex B to DAOD 5047-1, a letter dated 20 July 2001 from the (then) Vice Chief of the Defence Staff and the (then) Senior General Counsel and Legal Advisor to the Department of National Defence and the Canadian Forces.  That letter draws a distinction between “an alleged criminal act” and a “breach of the Code of Service Discipline” (notwithstanding that a criminal act would also be a breach of the Code of Service Discipline).  The nature of the construction of that letter would appear to align the term ‘criminal act’ or ‘criminal investigation’ narrowly with the Criminal Code.

However, circumstances in which evidence arises of either a possible criminal offence or breach of the Code of Service Discipline are addressed expressly by section 23 of the Ministerial Directives at Annex A of DAOD 5047-1:

 

1. 23. (1) If at any time during the course of dealing with a matter, the Ombudsman finds that there is evidence of

(a) a criminal act or a breach of the Code of Service Discipline committed by any employee or member, the Ombudsman may report the matter to the Provost Marshal; or

…

(2) When the Ombudsman investigates a matter that is related to a Military Police investigation into an alleged criminal or Code of Service Discipline offence, the Provost Marshal has priority in the interviewing of witnesses.

 

While the Ombudsman is not obliged to report the matter to the Military Police if he believes that a Code of Service Discipline offence may have occurred; however, he is not barred from doing so.

While there are certainly some pressing questions that ought to be asked of the current MND, and of the MND who recommended to the Governor in Council that General Vance should be appointed CDS, the Ombudsman was not entirely ‘handcuffed’ by the Ministerial Directives that governed his functions.  If he thought that the matter was sufficiently serious that it warranted a Military Police investigation (in light of the seniority of the person against whom the allegations were made), he could have reported it to the Canadian Forces Provost Marshal.

And the Ombudsman’s options did not end there.  If he believed that allegations concerning a breach of the Code of Service Discipline by the CDS were not taken sufficiently seriously, section 19 of the Ministerial Directives could well be triggered:

 

19.(1) Subject to sections 14 and 15, the Ombudsman may report complaints of abuse or delay related to the administration of

(a) the Code of Service Discipline to the competent authority including the Chief of the Defence Staff (CDS), the Judge Advocate General, the Provost Marshal or the Military Police Complaints Commission; and

…

(2) The competent authority should inform the Ombudsman of any steps that are taken to remedy the abuse or delay.

 

Now, obviously, if the Ombudsman came into possession of information that indicated the possibility that the CDS may have contravened one or more DAOD, and, therefore, may have contravened the Code of Service Discipline, it would be nonsensical to report that to the CDS.  He could have reported that to the MND as the ‘competent authority’.  There appears to be a suggestion that he did just that.  However, in light of the potential military justice issues arising from the putative allegations, he could also have raised the matter with the Judge Advocate General.  If he felt that the Military Police were not taking appropriate steps to investigate the allegations, he could have brought that to the attention of the MPCC.

There is no suggestion that the Ombudsman reported any concerns to the CF Provost Marshal, the JAG, or the MPCC.

There is a suggestion that the Ombudsman was bound by some form of confidentiality.  So, let’s explore the extent to which that would have bound the Ombudsman.

 

Confidentiality

Consider the following passages from the Ministerial Directives issued to the Ombudsman, and repeated in Annex A to DAOD 5047-1:

 

1. 27. (1) The office of the Ombudsman shall be operated in a confidential and secure manner so as to protect the information received by the office in the course of its operations.

(2) Except as otherwise authorized by law,

(a) no communication to the Ombudsman or information provided to the Ombudsman in any form shall be disclosed by the Ombudsman, except where it is, subject to these directives, necessary for an investigation, report or other authorized purpose; and

(b) communications between the Ombudsman and any person in relation to the duties and functions of the Ombudsman are private and confidential. [emphasis added]

 

The exception permits disclosure of information where it is necessary for investigation, report, or other authorized purpose.

 

Also, section 36 of the Ministerial Directives states:

 

1. 36. The Ombudsman shall send a report, including any recommendations, opinions and reasons, to the competent DND or CF authority, if on completing an investigation

(a) the matter should be referred to the competent DND or CF authority for further consideration;

(b) an omission should be rectified;

(c) a decision or recommendation should be quashed or substituted;

(d) a law, policy or practice on which a decision, recommendation, act or omission was based should be reviewed;

(e) reasons should have been given for a decision or recommendation;

(f) a delay should be rectified; or

(g) other steps should be taken to achieve substantial and long-lasting improvements to the welfare of employees and members.

 

Most of those actions appear to be predicated upon the expectation that the investigation by the Ombudsman would be focused on an institutional process or function that has been the subject of complaint.  In other words, the Ombudsman’s role is not to investigate a single complaint or grievance – there are other processes that serve that purpose.  The Ombudsman will generally examine institutional issues on behalf of the Minister – because, as we have established above, the Ombudsman is an extension of the Minister’s management of national defence.

However, if the Ombudsman believes that a ‘competent authority’ ought to conduct its own investigation or take appropriate action, the Ombudsman “… shall send a report, including any recommendations, opinions and reasons …” to that competent authority.

In the matter that appears to preoccupy the national news media at present, the suggestion appears to be that the Ombudsman raised with the Minister alleged improper conduct by the CDS.  What remains unclear is what, if anything, the Minister did with this information.  The Minister has stated that he reported the information to the ‘proper authorities’.  This statement is puzzling, since the MND is clearly one such ‘appropriate authority’.  In fact, he was the likeliest authority to whom the Ombudsman would be expected to report such allegations and the Ombudsman, quite reasonably, would have expected the Minister to address such allegations in an appropriate manner.  Unfortunately,  we are left to speculate regarding what information the Minister received from the Ombudsman, and what the Minister did with that information.  The Minister has vaguely indicated that he told someone.  However, we are left to speculate regarding: (1) Who was informed of the allegations; (2) what, specifically, the Minister told them; and, (3) what, if any, action any of those persons took regarding the allegations.

But there were other potential investigative authorities to whom the Ombudsman could have turned, including the CF Provost Marshal.

 

Conclusion

There have been suggestions that the Ombudsman may have been constrained by guarantees of confidentiality.  Presumably, as the Ombudsman is not independent of the Minister, and is created by Ministerial fiat, the Ombudsman was not constrained in sharing information with the Minister.

While confidentiality is important to maintain the integrity of a function – even one that is established by policy, rather than by law – it would have been problematic for the Ombudsman to suggest to the MND that there was a complaint against the CDS, or involving the CDS, but then offer no details whatsoever.

Additionally, as we have established above, it is open to the Ombudsman to refer a matter to a competent DND or CF authority for further consideration, particularly where the inquiry or investigation of such a matter lies within that ‘competent authority’s’ mandate or function.

Therefore, one might ask, if the Ombudsman was concerned that the CDS may have contravened one or more DAOD – which, ironically, are issued under the authority of the CDS[14] – and, therefore, may have committed a Code of Service Discipline offence, whether the Ombudsman considered reporting the concerns to the CF Provost Marshal.

It is possible that the Ombudsman opted not to raise his concerns with the CF Provost Marshal.  It is possible that the Ombudsman was concerned about maintaining the anonymity of one or more complainants.  However, it would be inaccurate to suggest that the Ombudsman was prohibited from reporting concerns about disciplinary misconduct to the Military Police.

We must also remember that, regardless of rank, an accused in a Code of Service Discipline proceeding, or a respondent in an administrative process, must be afforded an opportunity to make full answer and defence to the allegations brought against the accused or respondent, and in a manner consistent with the degree of procedural fairness required in light of the potential consequences of such a process or processes.  Presumably, the Ombudsman, whose office has its own integral legal staff, would be aware of these requirements.

 

[1] National Defence Act, RSC 1985, c N-5, s 4 [NDA].

[2] DAOD 5047-1, Office of the Ombudsman, Annex A, subs 3(2) [DAOD 5047-1].

[3] Canadian Press, “Military ombudsman accuses National Defence of ‘insidious’ attacks, demands independence”, (2 April 2017), online: CBC News <https://www.cbc.ca/news/politics/military-ombudsman-dnd-spat-1.4051931>.

[4] 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>.

[5] Canadian Press, n 3.

[6] DAOD 5047-1, n 2, ss 28 to 30.

[7] Ibid, ss 31 to 33.

[8] Ibid, subs 28(3).

[9] Ibid, para 33(a).

[10] Ibid, para 33(b).

[11] NDA, n 1, s 45.

[12] Ibid, s 250.41.

[13] Ibid, s 29.21.

[14] Ibid, s 18.