Overhauling Oversight: Ombudsman White Paper - Appendix
Appendix – Draft Statute
Part XXX
National Defence and Canadian Forces Ombudsman
1.
(1) There shall be an Ombudsman for the Department of National Defence and Canadian Forces who shall be appointed by the Governor in Council to hold office for a term not exceeding five years, and is removable only for cause.
(2) The Ombudsman is eligible to be reappointed on the expiry of the first term to a second term not exceeding five years.
(3) The Ombudsman shall have the powers and perform the duties and functions as set out below.
(4) The Ombudsman shall have the rank and status of a deputy head of a department and as such shall exercise and perform such powers, duties and functions as specified below and otherwise as the Minister may specify.
Ombudsman’s Mandate—General Duties and Functions
2.
(1) The Ombudsman shall,
(a) act as a neutral and objective sounding board, mediator, investigator and reporter on matters related to the DND and CF;
(b) act as a direct source of information, referral and education to assist individuals in accessing existing channels ofassistance and redress within the DND and CF; and
(c) serve to contribute to substantial and long-lasting improvements in the welfare of employees and members of the DND and CF community.
(2) In the performance of those duties and functions, the Ombudsman shall be independent from the management and chain of command of the DND and CF and shall report directly to and be accountable to the Minister.
(3) The Ombudsman has the powers to receive, investigate and hear complaints given to the MPCC under Part IV of this Act.
(4) The Ombudsman shall exercise such powers and shall perform such duties and functions as are conferred or imposed on it by or pursuant to any other Act of Parliament or any order of the Governor in Council.
(5) The powers conferred on the Ombudsman may be exercised despite any provision in any Act to the effect that any such decision, recommendation, act or omission is final, or that no appeal lies in respect thereof, or that no proceeding or decision of the person or organization whose decision, recommendation, act or omission it is shall be challenged, reviewed, quashed or called in question.
3.
(1) The Ombudsman
(a) shall investigate any matter referred to the Ombudsman by written direction of the Minister; and
(b) may, subject to these provisions, on the Ombudsman’s own motion after advising the Minister, investigate any matter concerning the DND or CF.
Administration of the Ombudsman’s Office
4. The Ombudsman may employ such employees as the Ombudsman considers necessary for the efficient operations of his orher office, and such employees shall be appointed in accordance with the Public Service Employment Act.
5. All members of the Ombudsman’s staff shall, on appointment, swear an oath of secrecy.
6. Except as otherwise provided or the context otherwise requires, these provisions that apply to or in respect of the Ombudsman apply to or in respect of the representative of the Ombudsman and the staff of the Ombudsman while performing duties or functions on behalf of the Ombudsman.
7. The Ombudsman shall have complete authority for the administration of the Ombudsman’s Office, work and employees.
8. The Ombudsman shall be responsible for the Ombudsman’s own communications and media relations and shall have his orher own legal counsel.
9. DND/CF shall provide assistance to the Ombudsman with respect to administrative, human resource, and communicationsmatters, upon the Ombudsman’s request.
10. The Ombudsman may engage such technical and professional advisers as the Ombudsman considers necessary for the proper conduct of the Ombudsman’s activities.
Delegation
11. Any of the powers, duties or functions of the Ombudsman under these provisions, other than the power of delegation and the duty or power of submitting or publishing reports under section XX, may be delegated by the Ombudsman to any member of the Ombudsman’s staff.
Budget
12. The Ombudsman has complete authority over the budget for the office of the Ombudsman and is accountable only to the Minister with respect to the budget of the Office.
13. The budget for the office of the Ombudsman shall be reported as a separate line item in the DND’s estimates and shall be set out in the annual report that is prepared by the Ombudsman in accordance with subsection 39(1)(a)(i).
Right to Complain
14. Any of the following persons may bring a complaint to the Ombudsman, directly and free of charge, where the matter complained about relates directly to DND or the CF:
(1) a member or former member;
(2) a member or former member of the Cadets;
(3) an employee or former employee;
(4) an employee or former employee of the Staff of Non-Public Funds, CF;
(5) a person who applies to become a member;
(6) a third-party contractor, supplying services to DND/CF in the same manner as DND employees or CF members;
(7) a member of the immediate family of a person referred to in paragraphs (1) to (6); or
(8) a person who, pursuant to law or pursuant to an agreement between Canada and the state in whose armed forces the person is serving, attached or seconded as an officer or non-commissioned member to the CF.
Existing Mechanisms
15.
(1) Where the complainant has not, within the applicable time limit, first availed himself or herself of one of more of the following existing mechanisms available to the complainant, the Ombudsman has the discretion to refuse to deal with the complaint
(a) the CF Redress of Grievance System, including the Canadian Forces Grievance Board;
(b) the Public service grievance and complaints system; or
(c) the Security Intelligence Review Committee.
(2) For the purpose of paragraph (1)(b), the public service grievance and complaints process includes formal complaints mechanisms and rights of appeal under the Public Service Employment Act, rights of grievance and appeal under the Public Service Staff Relations Act, the Public Service Modernization Act, review and appeal procedures in relation to workers compensation under the Government Employees Compensation Act and rights of appeal to Management Review Boards of the public service health and dental plans.
Limitations
16. The Ombudsman shall not investigate any complaint or matter relating to
(1) a military judge, court martial or summary trial;
(2) the exercise of discretion in laying charges by the chain of command or the CF National Investigation Service or in preferring charges by the Director of Military Prosecutions;
(3) matters which are within the exclusive jurisdiction of the Treasury Board as the employer and within the exclusive jurisdiction of the bargaining agent, under the Public Service Staff Relations Act;
(4) the review of the foreign signals intelligence and information technology security activities of the Communications Security Establishment;
(5) occurrences prior to June 15, 1998, unless the Minister considers that it is in the public interest, including the interest of employees or members of the DND or the CF as a whole, for the Ombudsman to deal with the matter;
(6) any legal advice to DND or the CF, employees of DND, members of the CF or the Crown, by a person acting as legal counsel in relation to any matters or any proceeding; or
(7) professional conduct and professional standards under the jurisdiction of a Bar of a province.
17. 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.
Disposal and Investigation of Complaints
18. The Ombudsman shall attempt to resolve problems at the level at which they can most efficiently and effectively be resolved and shall make recommendations to the lowest level of authority that can effect the change considered necessary by the Ombudsman.
19.
(1) The Ombudsman may refuse to deal with a complaint or may discontinue dealing with a complaint at any stage if the Ombudsman considers that it is in the public interest to do so.
(2) In exercising the discretion under subsection (1), the Ombudsman shall consider the following factors:
(a) whether the complaint is frivolous or vexatious;
(b) whether the complainant lacks sufficient personal interest in the matter;
(c) the age of the complaint;
(d) the amount of time between when the complaint became aware of the matters giving rise to the complaint and when thecomplaint is received by the Ombudsman;
(e) the need for a judicious and efficient use of the Ombudsman’s resources; and
(f) the extent to which the complainant has utilized existing complaint mechanism.
20.
(1) Subject to sections 16 and 17, 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; and
(b) the public service discipline processes to the competent authority including the Deputy Minister.
(2) The competent authority should inform the Ombudsman of any steps that are taken to remedy the abuse or delay.
21. If an investigation is necessary to carry out the Ombudsman’s mandate, the Ombudsman shall thoroughly investigate thecomplaint in an independent and objective manner.
Units Deployed on International Operations
22.
(1) If the investigation of a matter by the Ombudsman involves a unit that has been deployed in international operations, the Ombudsman shall normally
(a) inform the contingent commander of the investigation prior to its commencement;
(b) keep the contingent commander or the commander’s designate informed about the progress of the investigation;
(c) request from the contingent commander or the commander’s designate that a liaison person be assigned to represent the contingent commander and provide advice to the Ombudsman on any impact the investigation may have on the operational mission;
(d) carry out the investigation while being sensitive to the need to minimize the impact on the operational effectiveness of the contingent; and
(e) where appropriate, seek the advice of the contingent commander or the commander’s designate concerning the matter referred to in paragraph (d).
(2) Investigations by the Ombudsman must not impede the operational mission of contingent commanders, but not withstanding that aim, must be completed in a credible, responsive, independent and professional manner.
(3) If the matter of the Ombudsman being effectively able to carry out an investigation without impeding the operational mission of a contingent commander cannot be resolved to the satisfaction of the Ombudsman and the contingent commander, the contingent commander shall refer the matter to the CDS for direction.
(4) If the investigation of a matter by the Ombudsman involves a unit that has been deployed in domestic operations, subsections (1) to (3) also apply in respect of the investigation but a reference to a commander in any of those provisions shall be read as a reference to the joint force commander.
Criminal Act or Breach of the Code of Service Discipline
23.
(1) If at any time during the course of dealing with a matter, the Ombudsman is of the opinion that there is evidence of
(a) a criminal act or a breach of the Code of Service Discipline committed by any employee or member of the DND or CF, the Ombudsman may report the matter to the Provost Marshal; or
(b) a criminal act committed by a person who is not subject to the Code of Service Discipline, the Ombudsman may report the matter to the competent authority.
(2) When the Ombudsman investigates a matter that is related to a Military Police investigation into an alleged criminal orCode of Service Discipline offence,
(a) the Provost Marshal has priority in the interviewing of witnesses; and
(b) the Military Police shall, on the request of the Ombudsman, provide the Ombudsman with copies of documents and information relating to the investigation carried out by the Military Police in connection with the matter.
Access to Documents
24.
(1) The Ombudsman may be denied access to information for reasons of security in accordance with government security policy.
(2) The Ombudsman may be denied access to facilities, employees, members or information for only as long as it is justifiedfor operational requirements.
(3) If any person objects to providing access to facilities, employees, members or information to the Ombudsman on the basisof compelling operational or security requirements, the Ombudsman may request a review of the objection by the competent authority
(a) up to the CDS when the objection is based on operational requirements; or
(b) up to the CDS or Deputy Minister when the objection is based on security requirements.
(4) If the Ombudsman is not satisfied with the explanations provided by the competent authority for not providing access tothe Ombudsman to facilities, employees, members or information, the Ombudsman may, after reasonable notice to the Minister,submit a report under section XX relating the Ombudsman’s concerns on the denial of access.
25. Communications between the Ombudsman and any person shall not be covered by or counted against any restrictions onthat person’s right to send letters, documents or correspondence or to receive or make telephone calls.
26.
(1) The office of the Ombudsman shall be operated in a confidential and secure manner so as to protect theinformation 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, in the opinion of the Ombudsman, subject to these provisions, 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.
Assistance to the Ombudsman
27. The Ombudsman may hear or obtain information from such persons as he or she thinks fit, and may make such inquiriesas he or she thinks fit and it is not necessary for the Ombudsman to hold any hearing and no person is entitled as of right to be heard by the Ombudsman.
28.
(1) The DND and CF as institutions, and the CFGB, and all levels of authority within them, shall provide the Ombudsman, in accordance with the law and consistent with operational and security requirements, with all the support, assistance and cooperation required by the Ombudsman to perform the duties and functions of the Ombudsman.
(2) Employees and members of the DND and CF and the CFGB shall facilitate the work of the Ombudsman unless legal requirements or compelling operational or security priorities dictate otherwise.
(3) For the purpose of this section, cooperating fully with and facilitating the work of the Ombudsman includes providing, in connection with the Ombudsman’s duties and functions, within a time that is reasonable in the circumstances having regard toany legal requirements or compelling operational or security priorities that dictate otherwise
(a) direct access to the employees and members of the DND and CF, CFGB and facilities;
(b) information; and
(c) copies of documents or other things.
(4) If a request for information or assistance directly from the Ombudsman cannot be accommodated, the person responsible forgiving effect to the request shall report the circumstances to the environmental commander, group principal or senior manageras appropriate as soon as is reasonable in the circumstances.
(5) An employee or member of the DND or CF, or CFGB, who receives a request for information or assistance directly from the Ombudsman may consult his or her manager or commanding officer within such time as is reasonable in the circumstances so as not to cause undue delay in permitting the duties and functions of the Ombudsman to be exercised in relation to the matter.
29. To the extent that operational requirements permit, the DND/CF, and CFGB shall make personnel available as requested by the Ombudsman in order to provide specialized knowledge or expertise to assist the Ombudsman in the exercise of his or her mandate.
30.
(1) The Military Police shall, on request of the Ombudsman, provide the Ombudsman with copies of documentation andinformation relating to the investigation that has been or is being carried out by the Military Police in connection with a matter where
(a) the investigation has been completed; or
(b) providing access to the Ombudsman would not impede or compromise the investigation.
(2) Where access is denied, the Provost Marshal shall provide the Ombudsman with a report explaining why the provision ofaccess to the Ombudsman would impede or compromise the investigation.
31.
(1) If the Ombudsman deems necessary, the Ombudsman may from time to time require any employee or member of the DNDand CF and the CFGB who in his or her opinion is able to give any information relating to any matter that is beinginvestigated by the Ombudsman to furnish to him or her any such information, and to produce any documents or things which inthe Ombudsman’s opinion relate to any such matter and which may be in the possession or under the control of that person.
(2) The Ombudsman may summon before him or her and examine on oath,
(a) any complainant;
(b) any person who is an employee or member of the DND/CF, CFGB and who, in the Ombudsman’s opinion, is able to give any information mentioned in subsection (1); or
(c) any other person who, in the Ombudsman’s opinion, is able to give any information mentioned in subsection (1), and for that purpose may administer an oath.
(3) Except in a prosecution of a person for an offence under section 131 of the Criminal Code (perjury) in respect of astatement made under this Part, in a prosecution for an offence under this Part, evidence given by a person in proceedingsunder this Part and evidence of the existence of the proceedings is inadmissible against that person in a court or in anyother proceedings.
32.
(1) The Ombudsman may at any time enter upon any premises occupied by DND/CF and CFGB and inspect the premises andcarry out therein any investigation within his or her jurisdiction.
(2) Before entering any premises under subsection (1), the Ombudsman shall notify the manager or commanding officer occupyingthe premises of his or her purpose.
(3) The Minister may by notice to the Ombudsman exclude the application of subsection (1) to any specified premises or classof premises if he or she is satisfied that the exercise of the powers mentioned in subsection (1) might be prejudicial to thepublic interest.
Refusal or Failure to Assist the Ombudsman
33.
(1) No employee or member of the DND/CF, CFGB shall wilfully and without lawful reason,
(a) refuse or fail to comply with any lawful request of the Ombudsman made in connection with the performance of the Ombudsman’s duties and functions;
(b) make any false statement or attempt to mislead the Ombudsman in the performance of the Ombudsman’s duties and functions;
(c) fail to forward immediately to the Ombudsman’s office, unopened and unread, communications directed to the Ombudsman from any person who
(i) resides on any CF base or is with any Wing or Formation or who is deployed by the CF or is a member of the person’s family, or
(ii) is in detention, incarceration or is hospitalized;
(d) fail to forward immediately, unopened and unread, communications from the Ombudsman to any person referred to in paragraph c;
(e) intercept by electronic or other means communications between the Ombudsman and any person in relation to the duties and functions of the Ombudsman;
(f) obtain access to records of the Ombudsman of internal or external communications to or from the Ombudsman;
(g) obtain access to the electronic or other data storage facilities used in connection with the Ombudsman’s duties and functions that are separate from the electronic or other data storage system provided to the Ombudsman’s offices by the DND or CF;
(h) take steps to breach the confidentiality or privacy of any communication made to or information in the possession of the Ombudsman;
(i) discriminate, retaliate or take an adverse action against, or impose an adverse consequence on, any person asretribution or reprisal for bringing in good faith a complaint forward to or lawfully cooperating with the Ombudsman inrelation to the Ombudsman’s duties and functions; or
(j) make comments that a reasonable person would know are likely to compromise or prejudice the integrity of a review or an investigation being carried out by the Ombudsman.
(2) A person who contravenes subsection (1) shall be considered to have obstructed, impeded or interfered with the Ombudsmanin the execution of the duties and functions that the Ombudsman is required to perform.
34.
(1) No person shall obstruct the Ombudsman or any person acting on behalf or under the direction of the Ombudsman inthe performance of the Ombudsman’s duties and functions under this Part.
(2) Every person who contravenes this section is guilty of an offence and liable on summary conviction to a fine notexceeding one thousand dollars.
35.
(1) If, in connection with any investigation, the Ombudsman is of the opinion that the powers of investigation of theOmbudsman have substantially been frustrated and not supported by persons or processes to the extent that the mandate of theOmbudsman cannot be properly exercised during the investigation, the Ombudsman may
(a) make a report of the matter to the Minister; and
(b) publish a report about the matter if the Ombudsman considers that it is in the public interest to do so in order topreserve the respect and cooperation that is to be accorded to the office of the Ombudsman and to prevent occurrences of similar situations.
Information to Complainants and Other Parties
36. The Ombudsman shall in each case, inform the complainant and other parties involved in the case in such manner and atsuch time as the Ombudsman deems appropriate, as to the progress of the case and of the disposition of the complaint andprovide the complainant and parties with a copy of any opinion or recommendation that the Ombudsman has rendered inconnection with the complaint together with such comments as the Ombudsman considers appropriate.
37.
(1) If a report by the Ombudsman under section 38 will contain an adverse comment about any employee or member of the DNDor CF or CFGB, the Ombudsman shall inform the employee or member of the nature of the intended comment and allow the employee or member 14 days to submit representations in response.
(2) The Ombudsman may, on application by any person who is unable to submit representations pursuant to subsection (1) withinthe 14 days, extend the person’s time for submitting representations, if it is in the public interest to do so.
(3) Representations referred to in subsection (1) shall be in writing unless the Ombudsman, on application, considers it appropriate in the circumstances to allow oral representations to be made.
(4) A copy of all written representations received under this section shall be appended to any report made pursuant tosection 38.
Report to Competent Authorities
38.
(1) The Ombudsman shall send a report, including any recommendations, opinions, and reasons, to the appropriate DND orCF authority, if on completing an investigation of any matter, the Ombudsman is of the opinion that
(a) the matter should be referred to an appropriate DND or CF authority further consideration;
(b) an omission should be rectified;
(c) a decision or recommendation should be quashed or substituted;
(d) findings and recommendations, or a decision of an existing mechanism referred to in subsection 15 should bereconsidered, quashed or substituted;
(e) a law, policy or practice on which a decision, recommendation, act or omission was based should be reviewed;
(f) reasons should have been given for a decision or recommendation;
(g) a delay should be rectified; or
(h) other steps should be taken to achieve substantial and long-lasting improvements to the welfare of employees and members of the DND or CF.
39.
(1) An authority that receives a report under section 38 shall inform the Ombudsman within a reasonable time, as determined by the Ombudsman, of all steps taken or proposed to be taken in response to recommendations in the report, including reasons for not following any recommendation.
(2) If, in the opinion of the Ombudsman, the response to a report received from the appropriate DND or CF authority is insufficient or no response is received, the Ombudsman may send a copy the report to the Deputy Minister or CDS, as appropriate, and in such case the Deputy Minister or CDS shall inform the Ombudsman within a reasonable time, as determined by the Ombudsman, of all steps taken or proposed to be taken in response to recommendations in the report, including reasons for not following any recommendation.
(3) If, in the opinion of the Ombudsman, the response to a report received from the Deputy Minister or CDS is insufficient or no response is received, the Ombudsman may send a copy of the report to the Minister.
(4) If the Deputy Minister or CDS is directly involved in the subject-matter of the Ombudsman’s report, the Ombudsman shall report the matter directly to the Minister instead of sending a copy of the report to the Deputy Minister or CDS as the case may be under subsection (2).
Annual and Other Reports
40.
(1) The Ombudsman
(a) shall
(i) submit an annual report to the Minister within three months after the termination of each financial year, on theactivities of the Ombudsman and at such other times as the Minister may require, and
(ii) submit reports to the Minister on the implementation of any recommendations made by the Ombudsman when required by the Minister; and
(b) may issue reports concerning any investigation or other matter within the mandate of the Ombudsman, if the Ombudsmanconsiders that it is in the public interest to do so.
(2) The Ombudsman shall
(a) publish a report issued under subsection(1)(a) on the expiration of 28 days after it has been submitted to the Minister, and the report shall be laid before each House of Parliament on any of the first fifteen days on which that House is sitting after the Minister receives it; and
(b) submit a report issued under subsection (1)(b) to the Minister and, may publish the report on the expiration of 28 days after it has been submitted to the Minister, if the Ombudsman considers that it is in the public interest to do so.
(3) No person other than the Ombudsman shall alter a report referred to in subsection (2) except when necessary toconform to the requirements of the Privacy Act.
Ombudsman’s Advisory Committee
41.
(1) The Ombudsman shall establish a DND/CF Ombudsman’s Advisory Committee.
(2) The representation on the Committee shall be determined by the Ombudsman having regard to the need to ensure a broad based representation from the DND and CF, and VAC.
(3) The Committee shall meet on a regular basis to provide the Ombudsman with advice on issues within the context of the DND and CF and concerns that have arisen in relation to the activities of the Ombudsman’s office.
Proceedings Privileged
42. Except on the ground of lack of jurisdiction, nothing done by the Ombudsman, including the making of any report orrecommendation is liable to be challenged, reviewed, quashed or called into question in any court.
43. No criminal or civil proceedings lie against the Ombudsman, or against any person acting on behalf or under the direction of the Ombudsman, for anything done, reported or said in good faith in the course of the exercise or performance or purported exercise or performance of any function, power or duty of the Ombudsman.
44. The Ombudsman or any person acting on behalf or under the direction of the Ombudsman is not a competent or compellable witness in respect of any matter coming to the knowledge of the Ombudsman or that person in the course of the exercise or performance or purported exercise or performance of any function, power or duty of the Ombudsman.
45. For the purposes of any law relating to libel or slander,
(a) anything said, any information furnished or any document, paper or thing produced in good faith in the course of an investigation by or on behalf of the Ombudsman is privileged; and
(b) any report made in good faith by the Ombudsman and any fair and accurate account of the report made in good faith in a newspaper or any other periodical publication or in a broadcast is privileged.
Department of Veterans Affairs Act (RSC 1985, V-1)
1. There shall be an Ombudsman for the Department of Veterans Affairs.
2. The Ombudsman for the Department of National Defence and Canadian Forces shall also hold the position as Ombudsman for the Department of Veterans Affairs.
3. The Ombudsman shall have the duties and functions as set out in Part XXX of the National Defence Act concerning Veterans Affairs matters.
4. In performing these functions, the Ombudsman shall be independent from the management of VAC and shall report directly to and be accountable to the Minister of Veterans Affairs.
5. The Ombudsman shall have the power to receive complaints on matters falling within the jurisdiction of the Veterans Review and Appeal Board.
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