DAOD 5047-1, Office of the Ombudsman
Date of Issue: 1999-08-17
Date of Modification: 2001-09-05
Application: This is an order that applies to members of the Canadian Armed Forces (CAF) and a directive that applies to employees of the Department of National Defence (DND).
Approval Authorities: This DAOD is issued under authority of the Deputy Minister (DM) and the Chief of the Defence Staff (CDS).
Ombudsman means the person designated under section 5 of the National Defence Act to be the Ombudsperson for the Department of National Defence and the Canadian Armed Forces.
3.1 The DND and CAF as institutions, and all levels of authority within them, are bound and committed to providing the Ombudsman and staff of the Ombudsman, in accordance with the law and consistent with operational and security requirements, with all the support, assistance and co-operation required to carry out the mandate set out in the Ministerial Directives respecting the Ombudsman for the Department of National Defence and the Canadian Forces at Annex A.
For Greater Certainty
4.1 The Directives at Annex A are an order for CAF members and a directive for DND employees.
4.2 Guidance as to the interpretation of section 15 of the Directives is provided at Annex B.
Failure to Comply
4.3 Evidence or a complaint that this DAOD, including Annex A, may have been breached shall be reported to the applicable commanding officer or manager who will assess the requirement for further investigation, including a police investigation.
4.4 Failure by a CAF member or DND employee to comply with this DAOD, including Annex A, may result in administrative and disciplinary action.
Annex A - MINISTERIAL DIRECTIVES RESPECTING THE OMBUDSMAN FOR THE DEPARTMENT OF NATIONAL DEFENCE AND THE CANADIAN FORCES
29 August 2001
1. Nothing in these directives shall be construed as restricting the authority of the Minister to make requests of, or give direction to, the Ombudsman on matters with respect to the Department of National Defence (DND) or the Canadian Forces (CF).
2. The headings contained in these directives are included to assist in the organization of its provisions, and are not intended in any way to influence the interpretation of any of its sections or subsections.
Ombudsman Mandate and General Duties and Functions
3. (1) The Ombudsman shall, on the Minister's behalf,
(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 of assistance 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) 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) If a complaint is made to the Ombudsman about the handling of a complaint or complaints by or under an existing mechanism referred to in subsection 13(1), the Ombudsman may review the process only, to ensure that the individual or individuals are treated in a fair and equitable manner.
(4) While conducting a review under subsection (3), the Ombudsman shall not act in a manner that interferes with or obstructs an authority responsible for administering an existing mechanism in the discharge of the authority's statutory duties.
4. The Ombudsman
(a) shall investigate any matter referred to the Ombudsman by written direction of the Minister; and
(b) may, subject to these directives, on the Ombudsman's own motion after advising the Minister, investigate any matter concerning the DND or CF.
5. The Ombudsman shall be bound by any general policy directives affecting the activities of the Ombudsman that are issued and made public by the Minister.
6. The Ombudsman shall be responsible for the Ombudsman's own communications and media relations and the Director General Public Affairs of the DND shall be available to provide communications assistance to the Ombudsman upon request.
7. Any of the powers, duties or functions of the Ombudsman under these directives, other than the power of delegation and the duty or power of submitting or publishing reports under section 38, may be delegated by the Ombudsman to any member of the Ombudsman's staff.
Staff, Representative and Advisors
8. All members of the Ombudsman's staff shall, on appointment, swear an oath of secrecy.
9. Except as otherwise provided or the context otherwise requires, the provisions of these directives 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.
10. Subject to any administrative framework established by the Minister in respect of the Ombudsman's office, the Ombudsman may engage such technical and professional advisers as the Ombudsman considers necessary for the proper conduct of the Ombudsman's activities.
11. 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 paragraph 38(1)(a).
Right to Complain
12. 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
(a) a member or former member;
(b) a member or former member of the Cadets;
(c) an employee or former employee;
(d) an employee or former employee of the Staff of Non-Public Funds, CF;
(e) a person who applies to become a member;
(f) a member of the immediate family of a person referred to in paragraphs (a) to (e); or
(g) 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.
13. (1) Except in compelling circumstances, the Ombudsman shall not deal with a complaint if the complainant has not, within the applicable time limit, first availed himself or herself of one or more of the following existing mechanisms available to the complainant
(a) the CF redress of grievance process;
(b) the public service grievance and complaints process;
(c) the Security Intelligence Review Committee; or
(d) the complaint process under Part IV of the National Defence Act.
(2) For the purpose of determining whether there are compelling circumstances under subsection (1), the Ombudsman shall consider if
(a) access to a complaint mechanism will cause undue hardship to a complainant;
(b) the complaint raises systemic issues; or
(c) the complainant and the competent authority agree to refer the complaint to the Ombudsman.
(3) 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, 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.
14. The Ombudsman shall not investigate any complaint or matter relating to
(a) a military judge, court martial or summary trial;
(b) 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;
(c) matters which are the exclusive jurisdiction of the Treasury Board as the employer and bargaining agent, under the Public Service Staff Relations Act;
(d) the review of the foreign signals intelligence and information technology security activities of the Communications Security Establishment;
(e) 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;
(f) 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;
(g) professional conduct and professional standards under the jurisdiction of a Bar of a province; or
(h) military police that is being dealt with under Part IV of the Act.
15. 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.
16. If the subject-matter of a complaint being considered by the Ombudsman falls within the jurisdiction of Veterans Affairs Canada or the Veterans Review and Appeal Board, the Ombudsman shall not deal with the complaint but may refer the matter to Veterans Affairs Canada and advise the complainant of that action.
Disposal and Investigation of Complaints
17. 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.
18. (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) For the purposes of 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 complainant became aware of the matters giving rise to the complaint and when the complaint is received by the Ombudsman; and
(e) the need for a judicious and efficient use of the Ombudsman's resources.
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
(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.
20. (1) If an investigation is necessary to carry out the Ombudsman's mandate in connection with a complaint received by the Ombudsman, the Ombudsman shall thoroughly investigate the complaint.
(2) The Ombudsman shall attempt, with the full and complete co-operation of all parties, to complete an investigation within 60 days of its commencement.
21. (1) If, in respect of a complaint, the Ombudsman concludes that a formal inquiry, including a board of inquiry under subsection 45(1) of the National Defence Act is necessary and appropriate, the Ombudsman may refer the matter to the competent authority.
(2) The competent authority shall
(a) inform the Ombudsman of the results of the formal inquiry including any action taken, and refer the matter back to the Ombudsman to be dealt with as the Ombudsman considers appropriate in accordance with these directives; or
(b) if a decision is taken that no formal inquiry is to be convened, inform the Ombudsman of that fact and the reasons for the decision.
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
(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) Visits by the Ombudsman to an operational theatre shall occur only where there is a serious and urgent need having regard to the necessity to protect the safety and security of the personnel deployed.
(3) The determination of the serious and urgent need under subsection (2) shall be made by the CDS by weighing the competing priorities, including the need to support the Ombudsman's activities, the need to avoid impacting on operational priorities and the need to protect the safety of all personnel.
(4) Investigations by the Ombudsman must not impede the operational mission of contingent commanders, but notwithstanding that aim, must be completed in a credible, responsive, independent and professional manner.
(5) 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.
(6) If the investigation of a matter by the Ombudsman involves a unit that has been deployed in domestic operations, subsections (1) to (5) 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 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
(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 or Code of Service Discipline offence, the Provost Marshal has priority in the interviewing of witnesses.
Access and Confidentiality
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 justified for operational requirements.
(3) If any person objects to providing access to facilities, employees, members or information to the Ombudsman on the basis of 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 to the Ombudsman to facilities, employees, members or information, the Ombudsman may, after reasonable notice to the Minister, submit a report under section 38 relating the Ombudsman's concerns on the denial of access.
25. (1)Access to any document, record or personnel by the Ombudsman shall be subject only to the privileges arising under the legislation, policy and privileges referred to in Schedule 1.
(2) Documents, records and information received by the Ombudsman shall be treated in a manner consistent with the legislation, policy and privileges referred to in Schedule 2.
26. Communications between the Ombudsman and any person shall not be covered by or counted against any restrictions on that person's right to send letters, documents or correspondence or to receive or make telephone calls.
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.
Assistance to the Ombudsman
28. (1) The DND and CF as institutions, 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 co-operation required by the Ombudsman to perform the duties and functions of the Ombudsman.
(2) Employees and members 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, co-operating fully with and facilitating the work of the Ombudsman includes providing the Ombudsman within a reasonable time in the circumstances having regard to any legal requirements or compelling operational or security priorities that dictate otherwise
(a) direct access to the facilities, employees and members;
(b) information; and
(c) copies of documents or other things.
(4) If a request for information or assistance from the Ombudsman cannot be accommodated, the person responsible for giving effect to the request shall report the circumstances to the commander of the command, group principal or senior manager, as appropriate, as soon as is reasonable in the circumstances.
(5) An employee or member 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 and CF 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 and information 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 of access to the Ombudsman would impede or compromise the investigation.
Refusal or Failure to Assist the Ombudsman
31. (1) No employee or member shall, without lawful authority, wilfully
(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 a 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 as retribution or reprisal for bringing in good faith a complaint forward to or lawfully co-operating with the Ombudsman in relation 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 Ombudsman in the execution of the duties and functions that the Ombudsman is required to perform.
32. (1) If any employee or member has failed to co-operate fully with and facilitate the work of the Ombudsman or has acted in a fashion so as to obstruct, impede or otherwise interfere with the Ombudsman in the execution of the duties and functions that the Ombudsman is required to perform, the Ombudsman shall report the matter to the authority responsible for the employee or member, including the Deputy Minister, CDS or the Provost Marshal and the report may contain such recommendations in connection with the matter as the Ombudsman considers necessary.
(2) The authority referred to in subsection (1) who receives the report shall advise the Ombudsman of the steps that have been or will be taken in response to the report, including the reasons for taking those steps, or if it is determined that no steps are to be taken, the reasons for that determination.
(3) If an investigation is conducted by any person or body pursuant to a report made by the Ombudsman, the person or body shall, on completion of the investigation, provide the Ombudsman with a report of the investigation and the reasons for any recommendation made or any decision or action taken as a result of the investigation.
33. If in connection with any investigation the powers of investigation of the Ombudsman have substantially been frustrated and not supported by the DND or the CF or processes to the extent that the mandate of the Ombudsman 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 under paragraph 38(2)(b) about the matter, if the Ombudsman 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.
Information to Complainants and Other Parties
34. The Ombudsman shall in each case, inform the complainant and other parties involved in the case in such manner and at such time as the Ombudsman considers appropriate, as to the progress of the case and of the disposition of the complaint and provide the complainant and parties with a copy of any opinion or recommendation that the Ombudsman has rendered in connection with the complaint together with such comments as the Ombudsman considers appropriate.
35. (1) If a report made by the Ombudsman under section 36 will contain an adverse comment about any employee or member, 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) within the 14 days, extend the person's time for submitting representations if the Ombudsman considers that 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 under section 36.
Reports to Competent Authorities
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.
37. (1) An authority that receives a report made under section 36 shall inform the Ombudsman within a reasonable time 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 the response to a report received from the competent DND or CF authority is insufficient or no response is received, the Ombudsman may send a copy of the report to the Deputy Minister or CDS, as appropriate, who shall inform the Ombudsman within a reasonable time 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 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
38. (1) The Ombudsman
(i) submit an annual report to the Minister on the activities 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 Ombudsman considers that it is in the public interest to do so.
(2) The Ombudsman shall
(a) publish a report issued under paragraph (1)(a) on the expiration of 60 days after it has been submitted to the Minister; and
(b) submit a report issued under paragraph (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 to conform with the requirements of the Privacy Act.
Ombudsman's Advisory Committee
39. (1) The Ombudsman shall, within 6 months after these directives are promulgated by the Minister, establish a DND/CF Ombudsman's Advisory Committee.
(2) The representation on the Committee shall be determined by the Ombudsman based on a pool of candidates approved by the Minister having regard to the need to ensure a broad based representation from the DND and CF.
(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.
Arthur C. Eggleton
Minister of National Defence
- Privacy Act
- Government Security Policy
- Police Informant Identity Privilege
- Spousal Privilege
(As defined in sections 74 and 75 of the Military Rules of Evidence, Consolidated Regulations of Canada, 1978, chapter 1049, as amended by SOR/90-306.)
- Solicitor Client Privilege
- Penitential Communications
(As defined in section 78 of the Military Rules of Evidence, Consolidated Regulations of Canada, 1978, chapter 1049, as amended by SOR/90-306)
- National Defence Act
- Privacy Act
- Criminal Code
- Government Security Policy
- Access to Information Act
- National Archives of Canada Act
- Auditor General Act
1456-63 (DND/CF LA)
July 20, 2001
Mr. George Thomson
161 Laurier Ave., West
Ottawa, Ontario K1P 5J2
Dear Mr. Thomson:
1. This note is to confirm the purpose and application of the following section that is proposed as part of the terms of the Ombudsman's mandate:
15. 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.
2. This section and others are there to recognize that the Ombudsman and the military police perform different functions, although they could both be performing a role in relation to the same overall fact situation. Criminal investigations are done by the military police and the proposed section 15 is there to reinforce that fact.
3. An incident, which may give rise to a complaint falling within the mandate of the Ombudsman as defined by the ministerial directive, may have more than one aspect. For example, an incident could on its face be an alleged criminal act or a breach of the Code of Service Discipline. This fact alone does not prevent the Ombudsman from responding to a complaint and, of course, this section and others anticipate the possibility that both the Ombudsman and the military police could be engaged in investigations that fall within their respective mandates.
4. If, for example, a Canadian Forces member who was suffering from Post Traumatic Stress Disorder (PTSD) was involved in a fight with a superior, section 15 would operate so as to reserve to the Military Police the investigation of the alleged assault or violence to the superior officer to determine whether the member will be charged with a criminal offense or a breach of the Code of Service Discipline. However, there could well be other issues relating to the member's PTSD that could also give rise to complaints to the Ombudsman and a concurrent investigation by his office. Such complaints to the Ombudsman could include allegations that medical and other related PTSD matters had not been addressed properly by the chain of command and medical authorities.
5. In the circumstances, the proposed subsections 23(2) and 30(1) would have application. Accordingly, under subsection 23(2) the Provost Marshal would have priority in interviewing the witnesses. Subsection 30(1) would require that the Military Police, on the request of the Ombudsman, provide the Ombudsman with copies of documentation and information relating to the investigation that was carried out by the Military Police where either the investigation had been completed or providing access to the Ombudsman would not impede or compromise the investigation.
6. I trust that this is satisfactory for the purpose intended.
G. L. Garnett
Vice Chief of Defence Staff
Senior General Counsel and Legal Advisor
to the Department of National Defence
and the Canadian Forces
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