Letter to MND: The independence of the Office – Follow-up to Justice Fish’s Recommendation

04 June 2024

 

The Honourable Bill Blair, PC, COM, MP
Minister of National Defence
Department of National Defence and the Canadian Armed Forces
National Defence Headquarters
101 Colonel By Drive,
13th Floor, North Tower
Ottawa, Ontario K1A 0K2

 

Dear Minister Blair:

I write to you today to provide my input on recent discussions surrounding the independence of the Office of the National Defence and Canadian Armed Forces Ombudsman. As you may be aware, there has been recent departmental movement related to the implementation of recommendation number 103 of Justice Fish’s 2021 report The Third Independent Reviews of the National Defence Act. This recommendation was accepted by the government. This recommendation states:

“There should be an independent review of oversight and redress mechanisms for the Canadian Armed Forces.

The review should examine the operation of the Office of the Ombudsman for the Department of National Defence and the Canadian Forces, and whether additional measures are needed to reinforce its independence and effectiveness. The review should examine the experience of other democracies and best practices elsewhere in government. It should consider the roles and responsibilities of a general oversight organization in relation to subject-specific oversight organizations within the Defence portfolio.”

I am of the firm opinion that our organization needs no such review, especially under a third party. Additionally, the Defence community may view any such review and its findings, if contracted to a third party by the Department of National Defence, as biased.

Since the establishment of this office in 1998, multiple Ombudsman, including myself, have published thorough, evidence-based reviews of our mandate. Every Ombudsman has come to the same conclusion: that the Government of Canada must entrench this office in legislation, as originally intended. Many of us have also recommended that the Office report to Parliament and not to the Minister of National Defence. A similar conclusion was made by parliamentarians in the House of Commons Standing Committee on National Defence (NDDN)’s 22 June 2022 report Modernizing Recruitment and Retention in the Canadian Armed Forces, where the committee recommends: “That the Government of Canada make the National Defence Ombudsman truly independent and report to Parliament rather than to the Minister of National Defence.” (Recommendation 16)

On 12 February 2024, in response to a question from one of your parliamentary colleagues at NDDN you stated: “On the decision as to whether or not an ombudsman should report to the minister or to Parliament, that’s a decision of Parliament.” This response reflects your position on the matter as discussed at one of our bilateral meetings.

I fully respect your conviction on this issue. In this spirit, in my role as your special advisor, I would like to propose an elegant solution that would fulfill the government’s promise to conduct an independent review of our office, stem any perceptions of bias in conducting such a review, and satisfy your position that the future of this office's reporting structure be a parliamentary decision.

I propose that members of NDDN study the issue of this office’s independence. They could consider the text of Bill C-362, in which your parliamentary colleague proposes a legislative path forward for our Office; as well as validate the multiple reports that I and my predecessors have put forward for the consideration of the Minister of National Defence. Any recommendations could then be considered by the government.

Any report and recommendations on this matter would provide your parliamentary colleagues with sufficient opportunity to carefully consider evidence and offer their opinion on the matter. This path forward would also allow the public to offer submissions to the committee’s chair, clerk, and members, for their consideration in drafting their report and recommendations.

I believe that this proposal strikes a proper balance of the facts I have listed above. I hope that you and your parliamentary colleagues consider it appropriately.

Sincerely,

 

Gregory A. Lick

Ombudsman