Independent civilian oversight: The defence community deserves no less - A Position Paper


Culture change in the Canadian military

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The internal workings of the Canadian military system have never before been under such extensive public scrutiny, with calls for immediate and wholescale change. The most recent sexual misconduct scandal has put on display a culture that insulates its bad actors and demands silence of its victims. This is not a new problem, nor is it limited solely to sexual misconduct. It applies to all forms of discriminatory behaviour and misconduct where there is a power imbalance and fear of reprisal. The current situation is at odds with our nation’s expectations of its military as well as the ethos and core values professed by our military leaders.

Our military leaders must take this wake-up call seriously. Their response can no longer be another "checklist" exercise. They must take a hard look at the ingrained culture that has perpetuated these problems and take steps to overhaul their internal redress mechanisms and protocols with the intent to restore the confidence of members and of our nation. They have a tough job ahead of them.

No matter the measures they put in place or the steps they take to address culture change, there will always be a need for independent civilian oversight. 

Need for civilian oversight

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The office of the Ombudsman was established twenty-three years ago outside of the chain of command, but with administrative ties to the Department of National Defence and reporting ties to a minister of the political party in power.  We have been making the argument for full independence since our creation, but there has been no political will to act.  The recent scandal of sexual misconduct in the Canadian Armed Forces is an unfortunate illustration of how constituents fall between the cracks of a closed system with no fully independent recourse mechanism.

Testimony before Parliamentary Committee on the issue of sexual misconduct in the Canadian Armed Forces pointed to the reality that victims and witnesses are less likely to come forward when they must report through a system that they perceive as being complicit in creating the circumstances that led to the misconduct or maladministration they have experienced.  There appears to be a general consensus that there is a need for oversight that is external to the chain of command and any other vested interest, whether political or administrative.

Members of the Defence Community can already turn to the office of the Ombudsman and expect independence and confidentiality, as well as an impartial and fair assessment of their issue.  However, we could better serve our constituents if we were not impeded by an insufficient mandate or subject to interference. 

Review of military justice – Justice Fish Report

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Concurrently, but unrelated to the sexual misconduct scandal, the provisions of the National Defence Act related to military justice were being reviewed by the Independent Review Authority led by retired Supreme Court Justice Morris Fish.  The office of the Ombudsman was invited to make representations, not because our office is included in these provisions, but in recognition that our office plays a role in the broader functioning of military justice.  

Justice Fish, in his Report released on 2 June 2021,Footnote 1 noted that a review of the office of the Ombudsman fell outside of the scope of his examination, but acknowledged the importance of independent oversight. Justice Fish recommended that “there should be an independent review of oversight and redress mechanisms of the Canadian Armed Forces”. More specifically, he stated that the review should examine the office of the Ombudsman and whether additional measures are needed to reinforce its independence and effectiveness.

With the greatest respect, there is no need for yet another independent review.  There have been a number of such reviews and studies in the past, as well as attempts to throw half-solutions at the problem, but no real political imperative to act.  I suggest that this latest scandal may be the catalyst for those in power to take notice and take action to effect institutional change.

Previous studies and calls for independent oversight

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The need for independent oversight of the military has been studied ad nauseum. Canadian studies and authorities have considered the matter of military oversight since 1977.  The contexts and the proposed mechanisms have varied, but the common thread is that independent oversight is needed to curb abuses within the closed military system.  Annex A of this position paper sets out a more complete timeline and listing of previous studies.  However, the following overview of the most relevant studies is helpful to understand the extent of the analysis that led to the establishment of the office of the Ombudsman. 

The concept of a general federal ombudsman whose jurisdiction included the Canadian Armed Forces was first considered in 1977, debated, but gained no real political traction.Footnote 2  In the mid to late 1990s, the reputation of the Canadian Armed Forces was at an all-time low with pervasive media coverage of the scandal in Somalia and the ill-treatment of female soldiers, particularly with respect to sexual assault and harassment. These incidents made evident a number of weaknesses in administration, accountability, and complaint resolution mechanisms within the Canadian Armed Forces. It resulted in a domino-effect of investigations, reports, and analyses by both the military itself and external experts commissioned to review the failing systems.

In 1995, the Department of National Defence and the Canadian Armed Forces commissioned retired Brigadier-General Doshen to recommend alternatives to the existing ‘mechanisms of voice’.Footnote 3  The conclusion was that a classical ombudsman would be the most effective mechanism of complaint resolution, though an institutional ombudsman might be less costly to establish.  A second Doshen report was commissioned to prepare an implementation plan for a military ombudsman.Footnote 4  The plan was shelved in 1997 by the senior leadership of the military over concerns that independent oversight would erode military authority and leadership.

In 1996, a complete review of leadership and management in the Canadian Armed Forces was undertaken by the late Chief Justice  of Canada Brian Dickson at the behest of the then Minister of National Defence.Footnote 5  The Dickson Report stated:

…[I]t is very important that Canadian Forces members be given a voice, consistent with the appropriate authority of the chain of command, so that their concerns and complaints can be independently investigated and, if necessary, dealt with. For in the broadest sense, military justice must include an effective, independent channel or mechanism through which members can express their concerns about any aspect of the military establishment, without feeling their only outlet is the media. Such a mechanism would ultimately strengthen the chain of command.

…We wish to stress, that oversight and review requirements go far beyond the military justice system and the military police. They pertain to a myriad of individual issues in which CF people may feel the need to have a voice and be heard.

…We recommend that an independent office of complaint and review system oversight, such as a military Ombudsman, be established within the Canadian Forces, and that it report directly to the Minister of National Defence.

The Report of the Somalia Commission of Inquiry (June 1997)Footnote 6  recommended that the National Defence Act be amended to establish an independent civilian review body (called an Inspector General) with a well-defined and independent jurisdiction, comprehensive powers, and reporting directly to Parliament. The Somalia Commission of Inquiry stressed the need for renewed commitment to principles of independence, impartiality, transparency, fairness, and protection from retribution for all members of the military.

[…] left uncorrected, the problems that surfaced in the desert in Somalia and in the boardrooms at National Defence Headquarters will continue to spawn military ignominy. The victim will be Canada and its international reputation.

Creation of the office of the DND/CAF Ombudsman

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The Department of National Defence rejected the Somalia Commission of Inquiry recommendation to establish an Inspector General with a reporting structure to Parliament.  Ultimately the office of the Ombudsman was created with a reporting structure directly to the Minister of National Defence.  In 1998, the first Ombudsman was appointed and tasked with developing an operational framework for the organization.  The results of an extensive consultation, both international and domestic, are captured in the report entitled The Way Forward – Action Plan for the Office of the Ombudsman (January 1999).Footnote 7

Following the recommendations of The Way Forward, the mandate for the office of the Ombudsman was set out in Ministerial Directives which contained an express provision that the office would be independent from the departmental administration and the military chain of command.

The intent was that the office of the Ombudsman would operate under the Ministerial Directives for an initial period of six months in order to allow time for stakeholders to evaluate the effectiveness of the office before it was enacted in legislation. After the issuance of the Ministerial Directives, consultations and negotiations regarding legislation continued between stakeholders until the summer of 2001 when they broke down, leaving the office of the Ombudsman saddled with an inadequate governance structure that was never intended to function in the long term.

Studies by the Ombudsman

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In the twenty-three years of our existence, every incumbent to the position of Ombudsman has seen the effects of the inadequate governance structure and has stressed the need for independence and permanence through a legislated mandate. Our office has published multiple reports calling for legislation to address poor governance and the effects of administrative interference with our office’s independence.  Without a dramatic hook that captures the public’s attention, reports such as these tend to go unactioned. In the case of our repeated requests for independence and legislation, there has been no political appetite or uptake.  Sadly, it takes a scandal to bring the importance and full implications of these issues to the forefront of public consciousness.

International precedents

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Mr. Justice Fish recommended that further study should examine how other democracies manage their military oversight. Annex B of this position paper outlines the powers and the authorities of our international counterparts. Other nations have opted to give their military oversight bodies proper legislated authorities with enough teeth to ensure that their recommendations are actioned. It is a disgrace that Canada is the only country in the Five Eyes not to have done so.

Why has independent oversight not already been implemented?

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The studies and authorities are consistent in their opinion that to be effective, oversight must be free of any influence and control by those who are the subject of that oversight.  In the context of our military institutions, this means independence from the military chain of command and from the administration of the civilian department with which the military is integrated.  Additionally, the body responsible for such oversight must report to an entity without a politically vested interest in protecting the image and management of the Department and Canadian Armed Forces.

Despite apparent agreement in principle, all attempts at negotiating independence for this office have been scuttled by military and departmental leadership who have no interest in having an external organization authorized to review their behaviour.

The same pattern of resistance to any form of independent oversight is evident in how the Canadian Armed Forces and the Department addressed the recommendations of the 2015 Deschamps ReportFootnote 8  on sexual misconduct. Seven years after the report’s publication, and faced with a new wave of public outrage, military and departmental leaders are offering their mea culpas and promises to do better this time. They have even admitted that the 2015 Deschamps recommendations were largely treated as a ‘checklist exercise’.Footnote 9

This alone is compelling evidence that the Canadian Armed Forces and departmental leadership should not have a say in the decision of whether and how they should be subject to oversight. 


The purpose of an ombudsman is to shed light on matters that are overlooked or unheeded by the traditional bureaucratic controls. The ombudsman is a response to potential abuses of authority or maladministration that affect those without a voice. By its nature, the ombudsman enhances confidence in the system because Canadian Armed Forces members and the general public know that there is an independent oversight body whose sole purpose is to bring problems into focus and make recommendations to improve the system when it fails.

Proposed legislation

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The office of the Ombudsman was set up to resolve complaints of unfairness and maladministration in the Canadian Armed Forces and Department of National Defence. The office operates consistent with the principles of ombudsmanry: fairness, independence, impartiality, and confidentiality.

The Ombudsman addresses issues at both the individual and systemic level, making recommendations aimed at correcting unfairness and making lasting positive change.  When constituents feel that those mechanisms have failed them, our office can review the process and decision in order to make a determination whether the criteria of fairness were met.  Our office looks at all issues impartially and based on evidence, and may sometimes find that a complaint is groundless.

While we have successfully delivered our mandate, earned the trust of our constituents, and contributed to the ongoing wellbeing of the Defence Community, we have had to do so with hands tied behind our organizational back.  In order to loosen those constraints but maintain our core functions, we propose the enactment of the draft legislation included at Annex C of this position paper.

The proposed legislation does not deviate from the principles on which the office was established or the essential functions that we have been performing for the last 23 years.  Elements of our mandate that have worked well have been preserved, while those that are lacking have been strengthened. The draft legislation seeks to achieve permanence for our office, full administrative independence from the institutions we oversee, a reporting structure allowing us to flag sensitive matters to Parliament, and additional measures to reinforce our effectiveness and efficiency.

Stable authorities

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At this time, the office of the Ombudsman does not exist in legislation. Instead, we exist by way of Ministerial DirectivesFootnote 10  that can be withdrawn or modified at any time. This directive only has force through an Order signed by the leadership of the institutions we oversee. This means that the office of the Ombudsman could effectively be dissolved or rendered inert at any time through changes to the Directives or Order.

Without stable authorities enshrined in legislation, the only things protecting the office of the Ombudsman are the good work that we do and the potential political fallout that could arise if we were dismantled.

The draft legislation at Annex C gives the office of the Ombudsman the permanence and stability it requires to continue its work in support of the Defence Community.


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While the Ombudsman’s current mandate includes an express provision that the office is independent from the military chain of command and the administration of the Department of National Defence, we consistently encounter governance issues and interference with our operations.

Without legislation, the Ombudsman is reliant on the Deputy Minister of National Defence for financial and human resources authorities. This office is constantly negotiating our delegated authorities and asserting our independence, often with disappointing results. The office has published a number of reports highlighting the administrative and operational challenges linked to this structure and how they impact the office’s effectiveness.Footnote 11

More troubling is that the office of the Ombudsman faces the risk of having its authorities modified or removed in retaliation for performing oversight functions. For example, Ombudsman staff are currently considered employees of the Department, a fact that the Department has used as a justification to interfere in our office’s affairs. While subtle and insidious, there have been instances that suggest a pattern of personal and institutional reprisal.Footnote 12

The proposed legislation gives the Ombudsman full structural and administrative independence from the Department so that it can carry out its functions unimpeded. Additional provisions protect the office from criminal or civil proceedings for actions taken in good faith in the performance of our functions and duties.Footnote 13

Reporting Structure

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There are also concerns with having the office of the Ombudsman report through the Minister responsible for the institutions that we oversee.  Regardless of the party that forms government, the Minister responsible for the Defence Portfolio will want to control the narrative around the Department of National Defence and the Canadian Armed Forces.  While it is generally easy to keep the reporting relationship with the Ministers of National Defence arms-length and apolitical, vested political interests may become apparent just prior to an election period or in times of crisis.

Under our current mandate, our reports are initially placed on hold with the Minister, delaying their publication and availability to the public.  The office has been given Ministerial direction on the conduct of systemic investigations followed by revocation of the direction without operational justification.  We have also seen inaction on sensitive information that could be unflattering to the Canadian Armed Forces and Department. This cannot persist.

Reporting directly to Parliament would eliminate political influence and ensure that all pertinent information and recommendations regarding the Canadian Armed Forces and the Department reach all Members of Parliament in a timely manner.  The draft legislation at Annex C proposes that the Ombudsman report directly to Parliament.


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Confidentiality is one of the core principles of Ombudsmanry.  Without a strong guarantee of confidentiality, constituents may not be comfortable coming to the Ombudsman with complaints of maladministration or misconduct.

Both in Parliamentary Committee and in the press, we have heard accounts from members who have chosen not to engage with internal complaint mechanisms within the military due to fears of reprisal or career consequences.  This is one of the reasons why it is crucial that there be a confidential channel through which our constituents can report issues without fear of retaliation.

Without legislation, the confidentiality protections that the office of the Ombudsman provides to constituents can be legally trumped by any organization with the statutory authority to demand records.  We have consistently pushed back against requests of this type and have always successfully argued confidentiality.  As of present, we have never released the confidential information of our constituents without their consent. Nonetheless, it is essential that this critical principle be protected in legislation.  

The draft legislation at Annex C gives a privileged status to constituent communications with our office and contains an express provision protecting the Ombudsman and staff from being compelled to act as witnesses or provide evidence on matters relating to the exercise of our functions.

A legislated mandate would also protect information gathered during investigations by making them eligible for exemptions under access to information and privacy legislation and accompanying regulations.

Reporting and escalation

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The office of the Ombudsman’s primary means of affecting positive change is through the recommendations that we make.  However, these recommendations are of little value to the Defence Community if they are not implemented.  Luckily, there are tools at our disposal that help ensure implementation.

The majority of inquiries received by our office come from serving members of the Canadian Armed Forces.  This means that most of our operational efforts to resolve issues involve communication with Canadian Armed Forces authorities.  Generally, we experience cooperation and are able to resolve files without need for further escalation.

No organization relishes the idea of oversight or review of its business. Some push-back is to be expected.

One of the principal tools available to my office to apply pressure is the ability to make our reports and findings available to the public.  Another is the ability to control our communications and make statements to the press. The draft legislation at Annex C would permanently enshrine these powers.Footnote 14

As strong as these tools may be, they are not always appropriate in every circumstance. Often, my office must deal with complaints of a sensitive nature, where constituents may not wish for us to make matters public or have their identities revealed.  While we always aim to resolve matters with the lowest possible authority, without the ability to go to the public, we must be able to escalate matters in cases of inaction or undue delay.

This is why the draft legislation at Annex C contains provisions requiring authorities to respond to our recommendations and allowing us to escalate matters up the departmental hierarchy and military chain of command, all the way to the Minister, the Prime Minister, and ultimately Parliament.


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The cycle of scandals followed by studies, recommendations for independent oversight, half-solutions, and resistance by the Department or the Canadian Armed Forces will only be broken when action is taken. 

The office of the Ombudsman is calling for independence in our role as an objective oversight body for the Defence Community.  While we have done our best to perform this function with inadequate authorities, it is clear that we need a mandate with legislative strength and sufficient teeth.  Although we have been successful with moral suasion and our recommendations get accepted in principle, greater powers and protections are needed to help us better serve the Defence Community and hold leadership accountable for implementing our recommendations.

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