NDVA Committee Meeting

STANDING COMMITTEE ON NATIONAL DEFENCE AND VETERANS AFFAIRS

COMITÉ PERMANENT DE LA DÉFENSE NATIONALE ET DES ANCIENS COMBATTANTS

EVIDENCE

[Recorded by Electronic Apparatus]

Thursday, December 2, 1999

• 0901

[English]

The Chair (Mr. Pat O'Brien (London—Fanshawe, Lib.)): I call to order the Standing Committee on National Defence and Veterans Affairs. I would thank the media for letting us get underway here.

Colleagues, it's my pleasure this morning to welcome to our committee Monsieur André Marin, ombudsman for National Defence and Canadian Forces.

Monsieur Marin, welcome. Maybe you could introduce the people you have with you, and then we'd be happy to hear your opening remarks. I know members will then have some questions for you.

Mr. André Marin (Ombudsman, National Defence and Canadian Forces, Office of the Ombudsman, Department of National Defence): Thank you very much, Mr. Chair and members. It's indeed a privilege and an honour to be here.

With me is Mr. Luc Givogue, the head of our investigation section at the office of the ombudsman. Also here is Ms. Barbara Finlay, our acting general counsel at the office of the ombudsman, and Mr. Gareth Jones. Mr. Jones is the former head of the investigations section. He just recently took on another role in our office, but in view of the fact that he has been with us since day one, he brings consistency to the panel this morning.

The Chair: You're all very welcome here.

Thank you for the introduction. Do you have an opening statement, Monsieur Morin? I imagine you know our system, but we'll go with questions from both sides of the table, opposition side and government side. We have a set formula—the members know it—of so many minutes each, and it's my duty to remind everyone of that, but first of all we would welcome your opening comments.

Mr. André Marin: Thank you, Mr. Chair and members. As I indicated before, it's really an honour and a privilege for me to be here this morning. I look forward to the contribution of the members of the standing committee to help the office of the ombudsman carry out its work.

[Translation]

That work is spelled out in the Minister's Directives defining our mandate. The job is “to contribute to substantial and long- lasting improvements to the welfare of members of the DND/CF community.” We need and we welcome your help in meeting that mandate.

[English]

To do our job, we must do many things: provide information, review processes, resolve problems, make recommendations, and investigate complaints, of course. In the words of my counterpart in the Netherlands, we're a “barometer, horsefly, oilcan and safety valve”. Certainly we must be independent, objective, and highly professional if we are to earn credibility and prove effective as an agent of constructive change.

I'll keep my remarks brief and to the point. First, what have we done?

[Translation]

I was appointed by Minister Eggleton in June 1998, set up an office in August, and by the end of the year we had consulted, face to face, some 15,000 members of the community, across Canada and overseas, as well as many ombudsmen and other experts—leading to an action plan in January of this year, called The Way Forward, followed by Ministerial Directives detailing our mandate, issued on June 16, the day we became operational.

• 0905

[English]

So what are we doing? Statistically, we have received 901 complaints. We have closed 580 files one way or another, and we are working on 184 active files. However, the numbers change day by day, and they don't say much about the nature of what we're doing. It ranges from just guiding individuals through the maze to tackling major, systemic problems.... For example, when concerns arose recently about the possible exposure of force members to health risks during their service in Croatia, we put together an information bank within 24 hours, helped many people make the right contacts for testing, and briefed them on what to expect at post-deployment centres. We also played a role in the criminal investigation of the removal of a medical memo from soldiers' files and recommended important systemic changes to improve the fairness of the process. It's fair to say that we've resolved many cases overall, but we are still working on many of the more complex ones.

Meanwhile, we've completed our business plan. We've deepened our pool of skilled investigators, and as a new resource for those facing problems, we're continuing to pursue a vigorous outreach campaign. We're visiting bases, designing and sending out brochures, setting up a web site, and so on.

Is the office of the ombudsman really needed? You won't be surprised that my answer is yes. The nineties have been troubled times for our military. Yes, because members of the forces now more than ever need to feel confident that they have recourse to an independent, principled agency that is independent of the chain of command, if cynicism is to be overcome and morale restored.

How is our mandate working? It's still early days, but we've received very positive feedback about our work so far. We've operated with independence and determination. The vision of the office as set out in The Way Forward remains my goal. We've created a model that works and gets good results, partly through our submission of formal reports that have been taken seriously.

One major asset is that we started from nothing, with a clean slate. We didn't inherit any dead weight or any remainders of a system. This meant a heavy workload in creating all the elements from scratch in a short period of time, but I think it helped us get off on the right foot and accomplish a lot over the past few months.

I expect that the office will continue to grow and evolve and that reluctant acceptance by some will mellow into understanding and increasingly conscious, deliberate buy-in. It's a matter of time, patience, and accumulation of practical experience. Maybe it's even a generational thing. When the Charter of Rights was proclaimed, chaos was predicted. The sky was falling. Now it's part of our frame of reference and social consensus.

What comes next? Besides pursuing our ongoing and incoming work, the mandate itself is up for review by the minister this month—actually in two weeks exactly—with a view to transforming the mandate into regulations.

Although I'm generally satisfied with the operating framework the office enjoys, as the minister said on June 16, 1999, at the announcement of the mandate:

As any new organization knows, experience is perhaps the best tool for evaluating the success of any operating framework. ...Changes if necessary will be made in order to ensure that the Ombudsman's Office succeeds in making a real difference in the Forces and the department.

What can members of Parliament, especially members of the standing committee, do to help?

[Translation]

Our constituency is big and scattered—some 60,000 members of the Forces and their families, along with thousands of National Defence employees. Outreach is a challenge. You can help by explaining our Office in your newsletters and reports to constituents, and by referring them to us when appropriate, as many MPs have already done.

[English]

You can keep an eye on the operations and evolution of the office of the ombudsman. For my part, I report to Parliament through the minister, of course, and I would be more than happy to come back whenever the committee wishes in order to keep you updated.

I'll just add two related thoughts about why our work matters.

First, justice in the military and defence fields presents unique situations and difficult problems, but it is an integral part of justice in our society as a whole. In the words of Martin Luther King, “Injustice anywhere is a threat to justice everywhere. Whatever affects one directly affects all indirectly.”

• 0910

Beyond our formal equations of justice, we owe a special debt to those who have served our country and our society. At the very least, it's a debt of fairness. As Victor Hugo wrote “What has greater authority than justice? Equity.” Whether we call it fairness, equity, ethics or morality, we owe the very best particularly to men and women who have endured separation, stress, physical danger, psychological trauma, and sometimes the experience of unspeakable horrors, in the service of their country and society, so that the rest of us can enjoy peace and freedom, comfort and opportunity.

I see this period of transition in DND CF as a veritable opportunity to contribute to change for the better, in the best interests of those people and ultimately all of us. I seek your non-partisan support because it's important.

The Chair: Thank you very much, Monsieur Marin. That was a very interesting overview of your function, and we appreciate it.

As chair, having served on the committee into our second year now, I can assure you about your call for non-partisanship. At least, I've been quite impressed that it really is the spirit of the committee. We're all here to try to improve the situation of the Canadian Forces and to give them the training and equipment they need. I'm sure you're going to see from questions on both sides of the table today that we all have a keen interest in doing what is best for the Canadian Forces. That's what the people of Canada are expecting of us.

My feeling is that you do some very important work that Canadians want done and that this government wants done. I want to assure you—and I know my colleagues would agree here—that you have a standing invitation, without being asked. If you want to come back to this committee at any time, if you feel it's important to come to our SCONDVA committee, then just please feel free to let our clerk know, and we will certainly try to accommodate you at the earliest opportunity.

With those comments, I now will go to questions from members. We're in a seven-minute round first of all, and we start with Mr. Hart, from the official opposition.

Mr. Jim Hart (Okanagan—Coquihalla, Ref.): Thank you very much, Mr. Chairman.

I'd like to commend the office of the ombudsman and Mr. Marin for the independence he's shown in his post so far. I think it was truly needed at a time that was considered a crisis in the Canadian Forces after the Somalia inquiry. Certainly the public and probably the people within the Canadian Forces themselves felt there were systemic problems, as you've mentioned, and that those personnel who complained would receive some kind of retribution and didn't feel protected at all by the system. So your office, as I view it, is very important.

We have hopes that this will continue, but last summer—and you mentioned this in your notes—another scandal exploded, that being the Croatian toxic scandal. People have again been asking questions about whether or not anything has changed within DND. I'd like to know what your feelings are on that particular case and if you feel your office has made a positive change to DND, and in particular those systemic problems that we seem to still have within DND.

Mr. André Marin: There are two parts to your question. I'll deal with the first one. I suppose you're asking what our views are about how the department responded following the disclosure of the complaints in Croatia.

Mr. Jim Hart: Yes.

Mr. André Marin: I'll start with the position of our office at the outset.

As does any ombudsman's office, Mr. Chair, we have to work with existing mechanisms. In this particular case, one of the existing mechanisms is for the chain of command to call a board of inquiry, so we respect that existing mechanism. Under our mandate, the minister has the ability to direct us to do matters directly despite existing channels. That wasn't done in this case, so therefore we respect the existence of those channels.

The role we took in relation to the Croatia incident was to volunteer to have an observer present when the commission takes evidence. This allows the board of inquiry to run its show unimpeded and allows them to deal with the issue. It allows us to be able to follow the progress of the board of inquiry so that if a complaint arises after the fact because someone says they were treated unfairly or says something about the process, we'll be in a position to know what took place and we'll be able to act without having been part of that process.

• 0915

I know some people were asking at the time why the ombudsman didn't participate in the board of inquiry, or why we didn't take charge of it. If we had participated in the board of inquiry, we certainly would be in a conflict of interest after the fact if there is a complaint about the process. We therefore proposed this role, and we've been working in a very healthy relationship with Colonel Sharpe, who is the chair of that board of inquiry. I think it has been a relationship or a coexistence that has worked well.

When the board of inquiry is deliberating in private, when it is out conducting public affairs visits to bases and so on, we're not part of that. That's not evidence-collecting. By analogy, it's like looking at a courtroom or these proceedings here. You'd have a closed proceeding. You'd have a member of the ombudsman's office in the audience, because the board of inquiry is held in private. In one sense, this allows us to be able to monitor things as they're going on and to then deal with complaints in the end.

On the second part of your question dealing with systemic issues and the difference we're making, we believe we are making a real difference on systemic issues. Approximately five or six weeks ago, we presented to the provost marshal, with the result being one of our first major investigations. We recommended that three things be done, and the report should be made public by the minister within 60 days of my delivery of it, so the whole report will be made public very soon.

Two of those three recommendations were systemic in nature, one being that the military police adopt conflict of interest guidelines to govern their situations. They already have some broad conflict of interest guidelines in place, but they had nothing specific on point for dealing with a case in which a complainant feels an investigator is in conflict of interest in relation to the case. That is a systemic recommendation that was accepted by the provost marshal, and it should lead to broader systemic implications.

We have a second major investigation that we completed two weeks ago. It has been submitted to officials within DND CF for action. There are seven recommendations in that report. Most of them are systemic in nature, and we've asked the department to let us know by tomorrow the results of those recommendations in terms of whether they're prepared to implement them or not.

As we release major investigative reports, we are giving particular care and attention to systemic issues. So far, all three recommendations that we've made have been accepted, and there's no reason to believe that is about to change, so we are making an impact there.

Finally, in our interventions on individual cases, we intend to report on them very frequently after excising the particulars, in order to allow other members to see how we're intervening on individual cases and to allow the system to establish some kind of consistency or some type of precedent and example of leadership in these areas. So we intend to make a difference by a resolution of individual cases as well.

The Chair: You have another minute, Mr. Hart.

Mr. Jim Hart: Many countries have an office of inspector general for their military. I was wondering if you could just give us a brief overview of the differences that you see between your role as an ombudsman and an inspector general's role. Is there more independence with the inspectors general around the world?

I'm interested also in things like whistle-blower protection. Do the troops feel they have the benefit of being protected if they come to you with a complaint as far as their career is concerned? How do you feel about that?

Mr. André Marin: Thank you.

Mr. Chair, during the initial stages of the formation of our office, we studied very intensively the various regimes that are in place, because there are many other military ombudsmen in the world as well, in the Netherlands, Israel, Germany, and Australia. Also, as the hon. member has pointed out, Mr. Chair, there are other countries that have followed the inspector general route. We've produced that in our report, called The Way Forward, which I will gladly make available to the member after today's proceedings. But to answer the question of the moment, an inspector general is a much broader institution. It usually encompasses auditing functions, it encompasses ombudsman functions, and it's also a public complaints function, so it has a much broader function. Some inspectors general have the authority to test the combat readiness of their armed forces. So it fulfils a whole bunch of functions that I don't fulfil.

• 0920

My function here is to see that members of DND CF, employees of DND CF, and past employees and past members are treated fairly, that they get a fair shake out of the system. I don't do spot inspections of combat readiness. We don't do audits of spending. We have other bodies federally that do those functions. For example, the Auditor General does the auditing.

We have internal auditing at DND CF, the office of the Chief Review Services. Yesterday, the Military Police Complaints Commission opened up for specific complaints in narrow issues involving military police. So we have here a whole panoply of different bodies that fill that terrain. Some inspectors general can lay charges as well. So it depends on which model you look at.

Do they enjoy a great degree of independence? I guess that's subject to observation. My view always for this position was that as long as we establish the necessary safeguards to establish the independence of the office, we would be able to form a credible office. In our minds, you get the necessary independence through physical location outside DND, and we have that.

We have our own internal legal staff, so we don't rely on management lawyers such as JAG lawyers or civilian lawyers. Ms. Finlay reports to me directly and was selected by me. We have our own investigators. They are represented as well this morning. We have control over our own financial and budgetary aspects. We have the ability to issue public reports. Our current mandate allows us to issue reports to the minister, which he has to make public within 60 days.

So when you look at why our office took a year to get started, you can well see the different types of debates we had over all these issues. But I'm happy to be here before this committee, Mr. Chair, to tell you that we have met those challenges on all those fronts. I do believe that our office functions as it should, as an independent office, and we've come a long way on that.

The Chair: Good. Thank you, Mr. Hart.

Just before I go to Mr. Mercier, I want to indicate to the colleagues on the committee that yesterday in the House I did present the first report of our standing committee, the essence of which was Mr. Pratt's motion. You'll recall that was calling on the Government of Canada to implement with this coming budget significant reinvestment in the Canadian Armed Forces and a five-year plan to maintain that reinvestment. That had the tremendous support of this committee. You might be interested in that as well, Mr. Marin, but I just wanted to indicate to the colleagues here that I did present that report in the House yesterday on our behalf.

[Translation]

Mr. Mercier of the Bloc Québécois, seven minutes, please.

Mr. Paul Mercier (Terrebonne—Blainville, BQ): I have three questions to ask you, Mr. Marin.

The first has to do with your status. I'd like to know to what extent your status ensures you full autonomy. In other countries, does the ombudsman report to the Minister or directly to Parliament?

Mr. André Marin: There are a number of ombudsman systems in place in other countries for the military. As I pointed out to the MP who spoke earlier, we reviewed the various systems in a paper entitled The Way Forward, which I could provide to you after the presentation this morning. Some military ombudsmen report to their minister. For example, the military ombudsman in Israel has reported to the Defence Minister for 27 years. There are other systems, such as the one in Australia, in which the ombudsman is separate from the minister. So it all depends on the system and the country. There are two models that exist.

Mr. Paul Mercier: In order to guarantee your autonomy, do you have the same irremovability as, say, a judge does?

Mr. André Marin: Yes, I have the same status of irremovability. I was appointed for three years and I cannot be removed for three years. At the end of this three-year period, a decision will have to be made, but I cannot be removed during my mandate.

Mr. Paul Mercier: My second question is this. The status of veteran has been conferred on certain merchant marine seamen. Do you have authority to investigate any complaints they may submit?

Mr. André Marin: In theory, yes.

• 0925

Mr. Paul Mercier: Thirdly, during the Somalia operations, a number of soldiers were charged and found guilty of acts of brutality against people of that country. One thing has always concerned me. In cases such as this, where our forces are operating in a region where there is no rule of law, we rightfully reproach soldiers for abusing people who, for example, were attempting to loot their camp, but what should they do? These people cannot be turned over to the country's judicial system, because there is none. Would it not be necessary to give judicial authority to these forces? When soldiers catch looters, what should they do?

Mr. André Marin: The mandate of the Office of the Ombudsman, Mr. Chairman, covers Canadian troops when they are on duty. There are, nonetheless, adjustments to be made to the mandate because, clearly, there is no desire to risk the life and well-being of the members of my staff, troops and other Canadians. The Ombudsman's mandate, as it stands today, covers all duty situations. Therefore, access to the Office is unchanged, except in exceptional circumstances, when our troops are on duty.

Mr. Paul Mercier: Your mandate covers only complaints from individuals, not from groups.

Mr. André Marin: That's right, but the mandate also allows me to investigate systemic complaints, where there is something wrong in the system. My mandate also allows me to conduct investigations under my own initiative. I don't necessarily require a complaint. However, when I begin an investigation on my own initiative, I must advise the National Defence Minister beforehand. Hypothetically, if a complaint was submitted by a foreign individual and I was of the opinion that it affected justice and equity for members of the Canadian Forces, I could initiate an investigation myself, even though this individual is not covered by the mandate.

Mr. Paul Mercier: Thank you.

The Chairman: Thank you, Mr. Mercier.

[English]

We come to the majority side, the government side of the table here, and I have three names, in this order: Mr. Wood, Mr. O'Reilly, and Mr. Bertrand.

Mr. Wood.

Mr. Bob Wood (Nipissing, Lib.): Thank you, Mr. Chairman.

Mr. Marin, in your list of types of complaints in the hundred-day report, I notice that you did receive 22 complaints that fell under the category of the veterans affairs department, and I see in this one it's a little bit more. Could you just take the time to outline for us the type of complaint you would receive? Tell us what happens in that sort of complaint. Do you just simply refer these complaints to the local veterans affairs office nearest the complainant, or do you actually conduct an investigation?

Mr. André Marin: Veterans Affairs is excluded from the mandate of the office of the ombudsman, so we do not offer services that fall within the jurisdiction of Veterans Affairs. We have, on occasion, used a little bit of discretion and flexibility to try to, in very humanitarian and compelling circumstances, invoke our mandate, but only the low-key version of it. We do not launch major investigations regarding Veterans Affairs, because we're not funded or resourced, we don't have the mandate to do that, and we don't want to run into jurisdictional issues. But we have on occasion taken a few matters and approached Veterans Affairs.

One matter that we did intervene in was the Matt Stopford case. Warrant Officer Stopford, who had for six years sought to obtain his pension benefits without success, came to our office. He signed a waiver of confidentiality, which allows me to discuss the case. We made some calls on his behalf, made sure that those who could make those executive decisions at Veterans Affairs were available, and we conveyed his case to them. That very same day, he received his pension benefits and was very happy with our intervention.

Now, as a footnote, I understand he's not satisfied with the amount he received, and he has an appeal process to deal with that. That's an example of our intervention. But we don't want to digress from the mandate, because it's specifically excluded. It's a public policy decision of the ministers, and until—and if—that changes, we have to give priority to matters that fall within DND CF. And that's what we've been doing.

• 0930

Mr. Bob Wood: Great, thank you.

In the Auditor General's report that came out earlier this week, there were a couple of items that singled out the defence department, and I'm curious about whether you were aware of any of these issues and whether any of the complaints you've received were related to what was in the Auditor General's report. Of course, specifically, the Auditor General noted that there was some apparent corruption concerning the acceptance of kickbacks or secret commissions by some military and civilian personnel in purchasing diesel fuel from retail stations.

Secondly—and I think these are related—the Auditor General also talks about the commitment to the DND ethics program being low, that ethics strategies exist in draft form only and are implemented very slowly. I was just wondering if you are familiar with these issues and whether you have had any contact with the Auditor General or seen his report.

Mr. André Marin: Yes, I've seen his report. I've spoken to the Auditor General about Department of National Defence issues—broad issues, not this particular report. I can say about the first matter that the investigation he's referring to, the alleged kickback matter, would be a criminal investigation, so it wouldn't be the type of issue we get involved in.

As far as the second issue raised is concerned—the ethics program—that is a DND CF internal program that we follow. Two years ago, I was invited to deliver a speech, and this year, while we were not actively participating in the preparation of the conference, we were there in attendance in good representation from our office. I can indicate that I maintain contacts with the departmental officials who deal with issues of ethics, and I've indicated to them that the investigations we're conducting right now, and the results of them, which have systemic implications, will at times have ethical considerations.

The first major investigation we concluded was to the effect that there was a perception of a conflict of interest by a military police officer. It raised many ethical issues, and we recommended that there be these provisions dealing with conflict of interest, which is an ethical issue.

So I think as we release decisions, they will allow, perhaps, for the study of these real-fact situations internally and will contribute to the ethics program.

Mr. Bob Wood: Your budget continues to grow, and I know the minister recently allocated more investigators to your staff. We all know that DND is faced with challenging financial conditions. The committee has recommended a number quality-of-life reforms to the minister; many have been accepted, but obviously more money is needed to complete the task, as we just heard from the chairman. The forces also require modernization of their equipment, which is another huge financial outlay. These things all compete. How are you doing in the tug-of-war for resources, and are you comfortable with how the money is being allocated?

Mr. André Marin: There's a particular challenge in setting up the office that we've had to face in the last year. What we have to balance is being very frugal and lean, because if we're not frugal and lean in this day and age, it'll be difficult to be able to operate and get support. On the other hand, if you're going to create an ombudsman's office, you need proper resources; otherwise we'll be backlogged and overcome by cases. We won't be able to produce results and we'll lose face and credibility; therefore, we might as well not bother opening an ombudsman's office.

So we've struggled with those two concepts and tried to find some balance. We have proposed a business plan to the minister, which I understand has been accepted, that will set our budget at $3.5 million in the first full year of operation, and we'll be able to operate thereafter at about $5 million a year. I think the plan we've presented is very comprehensive and shows a lot of leadership on efficiency. Because of that, we have not had any difficulty getting going, and we've had good support in that area.

I think when you set up an ombudsman's office, you shouldn't be concerned necessarily with the bottom line, because it's difficult to put a price on justice and equity. It's like saying you're going to shut down the Supreme Court of Canada because it's not paying for itself. You'd be shutting down lots of institutions.

• 0935

However, when you look at the operations of our office, in several cases we know we have prevented significant lawsuits against the department. We are starting to make recommendations that have broad, systemic ramifications for cost efficiency.

The Department of National Defence, Canadian Forces, has for some years relied on independent investigators that they've called in on cases once in a while to help out, to provide that arm's-length investigative resource. We can offer that. We have the infrastructure and we have the resources, so we're saving the department that money.

I believe that when all is said and done, we have a pretty persuasive case that we pay for ourselves, that our contribution pays for ourselves, not that this is our primary consideration, but I think that has been taken into consideration by DND CF, and it's another reason why we haven't encountered any financial difficulty so far.

The Chair: Thank you, Mr. Wood.

I'll come back to you, Mr. O'Reilly, on the second round.

Monsieur Marin, before I go to Mr. Earle on questions, just for clarity for further questions, when you want to launch an investigation, do you have to notify the minister as you do that or prior to doing that? What exactly do you do?

Mr. André Marin: No. Only if it's an “own motion” investigation, which means I have no complaint. Under the current mandate, I have the ability to decide one day that I'm going to look at a particular area despite the fact that I don't have a complaint on it.

The Chair: I see.

Mr. André Marin: On those exceptional cases, I must notify the minister; it's not getting his permission but simply notifying him of our intervention.

The Chair: If you choose to take the initiative, you notify him of that initiative.

Mr. André Marin: Yes, it's in the mandate. I'm required to let him know, unless I have a complaint.

The Chair: I see.

Mr. André Marin: That is a very exceptional provision. For complaints I don't notify him. It's only own motions, Mr. Chair.

The Chair: Thank you. I appreciate that clarification.

With that, we'll go to Mr. Earle for seven minutes.

Mr. Gordon Earle (Halifax West, NDP): Thank you, Mr. Chair.

Thank you, Mr. Marin, for your presentation.

You've mentioned the independence of the office. I want to talk a bit about this, because as we know, and in response to Mr. Mercier's question, you outlined the different models that exist. Having worked for many years myself under the legislative model, whereby an ombudsman is directly accountable to a legislative body as opposed to through the executive, I tend to prefer that model in terms of complete and total independence and in terms of the appearance of independence as well.

You mentioned that the mandate is coming up for review within a couple of weeks. Will you have direct input into that with the minister by way of recommendation, and would you be recommending that the minister give some reconsideration to this office being made directly accountable to Parliament? That's my first question.

The second question relates to the issue Mr. O'Brien raised with respect to own motion investigations. You did clarify in your response, sir, that while you may notify the minister, you don't necessarily need the minister's permission to proceed, but I'm just wondering if, for example, you would pick up on your own motion an investigation when the minister has perhaps publicly already made some determination or some comment assessing the situation.

I think, for example, of the story in The Toronto Star concerning the alleged smuggling of people across borders. I later read a statement by the minister that said this matter was closed, that there wasn't sufficient information to determine the situation. That, to me, would be an ideal situation for an own motion investigation in terms of what actually took place there.

Also, you did mention the criminal aspect, not being involved in criminal investigations, but at the same time, an ombudsman can review administrative actions after the criminal investigation is finished, hopefully to be able to make a recommendation to stop that situation from arising. Is that the kind of thing you would pursue with the own motion investigations, with or without the minister's permission, if you feel there is a need to pursue it?

Mr. André Marin: Thank you.

The own motion investigation would be invoked without seeking the minister's permission, simply by notifying the minister. Public comment—and I'm not addressing it in terms of the minister, I'm addressing it more in terms of departmental officials—has been an issue that we have raised on several occasions, that when the ombudsman gets involved...and, Mr. Chair, I know that the honourable member is a former ombudsman himself and has a lot of experience in this area—

A voice: [Inaudible—Editor]...distinguished in this area.

Mr. André Marin: That's correct.

So I'm sure the honourable member knows where I'm coming from when I say—and his question, I think, supports this—that once the ombudsman is involved in the investigation of a matter, it is not advisable at that point to have any public officials comment on it, because it may influence witnesses. It may influence people. They may think, well, I don't want to contradict the party line, so perhaps I won't be as helpful in dealing with the ombudsman.

• 0940

It's an issue in which we will continue to try to make inroads, to try to get some kind of movement from DND CF to recognize incorporating a provision against public comment while the ombudsman is investigating a matter. It's a temporal prohibition, which I believe is healthy in the circumstances.

Getting to the first part of your question about the review of the mandate, as we see it now, the mandate expires on December 16, in two weeks. If you look at footnote 1 of the mandate, it specifically says that in a six-month period the mandate will be—and I quote—“reviewed, amended as required and subsequently incorporated into a regulation”. To us, that is a very important footnote.

I think members of DND CF want to see consistency. They want to see permanence, a sense that the office is not a fly-by-night thing. Our position was that we need a regulation, that a regulation would achieve a lot of the objectives we want to achieve, without the need for statute. I think the statutory route is probably inevitable, and it's probably desirable, but I think before we talk statute we should focus on getting the regulation off the ground.

For the last few months, we have been approaching the departmental lawyers at DND CF because we wanted to start a dialogue to allow this provision to be smooth, so that we don't take six months or a year to finalize the regulation. We've been told that the process is confidential and that we'd know more when they got instructions. So right now I don't have an answer for you as to what happens in two weeks.

I can tell you, though, that we have, Mr. Chair, decided to take the bull by the horns and take the initiative. On December 16, we will be releasing a detailed report, which will go through the operations of the mandate in the first few months and through what needs to be addressed and fixed. Not only that, we will provide the regulatory route to take.

We want to strike while the momentum is there. There has been a ministerial undertaking, a commitment, to bring this into regulation. The minister, according to my latest discussions with him, is still committed to it. So while the minister is committed to it and all this is fresh, let's go to round two and put this in a regulation. That has been our focus in the last few weeks.

This report on December 16 will be a public report. I can tell you right now, before the next question, which will be, “What's in the report?”, that we are satisfied with the general operations of the office. Nonetheless, there are some things that need to be fine-tuned, fixed, and addressed. Regulations can't be written overnight, so we've decided to take the lead on this to provide for the fine tuning, for certain massaging, for the certain things that need to be addressed to allow us to really function at 100% optimal capacity.

The Chair: I'll ask the clerk to make sure all the members of the committee are circulated with a copy of that report once it's released, Mr. Marin. Thank you.

Another minute to you, Mr. Earle.

Mr. Gordon Earle: Thank you, Mr. Chair.

You did answer the second question: you are not going to make a recommendation at this point that the office be a legislative ombudsman.

On the first question, though, perhaps you missed the question I was asking. I was not asking about public comment during an ombudsman investigation. I mentioned public comment before you pick up an own motion investigation. The example I cited specifically was The Toronto Star issue in which the minister had already passed comment on that. Is that something you would still pick up on and investigate, despite the comment that has already been made?

Mr. André Marin: I don't think such a comment should enter into my decision to launch an investigation, Mr. Chair. That's not a consideration, unless it's a public policy decision of government. If the government decides it's a matter of public policy that the ombudsman cannot do this or should not do that, obviously I would respect that. That is set out in a ministerial directive. If he issues such a direction, it must be made public, so everyone here would be aware of such a direction.

• 0945

Subject to that, I would not view the minister's preliminary assessment of the situation as binding, and I don't think he would either. I can't talk for the minister, but I think the minister wants me to do my job as an ombudsman. The minister can't be aware of all the facts all the time. If I'm privy to facts that I think should govern me in my role as ombudsman, I would make that determination.

The Chair: Thank you, Mr. Earle.

Mrs. Wayne for seven minutes.

Mrs. Elsie Wayne (Saint John, PC): Thank you very much, Mr. Chairman.

Mr. Marin, I had two young ladies come into my constituency office back in New Brunswick. Both of them have stated that they were sexually abused. It was a horrific story they gave me, really, and yet when I told them about the ombudsman, they told me that because it happened before he was appointed, he can't even look into it.

They have no one, and nowhere to go. What should they be doing, Mr. Marin? What should they be doing? Because this is why you're there. The investigations prior to your being there were not being handled properly, or that's how it appeared. There just did not seem to be the investigative work being done that needed to be done.

These two young ladies, who told me of the horrifying things that happened to them, cannot get any support. What do they do?

Mr. André Marin: The mandate provides that I can't deal with cases before June 15, 1998, the effective date of my appointment, unless the minister has authorized my involvement. We've had more than 100 so-called cut-off-date cases where the minister has asked me to review those cases and make recommendations to him on the types of cases I should get involved in. I'm pleased to report that out of the cases we looked at, we recommended our involvement in 27 cases, and all our recommendations were accepted by the minister.

So on every case we wanted to look at prior to June 15, 1998, we've been authorized to go ahead. We view that as a vote of confidence in the operations of the office. I can indicate that we provided minimal information to the minister to protect the confidentiality of complainants, so with the information we provided, and with our recommendation, the minister endorsed them.

If members of Parliament want to bring any cases to our attention, we promise to look at them confidentially and to take out particulars to identify them and forward a recommendation to the minister as to whether or not we should get involved. If our track record continues, one would expect that whatever recommendation we make would carry a lot of weight in allowing us to look at those cases.

Mrs. Elsie Wayne: Good.

With regard to the kickback system, as you've stated, that's a criminal action that has to be looked at, but not by your office. Our understanding from what was reported in the press, sir, was that there was an investigation that had taken place prior to this being made public. It was done within DND and nothing was found. There was no wrongdoing. Yet now it's made public and now they're saying, yes, there was wrongdoing.

Can you not do anything or look into that situation with regard to the previous investigation and comment on that to the minister?

Mr. André Marin: Our mandate is to deal with individual injustices and inequities. When you look at the ombudsman, you have to think along the lines of a person not getting a fair shake from the system. The case you're referring to, which has been reported in the paper, has to deal more with broader wrongdoings, where there's not necessarily a victim, apart from, I suppose, the public purse. There's no particular victim or individual injustice.

So it has to be framed within that context of the mandate. It's not unique to me. That's generally how ombudsmen function.

That being said, under my mandate as ombudsman the minister has the ability to direct me to do things that are beyond the mandate. Ultimately, if the minister chose to direct us in any situation, regardless of the time it happened, he could do that, even though it would go beyond the four corners of the mandate.

Perhaps I can also add one additional point to your first question about cut-off-date cases. The minister has in fact authorized us to investigate several cases of sexual abuse that would have been cut off by that cut-off date. Among the 27 he's approved, some of them fall within the general description you provided.

• 0950

The Chair: I hear you saying that if Mrs. Wayne has a concern, she should contact you.

Mr. André Marin: Yes.

Mrs. Elsie Wayne: I've written that down, yes.

You presented 67 recommendations to the minister in The Way Forward. How many of these have been accepted?

Mr. André Marin: To tell you the truth, I've never sat down and gone through each provision. I haven't done that because when you look at the mandate we have today, I think it encapsulates many of the essential pillars you find within The Way Forward.

So I haven't gone through provision after provision, but the basic pillars are independence, impartiality, a credible investigative and review process, and confidentiality. Those pillars will not be able to be completely fulfilled up to the point in time where there is a statute, if that period arrives. With confidentiality, for example, you get into access to information and privacy laws, and those require statutory change.

Just so we're very clear on this, The Way Forward is a vision for the office, a vision we have not abandoned, but the mandate we now have is the first step towards that vision. In my view, it adequately represents those pillars and allows us to do our job.

I'm always asked this question about what happened in that first year, and why it took a year, and how many recommendations have been accepted. I frequently have to deal with that question. In retrospect, when I look back at the first year, we've come a long way. We've come a heck of a long way.

When I was appointed to this job on June 15, 1998, there was no mandate. It came from a previous oversight position, and I was invited to take a look at it. I quickly found out that DND CF had been talking about an ombudsman not just after the Somalian inquiry but since the early nineties.

The next question is, well, why is there no specific mandate? The reason for this is that there was a clash of ideas, of ideologies. Some people wanted the ombudsman position there, others wanted it here, this distance from the chain command, that distance within the chain of command—all sorts of very animated debating.

That attracted me to the job. I said to myself that I had a real opportunity here to contribute to the mandate. Of course, when I walked in, I was propelled into this tug-of-war about the mandate, but my bottom line was to establish credibility. That has always been the first thing I wanted to do, to be credible.

I can tell you, during the negotiation period we have found people within DND CF who have been extremely supportive, who've been there every step of the way in favour of an effective office to contribute, not just to be a facade. But we did encounter people who had a very different view of our office during the negotiations.

I recall a discussion we had with a senior member of DND CF who looked at me straight in the eye and said, “André, just to give you an idea of the vision for the office, you're the consigliere and we're the Mafia.” I knew I had a problem when I heard that.

The whole year was reconciling visions, trying to find a balance between a friendly ombudsman, one who is not there just to cause waves, and an ombudsman who is there to contribute something positive to the institution without compromising the impartiality and neutrality the office needs to succeed.

I think what we have here is the very first step in the mandate. I think the mandate works. I think it's produced good results. It needs fine tuning and it needs regulation, but we have commitments for both, and we're prepared to go to that second phase.

The Chair: Thank you, Mrs. Wayne.

Mr. Marin, just for clarification for colleagues, in a sensitive case of the type Mrs. Wayne mentioned—and it can happen to any of us, in fact, as members of Parliament—would it be your preference to have a face-to-face meeting on the case or is a letter under confidential cover sufficient? Do you have any preference as to how we would proceed?

• 0955

Mr. André Marin: In fact we receive a lot of files from members of Parliament. Out of the 979 cases we have, 135 cases have been provided to us by members of Parliament of all parties. We treat them, like every other case, with a lot of importance.

What we suggest is when members of Parliament send us a case they often ask that we let them know what we're doing about it. We ask that the member of Parliament provide from their constituents a waiver of confidentiality to allow us to share the information. If we have that we'll gladly keep the member of Parliament apprised of all developments.

So I would suggest, yes, that the honourable member and others that may have matters to deal with simply forward them to our office with the necessary waiver of confidentiality.

The Chair: Not to add to your workload or ours, could I request that your office forward just a note to us on cases like Mrs. Wayne's as to how to proceed? In other words, if you could put what you just said in writing, it would serve as a reminder to us and that would be useful.

Mr. André Marin: Absolutely.

The Chair: I know as one MP, and I think my colleagues probably agree, one of my roles that I see anyway from my constituents in London—Fanshawe is kind of an ombudsman role where necessary. So I'm not surprised you're having a lot of contacts with members of Parliament.

Mr. André Marin: Mr. Chair, I think your comment is absolutely well taken. To borrow the words of Arthur Maloney—he was the first ombudsman of Ontario, and when he used to appear in front of the legislative assembly in Ontario he used to start off his presentation by saying it felt good to be among his fellow ombudsmen.

The Chair: That's very well said. Thank you.

Now we go again back to the majority side. I have four names in this order: Mr. O'Reilly, Mr. Bertrand, Mr. Proud, and Mr. Peric.

Mr. John O'Reilly (Haliburton—Victoria—Brock, Lib.): Thank you very much, Mr. Chairman, and thank you, Mr. Marin, for attending.

I for one have referred people to your office, although when I give them the phone number and tell them it's 1-888-8-budman they think they're going to get an American brewery at times. So I did have some problems with that originally, and people thought I was putting them on.

The results of their work and your work have been very gratifying to me because they did report back to me that they received a very good hearing and were satisfied with the results. So obviously the personnel that I referred to the office have come back with some very strong feelings on the office itself and its effectiveness.

I'm very supportive of the system, and it was very much lacking before your appointment, so I praise you and compliment you on that. However, I have problems when we talk about review and renewal. I guess the doubt comes of the renewal of the mandate. Do you have any doubts in your mind that your mandate will be reviewed? Do you have any indication that there will be any change in the mandate that would be less effective?

The reason my question leads to that is that the press and people have reported to me that there are roadblocks at DND in some of the work you do, that the cooperation level is not as high as it should be among the command. I notice you even mention that “it has been reported that the Ombudsman's office has been blocked on several occasions by military” command, “who have failed to give full cooperation to his investigation”. That is a great concern I think to all of us on this committee, Mr. Chair.

So at the end of the six months the review of the directive to assess the effectiveness is a concern to me, that there could be some doubt there as to what the renewal will be, and what your criteria will be to investigate. I suppose those would basically be my questions.

Mr. André Marin: Just a brief comment about the 1-800 line. We mulled over that precise point originally, and we didn't want to make light of the situation because people have serious problems. What was coming to mind was that there are so many 1-800 lines in DND CF—there's the CDS line, post-deployment centres, it goes on and on. The members kept saying, another 1-800 line? How many do we need? Of course these are all well intentioned and serve an important purpose, but we wanted ours to be a little snappier.

• 1000

When I was in Bosnia last fall, I was going from base to base, and I visited three out of the four bases we had over there. After three or four days, I learned I had been given a nickname. I was the Budman. I guess it was easier to remember than ombudsman. So we figured, heck, there are worse nicknames, might as well throw it into our 1-800 number. And it's easier to remember. In fact, it's turned out, far from being detracting—because it does kind of surprise you when you first see it—it has built a lot of goodwill with the rank and file. They think it's a cool number.

On the second point you made about the mandate, I don't know what the process is. I've been told that's confidential and until instructions are received, we should simply wait. I've been told they are not looking for anything significant in terms of changing the mandate. We're aware of one further exemption they are seeking, which we're considering whether or not we are of the same minds on, and I don't think there will be a great deal of difference there. As I've indicated to you today, I think there are some changes that need to be made. Nothing major, but there is some fine tuning and redrafting of some of the sections that have caused some ambiguities and so on.

In terms of cooperation and support, I can indicate to the honourable members, Mr. Chair, that the chief of defence staff and the deputy minister have been very supportive. We released the 100-day report with some recommendations to the institution to, for example, keep us more on the information loop, and we made certain calls for additional support from the institution, and they've responded well. So I'm satisfied that in the vast majority of instances, we are getting good cooperation on our investigations.

There remain areas we are looking at right now and we are deliberating on in view of our six-month report. Some branches, for example, at DND CF, some sections, have gotten into the habit of designating a contact person. They call them OPIs—office of primary or principal interest, I believe, in military language. That person acts as the contact with the ombudsman's office, and the purpose of those offices, as I was told, was to facilitate transactions, to allow us better access to documents and people. Certainly I support anything to make our job easier, but I wouldn't want those offices to prevent us from having direct contact with the people we need to have access to.

The jury's still out on those because we want to maintain that direct contact. We don't want to be dealing with 10 contacts representing 60,000 members of DND CF. We want to make sure the message gets through, that if it's to facilitate our job, we're more than happy to receive that, but if not, we're going to have to get this. We're concerned this may lead to additional layers of bureaucracy rather than allowing us direct access. So we're working on that issue in terms of cooperation.

The other issue is...you will see from our mandate that the legal adviser's work is exempt from the ombudsman's mandate. What we found out is sometimes the complaint is directly related to legal advice the person received, in which case we can't help the person.

Let me give you an example. A person comes to our office with a complaint that they have been treated unfairly because of disciplinary action they have received. You investigate that. You go to the person who gave the disciplinary action and you're told they took this disciplinary action because they consulted their legal advisers and they told them to take that route. According to the way the mandate works now, we would inquire with the legal branch, asking if they did give that advice. We're told, sorry, we're excluded from the mandate. So we see a little problem emerging there.

We've been looking at other ombudsman regimes and how they've sawed off the solicitor-client privilege versus the involvement of the ombudsman. In many provinces they've found a way to compromise on that—protect solicitor-client, but that doesn't mean, for example, the ombudsman can't touch the issue, can't get to the bottom of things, the moment a legal adviser is involved. Those are areas we're deliberating on, we're considering. I don't consider them major, but perhaps they're worth a second look before the regulation is enacted.

The Chair: Thank you, Mr. O'Reilly.

Mr. Bertrand, I'll come to you after Mr. Hart.

• 1005

Now, Monsieur Marin, we start a second round of questions, with members back and forth, by our rules. So we start again with the official opposition for five minutes now.

Mr. Hart, please.

Mr. Jim Hart: Thank you again, Mr. Chairman.

The sense I get from the committee is we all feel Canadian Armed Forces personnel should be saying, “This Bud's for you.”

Voices: Oh, oh!

Mr. Jim Hart: Just to continue with that, as already has been mentioned, there has been some feeling that you're not getting cooperation.

I'd like to ask you specifically about the Judge Advocate General's office. In a recent edition of Esprit de Corps magazine, apparently the Judge Advocate General has been reported as recommending that the first thing you must do when you get a complaint is investigate the person who's making the complaint. Is that accurate? How do you feel about that? What is your relationship with the Judge Advocate General at this time? How do you feel your role deals or has to deal with the Judge Advocate General's office?

Mr. André Marin: We certainly do not investigate complainants. We investigate complaints. We approach every case with complete impartiality, both towards the member and towards the organization. We can disagree with complaints; we can disagree with complainants. An ombudsman's strength is the impartiality, the neutrality, and the third view from the outside that he or she brings to the position.

You asked me a very direct question as to whether in fact this advice was given during the course of the consultation. The article you're referring to, and others that have been published on this area, resulted from an access to information request made to our office. These are documents provided from our office that under the Access to Information Act we had to disclose, and they were disclosed. So the quote you're giving is in fact accurate.

As I've mentioned earlier, there were a lot of clashing points of view when the office started. Some people wanted us to be very involved. I'm talking about people of general rank who approached me and said, “I want you involved. I want you to have a great deal of say. I want you to make a difference at DND CF.” Others told us the field was occupied and we should be a voice, but a voice that should not have the ability, for example, to issue public reports; a voice that should not have investigative staff; a voice that should not have their own legal staff.

We resolved all those issues, and we now have a healthy relationship with DND CF. I consider the formative part of the office to be water under the bridge. The relationship with the Judge Advocate General's office, just like the relationship with every other component of the military, has to be neutral and impartial, but as well it has to be collegial. We've always agreed with that aspect. We should not be adversarial. However, we have to be determined, and we must maintain our ground if we are going to make a difference in the system.

So I view that our relationship with the organization has to maintain mutual respect, mutual understanding. We enjoy that now, but not at the expense of the independence and impartiality of the office, which is now guaranteed under the directive.

Mr. Jim Hart: How can a member of the Canadian Armed Forces, a young private who finds a problem within the system, feel confident when a recommendation like that was made in your office, if that's sitting there? I want to make sure people who have a complaint within the system feel confident they can come to you and not have to worry about their careers. I also want to make sure you have the power to be able to investigate the department even at the highest levels, right up to the chief of defence staff if need be, or the deputy chief of defence staff. Do you have that independence and that control, and can you assure Canadian Armed Forces personnel that they don't have to worry about their careers if they have a complaint?

• 1010

Mr. André Marin: One of the areas we fought very hard to include in the ministerial directive is the ability to investigate initial complaints of reprisals against people who've turned to our office. That is in there. I'm happy to tell you that is in there. That was subject to much discussion, but it made it to the final document, and we're very happy to see it there. It allows us to investigate complaints of reprisal.

We're not a charge-laying agency, so at one point we must refer it back to the organization, but we then can monitor how the organization has responded to a complaint of reprisal. So we're involved. We're hand in hand along the way. It's an important measure to protect whistle-blowers and those who turn to our office. That's provision 13 of the ministerial directive.

In terms of who I may investigate, I report to the Minister of National Defence, so the whole organization is covered by the mandate.

The Chair: There's a minor crisis in the House, so some of our members had to leave, as you see, but they should be right back shortly.

Mr. Jim Hart: It's a great opportunity for the motion.

Voices: Oh, oh!

The Chair: That's right, more questions for our friends in the opposition. But anyway, the rules do call for me now to come to this side.

Mr. Peric, it's your turn now for five minutes.

Mr. Janko Peric (Cambridge, Lib.): Thank you very much.

Mr. Marin, your mandate has given you the opportunity to engage professional and other services. Have you so far engaged any services or hired anybody from outside DND?

Also, out of the 900 complaints you've investigated so far, how many complaints did you receive from abroad? And how do you go about that? How do you investigate complaints from abroad? Do you go there in person? Do you hire services? And how accurate are those investigations?

Mr. André Marin: Mr. Chair, I've been asked many questions. I'll try to follow along, and if I miss one, I'm sure the honourable member will remind me.

On the professional services question, yes, we've used that. Because we had to get up and running as soon as the mandate was passed—we had to go out and start doing our cases—most of our staff right now are hired under contract as investigators until we fill the job positions, which will be filled early in the year. We're having a competition open to the public. We'll be staffing those soon.

We've also used the professional services provision to employ, on a case-by-case basis, specialized legal advice. On occasion we've had to go out and obtain legal advice on specialty areas, so we have on occasion used that provision.

In terms of how accurate and complete our investigations are, they're quite accurate and they're quite complete. We approach a problem or situation without any kind of conclusion in mind. We take the complaint, we look at it on the face of it, and we try to be objective, whether or not it's founded.

In fact I'm pleased to say that in the first major investigation we completed, we made some pretty strong recommendations. We recommended, for example, the removal of a senior police officer from a criminal probe. We recommended profound systemic changes to the military police. Honourable members can draw their conclusions when they see the report, but I think it was a pretty strong report. But it was fair and balanced.

The provost marshal, who's the chief of the military police, as we all know, in accepting the recommendation, commented, and I quote from page 4 of her correspondence:

I would like to acknowledge what appears to me to be the sincere and diligent efforts of members of your office in the investigation and resolution of the allegation of conflict of interest. I accept and acknowledge your report as a balanced objective assessment of the situation as you see it. I furthermore acknowledge without question that the focus of your office apears to be the best interests of the Canadian Forces and the Department of National Defence.

That says a lot to me, when you produce a report that makes some strong recommendations to the head of the military police, who accepts them and comments about the fairness and the thoroughness of our office. I think that's an objective assessment.

• 1015

Mr. Janko Peric: I still didn't get the answer. Out of the 979 complaints you received, how many complaints did you receive from abroad? I want an answer to that one. And in terms of your mandate, from your experience so far, how much would you change? What would you add?

Mr. André Marin: On the first question, cases from abroad, I don't have a figure for the honourable member, Mr. Chair. We're now setting up a case management tracking system, which is getting to our office today. We've been designing it for one year. It will be a state-of-the-art case management tracking system, which will be able to collate different figures and categories. So when I come back here next time I'll have an answer for the honourable member. But I do not have one right now because all our stats now are done manually. We have these categories that are collated manually. But I promise that at a future appearance we will come with that figure for the honourable member.

The Chair: Could I request, Mr. Marin, that when that is available, if it's prior to your next visit here, that you forward that to our clerk? We'd appreciate that information. Thank you.

Mr. André Marin: Absolutely, Mr. Chair.

In terms of the second question about how much we would change from the mandate, my answer to that, Mr. Chair, is that we are coming out with a report December 16 that will propose the necessary amendments. We are generally satisfied with the operations of the office. We're satisfied with the mechanics, with the reporting structure, and with the independence it confers on us. I think we're doing the job we've always wanted to do. We're making a difference. We're building credibility. We won't be proposing any deep-rooted change, but we will be looking provision by provision and recommending whatever finessing or amendments we see necessary for us to go to the next level.

The Chair: Thank you, Mr. Peric.

And we'll look forward to your report on the 16th.

[Translation]

Mr. Mercier, please.

Mr. Paul Mercier: Mr. Marin, I have two questions. The first is straightforward. How many staff does your Office have?

Mr. André Marin: The Office of the Ombudsman has approximately 30 staff at this time. None of the current employees is a member of the Canadian Forces or an employee of the National Defence Department. There are people from the department who have been seconded to my Office but there are no military members in the Office. There are five former members of the Canadian Forces working with us, but there is no one who is currently a member of the Canadian Forces. That's a decision I made in order to establish our credibility. During our consultations, many people told me that if there were members of the Canadian Forces working in the Office, it would simply duplicate the chain of command and it would be hard for my office to establish the credibility, independence and impartiality that it needed. That's the route I have chosen to follow for the time being. I'm not saying that it will always be like this, but for the first year, we did not hire military members.

Mr. Paul Mercier: Do you have the power to summon individuals whose testimony you would need in order to investigate a complaint?

Mr. André Marin: I have no means of forcing a person to testify. Provincial ombudsmen, for their part, have this power under legislation. However, the directives stipulate that all members of the Canadian Forces must cooperate fully with me and I have access to any documents and any locations. There are exceptions, of course, but in principle I have access to these three items. If I were refused access to an individual, a document or a place, I could then submit a complaint to the deputy minister or the Chief of Staff, and it would be up to them to ensure that I obtain access to the individuals, documents or places. If I were refused access to these three things—and this is hypothetical, because I believe this would not happen—I could always appeal to the minister, who could order his departmental officials to cooperate fully with me.

I have not yet needed to go to the Chief of Staff, the deputy minister or the minister to complain about a lack of co-operation, because that has never been a problem. Therefore, I have no official power to summon witnesses, but I do have unofficial powers. So far, this has worked.

Mr. Paul Mercier: Thank you.

• 1020

Mr. André Marin: Some people are wondering whether I intend to request official authority on December 16. I am not going to request official power because our experience in the first six months has shown it is not required.

The Chairman: Thank you very much.

[English]

Mr. Proud.

Mr. George Proud (Hillsborough, Lib.): Thank you, Mr. Chairman.

Mr. Marin, do you feel you have the necessary powers and the necessary freedoms to do the job you would like to do as ombudsman?

Mr. André Marin: I believe so, with the undertakings we now have. I was in Cold Lake on Monday and Edmonton on Tuesday; we get a lot of contact with members of DND CF. One of the things I'm hearing from members of DND CF is the issue of continuity. They ask me all the time, is this a project? Will this be closed down in a year or two? Are you going to be so good as to write yourself out of a job?

So the issue of continuity is a big issue. They want to see some level of permanence. They don't want to see the office, at the stroke of a pen, eliminated. They want to know that we're in serious business, that we're here to stay, that we're not operating it as a platform, as a project, or something like that.

What I tell the members is simply that I've done my part in that we're staffing our office with permanent positions, starting in the new year. We've already had an open competition, which is closed. We've received over 1,000 applications for 30 positions.

So this will allow personnel to know when they call our office that they're dealing with somebody who is committed, not just someone who is on a project or some other job, but someone who is committed, knows the system, and has acquired expertise. It also allows me to retain qualified people in the office. So I've done my part.

I think round two will be very important, the transition to a solid regulation as opposed to a ministerial directive. The ministerial directive did its job, and it did its job well. But now it's time to move to the second phase, and they want to see that. They want to see at least a regulation. It may not, in the minds of some, be the entire solution, but as far as I'm concerned it comes from cabinet and it has kind of a legal taste to it that a ministerial directive doesn't have.

When we look at the other oversight agencies or the other agencies that do similar things, the Military Police Complaints Commission, the CF grievance board, they're all in statutes. We don't want to be left behind. So we think that regulation would achieve this.

Apart from the other issues of independence and whether I feel I have what I need to do my job, at this stage, with the commitment we have to go to the regulation, with that passed properly, with the elements of the mandate and the fine tuning that will be required, I do believe so. I would not be sitting in this chair if I did not believe I could do my job effectively. I do think we have those tools.

As I indicated originally, this is the vision and the vision remains. We are fulfilling, right now, a role in the same spirit and the same trend as the vision, and I think, certainly from my perspective, we have the tools to do our job.

Mr. George Proud: Thank you very much.

When you go to the Cold Lakes and the Gagetowns and these places and they ask you this question about continuity, what do you say to them?

Mr. André Marin: What I just said to you, that the regulation is coming. And they always want to know about me, personally, how long is my tenure, and inevitably someone will point out that I'm at my halfway mark. But I tell them I don't have anything else in sight; I'm running this place as if I'm here for ever. I'm not guiding myself as to political considerations. I think that's the way you have to do your job.

What I usually tell them is that I'm a lawyer, I come from a profession, I know what's required to do the job, and I do enjoy a term where I cannot be removed. I'm appointed on good behaviour and I'm certainly committed to doing this job the best I can.

When I go in front of an audience of military members I'm always astounded about how knowledgeable and informed they are. Going to a base keeps me very honest because you don't get away with a lot. They are knowledgeable; they ask me intelligent questions.

• 1025

Just the other day, on Tuesday, I was on a base and I was talking about how the office pays for itself, the pitch I just made to you earlier. A member put up his hand and said, “If you're wondering about how it can pay for itself, how independent are you from management if you're trying to save management money?” I paused and thought, what a question, but I told him that in this day and age, if you want money in government, you have to be cost effective. But we're not in the business of running this for a bottom line. We're in the business of doing this for justice. So it tells you that these people are keeping an eye out.

The other thing I really accept is when they challenge me. I can present a fancy PowerPoint presentation and talk about my independence, my impartiality, my sound decision-making, and all this stuff, and you can repeat it 12 times and it won't sink in any more. What you need to do is develop a track record. Credibility has to be earned. They're entitled to see it demonstrated, not just be told. That's what we're doing, and I'm pleased to see that the honourable member a moment ago pointed out that he was getting good feedback from his constituency. That really tells me something, because we've been having very good feedback. We've even converted a lot of cynics, and I like to think it's because of our determination.

The Chair: Thank you, Mr. Proud. Now we'll go to Mr. Earle, for five minutes.

Mr. Gordon Earle: Thank you, Mr. Chair. I want to come back to a point that was raised earlier. It was mentioned that the Auditor General's report pointed out military and civilian personnel allegedly accepting secret commissions or kickbacks from retail service stations for purchasing diesel fuel. I believe in response to that you mentioned that the ombudsman has to have an individual complaint or a grievance and that perhaps the only grievance in that case might be the public purse.

But most legislation, or most mandates for ombudsmen, usually provide for not only specific individual grievances but also potential grievances where individuals may be aggrieved. I would say that a situation such as this would be a situation whereby the military and civilian personnel involved could in fact suffer a grievance, particularly if the issue is left with a cloud hanging over their heads as to whether or not they did or did not do this. So any administrative procedure that perhaps is cloudy and fuzzy and perhaps needs to be shored up, I would think is something that would be appropriate for an ombudsman to review.

Granted, of course, that one would not review while an investigation is taking place, but once the investigation is over, and if there are still any concerns remaining about administrative procedures that could be perhaps improved to prevent this kind of situation, is that something you would take up on your own motion?

My second question, which is related to the first one, is the Auditor General also mentioned in his report the abuse situation and the length of time it has taken the department to follow up on these. It said the department does not follow up on a timely basis, citing some case in which it has taken as long as three years for follow-up. We know that justice delayed is justice denied. Are those kinds of administrative procedures things you follow up as well on your own motion?

I can think of one case, for example, that was highly publicized, and at the end of it the woman seemed almost to give up in desperation, because throughout that case there was an attempt to discredit her by getting her medical records and so forth. It was a very disappointing case. When I heard the end result publicly, it sounded to me that even though she was saying it's finished, there was a feeling of resignation due to frustration. Is that the kind of thing you would review on your own motion?

Mr. André Marin: The short answer is yes, Mr. Chair. As ombudsman, and I'm sure the honourable member can relate to this from his old days, you have to prioritize your caseload. You have to make some decisions sometimes. The Auditor General makes those decisions. He doesn't go after every brown envelope. So you have to prioritize and make decisions for which you are accountable.

In terms of what's occupying my mind when I make such a decision, among several factors it is that a lot of people have been waiting for their ombudsman to put up his shingle and start business, who have very significant personal issues they've asked for my assistance with. To me, someone who's asked and who's suffered through a lot and who is raising an issue that is still contemporaneous in the Canadian Forces of 1999 deserves a second look.

So I have to look at all the criteria. But to answer the hypothetical of my friend, I don't want to be too speculative here on specific cases, but what he's raised is an area, potentially, that we can look at.

I can tell the honourable member as well that the second investigation we've just completed, and for which I made several recommendations to DND CF, and for which I'm awaiting a response tomorrow, involved the systemic treatment of a victim of a sexual assault. So it's right on point. Not only do we have a case we would do, but it is the second case we did do. We did make recommendations, which you will have the benefit of seeing once they're made public, as well as the departmental response to them. So that is the answer.

• 1030

Mr. Gordon Earle: Thank you very much.

The Chair: Thank you, Mr. Earle.

Now we come to the parliamentary secretary to the Minister of National Defence, Mr. Bertrand, for five minutes.

[Translation]

Mr. Robert Bertrand (Pontiac—Gatineau—Labelle, Lib.): Thank you very much, Mr. Chairman. Mr. Marin, I would like to welcome you and your officials here today. If I may, Mr. Chairman, before asking my question, I would like to inform committee members that one of our colleagues from the Bloc Québécois, Mr. Laurin, was involved in a car accident a few days ago. As far as I know, he is doing fine, but I would like to ask Mr. Mercier to convey to him, on our behalf, our heartfelt wishes for a prompt recovery.

Mr. Paul Mercier: I'll be sure to do so.

[English]

The Chair: I heard that news too, and I was alarmed. I was pleased to hear that Mr. Laurin is okay. I sent him a note on behalf of the committee, too, so thank you.

Now we have some questions for Mr. Marin.

[Translation]

Mr. Robert Bertrand: Mr. Chairman, Mr. Marin has perhaps already answered my question, but I'll ask anyway. It has to do with the closed files. In the statistics that you provided for us, you indicate that currently, as of November 29, there were 580 closed files. Could you give us an idea of the type of files that you consider closed?

Mr. André Marin: The closed files are those in which we decided not to take action. A closed file is sometimes quite simply referred to the agency responsible for conducting the investigation. For example, someone calls us and asks us to investigate a criminal act. We do not investigate criminal acts. We therefore tell the individual to contact the military police. This is a referral. We consider it a case that has been resolved. In such a case, we are involved in a very minor way.

In some instances, we provide a referral with different options. We tell an applicant that he or she may contact one person or another. These too are considered closed files.

There are also major investigations. There are 580 cases that have been resolved, including the important case that I submitted to the department about five weeks ago, which will be made public soon by the Minister of National Defence. This number also includes the second case that I submitted, on Monday last week. However, we have been able to settle a number of cases by mutual agreement.

[English]

When we talk about an ombudsman's office, there are a lot of things we can do informally and confidentially in the system, which is tremendously useful. Major investigations are a big tool.

I thought I'd give you an example of a case, and I have several anecdotes here, but the type of case we do every day that fits right in the middle. These are not the simple referral and they're not a major investigation of the whole cavalry, but they fit right in the middle.

Let me tell you about a case we recently did, where the complainant, who is the spouse of a member of the Canadian Forces, called us. She was eight months pregnant and she had a thirteen-month-old baby and an eight-year-old at home. Her spouse, who's a member of the Canadian Forces, was sent to a course sometime in the summer and wasn't due back until sometime in the spring. She was left with the care of these children, and she was pregnant. Due to the cost-move policy at DND CF, she was ineligible to join her husband on the course because the course was for a definite amount of time.

There were many attempts to get her moved. Originally, she was told that maybe something could be done in September. September came and went, and then she was told Thanksgiving. Thanksgiving came and went. Then Remembrance Day came, and of course she had her hopes up high for that too, but again she couldn't move.

• 1035

She phoned us shortly after Remembrance Day, and she told us she had developed some serious difficulties with her pregnancy and was suffering from depression, and her eight-year-old was suicidal because the eight-year-old had to do all these tasks. She indicated to us that her husband was concerned about pressing the issue internally because he was on a course and for career considerations he didn't want to be seen as rocking the boat. So she called us for assistance.

Theoretically it's the type of case in which there's an internal channel, the redress of grievance, but sending someone to redress of grievance for months on end would not have helped her problem. Her problem was obviously very urgent. There is a provision under our mandate that we can invoke for compelling circumstances, and we felt that if ever there were a compelling circumstance, this was it.

We made some overtures, some proposals, to the commandant of the school where the member was on course. We discussed options with him and conveyed to him the situation, which he wasn't aware of, and so he took measures and sent the member back home, rescheduled the member for the next available course, and committed to moving the family together the next time he was sent back on the course. We also made arrangements that adequate medical and counselling services be provided to the family members.

When you intervene in a case like that, I can tell you, there may be some frustrations that come with the job, but it certainly gives you an immense sense of satisfaction. This is likely the type of case you as members of Parliament could have heard about; it could have been in the media, and so on. We could have seen a much sadder result.

We were generally helpful. The military were happy with our intervention and she was happy. So we were fulfilling our role as the third party that sees a problem, makes a proposal to the institution and resolves the problem, and the problem is gone.

That is one example out of many where we've intervened, and it has given us a great sense of satisfaction that we're really making a difference in doing our job.

[Translation]

Mr. Robert Bertrand: Mr. Marin, you said that, when you receive calls, in some cases, you refer callers to another agency, for example, the military police, for a more thorough investigation. Is there a follow-up after the file has been referred, say two or three months later?

Mr. André Marin: In the case of a simple referral which we believe does not concern us in any way, we will simply refer that individual. The individual may call us and say: “You are telling me that it's a matter for the military police, but I've already called and I have a problem. I don't know where the case is at.” At that point, we open a file, we follow the case and we decide whether or not to get involved. If the file is in the hands of another agency which already has the mandate to deal with the problem, but we find that the relations between the complainant and this agency are difficult, then we become involved. Therefore, we follow up a case, unless it concerns a matter that is completely outside our mandate.

In addition, when we tell a complainant that we are sending him or her to another agency, we ask the complainant to keep us informed. We establish lines of communication with the complainant and ask that he or she keep us up to date. Very often, the complainant will call us back to tell us that the case has been settled or perhaps to ask us for help because there is a minor problem.

So, we often follow up on a case that we have referred to another agency.

The Chairman: Thank you.

[English]

Now we'll go to Mrs. Wayne for five minutes.

Mrs. Elsie Wayne: Thank you very much, Mr. Chairman.

I'm going to come back to the subject with regard to the kickbacks, the situation and the investigation that was taking place.

In the House of Commons, questions were asked of the minister, and as we all know, the matter had been closed because the allegations were found in the first investigation to be unsubstantiated.

The minister said it had never been closed down. We know it was closed down, but now it's being investigated again.

• 1040

Also, according to the report we received, our understanding is that you, as the ombudsman, can investigate any matter upon written direction of the Minister of National Defence. You're saying you do this for justice.

I'm very impressed with your presentation today, and I do believe you are doing what you feel is right. But I think most of us have major concerns about this investigation in regard to who's doing the investigation now, and why you, as the ombudsman, would not be given the authority to investigate what happened previously. If it was being investigated internally, and people came out and said there was nothing wrong here, that nothing was taking place, when it was, then we've got a serious situation internally that has to be looked at in defence.

Those are the things that have really painted a very poor picture for defence over the years, and it needs to be changed. I know you have that concern, because I can see that you are trying to change things, get things going in the right direction. In order for us to really change it, we have to look at who did that investigation. If it was done internally, how could they come out and find absolutely nothing wrong, when we now have to have another investigation? Glory be to God, when you see what has been going on, it's been a terrible situation.

Do you not have a concern about that, sir—what happened previously, who did it, and who's going to look into it?

Mr. André Marin: It's the minister's prerogative under the ministerial directive to decide when he wants to invoke that provision and assign a specific area that's outside the terms of the mandate.

In terms of concerns I may have, as ombudsman, I think I have a responsibility to not express opinions on matters that I haven't investigated. I think if I'm asked for an opinion or view, I will gladly give it, but after an impartial investigation of the facts. I would hesitate to found an opinion based on newspaper reports and that type of thing.

The issue the honourable member is raising is an issue that may or may not be considered by this office, and because of that I must not comment on it.

The Chair: Thank you. Is that it then?

Monsieur Bertrand.

Mr. Robert Bertrand: I just want to make a point of clarification for Mrs. Wayne, because I wouldn't want her to leave here with a wrong impression of what's going on. There has been an ongoing investigation since 1998 on this matter.

From what I'm told, there are something like 16,000 credit cards out there that the federal government uses. Out of those 16,000 cards, there are 4,100 that DND uses. It's something that according to the Auditor General's report is being...I shouldn't say abused, but there are some questions about their use in DND, and also in other departments.

But just for your information, it's something for which the investigation is ongoing, and we'll just have to wait for the results.

Mrs. Elsie Wayne: Just on that, the information we received from the Auditor General was that they had been receiving similar complaints, but the military police closed their investigation file as being unsubstantiated. That was the report that came.

Mr. Robert Bertrand: That may be before 1998, but I'm telling you right now that there has been an ongoing investigation since 1998.

The Chair: Thank you.

Mr. Marin, after two rounds of questions, they give the chairman a question or two. I just wanted to seek a clarification.

Earlier on, in your opening comments, or in your early responses to questions, I understood you to say that the issue of the merchant mariners could come under your jurisdiction—unless I misheard you—but then later on I heard you say that the veterans are not under your jurisdiction. So I'm just seeking a clarification as to what extent veterans do come under your purview.

• 1045

Mr. André Marin: Yes, I'm pleased to clarify that, Mr. Chair. Former members do fall under the mandate of the DND CF ombudsman, as long as they don't raise a Veterans Affairs issue. So if a veteran comes forward and says, “I retired last month, but I want to tell you that when I was there, I suffered sexual harassment, and in my view, it was covered up and because of that I've suffered”, then it's a former member raising a DND CF issue. If someone comes forward as a former member and says, “I'm coming to you because I've been trying to get my pension and I can't get it”, that's a Veterans Affairs issue.

The Chair: I appreciate that. We went through extensive hearings on possible retroactive payment or ex gratia payment to the merchant marines. The committee has dealt with it, and it's in the hands of the minister and the parties who are trying to resolve it. But you wouldn't have any involvement in that file, then, would you?

Mr. André Marin: No.

The Chair: All right. Thank you very much for that.

We have time, if there are one or two final questions.

I just want to add not so much a question, Mr. Marin, but a comment. I think you heard from a number of the questions on both sides that this committee is very concerned that you are able to carry out your mandate in a totally unfettered way, and we sincerely say to you that if you feel there is any obstruction of any type in DND, we would want you to bring that to our attention, among other people's. I won't speak for the minister, but I'm confident he feels that way as well, that he views your office as a very important one. I'm sad to say that sometimes there is a perception, and not without some fact, that at times there may be a culture of silence, if not peer pressure, and even at times a cover-up in the Canadian Forces. When that's happened, it's been very negative, and I think it's left a bad taste in everyone's mouth, including the 99% of the people in the Canadian Forces who serve this country so well.

So I just want to make sure you're very reassured and clear—you've heard from all members, both sides—that we appreciate the work you're doing, and we want to hear of anything you think is less than 100% cooperation, because we—and I can speak personally—hope to see your office a permanent one with all the legislative status it needs. I thank you again for coming.

I'm going to give members on both sides a last chance for one real succinct question to you. I'll go to Mr. Hart.

Mr. Jim Hart: Thank you, again, for coming today. I think it's been very instructive. Because there have been several people who have raised the issue of this kickback investigation, I would like to ask you a very specific question, and it's a very specific request.

It doesn't deal with the criminal investigation of the kickbacks, but it does deal with the possibility that there could have been some kind of cover-up or interference in the original investigation. In light of what the Auditor General said just the other day, I would like to specifically request that the ombudsman's office investigate this kickback situation at DND.

Mr. André Marin: Is this going to be the position of the committee, Mr. Chair?

The Chair: No, that would need a motion to be passed from Mr. Hart. So, no, at this point the member is making an individual request of you, but it's not to be viewed as a request from the committee at this time.

Mr. André Marin: I certainly will take it under advisement. I will invite the honourable member, just so that we can start a paper trail, to write to us setting out exactly how he would like the investigation to be framed, and we will consider it the way we consider every complaint, with due regard to the nature of the complaint and our necessity to be impartial and thorough. We will let him know whether in fact we are prepared to do that.

The Chair: Thank you. And just for your information, I'm sure you know, Mr. Marin, that if the member wishes, he can bring a motion to the committee at our next meeting. Then it would be dealt with and either agreed to or not agreed to, and you'd be so advised. I'll leave that in the hands of the member for his own consideration.

• 1050

And now on this side, are there any further questions?

From the opposition, are there any final brief questions?

Mr. Earle.

Mr. Gordon Earle: Yes, I have just a quick one. What is your opinion on the creation of a Canadian Forces grievance board and a Military Police Complaints Commission, as proposed for the 1999-2000 fiscal year? I guess that's been proposed, and I just wondered what your comments would be on that.

Mr. André Marin: Well, as a general comment, I think any initiative to open up the Department of National Defence and make it operate as a fair institution should be welcomed by all. Beyond that, I do not want to comment for two reasons. The first one is that it's a public policy decision made by government, and I cannot get involved in discussing the merits of it, whether it's flawed, or how I would have done it differently. It's there. It's passed by Parliament.

Secondly, and more importantly, as ombudsman, I am looking at the treatment and fairness given to members of DND CF, and that includes throughout the system. So if someone feels they've suffered an unfairness because of the way these commissions have been set up or by the way they're treated by these commissions and boards and so on, they can come to our office. I wouldn't want to prejudge the situation. I would just leave it at that for now, Mr. Chair.

The Chair: Thank you very much.

Well again, thank you very much, Mr. Marin and your staff, for being here this morning. Again I say we appreciate the important work you are doing. We intend, as a committee, to support you every way possible. You have an open invitation at your request at any time to come back, and we will certainly want to speak with you again in the future when the time is right. Thank you very much for being with us today.

Mr. André Marin: You're welcome. And to come back to a couple of points I made in the initial statements, in the opening statement I called upon all of you for a non-partisan approach to this issue, and I must say that after two hours of being grilled on these various issues, I'm convinced of your goodwill and your non-partisan approach to these very important issues. It has been a good experience to share the development of the office with my fellow ombudsmen.

The Chair: Thank you very much.

I'll give the last word to Mr. Bertrand.

Mr. Robert Bertrand: Mr. Marin just said that in the last two hours he was grilled. I can assure him that I know this is his first appearance, because this is not what you call being grilled.

Mr. André Marin: Thank you for taking such good care of me then.

The Chair: À la prochaine, eh, Bob?

The committee is adjourned.