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]

Tuesday, May 9, 2000

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[English]

The Vice-Chair (Mr. David Pratt (Nepean—Carleton, Lib.)): I'd like to call to order this meeting of the Standing Committee of National Defence and Veterans Affairs. I will give the media just a few more seconds to wind up here and clear the room.

This meeting is televised.

Let me begin by saying that our normal chair, Mr. Pat O'Brien, was not able to attend today so I am going to try to fill his voluminous shoes as chair.

We have before us Mr. André Marin, who is the DND ombudsman. Mr. Marin, I would like to welcome you to the SCONDVA committee once again.

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Mr. André Marin (Ombudsman, Office of the Ombudsman, Department of National Defence): Thank you.

The Vice-Chair (Mr. David Pratt): It's always a pleasure to see you and to hear your comments about what's happening within the department and your work as ombudsman.

I should say by way of introductory comments as well that I believed the committee was going to be dealing with a motion today. It has just come to my attention within the last few minutes that it appears as though the mover of the motion is more comfortable dealing with it at the next meeting.

Mr. O'Reilly.

Mr. John O'Reilly (Haliburton—Victoria—Brock, Lib.): I think the chair should be here for the motion, that's all, and he has indicated an interest in it. Whether it's this meeting or the next meeting, it makes no difference to me.

The Vice-Chair (Mr. David Pratt): In view of the fact that Mr. O'Brien has an interest in the motion, then I think we should probably wait until he's back. But perhaps we could make a point of dealing with it as the first item of business at the next meeting of the committee.

Mr. John O'Reilly: You're the chair, sir.

The Vice-Chair (Mr. David Pratt): The chair will be in Mr. O'Brien's hands at that point.

Mr. Marin, I understand you have approximately a 10-minute opening statement. Before you get to that, perhaps you could introduce your colleagues at the table so that we can understand a little better what their function is.

Mr. André Marin: Thank you very much, Mr. Chair. With me here is Ms. Barbara Finlay, who is the acting general counsel and acting head of investigations. She was with me the last time I appeared here, December 2, 1999. Also with me is Professor David Paciocco, who is a professor of law at the University of Ottawa, whom I've relied on on occasion as independent legal adviser and counsel to the office. Both of them will be assisting me here today and would be most pleased to answer questions that are relevant to the areas they work in.

The Vice-Chair (Mr. David Pratt): Welcome to all of you, and Mr. Marin, please continue.

Mr. André Marin: Honourable committee members, I'm indeed very honoured to accept this invitation to be here today to talk to you on the successes and challenges of the Department of National Defence/Canadian Forces ombudsman. As I've indicated to you earlier, we'd all be pleased to deal with any questions you may have.

The office of the DND/CF ombudsman has been established now for the last 11 months. Looking back at the track record established during this time period, what can we conclude? On the one hand, the office has enjoyed a high level of success in executing its mandate and has been able to significantly improve upon the welfare and well-being of members at DND/CF. On the other hand, significant challenges and impediments to our work have emerged that must be decisively addressed if we are to retain and build upon the important assistance we now offer to members of DND/CF.

As you know, the office is still very much in its formative stage, as the mandate is due to be enshrined in regulations under the National Defence Act. This is the window of opportunity we now have to benefit from the experience and wisdom of the first 11 months to improve on our ability to serve the DND/CF community and to continue to serve them effectively if we encounter resistance from areas within the department.

What are the successes? The interventions of the DND/CF ombudsman's office extend from what I would term benign tasks, such as providing information to members of the institution on all types of services offered by existing departmental channels, right up to conducting full-scale investigations. Our experience in the execution of our mandate is then a positive one overall and has enabled us to function effectively. From the substantial goodwill and cooperation demonstrated by DND/CF personnel to the unwavering hard work and commitment of our small staff, many factors have contributed to our success. Of course, none of this could have happened without the support of the Minister of National Defence. The minister has ensured that this office is properly resourced and enjoys the physical infrastructure to thrive.

He has provided us with a separate office and a separate computer network for our case management. The minister also deserves credit for recognizing and working with our office in the necessary arm's-length relationship required for us to operate impartially and credibly and for providing us with a good beginning by adopting ministerial directives that provide the operational framework for investigating most areas of DND/CF.

Last but not least, the minister has, in every instance I've requested him to do so, exercised his discretion in allowing us to investigate cases that pre-date the time of my appointment of June 15, 1998.

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[Translation]

The number of cases we have handled is simply staggering. We have received since day one nearly 1,500 complaints, or 1,588 as of April 30, 2000 to be more precise. On an average day, we receive approximately five fresh cases. Some days, significantly more. For example, on the Thursday before Easter Weekend, we received 20 new complaints.

Complainants range from the private rank right up to general rank officers. They may raise issues of alleged unfair treatment through individual decision-making by managers and leaders. Or they may raise systemic injustices, which ripple through the institution, sometimes causing deep morale problems or undue personal or financial hardship.

[English]

How do we measure the success of the ombudsman's office? There are at least two useful yardsticks. The first one is our success in effecting change within the institution. Whenever we receive a complaint of any kind that we feel deserves closer scrutiny, our instant reflex is to attempt to find a fair, amicable, mediated, and confidential solution, a solution that will serve to assist a member's needs and one that the institution can deliver. We found the institution to be quite amenable to this kind of disposition. We have been able to successfully resolve several hundred such cases.

Other cases require field investigations, often due to the nature of the complaint. The mandate then provides for the production of written reports, which can be made public through the Minister of National Defence. These are resource-intensive investigations in which I deploy investigators to bases, units, or formations, or where the facts giving rise to the complaint are located. Findings are made as to whether or not the complaint is justified and recommendations made accordingly. We have, so far, completed five such probes and have several others either underway or pending.

To date, all the recommendations we have made as a result of our field investigations have been adopted and implemented by the chain of command in receipt of them without the need of going either to the minister, the deputy minister, or the Chief of the Defence Staff. In my mind, this speaks loudly to a level of success unforeseen by most when the creation of this office was first announced.

The second yardstick to measure our success is the feedback we receive from our constituents, the chain of command, informed observers, and the public. Over the last 11 months, we've convinced the soldier in Wainwright that we're an office that seeks to offer genuine care for individuals and that we're not just another dog and pony show from Ottawa. We've convinced the general in Ottawa that an effective ombudsman would ultimately strengthen his command and not mean the loss of authority over his troops. We've convinced the student of the staff college that principle and not opportunism dictate the actions of this office. We've convinced the senior manager that we both share converging goals and interests, not diverging or antagonistic purposes. We've convinced the skeptical sailor in Halifax that honesty and integrity are the hallmarks of this office, not spin-doctoring and covering up.

This office has earned the respect and confidence of the men and women of DND/CF and has quickly achieved the reputation as an impartial, determined, and effective defender of fairness and equitable treatment in the Department of National Defence and the Canadian Forces. In short, we are a credible organization.

What are the challenges? Some would say that a civilian operating an oversight body with a mandate over a military organization is bound to encounter resistance from such a conservative and hierarchical institution. In general, I would have to say that we have proved them wrong. The operational chain of command led by army Lieutenant-General Leach, air force Lieutenant-General Kinsman, and navy Vice-Admiral Maddison, have strongly supported our office and have not hesitated in indicating so in clear, unequivocal language and, I would add, action.

We've also received similar support from the assistant deputy minister group in the department.

Unfortunately, there are still to this day powerful pockets of resistance that do not recognize our office. These pockets are exceptions to the rule, but they do exist. The greatest pockets of resistance have been found in the legal branch. The sad result is that we have been, and are still, prevented from thoroughly probing serious issues raised by members who feel they have not been treated fairly.

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The general position of the legal branch is that the mandate does not, and should not, apply to them. If this is so, the situation cannot continue and highlights the need to move decisively to tighten the mandate as it applies to military lawyers.

We cannot just leave complainants out to dry. We cannot just wash our hands of serious allegations of unfairness and injustice. Simply put, we must do away with the provision of the mandate that appears to have carved out for these lawyers an idiosyncratic zone of immunity, which shelters them as well as those who turn to them.

Ironically, the most fruitful ground for resolution of problems most often lies with the legal adviser, and it is exactly that ground we are prevented from treading on. The current situation just cannot coexist with an ombudsman whose mandate is to contribute to the welfare of members of DND/CF.

Under the National Defence Act, the Judge Advocate General has the superintendence of military justice. This is an important statutory role, which should not be disturbed. That being said, there is no reason why the existence of the statutory role should be a basis for extending, to all actions and decisions by anyone acting as a legal adviser, a blanket immunity from review by the ombudsman or cooperation in the conduct of his investigations.

This is not a matter of a turf war. This goes down to the essence of what it is to do the work of an ombudsman. No one else at DND/CF enjoys the right to act in isolation in his or her own bubble, not even the office of the deputy minister or the Chief of the Defence Staff.

[Translation]

The intransigence of military lawyers toward the Office of the Ombudsman is even more bewildering when one considers that the Office has never claimed executive authority, let alone purported to exercise it. It bears repeating that the only authority I have is to make recommendations to fix a problem. The Office carries only the force of moral suasion and reason to influence the process. Those with executive authority are free to exercise their best judgment to accept the recommendation, or reject them.

[English]

By way of conclusion, let me say this. In many ways, the office of the DND/CF ombudsman is a public administration gem, which has caught the eye of other federal government departments and agencies that are considering similar ventures.

But it goes much further than than. From its inaugural months of operation, the office quickly earned an international reputation for its hard work in promoting a fair, more equitable workplace in the true spirit of ombudsmanship. The office, however, needs support in its own backyard in a way to better serve the men and women of DND/CF.

This House committee has earned its own reputation for action by giving a voice to members of DND/CF who cried out for help in making their case for quality of life. Recently SCONDVA also supported increased capital funding for DND/CF. Both of your initiatives became realities. As parliamentarians, or, some would say, elected ombudsmen...it is now my turn to solicit your support for our work conducted on behalf of members of DND/CF who feel they have not received a fair shake from the system. Your strong support is essential to our office retaining the ability to make a difference in the lives of members, men and women who give so much to this country yet expect so little.

The Vice-Chair (Mr. David Pratt): Thank you for your comments, Mr. Marin.

We're going to go to the seven-minute round of questioning, and we have Mr. Hanger on the list to lead off.

Mr. Art Hanger (Calgary Northeast, Canadian Alliance): Thank you very much, Mr. Chairman. Thank you, Mr. Marin, for your presentation. It's good to see you here in front of the committee again.

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I gather from the tone of your report that everybody is on board when it comes to the position you hold as ombudsman and the mandate you've been given, except for the JAG. Is that correct?

Mr. André Marin: Yes, that's correct. That's been my assessment based on the experience we've had so far.

Mr. Art Hanger: Does the Minister of Defence support you in that analysis?

Mr. André Marin: In December of 1999, we presented to the minister a report that was made public. The minister has heard us on the issue. The minister is currently apprised of the issues and is going to be making a decision on those issues shortly.

Mr. Art Hanger: You don't know whether he supports this course of action you have outlined here?

Mr. André Marin: What course of action? The action I am advocating in terms of the mandate? Well, I know the minister is very supportive of us doing an effective job in our mandate. In terms of his exact position on this, he's considering his options and he's deliberating on the submissions I've made to him. I'm not aware of his ultimate decision on the matter.

Mr. Art Hanger: So your appeal to the committee then, outside of any decision that may come from the minister, is for support from the committee, as outlined here.

Mr. André Marin: That's correct. The committee, in its wisdom, has had a lot of interest in the work we've done in our office. I look around the table and I don't really know any of you around here, apart from meeting you occasionally, but I recognize the names of members who have sent us cases. I recognize members who have supported this office in the past. I think members of this committee have adopted a non-partisan, principled approach to doing your jobs, much similar to the approach this office has undertaken. In view of the desire you have to help improve the welfare of DND/CF members, I am appealing for your support of this office.

Mr. Art Hanger: I find that an interesting appeal at this stage of the game. In my own mind, at least, there are a lot of questions yet to be answered.

Of course, when it comes to authority, I know you've mentioned throughout your report here that you've conducted various investigations. You've had something like 1,700 complaints directed to your office since you've been in that position, and you make mention of those investigations. I would like to know from you, first of all, what you define as an investigation and also what you define as a full-scale investigation.

Mr. André Marin: There are basically two types of interventions our office can do. One is a low-level, informal intervention, which is done confidentially. That means we have a member who calls us with a problem where he or she thinks they're entitled to a benefit but they've been denied. We will intervene on behalf of the member to determine whether in fact the person is entitled to the benefit. If not, how can we get the benefit to the member? A question of posting or evaluations or harassment of any kind....

So we intervene, if possible, at a low level. We've found that this type of intervention has been extremely well received by the chain of command. I'm talking COs, I'm talking the three-star generals I've named, and others. It's very well received. This is informal, confidential intervention. It may be phone calls, it may be letters, etc.

Field investigation is when we believe an issue deserves closer scrutiny and a gathering of facts. It deserves an independent investigation being conducted and the office making formal recommendations through a formal report. We've done that. So far we've completed five major investigations. We've completed each one of those cases. The chain of command has accepted every recommendation and implemented them, which we find extremely encouraging.

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The first one, for example, was on a conflict of interest in the military police. You'll recall last July the case of the Croatian criminal probe, which became a highly visible issue. Dr. Smith complained. He thought one of the criminal investigators on his case was in a conflict of interest. We concluded that there was at least a perception of conflict, and we recommended that the officer be removed from the case and that there be systemic changes to the way the military police run the shop when there is a conflict of interest allegation. All of that was implemented and that officer was removed from the case.

That is an example of a field investigation. We gather statements, documents, and whatever is required to make findings in the case and we make recommendations. That is a field investigation.

Mr. Art Hanger: In conducting an investigation that you would call full-scale, what authority do you have to gather evidence, to enter a base and do whatever you have to do to get that evidence?

Mr. André Marin: It's not a formal power. There's no power to subpoena; there's no execution of search warrants and things like that. The ministerial directive recognizes that every member of DND/CF has to cooperate. Cooperation means giving statements, furnishing documents, and so on.

Really, truly, that has not been an issue. We're not asking to get any more authority. We're not saying we want to subpoena or we feel power is lacking. Our issue is more in categories of people. In the case I'm talking about today, we're talking about one category of people who have basically written themselves out of the mandate. That is the category of military lawyers.

In terms of the tools to do our job, the general compulsion, there is a recognition that people must cooperate with the office. People do recognize that and they do cooperate. So far we've had good experiences.

The Vice-Chair (Mr. David Pratt): Thank you, Mr. Hanger.

Mr. Laurin.

[Translation]

Mr. René Laurin (Joliette, BQ): First of all, Mr. Marin, I would like to have some information on the data that appear in the documents you have distributed along with today's presentation. According to these statistics, 1,710 complaints have been received, including 281 dealing with benefits. However, it doesn't say what kind of benefits. What is actually meant by benefits? Are they benefits that have been either refused or unduly granted to members of the armed forces? What is it?

Mr. André Marin: I'm sorry, but you've lost me. Which table are you referring to?

Mr. René Laurin: I'm on page one of the document titled Statistics that you have tabled today and that deals with the types of complaints.

Mr. André Marin: I see.

Mr. René Laurin: On page one, there is a list of all complaints received by your office and in that list, at line 4, it says that there were 281 complaints about benefits.

Mr. André Marin: It is about employee benefits for members of the Canadian Armed Forces.

Mr. René Laurin: All right. Does that include compensation?

Mr. André Marin: Yes. It includes pay and fringe benefits.

Mr. René Laurin: So, it has nothing to do with favours that were granted or refused?

Mr. André Marin: No.

Mr. René Laurin: Okay.

The same document gives the percentage of complaints by region. It says that 48% of all complaints originate in Ontario. Of course, this is where the greatest number of complaints is coming from. Is this percentage in proportion to the percentage of military members living in this province?

Mr. André Marin: I would ask Ms. Finlay, our acting head of investigations, to answer your question.

Mr. René Laurin: I have a feeling that the percentage of complaints is higher. I can't believe that 48% of members of the armed forces are in Ontario, although 48% of complaints originate in that province. Is there an explanation for this fact?

[English]

Ms. Barbara Finlay (Acting Head of Investigations and Acting General Counsel, Office of the Ombudsman, Department of National Defence): The statistic relates to where the complaint originates. If I have a complaint about my case being stalled here in National Defence Headquarters in Ottawa, then my complaint is logged as a complaint in Ontario. In many of the cases we deal with, the complainants come to us when they've already tried going through the lower levels of their chain of command. Their case may be stuck in a higher level. Many of the cases we deal with tend to originate in Ottawa, which is why you see that higher figure of 48.2%.

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[Translation]

Mr. René Laurin: This means that a higher percentage of military activities presently take place in the province of Ontario because you are telling me that these complaints might come from people who are not in Ontario anymore but who were there when they first filed their complaint. I'm not sure I understand correctly.

[English]

Ms. Barbara Finlay: No. Although the complaints are logged 48.2% for Ontario, it doesn't mean the persons who mailed in the complaint actually live in Ontario. What it means is that their complaint originates in Ontario. They may be living in Nova Scotia but complaining about something that happened to them in Ontario.

Because military members move across the country so often, and indeed internationally, we don't log complaints by where they're living, because that may not necessarily be representative. It could be that someone who's living in Nova Scotia is contacting us and complaining about something that happened to them when they were posted in Alberta or British Columbia. So we look at where the complaint originates, and that's why Ontario seems to have a high figure.

When you're talking about a lot of administrative complaints, where the matter is being handled in Ottawa through National Defence Headquarters, those would be logged as something originating in Ontario, even though the person who phoned us about that problem may be stationed in Cold Lake, Alberta, or British Columbia, or Nova Scotia.

[Translation]

Mr. René Laurin: Then I don't see how useful this statistic can be, because you are telling me that it doesn't mean that the complainants are actually living in Ontario. And it doesn't mean either that the facts on which the complaints are based happened in Ontario. Well, how useful can this data be to you?

[English]

Ms. Barbara Finlay: I'm not sure I would agree with that. If the complaint or the problem happens to be something that is located in the administrative section of National Defence Headquarters, then it's reflected as a complaint in Ontario. If the complaint is about something that appears to be rooted in a leadership or management problem in Nova Scotia, then the complaint is logged as coming from Nova Scotia, even though the person may have only felt comfortable about complaining about the issue once they had been posted out of that situation and may now be in British Columbia.

[Translation]

Mr. René Laurin: Let me make sure I got this right, because it doesn't seem clear to me at all. It means that these 48% of complaints originating in Ontario are being submitted by people who might be living anywhere in Canada, but the thing is that the facts on which the complaints are based happened in Ontario. Am I correct?

[English]

Ms. Barbara Finlay: They actually submitted the complaint about something happening or originating in Ontario? Yes, it could be someone who contacted us from Bosnia, Kosovo, or even Germany, complaining about a problem that is rooted here in Ontario.

We could provide the statistics to you in the other form. With the computerized case management system we have developed for our office, we can provide the numbers easily, if you wish.

[Translation]

Mr. René Laurin: Right now, Ms. Finlay, I am not criticizing your table. I'm just trying to understand the data. I'm not being critical at all; I'm simply trying to figure out how the table works.

[English]

The Vice-Chair (Mr. David Pratt): Thank you, Mr. Laurin.

[Translation]

Mr. René Laurin: I'll ask my other questions when we get to the second round, Mr. Chairman.

[English]

The Vice-Chair (Mr. David Pratt): Okay. Mr. O'Reilly.

Mr. John O'Reilly: Thank you very much, Mr. Chairman, and welcome back, Mr. Ombudsman. We're pleased to have you back again, and by the motion we dealt with yesterday, it's obvious my support is with your office.

The framework you provide in your dissertation is that ministerial directives provide the operational framework for investigating most areas. I want to know if there are others, other than the one you mentioned. Is it all rooted in one particular area of DND/CF? Are you having trouble in areas other than the legal department, or are you having troubles only with the legal department?

Mr. André Marin: It's only with the legal department.

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Mr. John O'Reilly: Okay. That's an interesting position.

Have you entered into negotiations with the legal department, one on one, or do you have any hope of having a mediator appointed or someone who can be a third party? Obviously that would be some sort of a solution. That would be one way. Conflict resolution is usually done by—

Mr. André Marin: By an ombudsman.

Mr. John O'Reilly: Yes, an ombudsman.

So if you have a problem, who audits the ombudsman? I often ask that of the Auditor General: who audits the Auditor General?

How do you propose to come to a conclusion on this? How do you propose to move this forward?

Mr. André Marin: Ironically, usually the ombudsman is supposed to be the neutral, impartial person who goes through issues, so this poses a dilemma. However, the issues right now are before the minister, and it would really be up to the minister to decide how to take it from here.

I can tell you that we have attempted to deal with these issues directly with the office of the Judge Advocate General. There appears to be an issue of a culture there that, simply, the ombudsman, being someone outside the chain of command, should be recognized as a funnel or a conduit for complaint and should not be actively involved in resolution of complaints.

I think it's a philosophical difference. To be effective, we believe we have to be more than a conduit, and it's the minister's prerogative to decide where it goes now.

Mr. John O'Reilly: Do they claim solicitor-client privilege, or constitutional exemption, or do they claim some other thing that interferes with due process of the law?

Mr. André Marin: Yes, of course. We've had to deal with a lot of these claims early on in the mandate. In our position as a lawyer—and Ms. Finlay is a lawyer—within the office, we did not consider that there was merit to the arguments that were being raised. We thought the arguments were being masqueraded as legal issues when they were really not legal issues. That forced us into a position of having to go outside the office to retain experts in these specific areas.

We have been getting the independent legal advice of Professor Ed Ratushny, who is an internationally renowned constitutional law expert and counsel with the Chief Justice of Canada, and so on, and Professor Paciocco, to assist us with these legal issues. We went to these experts and asked them, what do you guys think? We're lawyers, and this is how we sit and this is how the JAG sits.

I'll leave to Professor Paciocco the opportunity to add to my answer.

Professor David Paciocco (Law Faculty, University of Ottawa; Independent Legal Counsel, Office of the Ombudsman, Department of National Defence): There are two dimensions to the issue. The first dimension has to do with whether the actions of lawyers should be subject to review the same as the actions of any other members of DND/CF. The objection that is raised has to do with the independence of lawyers. As you know, lawyers tend to have their own governing bodies. They're a self-regulating organization. There are law societies in each province, and as a matter of practice, although not requirement, lawyers within the Judge Advocate General's office are members of the various law societies. The view is taken that it would be inappropriate for an ombudsman to review the work of lawyers, because it might in some fashion interfere with their independence.

We are certainly of the view that having a requirement that anyone who is not treated fairly by a lawyer has to seek out the particular law society to which that lawyer belongs and then go out there, even though it may be 10 provinces away from where they are, and make a complaint, simply escalates the issue. Someone in the position of an ombudsman, who can come in from the outside, who cannot mandate or dictate any decisions but can simply make recommendations after finding out the facts, could diffuse and solve any problems or dissatisfaction with the way the legal branch operates.

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In the military there is necessarily a unique form of structure for lawyers. For example, the Judge Advocate General is the superintendent of the entire military, and that includes both prosecutors and defence lawyers. So in effect they all work for the same firm and report to the same person. There's good reason for that within the context of a military, but in the private sector that would be an intolerable conflict of interest.

The ombudsman's office is in the situation to make sure that when decisions get made by lawyers in the conduct of their business, they take into account the welfare of the members of DND/CF. See, these lawyers are going to be torn through their loyalties to the military, to the chain of command, and to the individuals they represent. That's one of the dimensions: the ombudsman at present is not allowed to investigate complaints against lawyers.

The second dimension is dealing with issues of solicitor-client privilege. As you know, when a client goes to a lawyer, everything that transpires between the lawyer and the client is kept confidential. Within the context of a military organization, that creates the opportunity for dead ends to occur in the course of an investigation. For example, if a decision is taken by someone within the military and the ombudsman is attempting to determine whether that decision is in the best interests of the DND/CF and represents good policy, and if that person is approached and they say, “I acted on the advice of counsel”, then that puts an end to the ability of the ombudsman to continue and find out what the nature of the objection is.

So there are two dimensions to it. One is privilege, and the other has to do with who can be investigated.

The Vice-Chair (Mr. David Pratt): Thank you, Mr. O'Reilly.

Mr. Earle.

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

I'll just follow up on this issue, because as a former ombudsman, I'm very familiar with this issue. It's quite interesting that the ombudsman concept will quite often run into difficulties with legal people rather than anyone else. But in most cases where there's been a legislative ombudsman, that has been worked out specifically in the legislation, and therefore you don't run into that problem. In most cases it's spelled out very clearly that if the person is acting directly or indirectly, in the case of provincial agencies, on behalf of the crown, then they are accountable. That takes in the lawyers as well, so you get past that hurdle.

I think part of the problem you're running into will be more difficult to resolve because of the nature of your office, in the sense that you are accountable to a minister, not to Parliament. I just throw that out.

I do wish you success with it, because what can happen in the case of an ombudsman investigating is exactly what you've described: those dead-end issues, where all they have to do is seek the advice of a lawyer and then it's out of your territory. Fortunately, under a legislative system, that can be taken care of.

I want to address my question to your remarks about systemic injustices that quite often ripple throughout the institution. I think about the recently released report on spousal abuse, a very important systemic issue that has to be dealt with. I'm wondering if your office will have any role to play in that particular issue.

Mr. André Marin: We have for the last several weeks been having internal discussions with a view to proceeding with a systemic investigation of the treatment of women in the Canadian Forces. There has been a series of reports, not just yesterday's. The minister's own gender integration committee has reported to the minister that it has found self-fulfilling prophecies, where because of the discriminatory views regarding women, the whole system then is built to justify that.

We've heard complaints coming to our office directly concerning the recruitment of women, the promotion of women within the ranks, and the existence of a hidden agenda there. Yesterday's report is an example of how it extends to spouses of members. On top of that, we've conducted our own investigation in the case of a victim of a sexual assault and how she felt neglected by the investigation of the system. We made some recommendations, which were adopted.

If you add all this together, it represents a series of red flags regarding the treatment of women. We want to launch into a systemic investigation. We've made the decision to proceed, but the reason we have not proceeded is we want to take action, not just do another study, another report. We want to come up with pragmatic solutions. If there is an attitudinal problem within the Canadian Forces about how they view women, it should be addressed at the cultural level.

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This is like a big dam with the water flowing in. There are all these little holes in the dam. You can go over there and use a corkscrew and try to plug all the holes; you'll just face another series of holes. So we figure, instead of a knee-jerk, plug-the-hole response, it needs a strategic approach to the issue.

We're looking at all of that, and that's what we plan to do: a strategic approach to studying that particular issue.

Mr. Gordon Earle: Another quite important systemic issue that comes forth was illustrated by the case of Sergeant Mike Kipling, which involves the whole question of what kinds of rights a person has to choose what they accept into their body or not and so forth. I was quite pleased with the outcome of that case, although I realize there's still a legal aspect where the department is considering whether or not it's going to appeal. I sincerely hope they do not, but that's their choice to make.

Once the legalities of that are over and done with, if it goes to an appeal and it's finalized, will your office become involved in looking at the implications of that decision for Canadian Forces members on a systemic basis, in terms of the rights of an individual around that particular issue?

Mr. André Marin: We are monitoring that particular issue. We have similar types of complaints. As you indicated, that particular issue is going through the judicial system, so we respect that and are studying it at a distance. But we are monitoring that particular issue, yes. We would be prepared to further study that possibility, but at this stage it's premature for us to go any further.

Mr. Gordon Earle: Do I still have a little time left?

The Vice-Chair (Mr. David Pratt): Yes.

Mr. Gordon Earle: Thank you.

You mentioned when talking about field investigations that the mandate provides for the production of written reports, which can be made public through the Minister of National Defence. Does your mandate allow you to make the reports public yourself whether or not the minister chooses to make the reports public?

Mr. André Marin: The mandate does not allow the office to make them public directly. We submit them to the minister. But the mandate does say once they're submitted to the minister, he has to make them public within sixty days. The minister has put himself under that obligation. So there's no element of secrecy involved. Every report we put in writing and send to the minister, subject to privacy issues, will be made public. The issue is it's a process whereby he's given sixty days to make them public.

Mr. Gordon Earle: Have you considered perhaps making the recommendation to the minister that the office be given the capability of publicizing its reports on the ombudsman's own initiative? One of the strongest powers of an ombudsman is the power of public sanction, and the ombudsman should really be unfettered in the ability to utilize that.

Mr. André Marin: I quite agree. We made that recommendation as part of our December 1999 report, and it's one of the issues the minister is seized of, along with the issue of the JAG. He'll be deliberating on that and giving an answer shortly, I take it. But we have put forth that proposal, and I agree with the premise to your question.

Mr. Gordon Earle: Am I finished?

The Vice-Chair (Mr. David Pratt): You have thirty seconds.

Mr. Gordon Earle: Okay.

Very quickly then, on the Gulf War syndrome question, another systemic issue in terms of health of people, is your office doing anything with respect to monitoring or becoming involved in the issue of testing of veterans from the Gulf War?

Ms. Barbara Finlay: We are, again, monitoring the issue. We have a number of cases where persons have approached us. As you're aware, the mandate provides that persons need to try using the existing mechanisms available in the system. One of those mechanisms the Canadian Forces has created is the support centre for injured members. We work very closely with that centre by referring people there, and we will also follow up to make sure their needs are being provided for in circumstances where we have referred. If it's felt they're not, then we get involved to make sure the person is taken care of.

On a broader level, we are watching those cases closely, and if it appears there are trends to show persons are not being served, then we can look more in depth at the problem.

The Vice-Chair (Mr. David Pratt): Thank you, Mr. Earle.

Mrs. Wayne.

• 1620

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

I'm very pleased to see that the ombudsman is here today. I think you've done an exceptionally fine job, so you know where I stand.

With regard to the anthrax decision, in the last week we've seen what we'd call a groundbreaking legal precedent set with respect to the rights of the soldiers. I would like to know how this affects your jurisdiction. Does this now give you the increased authority to help explore and enforce these new rights?

Mr. André Marin: I think the Kipling decision is limited to its own facts. It may have precedential value within the military, but it doesn't affect the discharge of our mandate. It doesn't affect the way we do our job.

Mrs. Elsie Wayne: I ask that because of the information brought to me just yesterday by the family of one of our Canadian soldiers stationed at CFB Cold Lake. That young man now has tuberculosis. According to the family, he is one of more than 14 of our people in the armed forces with tuberculosis at Cold Lake, Alberta CFB. According to that family member, these people, our soldiers, were exposed to this while working with the Kosovo refugees.

I brought this question up, and with respect for the minister, his first answer was that he didn't know anything about it. I think somebody must have sent him a note before he answered my second question because he said he didn't believe there was tuberculosis there now. In other words, it's in remission. I think that's what he's referring to, from the information he received after my first question.

It is such a serious situation, Mr. Ombudsman, when the family members become so worried about their sons and daughters that they feel they've not been looked after properly. If I were to request in writing to you that you do an investigation.... This is basically what I was asking the minister today. I wanted to turn it over to you and allow you to do this investigation. If I write to you, can you do that investigation for us?

Mr. André Marin: We've checked in our complaints and we've received no complaint regarding that specific issue. If you indicate to us that you have received a complaint, we would urge you to tell us who you've been dealing with. We will keep that confidential and we'll definitely look into it immediately. This is an extremely serious allegation and it has to be dealt with. The mandate of the ombudsman's office no doubt extends to families. It's right there in the mandate. If you do write to us, we will immediately act upon that in view of the seriousness of what's involved.

Mrs. Elsie Wayne: The other question I have has to do with.... Would your jurisdiction be wide enough to investigate circumstances where CF personnel are being asked to use equipment or vehicles that are perceived not to be safe? I'm referring here to the Sea Kings, in view of what happened back in my area just in the past week or 10 days, where they had to make another emergency landing.

I really believe in my heart and soul that somehow.... If we as a committee can't convince everyone that we are jeopardizing the lives of those men and women who are flying the Sea Kings, perhaps you can do that by having a full-scale investigation. I don't know if that falls within your jurisdiction or not.

Mr. André Marin: On the face of it, it does not.

Mrs. Elsie Wayne: It does not. Okay. If one of their parents wrote to you and said to you that their sons' and daughters' lives were being jeopardized, would you have the right to do it then?

Mr. André Marin: I don't want to be speculative, but we look very seriously at every complaint that comes in and we take a very pragmatic approach to our mandate. One of the things in our approach to cases is that we don't look at it from the lawyer's perspective. We don't look at it in terms of whether this fits here or doesn't fit there and so on. Our role is to help people out, to help the welfare of DND/CF members.

• 1625

When we get a complaint, we look at it. Ms. Finlay and I talk about it and we decide whether or not it affects the welfare. So far, the institution has been very flexible as well. They've been good. If we got such a complaint, we'd take a really hard look at it and we'd decide.

On the face of it, I must tell you, this is really beyond the scope of an ombudsman's office.

Mrs. Elsie Wayne: This is my last question, Mr. Chairman.

I know you're looking at the situation of spousal abuse. There have been a number of complaints—and I'm sure all of my colleagues around the table have received them—from women in the armed forces. According to them, they have been sexually abused. With the number of cases you have, have you received quite a number of those sorts of cases that you've been able to look at and resolve?

Ms. Barbara Finlay: As you may recall, our very first public report dealt with that circumstance. We have received a number of other cases. If you refer to the statistics, they indicate a type of complaint, ten, in relation to that very specific instance.

It may be that the person comes to us complaining about another issue. If you look more closely, at some point the person, the female member, may have experienced this as part of their circumstances. So yes, we are certainly looking at the issue. We are reviewing a number of cases that deal with sexual assault-related issues and how they're treated within the context of DND/CF.

Mrs. Elsie Wayne: Thank you.

The Vice-Chair (Mr. David Pratt): Thank you, Mrs. Wayne.

Mr. Hanger.

Mr. Art Hanger: Thank you, Mr. Chairman.

What is the budget for the office of the ombudsman?

Mr. André Marin: It's $3.5 million.

Mr. Art Hanger: And how many personnel do you have?

Mr. André Marin: Right now we have 25.

Mr. Art Hanger: Full-time?

Mr. André Marin: Well, some of them are part-time and some of them are full-time.

Mr. Art Hanger: Okay.

In your one outline here, your statistics outline, you indicate that you've investigated 1,710 complaints, yet in your report you indicate that you've investigated under 1,500 complaints. Which one is accurate?

Ms. Barbara Finlay: The number of 1,488 complainants is the actual files we have opened with the office. If you are a corporal and you come to us, you are accounted for as a complainant. The 1,710 refers to issues that have been brought to the office. We may receive one complaint that has three or four different related issues.

Mr. Art Hanger: You just indicate here that it's 1,500 complaints in your report.

Be that as it may, I'm kind of curious. Apart from the JAG side—and I certainly would like to get into that a little bit later—I'm looking through this list of complaints, the type of complaint, as you point out in your statistical report. For instance, looking at improper exercise of authority, there are 65 complaints. How do you close such a case? What do you do and how do you close it? When do you consider it a closed case?

Ms. Barbara Finlay: If we've managed to assist the person, then we consider it a closed case. Our interventions range from listening to the person's problem to providing them with options, to making referrals, to making calls, to attempting to resolve a problem on their behalf, and to getting a compelling circumstance case, such as a complaint about a denial of a compassionate posting, resolved so the person receives their posting. It may involve more extensive investigation, as was mentioned, and the ultimate production of a written report.

We do deal with many cases where people come to us because they've experienced an immediate problem and they feel they have no one else to turn to who is outside their chain of command, who they can speak to on a confidential basis, and who will assist them in sorting out their issues and give them guidance on what is available to them to help them resolve their problem. That is a very important part of the role we play. We have specially trained complaint intakers who receive calls through our 1-800 line and provide that service. That is included in the number of cases we have managed to resolve.

• 1630

Mr. Art Hanger: But isn't there a process for redressing grievances?

Ms. Barbara Finlay: There is a redress of grievance process.

Mr. Art Hanger: What do you do? Do you refer them over to that system?

Ms. Barbara Finlay: In some cases we will refer them to the redress of grievance system. The mandate provides that if the person has what we feel are compelling circumstances, then we can attempt to resolve their problem before referring the matter to that system. So if the person has an immediate urgent request, such as they want to get leave to see a family member who has a terminal illness and who they may be separated from, we can assist them in that type of situation.

In other cases, persons will call us because they've used that redress of grievance system and somewhere along the line their case has hit a wall: they haven't received an answer, they can't find out the status of their case, or they feel it's taking too long. We've been able to assist them in that regard.

As you are aware, I'm sure, very soon we will be seeing the Canadian Forces redress of grievance board open its doors and start receiving cases. There will be a big transition from the old system to the new system. We hope we'll be able to assist in that by helping individuals whose cases may experience administrative delays along the way, or who just need an outside source to assist them in understanding the system and the process. So we help there as well.

Mr. Art Hanger: Of all the complaints listed here, how many would be direct referrals to specific units, agents, agencies, or whatever?

Ms. Barbara Finlay: I don't have that number for you. Certainly it is a large part of the role we perform, but the investigative role and the resolution role are also important.

We can attempt to provide the statistics if you wish. As I mentioned, we have the computerized case tracking management system, into which we have just recently completed entering the complete data on our cases. We're working with that on a daily basis to be able to produce the types of statistics you see here today.

When we were here back in December, we had to manually count the numbers we provided to you. Now, the fact that we're able to, with a few touches of buttons, get that information by computer has been a big improvement in a very small period of time. So I hope the next time we're here I'll have more charts and graphs for you, to show you exactly the type of work we do and the numbers the breakdown represents.

The Vice-Chair (Mr. David Pratt): Thank you, Mr. Hanger.

Mr. Clouthier.

Mr. Hec Clouthier (Renfrew—Nipissing—Pembroke, Lib.): Thank you very much, Mr. Chair.

André, when you appeared before us the first time, I was impressed with your optimism, and it's nice to see it hasn't been really diminished, because it's a very onerous task you've taken on.

I'm so pleased my colleague, Mrs. Wayne, came back in. Far be it from me to get into a political battle with the master herself, but now she's a bit of a clairvoyant. Now she's saying, “Oh, I know my honourable colleagues around the table agree with me”. Well, I agree with her many times, but some of the times I don't agree with her.

I'm just asking you, because I believe—correct me if I'm wrong—that Mrs. Wayne said if she sent you a question, you would reply to it. Is your mandate just for the members of the armed forces, or can individual parliamentarians contact you? Maybe I misunderstood something here.

Mr. André Marin: Individual parliamentarians have frequently turned to us to refer cases from their constituencies. We take that and follow it up directly with the constituent, not with the member of Parliament.

Mr. Hec Clouthier: Okay, but the member of Parliament would have to name the constituent?

Mr. André Marin: Yes, so that we have somebody to contact to substantiate the complaint and take it from there.

Mr. Hec Clouthier: Okay. It couldn't just be me, in a rather inoffensive way, saying, “I heard through the grapevine something happened, and I want you to investigate it”?

Mr. André Marin: No.

Mr. Hec Clouthier: Okay. I just wanted to clear that up.

I say “onerous”, and it doesn't surprise me that it's also perceived as odious in some departments and I guess with the legal field. I'd better watch what I'm saying. I know there are quite a few lawyers here, you and Barbara included. But as you well know, one of their famous lines is De minimis non curat lex, “The law doesn't concern itself with trivialities”. The lawyers in DND may consider your work in some areas trivial, but I believe it's vital.

• 1635

I know you responded to my colleague, John O'Reilly, and you mentioned something about the minister with regard to this particular difficulty you're having with the legal experts in DND. I believe it is vital that we somehow supersede this difficulty. Can you expand on that? Did you say the minister could actually intervene and do something about that?

Mr. André Marin: Well, right now the ability for us to intervene in cases is given to us through what is called the ministerial directive. Ultimately the minister can change those directives; he can improve on them; he can alter them. In fact those directives are due to be set into regulations under the National Defence Act at this stage. So now's the time to tweak the mandate.

We view the military lawyers as part of an idiosyncratic zone of immunity. Through the experience we've had, we feel this is due to be fixed by the minister.

Maybe I should give you some examples so that you see the kinds of issues that have happened. Let me tell you about one of the cases where we've been involved, one of the cases that is set to be made public in the next few days with the department's answer to it. We're investigating in that case an allegation of an inappropriate statement being made by someone in the chain of command. This again arises out of the Croatian probe that started last July.

What happened is this. You'll recall Dr. Eric Smith on the east coast, a doctor who had put a note in the medical files of soldiers, said someone destroyed the note. Afterwards someone in the chain of command pointed the finger at him as the person who had perhaps destroyed the note. His complaint was that that person who pointed the finger back at him may have been put up to it or coached by the chain of command. So he complained to us.

As we investigated the matter, the public affairs officer who pointed the finger at Dr. Smith as the person who may have destroyed the file told us he had gotten some information from a JAG officer, who we turned to and said, “Fine, out with it. Let's hear what happened.” That JAG officer indicated to us that he would consult higher-ups in the chain of command, and finally we got the answer that they would not cooperate in our investigation of that matter; we would not be provided any information.

We were able to form some conclusions in that case and effect some change, but ultimately the issue of what information was given to that public affairs officer who was implicated in participating in pointing the finger back at Dr. Smith.... We do not know to this day what happened behind the scenes. That leaves the public affairs officer who gave that advice really out to dry on his own to defend his action. It leaves the complainant out to dry. It doesn't allow us to dig in deeper, and we can't verify what happened behind the scenes. It makes the institution look as if it's covering up something, when it has a stated policy of openness and accountability. And it leaves the public wondering what is going on and whether anything has really changed. It doesn't enable us to answer all those questions, and that's why we feel this has to be decided.

Let me give you an example that happened just last week. We had a member of the Canadian Forces who was deployed to Somalia. As you know, those who have been deployed to Somalia are under consideration to receive a medal. Because of the incidents that have happened over the course of the last few years arising out of Somalia, they're very careful of who they give medals to. We understand that. They formed a special committee to vet who would get medals and who would not get medals.

This person has gone for years without hearing if he is going to get a medal or not. He feels he should be getting one, so he turned to the office and said, “Help me out. Find out whether I should be getting my medal.”

We contacted the Chief of Defence Staff office, and they were very open to us, very forthright, and said to us, “The file is now in the office of the JAG.” We called them up last week wanting an update on the status. We were not getting into spooky solicitor-client privilege issues; we just wanted to know the status of the file. It took a while to get an answer, and the answer we got basically was, “No, thank you. We're outside your mandate.”

• 1640

Ms. Finlay wrote to the Judge Advocate General last week, asked to be updated, and asked for action to follow, by yesterday, and we've had no answer to that intervention.

I mean, when you look at a benign issue such as updating us on the status of a file and the door is slammed in our face, it really makes you wonder what's going to happen tomorrow, when we have a really serious issue. We feel this needs to be fixed. We need to see some movement there. We need to find some kind of solution, because we're not able to operate as an ombudsman in this kind of climate.

The CDS office referred us to the JAG. We're getting cooperation from the Chief of Defence Staff, but we have not, to this day, been updated on the status of that file. We're troubled by that, because we're not able to assist a member of the Canadian Forces who we sent into operation on behalf of this country.

The Chair (Mr. Pat O'Brien (London—Fanshawe, Lib.)): Thanks, Mr. Clouthier.

Monsieur Marin and colleagues, I'm sorry I was unable to be here for the first half of the meeting. As I indicated to you, I had to be in Montreal on parliamentary business.

I want to thank my colleague, Mr. Pratt, for chairing the first part of the meeting.

I'm very interested now in joining our discussion and hearing the questions.

So we continue now.

[Translation]

Mr. Laurin, you have five minutes.

Mr. René Laurin: Mr. Marin, I want to come back to the statistics you gave us at the beginning of your presentation about the 1,700 complaints that have been received. Do you know how many complaints have been settled to the complainant's satisfaction?

[English]

Ms. Barbara Finlay: We have closed in the range of 1,000 cases. I'm unable to give you the exact number of those that have been satisfactorily resolved, but when we are unable to resolve a case to everyone's satisfaction, we will pursue an investigation and see if recommendations need to be made. If we did have that statistic, I would have provided it to you today. The work we're doing on our computer system will allow us to have that in the future.

I can tell you that in a high percentage of cases where we attempt informal resolutions of files, we are very successful, and in most cases both sides are satisfied with the resolution we have been able to achieve.

In cases where we are unsuccessful informally, we then proceed to more formal routes. We have a number of cases in progress now where we are conducting formal investigations that will ultimately result in reports and recommendations and will give the institution a chance to solve the problem that way.

As you will see from the formal reports we have done, when we have made recommendations, they have been, so far, accepted in principle. We're watching closely to ensure that they are implemented as intended. So far to date, I would say it has been fairly successful.

[Translation]

Mr. René Laurin: You don't have to give us a precise figure, but can you at least give us a ballpark percentage?

Mr. André Marin: More than 1,000 complaints have been settled and the majority of those were settled to the complainant's satisfaction.

Mr. René Laurin: When you say a majority, do you mean 80% or 90% of cases?

[English]

Ms. Barbara Finlay: I was never very good at guessing at ballpark—

[Translation]

Mr. René Laurin: You have no idea at all?

[English]

Ms. Barbara Finlay: —figures, but what I will do is the next time we appear, I will undertake to provide those statistics for you.

When you're talking in terms of “satisfied to the complainant's satisfaction”, we like to think of ourselves in terms of whether we are satisfied that there is a fair result, because as an ombudsman, it's our job to look at whether fair treatment was given. In some cases, the complainant may feel, because they have their own interests, that a different result should have occurred or that the results should have been faster, but we look at whether we think the person has been treated fairly.

[Translation]

Mr. René Laurin: I got the answer I was looking for. You said that 1,000 complaints out of the 1,700 received were settled. What happened to the other 700? Have they been processed yet? Are they still being dealt with or have they been dismissed?

• 1645

[English]

Ms. Barbara Finlay: I would say approximately 200 to 300 that we are dealing with at this time. The rest of the cases do not fall within our mandate and jurisdiction, for a number of reasons.

As you may be aware, the ombudsman's mandate does not extend to matters that pertain to Veterans Affairs Canada. A number of people call our office with issues pertaining to that.

We also get calls from concerned citizens who may not be constituents under the ombudsman's mandate. We are unable to deal with those cases, although we will always attempt to try to find a place where we can refer the person so that they can attempt to get some help.

We also get some calls from persons whose matter, although it may be a serious and significant one, doesn't necessarily really pertain to DND/CF. Again, that would involve referring them elsewhere because they don't come within our jurisdiction.

[Translation]

Mr. René Laurin: Does it take you long to start dealing with a complaint after you receive it?

[English]

Ms. Barbara Finlay: For the majority of complaints that are dealt with through our 1-800 toll-free complaint intakers, the intakers deal with the case immediately. Because they've actually become quite good at this since we started operations, they are often able to give the options to the person immediately. If not, they usually get back to them the same day.

If the case requires a more detailed or complex resolution, it is reviewed by me and assigned to an investigator. That may take a few days. We strive to resolve most cases within 60 days. We are working very hard to live up to that figure. In not all cases is that possible, because of the size of the institution and the bureaucracy. Sometimes it takes 60 days to get files or information we need.

As well, we're also working to increase our staffing numbers so that we can minimize the time it takes to deal with cases. We're working to bring more cases within that 60-day timeframe.

[Translation]

The Chair: Thank you, Mr. Laurin.

Mr. Bertrand, you have five minutes.

Mr. Robert Bertrand (Pontiac—Gatineau—Labelle, Lib.): I would like to welcome our three witnesses. It is always very interesting to hear Mr. Marin.

I would like to ask several little questions. Does your mandate extend to military spouses?

Mr. André Marin: Yes.

Mr. Robert Bertrand: How many of the 1,710 complaints received by your office came from spouses? For example, did you get 10 complaints about spousal abuse?

Mr. André Marin: If you look under the heading “Percentage of complaints by category”, you'll see in the tables we have prepared that 5.6% of complaints have been filed by family members. Our office has received only one complaint of spousal abuse. We believe there are two reasons why we have received only one such complaint.

First, there is the awareness issue. Many people are not aware of the fact that spousal abuse comes under our terms of reference. It is slightly ironic that the report published yesterday recommends setting up an ombudsman office. The 13 academics who authored the report didn't even know that this was part of the ombudsman's terms of reference. There is certainly a lack of awareness within the system if those professors, after doing quite a thorough research, were still ignorant of this really basic fact.

On the other hand, there is the matter of going outside the chain of command to communicate with the Office of the Ombudsman. I think people fear retaliation. Even though some people know that they can turn to our office, many do not take action because they are afraid of retaliation. Every day we find that this fear is foremost in the mind of complainants coming to our office. Callers want to know what guarantees we have put in place to protect complainants.

• 1650

Mr. Robert Bertrand: What does your office do when a spouse complains of violence? Do you call the military police?

Mr. André Marin: First, we inform the complainant of the remedies provided by the system. The ombudsman makes use of the existing remedies. When someone calls to tell us that he or she has been abused by his or her spouse, we explain how to contact the military police. We also invite him or her to call us back if there are any problems about the outcome of their case with the military police. It does happen that we open a file to make sure that we stay in touch with this person. We can also provide resources to help victims, including psychological services. Although we give ongoing support, from beginning to end, we do not try to substitute ourselves to existing remedies.

Mr. Robert Bertrand: You say you provide support from beginning to end. Once you have explained all the alternatives open to a complainant, do you call back four or five months later to find out where his or her case stands?

Mr. André Marin: Yes, we do so in some cases. Sometimes, we also invite the complainant to call us back so that we are kept informed of developments or of problems as they appear. Both scenarios are possible.

Mr. Robert Bertrand: I have many other short questions on things that puzzle me. In your presentation, you said that on the Thursday before the Easter weekend, you received 20 new complaints.

Mr. André Marin: That's true.

Mr. Robert Bertrand: Maybe you cannot talk about it, but I would like to know why this happened? Does it happen very often that you receive a greater number of complaints before a long weekend? If so, do you know why?

Mr. René Laurin: It's just like the government. [Editor's Note: Inaudible]... on leave.

Mr. Robert Bertrand: What types of complaints were they? Were these 20 complaints all of the same type or were they very different?

[English]

Ms. Barbara Finlay: They were in general the same types of complaints we normally receive. I wish I knew what the reason was for them all coming in just before a long weekend. Generally we do tend to see around holidays that persons, for whatever reasons, feel a need to deal with some of their problems. There is also a knowledge out there, increasing more and more, that the office is available to people. And it may be very well a function of persons knowing we were going to be closed over the long weekend and wanting to make sure they got in touch with us before that.

As for the real reason, I don't know. It could have been because the ombudsman was doing a really good job with his outreach efforts that day and we saw the results of that, which happens sometimes.

Mr. Robert Bertrand: But the complaints were all pretty well the same kinds of complaints.

Ms. Barbara Finlay: Well, no, they were the normal types of complaints we see in the office. If you look at the statistics, you'll see there are some types of complaints we receive a lot of. We receive a lot of issues surrounding postings, benefits—the types of issues you would expect would be important in the everyday lives of military members.

[Translation]

Mr. Robert Bertrand: I would like to come back to Mr. Laurin's question about the percentage of complaints by region. According to your criteria, if a complaint is received from a person living in Bagotville and sent to headquarters in Ottawa for determination, will it be considered as having been filed in Quebec or in Ontario?

[English]

Ms. Barbara Finlay: In the statistics that were provided to you today, that breakdown, we'd consider that a complaint coming to us rooted in Ontario.

Mr. Robert Bertrand: Oh, okay.

• 1655

Ms. Barbara Finlay: I can run these statistics on the computer system, however, to find out how many people stationed at Bagotville have come to our office. That is also available.

[Translation]

Mr. Robert Bertrand: That won't be necessary. It was just an example picked at random. Thank you. I have no further question.

The Chair: Thank you, Mr. Bertrand.

[English]

Mr. Earle, please, for five minutes.

Mr. Gordon Earle: Thank you, Mr. Chair. I want to say first of all that I'm very much in agreement with you that the problem you outlined with respect to the JAG and the solicitors has to be resolved in order for you to be completely effective in the way you should be as an ombudsman's office.

I would certainly stand on record as supporting any appropriate recommendation you would have to correct that problem and come up with a satisfactory solution.

I want to just follow up a bit on the question that was asked by my colleague, Mr. Clouthier. If a matter comes to your attention other than through a specific complainant, I gather you don't have the authority to conduct an ombudsman's own-initiative investigation, that you can't just investigate that matter on your own initiative without specifically having a complainant.

Mr. André Marin: Yes, we do have that ability. It's under that ability that we propose to do one in terms of the treatment of women. But that requires a succession of cases that raise a red flag and point to a broader problem and not just simply a letter. A simple letter may trigger it, but I think there would have to be some kind of trend or issue here that would point to a broader systemic issue.

In terms of your initial comment about resolving the issue with lawyers from the Judge Advocate General's office, we are aware of the protocols that exist in various provinces and we'd be quite happy to have any one of those protocols imported into our backyard. I mean, it's not a situation where we're taking a complete black and white, intransigent approach. We are looking to resolve this in a way that allows us to serve members of DND/CF.

If I may, I'll invite Professor Paciocco to comment. Professor Paciocco has looked at the very issue of accountability and the risks involved in not proceeding in that way, and I'm wondering whether he has any comment to add to that.

Prof. David Paciocco: I think the ability to have lawyers accountable to the ombudsman is central to the ability of the ombudsman to perform his function, because virtually every decision of substance will be vetted through lawyers. Therefore it invariably will produce a dead end.

There are two things the ombudsman is looking for. One is the ability to investigate lawyers when complaints pertain to their function, and the other is to prevent lawyers from using solicitor-client privilege too aggressively to prevent access to information.

We have observed instances in the United States, for example, in the context of the Tailhook 1991 investigation. You may remember the scandal in the United States with the navy, the party that took place, and a number of sexual assaults that occurred. The investigation into that was frustrated because individuals within the Judge Advocate General's department did not take the allegations seriously. In the end, the Judge Advocate General for the navy had to resign.

Those types of things can happen. We of course have every faith in the individuals who are currently in those offices. But the difficulty ultimately is, if and when we run into difficulty, it we don't have a solution in place, we're going to hit dead ends and we're going to be unable to solve those problems.

[Translation]

The Chair: Do you have another question?

Mr. Gordon Earle: Yes, and I would like to ask it in French, if I may, so that I can practice my French. I have noticed that a great number of complaints have been filed by members of the army. Why are there more complaints coming from the army than from the other two elements of the armed forces?

Mr. André Marin: I might be able to answer your question when our office has a bit more experience. It is hard to interpret correctly these statistics just yet. If I ventured an interpretation now, it would be pure speculation on my part. Therefore, I prefer refraining from doing so for the time being.

Mr. Gordon Earle: Thank you.

• 1700

[English]

The Chair: Okay. Thank you, Mr. Earle.

Now we come to Mr. O'Reilly, please.

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

Going back to some of the questions that have already been asked and some that I had written down that have already been covered, I had one on the 20 new complaints and the 60-day closing. Is that general, the 60-day closing of a file, or is that the maximum time you will give it?

Mr. André Marin: No, that's an objective we proposed and the minister accepted and put in the ministerial directive. It's a target. That means that if a case takes more than 60 days, we will continue, but we'll account for the additional delay.

The reason for the 60 days is that when we were setting up the office and we did some consultations with members of DND/CF, one of the things that echoed throughout those consultations was the necessity to create a system that isn't like a black hole, where the people go in and never hear from the office again.

So this is a self-imposed, 60-day turnaround that the minister accepted and put in the ministerial directives, but it doesn't foreclose us from continuing. Some cases will, by their nature, take longer than 60 days, and we accept that, but it serves as a kind of benchmark. People expect it to be done within 60 days. If we can't do it, we'll account for why.

Mr. John O'Reilly: I want to stay away from the legal end of it, because I know you're going to have to have some sort of mechanism put in place to resolve that, and I think that will come from the minister.

But in my own case—I think I've referred at least four cases directly to the office—all were well received and were successful in that they received an answer and were treated very professionally. I wanted to put that on the record.

Mr. André Marin: Thank you.

Mr. John O'Reilly: So I think the one side, maybe the most important side, of your office is very successful, and I agree with your analysis on that. As I said, I'm going to set aside the legal department, because I think we beat that up pretty well, and I don't think we're going to get an answer here, other than the fact that the minister is going to have to deal with it.

My other question is, do you want to expand to Veterans Affairs?

Mr. André Marin: We haven't made that proposal because we have so much business right now at National Defence. What we have done is, on a very selective basis depending on the case, depending on how compelling the case is, we have informally approached the Veterans Affairs department, and they've been amenable to our getting involved in select cases. We're not seeking extension of the mandate in that direction, because we already have so many other things to deal with at National Defence.

Mr. John O'Reilly: I wanted to thank you for not getting into the political hotbed of the Sea King helicopters that are due to be replaced in 2005. I think the ratio is 30 hours of maintenance for one hour of flying. The pilots I interviewed—and I thought they might have a case—indicated that their orders are not to fly anything that isn't safe, so their question is not one of safety. I just want to thank you for not getting into that political hotbed.

Thank you, Mr. Chairman.

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

Mrs. Wayne is next, please.

Mrs. Elsie Wayne: I was so glad to hear my colleague say that, since it tells me we won't have a thing to worry about—if they're not allowed to fly them when they're not safe, then they're all grounded. There won't be a pilot up in the air. I have to tell you that, because I want my colleague to know that it is the fathers of the pilots who have been calling me asking me to fight tooth and nail to replace them for their sons. That's just so you know.

Mr. John O'Reilly: Just keep pushing. I think we all are.

Mrs. Elsie Wayne: Anyway, I see from the ombudsman in the report that he's had four cases when it comes to safety. I'm not sure whether that was safety factors with regard to what they're flying or driving or what, but there were four cases under the types of complaints you had that dealt with safety. So I figure that somewhere along the line you had to be dealing with some of these issues.

What I'd like to know, politics being what they are, is whether you can assure us tonight that politics do not interfere with your role.

Mr. André Marin: That's correct.

Mrs. Elsie Wayne: Okay. When it comes to the lawyers—and as our colleague has stated, you know, we've really pointed fingers at them—let's face it, when they're hired, no matter by which government, those lawyers are usually there to protect the government. So that must make it most difficult for you.

• 1705

Mr. André Marin: Yes, you've again pointed to the dynamics involved. It's something Professor Paciocco may want to comment on.

Prof. David Paciocco: I think it's natural to expect that lawyers are going to pose resistance when there is the potential for criticism of decisions that get made, and they're going to take advantage of whatever technicalities may be available to them. The concern of the Office of the Ombudsman is to deal with matters of substance and questions of policy, and to provide real solutions. Certainly it's a source of frustration when technical objections prevent decisions from being made properly, and hence the attention that is being paid in the presentation today to the role of lawyers.

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

The Chair: Thank you, Mrs. Wayne.

That has been two rounds. At this point the chairman usually gets to ask a couple of questions, so I'd like to do that if I can. I don't think they're controversial.

First of all, on the Sea Kings, I know we're not going to get into it, but Mrs. Wayne knows that both sides of the table are really anxious to see the new helicopters, and we look forward to them as well. We're all getting a lot of expressions of interest on that, but that's not for you today, sir.

I believe on both sides of the table here there's quite a bit of goodwill and support for your office and the good work you're doing. That's been noted by my colleague, Mr. O'Reilly, and maybe others before I was able to join the meeting. We're going to entertain, at another meeting when we have a full committee, a motion to support and strengthen your office.

It's clear that you feel there are some impediments. If you've answered this, my apologies, but in case you haven't answered it, what are the major impediments to you doing your work more fully to serve the Canadian Forces members? Can you suggest some ways we can alleviate that situation?

Mr. André Marin: We publicly presented a report on December 16, 1999, which was the six-month mark of the operation of our offices. It talked about the kinds of areas where we'd like to see some tweaking and improvement of the mandate, so we can better serve members of DND/CF.

I think the one area we've talked about today that needs to be addressed, one way or another, is the way our relationship with lawyers is going to work at DND/CF. Right now military lawyers and other lawyers in the department are part of what we refer to as a zone of immunity. This makes them really untouchables. Whether it's a complaint against lawyers or a complaint that requires their cooperation, they are in a category we can't touch.

We feel that's not feasible to the kind of work we're doing. If you're going to create a category for lawyers, why not one for accountants, dentists, whatever? Why stop at lawyers? We feel there's no justification for that. That's really the main area we're looking at changing. We don't think that interferes with solicitor-client privilege or other types of privileges.

As far as other positions we've put forth, they deal with, for example, public reporting by the ombudsman and not through the minister. Again, we don't view this as an issue—and I'll ask Professor Paciocco to comment when I'm done—but it's been raised that around this table and elsewhere this may raise issues of accountability. In terms of accountability issues, we believe we're striving to make the office more responsive to the welfare and the needs of DND/CF. I would invite members to review the report and review the kinds of areas we're putting forth as required on top of that. Those would be the main areas.

• 1710

Prof. David Paciocco: I think it's very important for anyone who considers the mandate of the ombudsman to understand how the ombudsman operates. The ombudsman provides informal dispute resolution and also makes recommendations based on findings of fact. The ombudsman is not in a position to direct anybody to do anything.

The ombudsman depends on moral suasion to convince individuals about the quality of the decisions that have been made, and so it's a matter of some frustration when attempts to improve the mandate of the ombudsman are met with objections based on accountability. The phrase that is sometimes used is, will that raise fundamental issues of accountability?

Individuals within the chain of command don't want to have to answer, in some cases, to a civilian oversight body and they're concerned that he's going to step on their toes at times. I think what's very important to bear in mind is that he cannot make them do anything. All he can do is make open and transparent what they do.

One of the things we have encountered is that the ministerial directives in some respects stop short of compelling individuals to provide information to the ombudsman. They're worded in a way that says individuals should provide information to the ombudsman. That is done, again, simply because of the sensibilities about who has to answer to whom, and it's our view that in order for the ombudsman to be able to get to the bottom of every problem, everyone should be required to cooperate. So an additional difficulty has to do with whether or not there should be compelled cooperation or voluntary cooperation.

The Chair: Thank you.

I want to be sure I heard your answer to my colleague, Mrs. Wayne's, question earlier. She asked whether you had experienced any political interference in your role, and I understood you to say you had not.

Mr. André Marin: The minister has been extremely respectful of the arm's-length relationship. The minister and I meet about once a month, usually at my request. He has a very busy schedule and so often it's at my insistence. I can't remember the last time I actually met him. I think it was very early April. So he has been very respectful of the arm's-length relationship and basically leaves me to my own devices.

When I make statements, or I appear here, or in what I say or do, it's entirely up to me and I'm accountable and responsible for that. I can't imagine any additional liberty I could have. I think the minister is very respectful. He understands the need to allow me to do my job, and I'm very thankful for that.

The Chair: Thank you.

That confirms what I've gathered in talking one to one with the minister as chair of this committee. I think he values your office very much and the work you're doing, and I think you'll see a continuance of that support.

I think probably this committee wants to go on record as having a motion of continued support for your office, and we're going to pursue that when we have a full committee in the near future. That's my sense, anyway, of what I've heard from colleagues here and from the minister.

I appreciate your perception.

We'll start another round now. We don't have time for a five-minute round, and in fairness, to give everybody a chance, I'm going to ask each colleague to have one question and give everybody a chance. We'll keep on going if there's time.

We'll start with Mr. Hanger.

Mr. Art Hanger: Thank you, Mr. Chairman.

Mr. Chairman, to clarify my position as a member of this committee and whether or not I accept the role of the ombudsman as it exists, I think, in all fairness, I would like to see a little more and hear a little more before I offer any support to what Mr. Marin proposes.

I think one of the proposals you have come forward with—correct me if I'm not reading it right, Mr. Marin—is that the JAG's office should answer to the ombudsman's office.

Mr. André Marin: No, not at all.

Mr. Art Hanger: I understand the professor here, Mr. Paciocco, indicated that lawyers should be answering to your office.

Mr. André Marin: No. Professor Paciocco would you like to clarify that.

Prof. David Paciocco: Yes, I certainly will.

There's a difference between answering questions about decisions that get made within the JAG and being answerable to the ombudsman's office such that the ombudsman can say no, don't do that. No one's suggesting that the lawyers should be answerable in the sense that Mr. Marin can tell them what to do.

• 1715

What we're seeking, however, is the ability for the office to deal with complaints about the way in which lawyers handle their function, so if there are problems, in terms of the policies that are implemented, or the decisions result in unfairness to members of DND/CF, there will be an independent impartial body that those people can turn to. That body will be able to look at the circumstances and say, “I'm sorry, complainant, you're wrong, you were dealt with appropriately”, or “We do see a problem here. Perhaps the JAG could do this or that in the future.” To the extent that might meet your definition of accountability, perhaps I'm suggesting they be accountable, but we're not suggesting for a moment that the lawyers have to answer to Mr. Marin before they make a decision, or necessarily accept any observations he might make.

The Chair: I'm just going to give everybody a chance, then we'll come back to you.

Mr. Art Hanger: I may have a point of order on this particular discussion.

Don't you think it would be advisable for this committee, instead of just jumping in and saying we support any proposal Mr. Marin may want to put forward here, to sit down with other members of DND, these pockets of resistance that he refers to in his report, like the JAG? We're on a fact-finding mission here, and I don't think Mr. Marin would really want us to, carte blanche, just support every one of the motions or positions he has until we've heard from the other side.

The Chair: I take your point. It's not really a point of order, but I take your point. We have tabled Mr. O'Reilly's proposed motion, so we'll take your point and have a discussion about when we want to entertain that motion, or any other motions that might flow out of Mr. Marin's presentation here today. If the committee is saying it wants a little more time and information, we will all discuss that and come up with a consensus.

Are there any questions on this side? No?

[Translation]

Mr. Laurin, please.

Mr. René Laurin: Mr. Chairman, I have handed Mr. Marin a copy of the motion we will be debating. However, I don't think the debate will take place today. We were told that it would probably have to wait until our next meeting because we wanted you to be here. But since this committee's proceedings are intended to help the ombudsman improve his position and his efficiency, I would like him to give us his opinion on the motion we will be passing. Does he think that this motion goes far enough to help him improve his lot? Is it a step in the right direction or should we be looking at something else? I would like to hear your view on the matter.

Mr. André Marin: I think that this motion will be very useful if the version that has been handed to me is passed without amendments, because it would show that this committee recognizes the importance of our work and supports us in the way we carry it out. In this sense, it would be very useful to us.

Mr. René Laurin: The motion simply says that we give our unqualified support for the continued evolution of an effective office. Will it bring changes to your work overnight? Will it change the way your work is carried out?

Mr. André Marin: Which line are you reading?

Mr. René Laurin: I was using the French text.

Mr. André Marin: Yes, but which line?

Mr. René Laurin: It is the second line. Let me read it to you:

That SCONDVA affirms its unqualified support for the continued evolution of an effective office of the Ombudsman.

Mr. André Marin: Yes.

Mr. René Laurin: The resolution doesn't say more. I don't want to initiate a debate now because our committee will have one later, but the motion says that we agree you should keep on improving and giving better service. Is this motion giving you the tools you need to do so? This is something else. I would like to hear your views.

Mr. André Marin: I think the point you're making is quite valid, but I don't want to encroach on your responsibilities. If you think that the motion should go further, please do word it accordingly. Personally, I'm satisfied with the motion as it reads because I believe that it recognizes reality. It recognizes that the office will keep on evolving. The transition from terms of reference to regulations will enable us to move forward, but in a year or two, maybe another shortfall will be found and we will need to evolve some more.

• 1720

I think that the Office of the Ombudsman evolves along with society's habits, customs and practices and that when these evolve, the terms of reference of the office have to be reviewed. In other words, I accept the fact that there will be continued evolution, but as I say, I do not want to encroach upon your responsibilities.

Mr. René Laurin: You are one patient man.

Mr. André Marin: Yes.

Mr. René Laurin: You are willing to wait.

Mr. André Marin: I will be satisfied with this first step.

The Chair: Thank you. Thank you, Mr. Laurin.

[English]

Mr. Earle, do you have another question?

Mr. Gordon Earle: Yes.

I realize that a lot of the work of an ombudsman is done quite often through correspondence, by telephone, and so forth. I also realize that there are some very sensitive issues where face-to-face contact with the complainant is necessary. Does your office have the capacity to have your officials travel to the different parts of the country to meet with people in those very sensitive cases?

Mr. André Marin: Yes. We've done that.

Mr. Gordon Earle: Good. So there's no problem resource-wise in doing that?

Mr. André Marin: No.

Mr. Gordon Earle: Do you have any vision of setting up branch offices at some point?

Mr. André Marin: Our original proposal was that there would be some kind of regionalization. Formally, that hasn't been provided for initially, but I can tell you we've regionalized informally in the sense that we've hired people in the regions as opposed to getting people to travel out there. We've hired people in the regions either full-time or part-time, and that's helped us provide a local presence. It's helped us deal with the regional caseload.

Mr. Gordon Earle: Thank you.

The Chair: We'll come back to Mr. Hanger.

Mr. Art Hanger: Going through this list of complaints, I know there are provisions established within the military to deal with pretty much every category you have here.

Mr. André Marin: Yes.

Mr. Art Hanger: You would refer benefits. It would be a referral. They would resolve the case, I would assume, 99% of the time. Do you resolve 99% of those cases for the complainant?

Mr. André Marin: No. What we would do is refer the complainant to the existing mechanism. It's part of the way the ombudsman functions.

Ms. Barbara Finlay: In a number of cases, if they're not happy with the end result when they are finished dealing with that existing mechanism, they then come back to us and ask us to take a look at the matter to assess whether they've been treated fairly or not.

Mr. Art Hanger: Isn't that just another cog in the gear? You're just adding another cog in the gear in many of these situations, where there's already a system in place to deal with most of those provisions, even the appeal, if you will.

Ms. Barbara Finlay: We're not a court of appeal. In instances where someone is being denied something or being treated in a certain way because that is the way the policies and procedures say they are supposed to be treated—we have had these cases referred to us by the chain of command—what we can do is look at those policies and procedures even after the formal system is done dealing with the individual case. We can say their complaint was denied because all the rules were followed, but are these rules fair? Are they resulting in fair treatment? That's where we bring the added value to the system that doesn't necessarily come from the other parts of that wheel.

Mr. Art Hanger: In cases of a sexual assault, a criminal offence, you have investigated, or you have on the list here at least, 20 cases that are criminal in nature. What did you do with those cases?

Ms. Barbara Finlay: In some of those cases, we will explain the options, including going to the military police. Some of the cases, like the case of Ms. Babos, our first public report that was released, involved complaints about how the military police were dealing with the person in the course of their investigation. In other cases we will look at how the chain of command has treated the individual.

One of the unique experiences for a military member who is sexually assaulted or is the victim of domestic abuse, for example, is that not only do they wind up interacting with military police authorities, but there is also a chain of command in place. We can look at whether they have provided appropriate treatment to this person. Military members quite often find that all aspects of their lives are affected by their role as a member. Therefore, even if someone comes to us with a report of a criminal offence, there may be other aspects to their problem where we can get involved to assist and resolve that for them.

• 1725

Mr. Art Hanger: Spousal abuse was a big issue in the House today, and yet I don't see that down here in any such category on your list of complaints that you've investigated. Why?

Mr. André Marin: We had one case.

Mr. Art Hanger: One case?

Mr. André Marin: One case.

Mr. Art Hanger: One case, and yet this report that came out today was extremely condemning of the military, of cover-up. Did you find that?

Mr. André Marin: Well, we had one case, and we attribute that to two things. One is the question of education as to our mandate. One of the recommendations made by the study is that there would be an ombudsman's office created to assist these people. There has been an ombudsman's office in place for two years, and they are part of our constituency. So I think there's an issue of education involved there.

If 13 professors get together for several years to do a study, and part of the conclusion is that there should be an ombudsman's office open to spouses, we are the—

Mr. Art Hanger: So you've actually rejected such cases, then, have you, of spousal abuse, because it's not part of your mandate?

Mr. André Marin: No, we just have not had such complaints.

Mr. Art Hanger: Okay.

The Chair: I'd just like to add that as I understand it, subject to correction, one of the recommendations of the authors of this report was that an office of the ombudsman be created. Is that correct?

Mr. André Marin: That's right, yes.

The Chair: It already exists, obviously, so unfortunately it seems some of the people who are investigating spousal abuse, as well as, I guess—and I can't imagine, but it seems to be so—even some members of the forces either don't know that Mr. Marin's office exists or are not availing themselves of the good services he's there to offer them.

Unless Mr. Earle has a final question,

[Translation]

Mr. Laurin.

Mr. René Laurin: Mr. Marin, DND has made a decision, but I don't know at which level that decision was made. It affects our troops deployed abroad in what is called a theatre of operations where they usually get a risk premium. Their pay is slightly higher because they are stationed in a combat zone.

On March 15, it was decided that this premium would not be paid to the troops who will be deployed in Bosnia next fall. When this happens, could a member of the Forces dissatisfied with this decision complain to the Office of the Ombudsman? He could complain on his own behalf even though he would not be the only person affected by this decision. All his fellow members deployed in Bosnia will be in the same boat.

My question is twofold. Do you have the authority to deal with such a complaint and could this complaint be considered as a class action?

Mr. André Marin: If a person feels that he or she is being treated unfairly, that person can complain to the office. Therefore, a person who feels that a policy is unfair can lay a complaint and we will review it. As far as a class action is concerned, once again, anyone who thinks that he or she is being unfairly treated by the Canadian Armed Forces has a right to file a complaint at the office. I see no difficulty.

Mr. René Laurin: I hope you understand my question. I'm thinking of someone who is dissatisfied, who is against the new rule because, after all, DND has changed the rule. DND has decided that it will not pay a risk premium from now because Bosnia will not be considered a danger zone anymore. The decision has been made. Is it possible to appeal such a decision to your office?

Mr. André Marin: Strictly speaking, no, because we are not an appeals tribunal for decisions made by the executive. However, if a person believes that a decision has caused personal or systemic unfairness, that person can complain to our office. We must then decide whether it is simply someone using the office to appeal an executive decision of the department. If so, we will not follow up on the complaint. But, if there is one aspect of the complaint that relates to individual or systemic unfairness, then we can act.

Mr. René Laurin: In the example that I gave, would you say that this complaint could be dealt with by your office?

• 1730

Mr. André Marin: Offhand, I would say no, because the problem you described seems to be of a purely administrative nature. But it always depends on the way the complaint is presented and the personal consequences involved.

The Chair: One question, Mr. Earle, please.

[English]

Mr. Gordon Earle: I have a very quick comment on the spousal abuse issue.

For those who know something about that issue, it's a very sensitive issue, and it doesn't surprise me that your office has not received complaints on it, the same way as lots of times these matters don't even go before the court.

People have to be comfortable in complaining about those issues, and it may well be that at some point, as you say, it's a matter of education. It may even be that you might want to designate a particular person within your office as a specialist to deal with those kinds of cases. That quite often gives the public a sense of confidence in coming forward on those issues.

It has been done in other ombudsmen's offices, where they've designated a person for children's concerns or special issues. So there are several ways to approach that. But the mere fact that the complaints have not come forward doesn't indicate that the issue is not as serious as the report would indicate.

Mr. André Marin: That's a fair comment. I can tell the member that we're currently in a job staffing process where we are looking for people with specialized knowledge in areas, and that is one area.

Professor Paciocco, do you have something to add to that?

Prof. David Paciocco: I was simply going to make the same point, that we cannot misinterpret the absence of complaints about spousal abuse to the ombudsman's office as evidence that it doesn't exist. In a situation where there's ongoing abuse, no one is going to go to the ombudsman and say, can you mediate between me and my husband?

That is the advantage of having the opportunity to do a systemic investigation, where you can try to find out what mechanisms and support are available to deal with this kind of problem, and that's exactly why an office like the Office of the Ombudsman provides good value for this kind of problem.

The Chair: Thank you.

I'll make the last comment.

I certainly agree with that. I didn't mean to suggest that because people are not bringing the complaints, there isn't a problem. But they have to bring the complaints. We probably experience the same thing in society at large. There's probably a bigger problem than people make known through launching complaints. They have to go and make that complaint.

But I think it's important to remember that this very report calls for the creation of an office that already exists. So while that offers some valuable observations, it also needs some scrutiny as well, because that's one obvious oversight in that particular report. I'm not denigrating it in any way; it's just a fact.

Mr. Marin, I want to thank you, Ms. Finlay, and Mr. Paciocco very much for being here today, for sharing an update with this committee. We hope to see you on a regular basis.

I think I can say for all members of the committee, for the good work you have done and are doing, thank you very much. We very much support what you're doing, and I believe so does the minister and so does the government.

At some point in the near future, after the members of the committee have had a chance to caucus, if you will, we're going to come forward with a motion that we feel will express support for your office and for the work you do.

Thank you very much.

Mr. André Marin: Thank you.

The Chair: Colleagues, the committee is adjourned.