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Ministerial Directives
Construction
- Nothing in these directives shall be construed as restricting the
authority of the Minister to make requests of, or give direction to,
the Ombudsman on matters with respect to the Department of National
Defence (DND) or the Canadian Forces (CF).
- The headings contained in these directives are included to assist
in the organization of its provisions, and are not intended in any way
to influence the interpretation of any of its sections or subsections.
Ombudsman Mandate General Duties and Functions
-
- The Ombudsman shall, on the Minister’s behalf,
- act as a neutral and objective sounding board, mediator, investigator
and reporter on matters related to the DND and CF;
- act as a direct source of information, referral and education
to assist individuals in accessing existing channels of assistance
and redress within the DND and CF; and
- serve to contribute to substantial and long-lasting improvements
in the welfare of employees and members of the DND and CF community.
- The Ombudsman shall be independent from the management and chain
of command of the DND and CF and shall report directly to and be
accountable to the Minister.
- If a complaint is made to the Ombudsman about the handling of
a complaint or complaints by or under an existing mechanism referred
to in subsection 13(1), the Ombudsman may review the process only,
to ensure that the individual or individuals are treated in a fair
and equitable manner.
- While conducting a review under subsection (3), the Ombudsman
shall not act in a manner that interferes with or obstructs an authority
responsible for administering an existing mechanism in the discharge
of the authority’s statutory duties.
- The Ombudsman
- shall investigate any matter referred to the Ombudsman by written
direction of the Minister; and
- may, subject to these directives, on the Ombudsman’s own
motion after advising the Minister, investigate any matter concerning
the DND or CF.
- The Ombudsman shall be bound by any general policy directives affecting
the activities of the Ombudsman that are issued and made public by the
Minister.
- The Ombudsman shall be responsible for the Ombudsman’s own communications
and media relations and the Director General Public Affairs of the DND
shall be available to provide communications assistance to the Ombudsman
upon request.
Delegation
- Any of the powers, duties or functions of the Ombudsman under these
directives, other than the power of delegation and the duty or power
of submitting or publishing reports under section 38, may be delegated
by the Ombudsman to any member of the Ombudsman’s staff.
Staff, Representative and Advisors
- All members of the Ombudsman’s staff shall, on appointment,
swear an oath of secrecy.
- Except as otherwise provided or the context otherwise requires, the
provisions of these directives that apply to or in respect of the Ombudsman
apply to or in respect of the representative of the Ombudsman and the
staff of the Ombudsman while performing duties or functions on behalf
of the Ombudsman.
- Subject to any administrative framework established by the Minister
in respect of the Ombudsman’s office, the Ombudsman may engage
such technical and professional advisers as the Ombudsman considers
necessary for the proper conduct of the Ombudsman’s activities.
Budget
- The budget for the office of the Ombudsman shall be reported as a
separate line item in the DND’s estimates and shall be set out
in the annual report that is prepared by the Ombudsman in accordance
with paragraph 38(1)(a).
Right to Complain
- Any of the following persons may bring a complaint to the Ombudsman,
directly and free of charge, where the matter complained about relates
directly to DND or the CF
- a member or former member;
- a member or former member of the Cadets;
- an employee or former employee;
- an employee or former employee of the Staff of Non-Public Funds,
CF;
- a person who applies to become a member;
- a member of the immediate family of a person referred to in paragraphs
(a) to (e); or
- a person who, pursuant to law or pursuant to an agreement between
Canada and the state in whose armed forces the person is serving,
attached or seconded as an officer or non-commissioned member to
the CF.
Existing Mechanisms
-
- Except in compelling circumstances, the Ombudsman shall not deal
with a complaint if the complainant has not, within the applicable
time limit, first availed himself or herself of one or more of the
following existing mechanisms available to the complainant
- the CF redress of grievance process;
the public service grievance and complaints process;
- the Security Intelligence Review Committee; or
- the complaint process under Part IV of the National Defence
Act.
- For the purpose of determining whether there are compelling circumstances
under subsection (1), the Ombudsman shall consider if
- access to a complaint mechanism will cause undue hardship
to a complainant;
- the complaint raises systemic issues; or
- the complainant and the competent authority agree to refer
the complaint to the Ombudsman.
- For the purpose of paragraph (1)(b), the public service grievance
and complaints process includes formal complaints mechanisms and
rights of appeal under the Public Service Employment Act, rights
of grievance and appeal under the Public Service Staff Relations
Act, review and appeal procedures in relation to workers compensation
under the Government Employees Compensation Act and rights of appeal
to Management Review Boards of the public service health and dental
plans.
Limitations
- The Ombudsman shall not investigate any complaint or matter relating
to
- a military judge, court martial or summary trial;
- the exercise of discretion in laying charges by the chain of
command or the CF National Investigation Service or in preferring
charges by the Director of Military Prosecutions;
- matters which are the exclusive jurisdiction of the Treasury Board
as the employer and bargaining agent, under the Public Service Staff
Relations Act;
- the review of the foreign signals intelligence and information
technology security activities of the Communications Security Establishment;
- occurrences prior to June 15, 1998, unless the Minister considers
that it is in the public interest, including the interest of employees
or members of the DND or the CF as a whole, for the Ombudsman to
deal with the matter;
- any legal advice to DND or the CF, employees of DND, members
of the CF or the Crown, by a person acting as legal counsel in relation
to any matters or any proceeding;
- professional conduct and professional standards under the jurisdiction
of a Bar of a province; or
- military police that is being dealt with under Part IV of the
Act.
- The Ombudsman will not purport to perform the function of the Military
Police in investigating any matter in which there may be an allegation
of criminal activity. (See Annex B)
- If the subject-matter of a complaint being considered by the Ombudsman
falls within the jurisdiction of Veterans Affairs Canada or the Veterans
Review and Appeal Board, the Ombudsman shall not deal with the complaint
but may refer the matter to Veterans Affairs Canada and advise the complainant
of that action.
Disposal and Investigation of Complaints
- The Ombudsman shall attempt to resolve problems at the level at which
they can most efficiently and effectively be resolved and shall make
recommendations to the lowest level of authority that can effect the
change considered necessary by the Ombudsman.
-
- The Ombudsman may refuse to deal with a complaint or may discontinue
dealing with a complaint at any stage if the Ombudsman considers
that it is in the public interest to do so.
- For the purposes of subsection (1), the Ombudsman shall consider
the following factors
- whether the complaint is frivolous or vexatious;
- whether the complainant lacks sufficient personal interest
in the matter;
- the age of the complaint;
- the amount of time between when the complainant became aware
of the matters giving rise to the complaint and when the complaint
is received by the Ombudsman; and
- the need for a judicious and efficient use of the Ombudsman’s
resource
-
- Subject to sections 14 and 15, the Ombudsman may report complaints
of abuse or delay related to the administration of
- the Code of Service Discipline to the competent authority
including the Chief of the Defence Staff (CDS), the Judge Advocate
General, the Provost Marshal or the Military Police Complaints
Commission; and
- the public service discipline processes to the competent
authority including the Deputy Minister.
- The competent authority should inform the Ombudsman of any steps
that are taken to remedy the abuse or delay.
-
- If an investigation is necessary to carry out the Ombudsman’s
mandate in connection with a complaint received by the Ombudsman,
the Ombudsman shall thoroughly investigate the complaint.
- The Ombudsman shall attempt, with the full and complete co-operation
of all parties, to complete an investigation within 60 days of its
commencement.
-
- If, in respect of a complaint, the Ombudsman concludes that a
formal inquiry, including a board of inquiry under subsection 45(1)
of the National Defence Act is necessary and appropriate, the Ombudsman
may refer the matter to the competent authority.
- The competent authority shall
- inform the Ombudsman of the results of the formal inquiry
including any action taken, and refer the matter back to the
Ombudsman to be dealt with as the Ombudsman considers appropriate
in accordance with these directives; or
- if a decision is taken that no formal inquiry is to be convened,
inform the Ombudsman of that fact and the reasons for the decision.
Units Deployed on International Operations
-
- If the investigation of a matter by the Ombudsman involves a
unit that has been deployed in international operations, the Ombudsman
shall
- inform the contingent commander of the investigation prior
to its commencement;
- keep the contingent commander or the commander’s designate
informed about the progress of the investigation;
- request from the contingent commander or the commander’s
designate that a liaison person be assigned to represent the
contingent commander and provide advice to the Ombudsman on
any impact the investigation may have on the operational mission;
- carry out the investigation while being sensitive to the need
to minimize the impact on the operational effectiveness of the
contingent; and
- where appropriate, seek the advice of the contingent commander
or the commander’s designate concerning the matter referred
to in paragraph (d).
- Visits by the Ombudsman to an operational theatre shall occur
only where there is a serious and urgent need having regard to the
necessity to protect the safety and security of the personnel deployed.
- The determination of the serious and urgent need under subsection
(2) shall be made by the CDS by weighing the competing priorities,
including the need to support the Ombudsman’s activities,
the need to avoid impacting on operational priorities and the need
to protect the safety of all personnel.
- Investigations by the Ombudsman must not impede the operational
mission of contingent commanders, but notwithstanding that aim,
must be completed in a credible, responsive, independent and professional
manner.
- If the matter of the Ombudsman being effectively able to carry
out an investigation without impeding the operational mission of
a contingent commander cannot be resolved to the satisfaction of
the Ombudsman and the contingent commander, the contingent commander
shall refer the matter to the CDS for direction.
- If the investigation of a matter by the Ombudsman involves a
unit that has been deployed in domestic operations, subsections
(1) to (5) also apply in respect of the investigation but a reference
to a commander in any of those provisions shall be read as a reference
to the joint force commander.
Criminal Act or Breach of the Code of Service
Discipline
-
- If at any time during the course of dealing with a matter, the
Ombudsman finds that there is evidence of
- a criminal act or a breach of the Code of Service Discipline
committed by any employee or member, the Ombudsman may report
the matter to the Provost Marshal; or
- a criminal act committed by a person who is not subject to
the Code of Service Discipline, the Ombudsman may report the
matter to the competent authority.
- When the Ombudsman investigates a matter that is related to a
Military Police investigation into an alleged criminal or Code of
Service Discipline offence, the Provost Marshal has priority in
the interviewing of witnesses.
Access and Confidentiality
-
- The Ombudsman may be denied access to information for reasons
of security in accordance with government security policy.
- The Ombudsman may be denied access to facilities, employees,
members or information for only as long as it is justified for operational
requirements.
- If any person objects to providing access to facilities, employees,
members or information to the Ombudsman on the basis of compelling
operational or security requirements, the Ombudsman may request
a review of the objection by the competent authority
- up to the CDS when the objection is based on operational requirements;
or
- up to the CDS or Deputy Minister when the objection is based
on security requirements.
- If the Ombudsman is not satisfied with the explanations provided
by the competent authority for not providing access to the Ombudsman
to facilities, employees, members or information, the Ombudsman
may, after reasonable notice to the Minister, submit a report under
section 38 relating the Ombudsman’s concerns on the denial
of access.
-
- Access to any document, record or personnel by the Ombudsman shall
be subject only to the privileges arising under the legislation,
policy and privileges referred to in Schedule 1.
- Documents, records and information received by the Ombudsman
shall be treated in a manner consistent with the legislation, policy
and privileges referred to in Schedule 2.
- Communications between the Ombudsman and any person shall not be covered
by or counted against any restrictions on that person’s right
to send letters, documents or correspondence or to receive or make telephone
calls.
-
- The office of the Ombudsman shall be operated in a confidential
and secure manner so as to protect the information received by the
office in the course of its operations.
- Except as otherwise authorized by law,
- no communication to the Ombudsman or information provided
to the Ombudsman in any form shall be disclosed by the Ombudsman,
except where it is, subject to these directives, necessary for
an investigation, report or other authorized purpose; and
- communications between the Ombudsman and any person in relation
to the duties and functions of the Ombudsman are private and
confidential.
Assistance to the Ombudsman
-
- The DND and CF as institutions, and all levels of authority within
them, shall provide the Ombudsman, in accordance with the law and
consistent with operational and security requirements, with all
the support, assistance and co-operation required by the Ombudsman
to perform the duties and functions of the Ombudsman.
- Employees and members shall facilitate the work of the Ombudsman
unless legal requirements or compelling operational or security
priorities dictate otherwise.
- For the purpose of this section, co-operating fully with and
facilitating the work of the Ombudsman includes providing the Ombudsman
within a reasonable time in the circumstances having regard to any
legal requirements or compelling operational or security priorities
that dictate otherwise
- direct access to the facilities, employees and members;
- information; and
- copies of documents or other things.
- If a request for information or assistance from the Ombudsman
cannot be accommodated, the person responsible for giving effect
to the request shall report the circumstances to the commander of
the command, group principal or senior manager, as appropriate,
as soon as is reasonable in the circumstances.
- An employee or member who receives a request for information or
assistance directly from the Ombudsman may consult his or her manager
or commanding officer within such time as is reasonable in the circumstances
so as not to cause undue delay in permitting the duties and functions
of the Ombudsman to be exercised in relation to the matter.
- To the extent that operational requirements permit, the DND and CF
shall make personnel available as requested by the Ombudsman in order
to provide specialized knowledge or expertise to assist the Ombudsman
in the exercise of his or her mandate.
-
- The Military Police shall, on request of the Ombudsman, provide
the Ombudsman with copies of documentation and information relating
to the investigation that has been or is being carried out by the
Military Police in connection with a matter where
- the investigation has been completed; or
- providing access to the Ombudsman would not impede or compromise
the investigation.
- Where access is denied, the Provost Marshal shall provide the
Ombudsman with a report explaining why the provision of access to
the Ombudsman would impede or compromise the investigation.
Refusal or Failure to Assist the Ombudsman
-
- No employee or member shall, without lawful authority, wilfully
- refuse or fail to comply with any lawful request of the Ombudsman
made in connection with the performance of the Ombudsman’s
duties and functions;
- make any false statement or attempt to mislead the Ombudsman
in the performance of the Ombudsman’s duties and functions;
- fail to forward immediately to the Ombudsman’s office,
unopened and unread, communications directed to the Ombudsman
from any person who
- resides on any CF base or is with any Wing or Formation
or who is deployed by the CF or is a member of the person’s
family, or
- is in detention, incarceration or is hospitalized;
- fail to forward immediately, unopened and unread, communications
from the Ombudsman to a person referred to in paragraph (c);
- intercept by electronic or other means communications between
the Ombudsman and any person in relation to the duties and functions
of the Ombudsman;
- obtain access to records of the Ombudsman of internal or external
communications to or from the Ombudsman;
- obtain access to the electronic or other data storage facilities
used in connection with the Ombudsman’s duties and functions
that are separate from the electronic or other data storage
system provided to the Ombudsman’s offices by the DND
or CF;
- take steps to breach the confidentiality or privacy of any
communication made to or information in the possession of the
Ombudsman;
- discriminate, retaliate or take an adverse action against,
or impose an adverse consequence on, any person as retribution
or reprisal for bringing in good faith a complaint forward to
or lawfully co-operating with the Ombudsman in relation to the
Ombudsman’s duties and functions; or
- make comments that a reasonable person would know are likely
to compromise or prejudice the integrity of a review or an investigation
being carried out by the Ombudsman.
- A person who contravenes subsection (1) shall be considered to
have obstructed, impeded or interfered with the Ombudsman in the
execution of the duties and functions that the Ombudsman is required
to perform.
-
- If any employee or member has failed to co-operate fully with
and facilitate the work of the Ombudsman or has acted in a fashion
so as to obstruct, impede or otherwise interfere with the Ombudsman
in the execution of the duties and functions that the Ombudsman
is required to perform, the Ombudsman shall report the matter to
the authority responsible for the employee or member, including
the Deputy Minister, CDS or the Provost Marshal and the report may
contain such recommendations in connection with the matter as the
Ombudsman considers necessary.
- The authority referred to in subsection (1) who receives the
report shall advise the Ombudsman of the steps that have been or
will be taken in response to the report, including the reasons for
taking those steps, or if it is determined that no steps are to
be taken, the reasons for that determination.
- If an investigation is conducted by any person or body pursuant
to a report made by the Ombudsman, the person or body shall, on
completion of the investigation, provide the Ombudsman with a report
of the investigation and the reasons for any recommendation made
or any decision or action taken as a result of the investigation.
- If in connection with any investigation the powers of investigation
of the Ombudsman have substantially been frustrated and not supported
by the DND or the CF or processes to the extent that the mandate of
the Ombudsman cannot be properly exercised during the investigation,
the Ombudsman may
- make a report of the matter to the Minister; and
- publish a report under paragraph 38(2)(b) about the matter, if
the Ombudsman considers that it is in the public interest to do
so in order to preserve the respect and co-operation that is to
be accorded to the office of the Ombudsman and to prevent occurrences
of similar situations.
Information to Complainants and Other Parties
- The Ombudsman shall in each case, inform the complainant and other
parties involved in the case in such manner and at such time as the
Ombudsman considers appropriate, as to the progress of the case and
of the disposition of the complaint and provide the complainant and
parties with a copy of any opinion or recommendation that the Ombudsman
has rendered in connection with the complaint together with such comments
as the Ombudsman considers appropriate.
-
- If a report made by the Ombudsman under section 36 will contain
an adverse comment about any employee or member, the Ombudsman shall
inform the employee or member of the nature of the intended comment
and allow the employee or member 14 days to submit representations
in response.
- The Ombudsman may, on application by any person who is unable
to submit representations pursuant to subsection (1) within the
14 days, extend the person’s time for submitting representations
if the Ombudsman considers that it is in the public interest to
do so.
- Representations referred to in subsection (1) shall be in writing
unless the Ombudsman, on application, considers it appropriate in
the circumstances to allow oral representations to be made.
- A copy of all written representations received under this section
shall be appended to any report made under section 36.
Reports to Competent Authorities
- The Ombudsman shall send a report, including any recommendations,
opinions and reasons, to the competent DND or CF authority, if on completing
an investigation
- the matter should be referred to the competent DND or CF authority
for further consideration;
- an omission should be rectified;
- a decision or recommendation should be quashed or substituted;
- a law, policy or practice on which a decision, recommendation,
act or omission was based should be reviewed;
- reasons should have been given for a decision or recommendation;
- a delay should be rectified; or
- other steps should be taken to achieve substantial and long-lasting
improvements to the welfare of employees and members.
-
- An authority that receives a report made under section 36 shall
inform the Ombudsman within a reasonable time of all steps taken
or proposed to be taken in response to recommendations in the report,
including reasons for not following any recommendation.
- If the response to a report received from the competent DND or
CF authority is insufficient or no response is received, the Ombudsman
may send a copy of the report to the Deputy Minister or CDS, as
appropriate, who shall inform the Ombudsman within a reasonable
time of all steps taken or proposed to be taken in response to recommendations
in the report, including reasons for not following any recommendation.
- If the response to a report received from the Deputy Minister
or CDS is insufficient or no response is received, the Ombudsman
may send a copy of the report to the Minister.
- If the Deputy Minister or CDS is directly involved in the subject-matter
of the Ombudsman’s report, the Ombudsman shall report the
matter directly to the Minister instead of sending a copy of the
report to the Deputy Minister or CDS as the case may be under subsection
(2).
Annual and Other Reports
-
- The Ombudsman
- shall
- submit an annual report to the Minister on the activities
of the Ombudsman and at such other times as the Minister
may require, and
- submit reports to the Minister on the implementation
of any recommendations made by the Ombudsman when required
by the Minister; and
- may issue reports concerning any investigation or other matter
within the mandate of the Ombudsman, if the Ombudsman considers
that it is in the public interest to do so.
- The Ombudsman shall
- publish a report issued under paragraph (1)(a) on the expiration
of 60 days after it has been submitted to the Minister; and
- submit a report issued under paragraph (1)(b) to the Minister,
and may publish the report on the expiration of 28 days after
it has been submitted to the Minister, if the Ombudsman considers
that it is in the public interest to do so.
- No person other than the Ombudsman shall alter a report referred
to in subsection (2) except when necessary to conform with the requirements
of the Privacy Act.
Ombudsman’s Advisory Committee
-
- The Ombudsman shall, within 6 months after these directives are
promulgated by the Minister, establish a DND/CF Ombudsman’s
Advisory Committee.
- The representation on the Committee shall be determined by the
Ombudsman based on a pool of candidates approved by the Minister
having regard to the need to ensure a broad based representation
from the DND and CF.
- The Committee shall meet on a regular basis to provide the Ombudsman
with advice on issues within the context of the DND and CF and concerns
that have arisen in relation to the activities of the Ombudsman's
office.
Arthur C. Eggleton
Minister of National Defence
Schedule 1 (subsection 25(1))
- Privacy Act
- Government Security Policy
- Police Informant Identity Privilege
- Spousal Privilege
(As defined in sections 74 and 75 of the Military Rules of Evidence,
Consolidated Regulations of Canada, 1978, chapter 1049, as amended
by SOR/90-306.)
- Solicitor Client Privilege
- Penitential Communications
(As defined in section 78 of the Military Rules of Evidence, Consolidated
Regulations of Canada, 1978, chapter 1049, as amended by SOR/90-306)
Schedule 2 (subsection 25(2))
- National Defence Act
- Privacy Act
- Criminal Code
- Government Security Policy
- Access to Information Act
- National Archives of Canada Act
- Auditor General Act
Continue
to Annex B
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