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Bill C-362

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First Reading

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SUMMARY
Short Title
Interpretation
Office of the Ombud
Mandate and Duties of Ombud
Complaints and Investigations
General
Offences and Punishment
Reports to Parliament
Review of Act
Transitional Provisions
Related Amendments
Contraventions Act
Consequential Amendments
Access to Information Act
Financial Administration Act
Privacy Act
Public Service Superannuation Act
Public Sector Compensation Act
Schedule

First Session, Forty-fourth Parliament,

70-71 Elizabeth II – 1-2 Charles III, 2021-2022-2023

HOUSE OF COMMONS OF CANADA

BILL C-362
An Act to establish the Office of the Ombud for the Department of National Defence and the Canadian Forces, to make related amendments to the Contraventions Act and to make consequential amendments to certain Acts

FIRST READING, November 9, 2023

Ms. Mathyssen

441231

SUMMARY

This enactment establishes the Office of the Ombud for the Department of National Defence and the Canadian Forces and sets out the Ombud’s powers, duties and functions. It also makes related amendments to the Contraventions Act and consequential amendments to certain Acts.

Available on the House of Commons website at the following address:

www.ourcommons.ca

1st Session, 44th Parliament,

70-71 Elizabeth II – 1-2 Charles III, 2021-2022-2023

HOUSE OF COMMONS OF CANADA

BILL C-362

An Act to establish the Office of the Ombud for the Department of National Defence and the Canadian Forces, to make related amendments to the Contraventions Act and to make consequential amendments to certain Acts

Preamble

Whereas the Office of the Ombudsman for the Department of National Defence and Canadian Forces has existed since 1998, the Ombudsman having been designated by order of the Governor in Council under the National Defence Act;

Whereas the Ombudsman, who was given the mandate to investigate complaints on matters related to the Department of National Defence and the Canadian Forces, reports to the Minister of National Defence;

Whereas Parliament acknowledges that oversight of the Department of National Defence and the Canadian Forces enhances public confidence in the integrity of those institutions and contributes to the lasting welfare of individual members of the defence community;

Whereas Parliament recognizes, however, that, in keeping with the principles of fairness, independence, impartiality, and confidentiality, an Ombud must be independent from any organization that is subject to the Ombud’s oversight;

Whereas the Department of National Defence and the Canadian Forces must be accountable to the elected legislature;

And whereas it is desirable to create, in statute, the Office of the Ombud for the Department of National Defence and the Canadian Forces and to provide that the Ombud is to report directly to both Houses of Parliament;

Now, therefore, His Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

Short Title

1 This Act may be cited as the Department of National Defence and Canadian Forces Ombud Act.

Interpretation

Definitions

2 The following definitions apply in this Act.

Canadian Forces means the armed forces referred to in section 14 of the National Defence Act, and includes any predecessor naval, army or air forces of Canada or Newfoundland.‍ (Forces canadiennes)

member means an officer or a non-commissioned member, as those terms are defined in subsection 2(1) of the National Defence Act.‍ (militaire)

Minister means the Minister of National Defence.‍ (ministre)

Office of the Ombud means the Office of the Ombud for the Department of National Defence and the Canadian Forces established under section 3.‍ (Bureau de l’ombud)

Ombud means the Ombud for the Department of National Defence and the Canadian Forces appointed under subsection 4(1).‍ (ombud)

Office of the Ombud

Office

3 The Office of the Ombud for the Department of National Defence and the Canadian Forces is established.

Ombud

4 (1) The Governor in Council, by commission under the Great Seal, is to appoint an Ombud for the Department of National Defence and the Canadian Forces after consultation with the leader of every caucus and of every recognized group in the Senate and the leader of every recognized party in the House of Commons, and after approval of the appointment by resolution of the Senate and House of Commons.

Tenure

(2) The Ombud holds office during good behaviour for a term of seven years but may be removed for cause by the Governor in Council on address of the Senate and House of Commons.

No re-appointment

(3) A person who has served as Ombud is not eligible for re-appointment to that office.

Rank and powers

5 (1) The Ombud has the rank and powers of a deputy head of a department, is to engage exclusively in the duties and functions of their office under this Act or any other Act of Parliament and is not to hold any other office or engage in any other employment for reward.

Remuneration and expenses

(2) The Ombud is to be paid the remuneration that may be fixed by the Governor in Council and is entitled to be paid reasonable travel and living expenses while absent from their ordinary place of residence in the course of their duties.

Superannuation and compensation

(3) The Ombud is deemed to be a person employed in the public service for the purposes of the Public Service Superannuation Act, to be an employee for the purposes of the Government Employees Compensation Act and to be employed in the federal public administration for the purposes of any regulations made under section 9 of the Aeronautics Act.

Chief executive officer

6 The Ombud is the chief executive officer of the Office of the Ombud and has the control and management of the Office and all matters connected with it.

Absence or incapacity of Ombud

7 If the Ombud is absent or incapacitated or the office of Ombud is vacant, the Governor in Council may appoint any qualified person to hold that office in the interim for a term not exceeding six months, and that person, while holding office, is to be paid the remuneration and expenses that may be fixed by the Governor in Council.

Staff

8 (1) The employees who are necessary to carry out the work of the Office of the Ombud are to be appointed in accordance with the Public Service Employment Act.

Technical assistance

(2) The Ombud may engage on a temporary basis the services of persons having technical or specialized knowledge to advise and assist the Ombud in the exercise of their powers and the performance of their duties and functions in any matter relating to their work and, with the approval of the Treasury Board, may fix and pay the remuneration and expenses of those persons.

Appropriation

(3) The salaries of the officers and employees of the Office of the Ombud, and any expenses connected with the operations and management of the Office, are to be paid out of moneys appropriated by Parliament for that purpose.

Mandate and Duties of Ombud

Mandate

9 (1) The mandate of the Ombud is to provide support and assistance to persons affected by matters relating to the Department of National Defence or the Canadian Forces by means of an independent, impartial and objective process and to contribute to substantial and long-lasting improvements in the welfare of members.

Duties

(2) The Ombud’s duties include

(a) reviewing and, if appropriate, investigating complaints made to the Office of the Ombud;
(b) reviewing any systemic issues relating to the Department of National Defence or the Canadian Forces and, if appropriate, conducting investigations in relation to the issues; and
(c) providing information, referral and education services and assisting affected persons in accessing existing channels of assistance and redress.

Complaints and Investigations

Right to complain

10 (1) Any of the following persons may make a complaint to the Ombud if the person feels aggrieved as a result of any decision, act or omission relating to the administration of the affairs of the Department of National Defence or the Canadian Forces:

(a) a member or former member;
(b) a person who is or was enrolled in a cadet organization referred to in subsection 46(1) of the National Defence Act;
(c) an employee or former employee of the Department of National Defence;
(d) a person who has applied to become a member;
(e) an employee or former employee of the Staff of the Non-Public Funds, Canadian Forces;
(f) a member of the immediate family of a person referred to in any of paragraphs (a) to (e).

Informal resolution

(2) On receiving a complaint, the Ombud must consider whether it can be dealt with informally and, with the consent of the complainant and any other person concerned, the Ombud may attempt to resolve it informally or by means of dispute resolution mechanisms such as mediation and conciliation.

Level of authority

(3) The Ombud must attempt to resolve a complaint at the lowest level of authority at which it can be resolved and any recommendations with respect to the situation that gave rise to the complaint must be made to the lowest level of authority that is in a position to implement them.

Investigations

11 (1) The Ombud may conduct an investigation on their own initiative, at the request of the Minister or in response to a complaint.

Notice of investigation

(2) On commencing an investigation, the Ombud must notify in writing any person concerned of the Ombud’s intention to conduct the investigation as well as of the substance of the complaint or other matter to which the investigation relates, unless to do so could, in the Ombud’s opinion, adversely affect or hinder the investigation.

Right to refuse or cease investigation

12 The Ombud may refuse to investigate, or cease to investigate, a complaint with respect to any matter if, in the Ombud’s opinion,

(a) the complaint is frivolous or vexatious or is made in bad faith;
(b) the complainant has not exhausted the recourses that are otherwise reasonably available;
(c) the matter is one that could more appropriately be dealt with, initially or completely, according to a procedure provided for under another Act of Parliament, or has already been adequately dealt with according to such a procedure;
(d) the matter is already the object of an ongoing investigation under this Act or has already been the subject of a report by the Ombud;
(e) it would serve no useful purpose to deal with the matter because of the length of time that has elapsed since it arose; or
(f) having regard to all the circumstances, investigation or further investigation is not necessary or reasonably practicable.

Obligation to refuse or cease investigation

13 (1) The Ombud must refuse to investigate, or must cease to investigate, any complaint — or any aspect of a complaint — or any matter that

(a) relates to a decision or an order made by a military judge, a court martial or the Court Martial Appeal Court or in a summary hearing;
(b) relates, in a given case, to the exercise of discretion in laying charges or in preferring charges under the National Defence Act;
(c) relates to the military police and is provided for under Part IV of that Act;
(d) is within the exclusive jurisdiction of the employer as defined in subsection 2(1) of the Federal Public Sector Labour Relations Act;
(e) relates to standards of professional conduct established by a public body under the law of a province; or
(f) arose before June 15, 1998, unless, in the Ombud’s opinion, it would be in the public interest for the matter to be investigated.

Offence under Criminal Code

(2) If at any time in the course of dealing with a matter, the Ombud has reasonable grounds to believe that the subject matter of the complaint involves the commission of an offence under the Criminal Code, the Ombud must refuse to investigate, or must cease to investigate, that aspect of the complaint.

Definitions

(3) In this section, court martial, Court Martial Appeal Court, military judge, military police and summary hearing have the same meanings as in subsection 2(1) of the National Defence Act.

Notice of refusal

14 If the Ombud refuses to investigate, or ceases to investigate, a complaint or an aspect of a complaint, they must notify the complainant in writing of the decision and provide reasons for the decision.

Withdrawal of complaint

15 A complainant may withdraw a complaint by sending a written notice to the Ombud.

Opportunity to answer allegations and criticisms

16 It is not necessary for the Ombud to hold any hearing and no person is entitled as of right to be heard by the Ombud, but if at any time during the course of an investigation it appears to the Ombud that there may be sufficient grounds to make a report or recommendation that may adversely affect any person, the Ombud must, before completing the investigation, take every reasonable measure to give the person full opportunity to answer any adverse allegation or criticism and to be assisted or represented by counsel for that purpose.

Powers of Ombud

17 (1) Subject to this Act, the Ombud may determine the procedure to be followed in conducting an investigation and take any measures that they consider appropriate, including

(a) summoning and enforcing the attendance of any person that the Ombud believes can provide information concerning the matter under investigation and compelling the person to give oral or written evidence on oath;
(b) administering oaths;
(c) requiring any person to provide any information that the Ombud believes the person is able to provide in relation to the matter and to produce any document or thing that the Ombud believes relates to the matter and that may be in the possession or under the control of that person; and
(d) requiring any person to facilitate access to a defence establishment.

Temporary restricted access – operations and security

(2) The Chief of the Defence Staff may temporarily restrict access by the Ombud to information or to a defence establishment if they have reasonable grounds to believe that such access would interfere with operational or security priorities.

Temporary restricted access – ongoing military investigation

(3) The Canadian Forces Provost Marshal may temporarily restrict access by the Ombud to information or to a defence establishment if they have reasonable grounds to believe that such access would compromise an ongoing investigation.

Written reasons for restriction

(4) If access to information or a defence establishment is restricted under subsection (2) or (3), the Chief of the Defence Staff or the Canadian Forces Provost Marshal must provide the Ombud with written reasons for the restriction and advise the Ombud of the duration of the restriction.

Return of documents

(5) Any document or thing produced under paragraph (1)‍(c) must, on request, be returned to the person who provided it within 10 days after the Ombud has prepared the report under subsection 19(1).

Evidence in other proceedings

(6) Evidence given by a person in an investigation under this Act and evidence of the existence of the investigation are inadmissible against the person in a court or in any other proceeding, other than in a prosecution of a person for an offence under section 131 of the Criminal Code in respect of a statement made to the Ombud.

Definition of defence establishment

(7) In this section, defence establishment has the same meaning as in subsection 2(1) of the National Defence Act.

Contravention of Act of Parliament

18 (1) If at any time in the course of dealing with a matter, the Ombud has reasonable grounds to believe there has been a contravention of an Act of Parliament or of the legislature of a province or a contravention of the Code of Service Discipline, as defined in subsection 2(1) of the National Defence Act, the Ombud may report the matter to the Canadian Forces Provost Marshal.

Wishes of individual affected

(2) In determining whether to report the matter to the Provost Marshal, the Ombud must take into account the wishes, if known, of the individual affected by the contravention.

Report on investigation

19 (1) On the completion of an investigation, the Ombud must prepare a report, which is to include the Ombud’s findings, conclusions, reasons for the conclusions and any recommendations.

Report to be provided

(2) The Ombud must provide the report to the relevant authority and, in the case of an investigation that is carried out in relation to a complaint, to the complainant.

Response to recommendations

(3) An authority that receives a report must advise the Ombud, within the period that the Ombud may specify, of all measures taken or proposed to be taken in response to the recommendations in the report, as well as the reasons for not following any recommendation.

Reprisal action

(4) If the Ombud has reasonable grounds to believe that a person has been threatened, intimidated or made the object of discrimination because that person has made a complaint under this Act or has given evidence or assisted in any way in respect of an investigation under this Act, or proposes to do so, the Ombud may report that belief and the grounds for it to the employer, as defined in subsection 2(1) of the Federal Public Sector Labour Relations Act.

Power to conduct investigations

20 The power of the Ombud to conduct investigations may be exercised despite any provision in any Act to the effect that the matter being investigated is final and that no appeal lies in respect of the matter or that the matter may not be challenged, reviewed, quashed or in any way called into question.

General

Advisory committee

21 (1) The Ombud may establish an advisory committee to provide advice to them on matters relating to the activities of the Office of the Ombud and may appoint the members and designate the Chairperson, who is to be selected from among the members.

Diversity

(2) In appointing members of the advisory committee, the Ombud is to take into consideration the importance of representation on the committee of persons who reflect the diversity of Canadian society.

Remuneration of members

(3) The Ombud, with the approval of the Treasury Board, may fix and pay the remuneration and expenses of the members of the advisory committee.

Delegation by Ombud

22 The Ombud may authorize any person to exercise or perform, subject to any restrictions or limitations that the Ombud may specify, any of the powers, duties or functions of the Ombud under this Act except the power to delegate under this section and the duty to submit reports to the Speakers of the Senate and the House of Commons under subsections 30(2) and 31(2).

Security requirements

23 The Ombud and every person acting on behalf or under the direction of the Ombud who receives or obtains information relating to any complaint or investigation under this Act must, with respect to access to and the use of that information, satisfy any security requirements applicable to, and take any oath of secrecy required to be taken by, persons who normally have access to and use of such information.

Confidentiality

24 Subject to this Act, the Ombud and every person acting on behalf or under the direction of the Ombud must not disclose any information that comes to their knowledge in the exercise of their powers or the performance of their duties and functions under this Act.

Disclosure authorized

25 The Ombud may disclose or may authorize any person acting on behalf or under the direction of the Ombud to disclose information that, in the Ombud’s opinion, is necessary to carry out an investigation under this Act.

Acts not to be questioned or subject to review

26 Except on the ground of lack of jurisdiction, nothing done by the Ombud, including the making of any report or recommendation, is liable to be challenged, reviewed, quashed or called into question in any court.

Protection of Ombud

27 (1) No criminal or civil proceedings lie against the Ombud, or against any person acting on behalf or under the direction of the Ombud, for anything done — or omitted to be done — or reported or said in good faith in the exercise or purported exercise of a power or in the performance or purported performance of a duty or function of the Ombud under this Act.

Defamation

(2) No action lies in defamation with respect to

(a) anything said, any information supplied or any record or thing produced in good faith in the course of an investigation carried out by or on behalf of the Ombud; or
(b) any report made in good faith by the Ombud and any fair and accurate account of the report made in good faith for the purpose of news reporting.

No summons

28 The Ombud or any person acting on behalf or under the direction of the Ombud is not a compellable witness in any civil proceedings in respect of any matter coming to their knowledge as a result of exercising any of their powers or performing any duties or functions under this Act.

Offences and Punishment

Obstruction

29 (1) It is prohibited for any person to knowingly obstruct the Ombud or any person acting on behalf of or under the direction of the Ombud in the exercise of the Ombud’s powers or the performance of the Ombud’s duties and functions under this Act, including by failing to forward, unopened, to the Ombud any correspondence the person receives that is addressed to the Ombud.

False or misleading statements

(2) It is prohibited for any person to knowingly make, or participate in, assent to or acquiesce in the making of a false or misleading statement to the Ombud or to any person acting on behalf of or under the direction of the Ombud in relation to any matter under this Act.

Offence

(3) Every person who contravenes this section is guilty of an offence and liable on summary conviction to a fine not exceeding $1,000 for a first offence and to a fine not exceeding $5,000 in the case of a subsequent offence.

Reports to Parliament

Annual report

30 (1) Within three months after the end of each fiscal year, the Ombud must prepare a report of their activities for that fiscal year. The report must contain a summary of the complaints submitted in that year and of the investigations conducted as well as any recommendations.

Tabling of report

(2) The Ombud must submit the report to the Speakers of the Senate and the House of Commons and the Speakers must table the report before their respective Houses on any of the first 15 days on which that House is sitting after the Speaker receives the report.

Special report

31 (1) The Ombud may, at any time, prepare a special report concerning any matter within the scope of their powers, duties and functions if, in their opinion, the matter is of such urgency or importance that a report on it should not be deferred until the next annual report.

Tabling of special report

(2) The Ombud must submit the special report to the Speakers of the Senate and the House of Commons and the Speakers must table the report before their respective Houses on any of the first 15 days on which that House is sitting after the Speaker receives the report.

Publication

32 The Ombud must publish the annual report or any special report on the website of the Ombud within 30 days after it has been tabled before both Houses of Parliament.

Review of Act

33 (1) On the fifth anniversary of the day on which this Act comes into force and every five years after that, the Minister must undertake a review of the provisions and operation of this Act.

Report to Parliament

(2) The Minister must cause a report of the review to be tabled before each House of Parliament on any of the first 15 days on which that House is sitting after the report has been completed. The report must include a statement of any changes to this Act or its administration that the Minister would recommend.

Transitional Provisions

Continuation of term of office – Ombudsman

34 The person who holds the office of Ombudsman for the Department of National Defence and the Canadian Forces immediately before the day on which this Act comes into force continues in office as Ombud for the remainder of the term for which they were appointed or for a term of one year beginning on the day on which this Act comes into force, whichever is longer.

Continuation of employment

35 Nothing in this Act is to be construed as affecting the status of an employee who, immediately before the day on which this Act comes into force, occupied a position at the Office of the Ombudsman for the Department of National Defence and the Canadian Forces, except that the employee is, on that day, to occupy that position at the Office of the Ombud.

Related Amendments

1992, c. 47

Contraventions Act

36 The definition contravention in section 2 of the Contraventions Act is replaced by the following:

contravention means an offence that is created by an enactment and is designated as a contravention by regulation of the Governor in Council Insertion start or an offence under the Department of National Defence and Canadian Forces Ombud Act that is listed in the schedule Insertion end ; (contravention)

37 Subsection 8(1) of the Act is amended by striking out “and” at the end of paragraph (e) and by adding the following after that paragraph:

Start of inserted block
(e.‍1) amending the schedule to add or remove an item; and
End of inserted block

38 The schedule to the Act is replaced by the schedule set out in the schedule to this Act.

Consequential Amendments

R.‍S.‍, c. A-1