Evidence of meeting #99 for National Defence in the 44th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was ombudsman.
A recording is available from Parliament.
Liberal
The Chair Liberal John McKay
I call the meeting to order.
Mr. Duguid has been brought into the committee semi-officially. Welcome, sir.
Welcome to Mr. Allison as well.
We have joining us today two witnesses: Mr. Walbourne and Mr. White. Mr. Walbourne is certainly familiar with this committee. He knows that we'll ask each of you for a five-minute opening statement.
Mr. Walbourne, please begin, and then we'll go to Mr. White.
Gary Walbourne Former Ombudsman, National Defence and Canadian Armed Forces, As an Individual
Good afternoon.
Thank you, Mr. Chair, for the opportunity to be here today to comment on this very important matter.
It's been a while since I left the position of ombudsman. However, I remain in contact with the defence community, including veterans, on a daily basis. I am disappointed that little to no progress has been made on some of the key challenges that I and others have flagged to the Department of National Defence.
My appearance today is as an individual, but let me be clear that the next hour I will spend with you is not about me; it's about the ombudsman's office and who it represents. In 2021, this committee heard in great detail about the interference that members of the ombudsman's office and I faced at the hands of both the Minister of National Defence and senior departmental officials. As for the details, I encourage you to revisit the transcript. It wasn't pretty, but I believe it likely serves as the real example of where, how and in whose hands it can all go wrong.
In May 2014, I was asked at this very committee whether the office required legislation. I responded at that time by saying that I believed it was possible to function without it. I was quickly shocked to learn that I had re-entered middle school, where personalities reign supreme. I came into the position naively thinking that we were all focused on the same goals. However, when we allow personalities to interfere with what is right for those who wear the uniform in service to Canada, we lose the plot.
I've been observing the calls for this office to be legislated and report to Parliament. I was heartened to see Ms. Mathyssen's bill tabled before the House. It is encouraging that others are now seeing the benefits of having an ombudsman legislated.
The DND and CAF ombudsperson has had its doors open for 26 years, and there have been six ombudspersons in that time. Each and every one of them has come to the same conclusion: that the office should be legislated and report to Parliament.
Why? There have been six appointments, four different administrations, two different political parties and various backgrounds, all with the same conclusion. The evidence has been laid out in numerous reports by multiple ombudsmen, including me. The simple answer is this: All's well when you are not chafing up against the status quo, when you go along to get along, but if you shine light on the parts that people don't want you to see, you quickly feel the squeeze.
What do you do when a minister refuses to meet with you or refuses to discuss items of importance, and subsequently the administration of that department applies pressure, utilizes tactics that restrict your ability to do the job for which you were hired and, to add insult to injury, takes a personal attack position? In what world does it make sense that the entity you are tasked with overseeing in regard to fairness has total control over the tools you need to do the job? Furthermore, it has, in the current structure, the ability to investigate the office. When someone at the top of the organization is the problem, how does a $7-million organization repel the force of a $20-billion one?
During my mandate, I witnessed a significant decline in the quality of responses I received to the evidence-based recommendations. A great deal of these recommendations remain unimplemented seven to 10 years later. These include warnings issued to the Minister of National Defence and senior civilian and military leadership on various matters, which, if they had been addressed, would have helped mitigate issues before they spun out of control.
Scrolling through the letters sent by all ombudsmen over the years, me included, and reviewing the ministerial and departmental responses would be comical if it weren't so tragic. So many of the issues the CAF is now grappling with had previously been identified, with urgency, years ago. The common pattern was as follows: The ombudsman warns via a letter, and the minister or department responds casually or not at all; the ombudsman warns yet again, with the same reaction; the ombudsman launches an investigation and makes recommendations; the issues make national headlines; and both the minister and the department react quickly and accept all of the recommendations, but sadly rarely implement them.
That is why the concerns raised by the ombudsman's office, in my opinion, are of national importance. The office is like the canary in the coal mine. If the Minister of National Defence and the government of the day do nothing with the concerns raised by the office, then having the office report to Parliament would help ensure that these concerns are visible and appropriately addressed. The office's budget and authorities would be free of petty power squabbles, as would the business of ensuring those in the defence community are treated fairly, regardless of who is in charge.
Twenty-six years of questions from all ombudspersons, documented cases of interference, the issue of neither addressing nor implementing recommendations, personal attacks, pettiness, and agendas that never get us to the core of doing the right thing—all of this has led us to where we find ourselves today. Is there a better path? Can we create one? Can we give DND and the CAF the same right that we afford incarcerated individuals in this country, that being a legislated body free of the vindictive and petty behaviour that helps no one?
These issues are of national importance and impact national security. Don't let this opportunity slip away yet again.
Thank you.
Liberal
Patrick White As an Individual
In November 2022, I provided the access to information, privacy and ethics committee with examples of how the Canadian Armed Forces and Department of National Defence abuse the access to information and privacy systems and deny victims of sexual misconduct the critical information they need to seek justice.
I became familiar with DND and CAF abuses of the ATIP system and the reprisals against whistle-blowers through fighting an ongoing five-and-a-half year battle for accountability against the Royal Canadian Navy's chain of command to seek justice against a serial sexual misconduct offender known as Officer X and the leadership who are covering up for him.
For context, here it is. In 2018, instead of supporting victims and witnesses of Officer X's serial sexual misconduct, the chain of command of my former naval reserve unit “interrogated [victims and witnesses] under caution with allegations of mutiny and treason”. These threats of high-order criminal charges were made against those considering reporting Officer X in order to silence and intimidate them—in other words, “mutiny” and “treason” for reporting crimes and inappropriate behaviour.
When the military police found enough evidence to support a charge of sexual assault against Officer X in response to my complaint, the commanding officer decided the appropriate response was “divisional interview and mentorship”. There is no evidence that this substantively inappropriate decision has ever been questioned by anyone in the entire Royal Canadian Navy chain of command.
In response to my raising concerns, the same commanding officer sent defamatory emails to the naval reserve headquarters to discredit my complaint against Officer X, questioning the timing and implying it was false or made in bad faith. The command team then leveraged personal relationships with naval reserve headquarters personnel to create the false narrative that victims and witnesses of Officer X's serious sexual misconduct were “trying to influence a police investigation that was underway at that time by organizing a parallel justice system”. The “influence” and “parallel justice system” referred to were about the encouragement of others to report sexual assault and sexual harassment through the established system.
I provided a summary of the sexual misconduct suspicions against Officer X and forced the naval reserve headquarters to conduct its own internal investigation, which confirmed, “All of the individuals brought forth allegations that...[were] ‘bundled up’ with 14 years of multiple allegations and [Military Police] Investigations against Officer X that had resulted in ‘zero action’.”
My founded harassment complaint of abuse of power against the unit coxswain who interrogated me and others resulted in only minor, private consequences, while he was publicly celebrated. Commodore Pat Montgomery, commander of the naval reserve and Camosun College professor, and navy captain Richard Jean, naval reserve deputy commander, then dismissed complaints against the commanding officer and the then executive officer and staff officer, relying excessively on procedural technicalities and timelines, stating, “there exists no evidence that reprisals would have followed in the event of your submitting harassment complaints against [the CO and XO]”. It is genuinely concerning that Commodore Montgomery and Captain Jean decided no evidence existed without even having conducted an investigation, while each had full knowledge of the defamatory emails.
I raised my concerns about the naval reserve with Rear-Admiral Christopher Robinson, commander of the Maritime Forces Pacific, who in the face of all the foregoing concluded, “you have been treated fairly”.
In October 2023, Vice-Admiral Angus Topshee, commander of the Royal Canadian Navy, was confronted at a public event by a concerned citizen and directly made aware of these issues. Despite his personal assurance and signature on the page promising to investigate, nearly six months later there has not been one single update or follow-up meeting scheduled. It does not seem to concern the navy that the commanding officer who made the “mentorship” decision is listed as an involved person on page 3 of the very same police report for which he acted as a charge-laying authority and failed to recuse himself.
Mr. Chair, I'll take this moment to state that I understand my previous request for extra time was rejected, but I wonder if, in light of what I've said so far, and with the preview that the worst is yet to come, I could have two more minutes to finish my remarks.
As an Individual
All of the facts that I have provided are written in the CAF’s own reports. The military police investigation into sexual assault was founded. The harassment investigation into abuse of power was founded. The privacy breach investigation was founded. The internal investigation into Officer X’s 14-year history of sexual misconduct against multiple victims was founded.
To the best of my knowledge, Officer X and all members of the chain of command are still serving in the Royal Canadian Navy, and not one has faced any disciplinary consequences for their actions. In fact, the executive officer has since been promoted and is the current commanding officer of a naval reserve division. He is also personally responsible for a founded breach of the Privacy Act.
It gets worse.
Most of the members in this case are part-time reservists and have full-time civilian occupations in your communities. This also means that there is potential risk to members of the public.
As I reported directly to Commodore Montgomery in April and May 2023, the coxswain who threatened charges against me and others carries police authority in his civilian job. The former CO who decided that “mentorship” was an appropriate punishment for sexual assault and Officer X, responsible for over 14 years of sexual misconduct, are each employed full time with direct supervisory authority over children.
To conclude, I have relied heavily on the broken and inadequate access to information and privacy systems to fight for the critical information I have shared today. After five and a half years, one message is clear: The Canadian Armed Forces and Department of National Defence are anything but transparent. There is no justice without accountability, and there is no accountability without transparency.
Thank you.
Liberal
Conservative
Pat Kelly Conservative Calgary Rocky Ridge, AB
Thank you.
We noted your testimony about the ATIP system before the access to information, privacy and ethics committee. Can you summarize your concerns with the ATIP system?
As an Individual
I would separate them into the access to information system and the privacy system.
The access to information system is easily defeated on the basis that it relies on an honour system. As we heard in testimony from the deputy minister, there's no standard procedure under which different groups across the department are required to respond, so there's ripe opportunity for abuse where records can be withheld or deleted and very little accountability.
In terms of the privacy system, a significant barrier and challenge I'll highlight is that you are required to name the individual record holder in trying to get access to your personal information. As an example, I would welcome any member of this committee to name the individual Canada Revenue Agency employee who helped process your tax return to know whether you could get information on that under the Privacy Act. I can tell you that a victim of sexual misconduct does not have information about the totality of the headquarters and who is involved in their files.
Conservative
Pat Kelly Conservative Calgary Rocky Ridge, AB
You've indicated that you've been the victim of a privacy breach, perhaps two breaches. For your first breach, can you describe how this happened and how you became aware of it?
As an Individual
The first breach happened when I submitted a harassment complaint. I submitted an ATIP for the response because, unfortunately, Commodore Montgomery didn't think it would be appropriate to give me the final decision in one harassment investigation.
In the one against the executive officer I mentioned, the privacy breach happened because the individual improperly retained access to and shared personal information that should have been transferred or destroyed when I transferred units. I had to ATIP the package that confirmed that. I made a complaint with the appropriate group, the director of access to information and privacy. I'm looking at their recommendation, and unfortunately they didn't feel that they needed to take any action because the system in which the information was stored had changed.
To the comments that have been made by the minister and the deputy, there are no consequences for breach.
Conservative
Pat Kelly Conservative Calgary Rocky Ridge, AB
In the course of making an access request, did you get the information you requested?
As an Individual
I got the information I requested. Sometimes it takes two or three approaches or kicks at the can.
Conservative
As an Individual
One of the documents released in the release package was an email that was circulated internally that had attached my personal information. That's how I knew there was a breach.
What concerns me about that, sir, I'll also add, is that the individuals who sent it and the individuals who received my information had all of the requisite training, knowledge and experience as former commanding officers—and in this case a current commanding officer—and they should have known better.
Conservative
Pat Kelly Conservative Calgary Rocky Ridge, AB
If I understood your opening statement correctly, are you saying that the military police that investigated you had a connection to the complaint itself?
As an Individual
It was not the military police. Under the old system—which has since changed but did apply to my case of sexual misconduct—commanding officers had to lay charges. In other words, the military police had to refer the files back to the units to lay a charge or have a charge-laying decision.
As I raised concerns, this individual, the commanding officer who made the charge-laying decision, which is part of the justice process, was not only present at the event but a friend of the accused—or a perceived friend—and has known him for a long time. This is a very clear conflict of interest, and apparently not one member in the entire Royal Canadian Navy chain of command was able to read to page 3 of the report.
Conservative
Pat Kelly Conservative Calgary Rocky Ridge, AB
How would you describe transparency in the MP reporting system?
As an Individual
It's very difficult.
First of all, complainants are not automatically given a copy of their police reports. In fact, I believe there's a box that the military police can check that says, “Complainant not notified”. I truly struggle to understand why that box is allowed to exist.
Conservative
As an Individual
First of all, you would have to find out that the report has concluded, and you don't always get that unless you follow up with the police. Then you would have to go through the access to information system itself to make the request. I believe it took a significant amount of time, maybe up to six months or a year, for me to get that.
One thing that's very difficult about it is that to make a complaint with the Military Police Complaints Commission, you have one year from the conclusion of an investigation. If there is a delay in receiving a copy of a report and it pushes you outside the one-year time limit, you have to get discretionary approval in order for the Military Police Complaints Commission to investigate.
Conservative
Pat Kelly Conservative Calgary Rocky Ridge, AB
However, all the way along, you were having to use the access to information system to get the information you needed to make a proper complaint.