Introduction

Transparency and accountability contribute to trust in organizations, including democratic institutions. In Canada, federal entities and public servants—including the Department of National Defence (DND) and its personnel, and the Canadian Armed Forces (CAF) and its members—are expected to operate in a transparent and accountable manner, and to disclose relevant information to individuals and the public in a way that is consistent with legislative requirements.

That said, in recent years, some commentators have asserted that transparency and accountability are lacking in such federal entities as DND and the CAF. For example, they have suggested that DND’s and the CAF’s timelines for processing and responding to access to information and privacy (ATIP) requests are excessively long, that DND and the CAF are over-classifying defence and security documents, and that DND and the CAF have a “culture of secrecy” that limits the extent to which information is shared with relevant individuals and with the public.^[1] Similarly, during the House of Commons Standing Committee on National Defence’s (the Committee’s) recent study on reforming defence procurement in Canada, a number of witnesses mentioned a lack of transparency and accountability in DND and the CAF.^[2]

On 2 November 2023, the Committee adopted the following motion:

That, pursuant to Standing Order 108(2), the committee undertake a study into transparency of the Department and National Defence and Canadian Armed Forces, that includes but is not limited to: The Access to Information and Privacy System; the independence of the office of the Department of National Defence and Canadian Armed Forces Ombudsman; the declassification system for historic documents; whistleblower protections; the independence of the Grievance process; and information management systems; and that the committee hold a minimum of three meetings on this topic.

Between 7 February and 8 May 2024, the Committee held seven meetings on this study and heard from 22 witnesses. The witnesses comprised officials from federal entities, academics and other stakeholders. The Committee also received one brief.

This report summarizes witnesses’ comments made when appearing before the Committee or in a brief, as well as relevant publicly available information. The first section outlines options for improving transparency and accountability in DND and the CAF, and the second section examines proposals for strengthening oversight of them. The final section contains the Committee’s conclusions and recommendations.

Options for Improving Transparency and Accountability

Witnesses provided the Committee with a variety of options designed to improve transparency and accountability in DND and the CAF. In particular, they discussed DND’s and the CAF’s: approach when processing and responding to ATIP requests; protection of, and access to, personal information; modernization of information management systems; application of classifications to defence and security documents; and measures to address the perceived “culture of secrecy.”

Processing and Responding to Access to Information and Privacy Requests

Witnesses focused on DND’s and the CAF’s compliance with the Access to Information Act and the Privacy Act when processing and responding to ATIP requests that individuals have submitted in an attempt to access non-personal or personal information.^[3] Minister of National Defence Bill Blair emphasized that DND personnel and CAF members who process and respond to such requests (hereafter, DND/CAF ATIP personnel or ATIP personnel) must be “politically impartial,” “transparent” and “accountable first and foremost to Canadians.”

Bill Matthews, DND’s Deputy Minister,^[4] and Taylor Paxton, DND’s Corporate Secretary, described the steps that DND/CAF ATIP personnel take when processing and responding to an ATIP request. According to them, these steps include: ensuring that the individual submitting the request has provided all required information; assigning the request to the DND/CAF teams that will provide ATIP personnel with relevant documents and other information; and having ATIP personnel “collate all of the information” received from those teams. According to Taylor Paxton, ATIP personnel “work really hard” to ensure that they process and respond to ATIP requests within the legislated 30-day period. That said, she also recognized that “sometimes it takes longer.”

However, Minister Blair observed that, in 2022–2023, DND received 2,241 new access to information requests and closed 2,242 access to information requests from that and previous years, of which 61.7% were “closed within the legislated timelines.” As well, Minister Blair indicated that DND provided a “nil response” for 593 of those 2,242 requests, including because “the retention period for a [requested] document may have passed” or because “the [requested] information is not tracked by [DND].”

Colonel (Retired) Michel Drapeau, a lawyer and Adjunct Professor at the University of Ottawa who appeared as an individual, drew attention to the $5 fee for submitting an ATIP request and DND’s practice of not regularly acknowledging receipt of these requests. He added that, as of 14 February 2024, such was the case with three requests that he had submitted in September 2023. According to Bill Matthews, DND/CAF ATIP personnel do not have access to the personal information—including the identity—of the individual submitting an ATIP request and they do not acknowledge the receipt of such requests.

In commenting on the need to improve DND’s and the CAF’s ATIP process (hereafter, the DND/CAF ATIP process), Minister Blair referenced two reports presented to Parliament that discuss issues affecting—and that provide recommendations aimed at enhancing—that process: the Office of the Information Commissioner of Canada’s (OIC’s) 2020 special report entitled Nine recommendations regarding the processing of access requests at National Defence; and the Treasury Board of Canada Secretariat’s (TBS’s) 2022 report entitled Access to Information Review Report to Parliament.

The OIC’s 2020 special report mentions that most DND and CAF documents are paper-based, which negatively affects the speed with which DND/CAF ATIP personnel are able to process and respond to ATIP requests. Minister Blair said that, because “many of the processes and reports of DND [and the CAF] are paper-based,” ATIP personnel experience challenges in “meeting the timelines” for an ATIP request. Minister Blair highlighted that it can be “time-consuming” for these personnel to search through “many different files and documents” in order to respond to a request.

Witnesses underscored existing shortages in the number of DND personnel and CAF members who have the training and skills to process and respond to ATIP requests. Bill Matthews identified these shortages as a factor contributing to delays in the DND/CAF ATIP process. In his opinion, “there is a very competitive environment to hire ATIP folks, so there are openings, but finding the people and getting them trained is taking time.” Moreover, Caroline Maynard, Information Commissioner of Canada, outlined some other factors affecting the ability to process and respond to ATIP requests submitted to federal entities: inadequate funding and other “resources [and] tools”; the “culture” in some entities; and differences in entities’ information management systems.

Colonel (Retired) Drapeau maintained that DND/CAF ATIP personnel generally “do a tremendous job” in processing and responding to ATIP requests. However, he drew attention to both the high number of requests and the “lack of support” that these personnel receive. Richard Shimooka, Senior Fellow at the Macdonald-Laurier Institute who appeared as an individual, also pointed out that DND, the CAF and other federal entities do not have sufficient personnel to process and respond to these requests, and he added that the DND/CAF ATIP process relies “heavily on departmental staff to assess documentation for release, the same staff who are already overburdened with their day-to-day work.”

As well, witnesses made comments about administrative and logistical challenges experienced when submitting ATIP requests to DND and the CAF. Richard Shimooka stressed that, over the past 20 years, the DND/CAF ATIP process has become an “increasingly ineffective” way for individuals to “obtain useful information on a timely basis” from DND and the CAF. In providing an example, he said the following:

In 2002, a relatively straightforward [ATIP] query would generally provide a good return of documents. A set of [responses to ATIP requests that] I used to examine the [CAF’s] 1996 intervention in Zaire provided over 2,000 documents with a very high level of complexity, including a large number of foreign confidences, advice and sensitive information. The original request took about a year to be released and provided an in-depth view of what occurred during that operation. This would be unheard of today.

Patrick White, a CAF member who appeared as an individual, contended that DND/CAF ATIP personnel have different procedures for processing and responding to ATIP requests, thereby leading to the possibility that these personnel will withhold or delete some requested “records.” Moreover, Patrick White claimed that individuals submitting a request to DND or the CAF for personal information must know the name of the person who has access to that information. He also argued that individuals making such requests commonly submit complaints to the OIC and the Office of the Privacy Commissioner of Canada (OPC) to obtain their personal information, and suggested that “you will not get your information unless you make a complaint."^[5]

Concerning access to information–related complaints submitted to the OIC, Caroline Maynard indicated that individuals can make complaints because they have experienced delays in receiving requested information or because they “believe they haven’t received all of the information to which they’re entitled.” She also mentioned that, as of 26 February 2024, the OIC had received 103 access to information–related complaints concerning DND, with DND “rank[ing] sixth in the number of complaints” in 2023–2024.

Caroline Maynard also said that, in early 2024, she had issued several binding compliance orders relating to 29 investigations involving DND.[6] She pointed out that the orders focused mainly on the timeliness with which DND processes and responds to access to information requests, and added that a “lack of responsiveness from [DND] teams responsible for providing records” to respond to a request have sometimes had a negative impact on DND’s “ability to meets its obligations” under the Access to Information Act. Caroline Maynard commented that legal action has been taken because DND has “ignor[ed]” some orders: one application was made to the Federal Court in December 2023, and two applications were made in February 2024.[7] Regarding the order relating to DND’s COVID-19 policies, she stated the following:

Last June, I ordered the Minister of National Defence to release records on DND's COVID-19 policies by November 30, 2023. These policies were requested through an access to information request made the year before. The department told my office it would comply with the order. However, it did not meet the November deadline. This is why last December I filed an application for writ of mandamus to compel the Minister of National Defence to comply with my order.

Regarding complaints to the OPC relating to requests for personal information, Philippe Dufresne, Privacy Commissioner of Canada, estimated that more than 50% of the 300 privacy-related complaints against DND and the CAF received over the last five years were “related to the time that it was taking them to process” and respond to such requests. He emphasized that, unlike the OIC, the OPC lacks the authority to issue a binding order for federal entities to comply with the Privacy Act, and can only provide recommendations designed to ensure compliance. As well, Philippe Dufresne said that individuals’ sole option for compelling DND and the CAF to process and respond to requests for personal information is to submit a complaint to the Federal Court for a judicial review.

In addition to identifying challenges with the DND/CAF ATIP process, witnesses drew attention to ongoing DND and CAF efforts to improve that process. Minister Blair outlined several steps that they have taken to ensure that ATIP requests are processed and receive a response in a timely manner. He noted that these steps include the following:

[M]oving to a paperless process to manage [ATIP requests] and acquiring new software to speed up the processing of ATIP requests; reinforcing the requirements for senior leaders to ensure they are committed to compliance; and improving training required for all members of the defence team on their obligations [concerning ATIP requests].”

With a focus on modernization, Bill Matthews pointed out the “digitizing and automating” of the DND/CAF ATIP process. He also underlined that he and the Chief of the Defence Staff have “remind[ed]” senior DND personnel and senior CAF officers about the importance of ensuring that DND/CAF ATIP personnel receive mandatory and adequate training for processing and responding to ATIP requests.

Witnesses also proposed additional measures that would enhance the DND/CAF ATIP process. Caroline Maynard urged DND, the CAF and other federal entities to use a performance evaluation process to provide DND/CAF ATIP personnel with an incentive to process and respond to access to information requests in a timely manner. Moreover, she encouraged that senior DND and CAF leaders should enhance the ATIP process through providing training, establishing clear priorities and objectives, and ensuring that ATIP personnel have adequate resources. Colonel (Retired) Drapeau suggested that it is “absolutely essential” for the Office of the Auditor General of Canada to conduct an audit of the ATIP process to “determine whether [DND and the CAF] have the right tools, the right number of employees, and so on” to process and respond to ATIP requests.

As well, witnesses discussed the need for legislative changes, including to the timeline for processing and responding to ATIP requests. Colonel (Retired) Drapeau and Richard Shimooka argued that the timeline should be extended from 30 days to an “enforceable” timeline of 60 days. However, Caroline Maynard said that extending the legislated timeline to 60 days could still result in federal entities asking for additional time to process and respond to such requests.

In focusing on the legislative review of the Access to Information Act in 2025, Caroline Maynard highlighted the need for amendments, mentioning that the statute is more than “40 years old and … hasn’t changed that much” since coming into force in 1983. Similarly, Colonel (Retired) Drapeau expressed support for amendments, asserting that the current statute “doesn't produce the results, on a quasi-constitutional basis, that you expect as an [ATIP] requester.” He contended that amendments should not involve “wholesale change,” but rather more limited modifications to such aspects as the legislated timeline for processing and responding to an ATIP request.

Witnesses also made observations about the current mechanisms for making complaints concerning ATIP requests. Colonel (Retired) Drapeau said that some individuals with a complaint should be able to “bypass the normal and complete mechanism of going through the Information Commissioner, which takes forever to do,” and should instead be permitted to submit their complaint directly to the Federal Court for a judicial review if the OIC’s investigation is not timely. He maintained that this approach could reduce the number of days that an individual submitting an access to information request would have to wait before receiving the requested information from DND or another federal entity.

Regarding requests for personal information, Philippe Dufresne called for legislative changes that would give the OPC the authority to issue binding compliance orders to federal entities. He said that privacy information commissioners in some Canadian provinces and several foreign jurisdictions have “the authorities to make not merely recommendations but also [to issue binding compliance] orders.”

Furthermore, witnesses discussed DND’s and the CAF’s proactive disclosure of information known to be of public interest. In referencing Bill C-58, An Act to amend the Access to Information Act and the Privacy Act, which received Royal Assent in 2019, Minister Blair and Taylor Paxton observed that the bill gave the OIC the authority to issue binding compliance orders concerning access to information requests and required federal entities to disclose certain information proactively.^[8] Minister Blair also stated that the DND/CAF ATIP process was changed to meet regulatory requirements concerning proactive disclosure and to “respect additional powers” given to the Information Commissioner of Canada resulting from the enactment of Bill C-58. However, Caroline Maynard noted that, as of 26 February 2024, the OIC did not know whether federal entities were “respect[ing] their proactive disclosure obligations because nobody has a purview, an authority, to review that.”

Witnesses also proposed measures aimed at enhancing the accessibility of the DND/CAF ATIP process. Philippe Dufresne encouraged DND and the CAF to “make the [ATIP] system as user friendly as possible.” Furthermore, Patrick White stated that, if DND and the CAF were to maintain records of the specific terms used in internal correspondence when processing and responding to ATIP requests, those records could then be made public to facilitate the submission of requests. According to him, individuals could use those terms—rather than generic terms—when submitting requests and thereby access information that would not generally be available.

Finally, in drawing attention to the TBS’s Info Source, Colonel (Retired) Drapeau remarked that individuals submitting an ATIP request to DND and the CAF can use the online tool to access “a mountain of information on [federal] programs” that are subject to the Access to Information Act, as well as a guide for submitting requests for personal information.

Protecting and Accessing Personal Information

Witnesses provided their views about DND’s and the CAF’s approach to protecting the personal information of DND personnel and CAF members. Philippe Dufresne highlighted the advice that DND and the CAF receive about their compliance with the Privacy Act, noting that DND has consulted the OPC “on a wide range of privacy-related issues such as biometrics, open-source intelligence, staffing and recruitment.” He also expressed support for DND’s and the CAF’s actions to enhance the protection of personal information. As well, Philippe Dufresne said that DND, the CAF and Veterans Affairs Canada have discussions with the OPC about general privacy concerns, the privacy impact assessments that occur pursuant to a TBS directive, and the transfer of medical records from the military health care system to a civilian health care system.

Nevertheless, Philippe Dufresne observed that, over the past five years, DND and the CAF submitted 10 “breach reports” to the OPC, “primarily related” to such issues as “the unauthorized access, unauthorized disclosure and the loss of personal information.”^[9] In focusing on unauthorized access to personal information, he emphasized that any access “needs to be [for] a legitimate reason” and should “relate to the [federal entity’s] legislative mandate.” Philippe Dufresne also underscored that personal information “must be protected” properly from any unauthorized access.

Patrick White stated that there are “no consequences“ in the CAF for privacy breaches regarding personal information, and noted that he has experienced two such breaches after submitting a complaint: the first was a harassment complaint he submitted on his own behalf, and the second was a sexual misconduct complaint he submitted on behalf of other CAF members against a senior CAF officer. He commented that the second breach “happened because [another senior CAF officer] improperly retained access to and shared personal information [internally and without proper authorization] that should have been transferred or destroyed when I transferred units.” Patrick White also asserted that the senior CAF officer who perpetrated the second privacy breach had “all of the requisite training, knowledge and experience” regarding the management of CAF members’ personal information.

With a focus on privacy impact assessments, Philippe Dufresne encouraged DND and the CAF to conduct these assessments both regularly and prior to implementing new programs or other initiatives that could affect the protection and release of personal information. He highlighted that those assessments can both consider the “privacy impacts” of implementing new initiatives and identify ways to mitigate privacy-related risks associated with them. Moreover, Philippe Dufresne indicated that the OPC can provide advice to federal entities during those assessments, which he characterized as “good for citizens, who are going to have better privacy protections,” and good for the entities “because they get advice and are seen to be getting advice from a neutral regulator.”

However, in noting that federal entities are not legally required to conduct privacy impact assessments, Philippe Dufresne called for these assessments to become a legal requirement. Moreover, in Philippe Dufresne’s view, the Privacy Act should be amended to require an assessment when a federal entity is “develop[ing] a new program or us[ing] new tools that may have significant consequences for privacy.”

In providing a different opinion, Bill Matthews said that a privacy impact assessment by DND and the CAF “might not be warranted” regarding particular software if another federal entity has already conducted an assessment for that software. According to him, such federal entities as Shared Services Canada might have assessed “government-wide” software to determine any privacy-related consequences. As well, Bill Matthews mentioned that the common practice in DND and the CAF should be the following:

[W]hen the chief information officer's branch becomes aware of a new software product, they look at it from a security perspective—the first tension point—and then from a privacy perspective. If they believe that a privacy impact assessment is warranted, it would then come over to the corporate secretary's team to action.

Witnesses also identified challenges that CAF members experience in attempting to access their personal information, including medical records. Gregory Lick, National Defence and Canadian Armed Forces Ombudsman,^[10] stated that it can be “morale damaging” if DND and the CAF do not provide CAF members with requested information—including their personal information—in a timely manner.

Regarding the medical records of CAF members transitioning to civilian life, Gregory Lick remarked that DND and the CAF have recently taken steps to enhance members’ access to their records. General Wayne Eyre, Chief of the Defence Staff,^[11] mentioned that the process for accessing these records was changed in 2018, with the result that most members transitioning to civilian life no longer have to submit an ATIP request. However, Bill Matthews acknowledged that some CAF members transitioning to civilian life submit an ATIP request if they have been unable to access to their personnel files, including medical records, prior to their release from the CAF.

In referencing reports by the Office of the National Defence and Canadian Armed Forces Ombudsman that address CAF members’ access to medical records, Gregory Lick underlined that some access issues continue to exist. According to him, DND sometimes provides those records on a compact disc (CD), adding that “many people don’t have CD players anymore.” He also stressed that some CAF members are not receiving such records “in as timely a manner as we would like to see.”

Modernizing Information Management Systems

Witnesses discussed the age of, the quantity of information stored in and the modernization of the information management systems at DND and in the CAF. Bill Matthews said that some of those systems “are not integrated” or are “outdated,” which affects the ability of DND/CAF ATIP personnel to process and respond to ATIP requests in a timely manner. He maintained that it may take ATIP personnel a considerable amount of time to locate paper-based documents.

In suggesting that “people [generally] aren’t good at information management,” Caroline Maynard commented that “there’s far too much information” in the information management systems of federal entities. She also stated that, over time, the number of pages of information needed for responses to certain ATIP requests has increased from “about two or three pages in a small paper file” to “thousands of pages.” Caroline Maynard pointed out that “there's definitely an issue with information management [because it] causes delays.”

Bill Matthews stated that senior DND personnel and senior CAF officers can play a significant role in raising awareness among all personnel and members about the importance of information management as “part of their job.” He underscored the need to ensure that training about “proper record-keeping” occurs, which could reduce the amount of time that DND/CAF ATIP personnel spend searching for the paper-based documents needed to respond to ATIP requests. Similarly, Caroline Maynard emphasized that “senior leadership is key to influencing corporate culture change,” and proposed that this “leadership must be extended to information management practices and internal communications protocols” to ensure DND’s and the CAF’s compliance with the Access to Information Act.

Regarding DND’s and the CAF’s modernization of their information management systems, Bill Matthews indicated that—as of 12 February 2024—“plans [were already] under way,” such as ongoing efforts to digitize the DND/CAF ATIP process. He also noted that DND plans to modernize “some of [DND’s] basic information systems across the department,” including in such areas as finance, human resources and defence procurement.

Finally, Patrick White urged DND and the CAF to implement an information management system for “preserving” all information—including emails and other correspondence—relevant to the work of all former DND personnel and CAF veterans. He said that such a system would ensure that individuals submitting an ATIP request have access to a wide range of information.

Applying Classifications to Documents

Witnesses drew attention to the classifications that DND and the CAF apply to their documents, suggesting that they are often over-classified. Bill Matthews acknowledged that DND and the CAF “have a bias … of trying to classify everything as secret and protected right from the get-go,” and said that the classification levels affect the ability of DND/CAF ATIP personnel to process and respond to ATIP requests in a timely manner. He explained that these personnel must exercise additional “care and attention” when documents classified as “secret” or “protected” are used to respond to a request.

In comparing the Government of Canada’s classification process for defence and security documents to that of the Government of the United States (U.S.), Richard Shimooka asserted that the Government of Canada sometimes over-classifies defence and security documents that the U.S. Department of Defense “routinely publishe[s]” in U.S. media. Moreover, Richard Shimooka and Tim McSorley, National Coordinator with the International Civil Liberties Monitoring Group, referenced the Government of Finland’s document classification system when proposing that the Government of Canada should consider implementing a similar approach. Tim McSorley characterized Finland’s system as an “overt and conscious process of classification,” and Richard Shimooka mentioned that “nothing is classified unless it has to be specifically identified as classified.”

With a focus on addressing DND’s and the CAF’s perceived over-classification of documents, General Eyre underlined the need for regular evaluation of their classification approach. He added that “a ‘need to share’ mentality instead of [a] ‘need to know’ [approach]” should be used when decisions are made about disclosing information and classifying documents. In General Eyre’s view, the “default position” should not be to classify most documents as “secret” or as “Canadian eyes only.”

Bill Matthews drew attention to the importance of providing “proper training” about document classification to ensure that DND personnel and CAF members have adequate knowledge and resources to determine which documents should be classified as “secret” or “protected.” In his opinion, without proper training, high-level security classifications are likely to be applied to all documents “from the start.” As well, he highlighted that efforts to address DND’s and CAF’s tendency to over-classify documents “would alleviate part of the problem” associated with the perceived lack of transparency in DND and the CAF. Furthermore, Bill Matthews indicated that DND and the CAF are proactively declassifying documents that could be of public interest, but noted that “a lot of paperwork has to be done before information can be published.”

Concerning a centralized process for declassifying federal documents, Bill Matthews said that such an approach would be “difficult” because the federal government is “quite large.” Nevertheless, he emphasized that developing clear federal guidelines for declassifying documents would be “worthwhile” and would contribute to greater consistency among federal entities.

Finally, in General Eyre’s opinion, Committee members should have a security clearance that would enable them to examine documents that contain—and to receive briefings from senior federal officials that involve—classified information.

Addressing the Perceived “Culture of Secrecy”

Witnesses provided their opinions about the perceived “culture of secrecy” in DND and the CAF that limits the sharing of information with relevant individuals and the public. Richard Shimooka asserted that some DND personnel “frequently employ highly restricted interpretations in an effort to suppress the disclosure of some documents, or claim that no such records have been found.”

With a focus on the Access to Information Act, Bill Matthews highlighted the statute’s specific exemptions that “guide” DND’s and the CAF’s decisions to withhold certain information from—or to provide redacted information to—the public. He noted that these exemptions relate to certain “personal information,” “proprietary third-party information” or other information that—if released—could “damage” Canada’s reputation from “an international affairs perspective.” Philippe Dufresne indicated that, although the Access to Information Act and the Privacy Act contain specific exemptions, “recourse exists [for an individual] to challenge” a federal entity’s reasons for not disclosing certain information.

In discussing civil liberties organizations that analyze the real and potential impacts of national security and anti-terrorism legislation on domestic civil liberties, Tim McSorley asserted that a “large part of [these organizations’] work has been to push back against the ever-growing creep of secrecy” in federal entities. He also contended that a culture of secrecy “breeds unaccountability, which invariably leads to abuses,” and is “especially troubling” in relation to such areas as national security and national defence, which involve “some of the most complex issues and often run the risk of the gravest rights violations.” Moreover, Tim McSorley suggested that, “under the guise of protecting national security,” there has been “an ongoing erosion of transparency” in DND, the CAF, the Communications Security Establishment (CSE) and other federal entities involved in defence and national security matters.

As well, Tim McSorley drew attention to two bodies that review the national security and intelligence activities of such federal entities as CSE, DND and the CAF: the National Security and Intelligence Review Agency (NSIRA) and the National Security Intelligence Committee of Parliamentarians (NSICOP). In his view, NSIRA and NSICOP “provide the kind of accountability that ostensibly cannot be provided directly to the public because CSE, DND intelligence, and other national security agencies work in secret.”

However, Tim McSorley contended that NSIRA personnel, as well as NSICOP members and staff, “are sworn to secrecy and work in secure facilities,” and argued that most NSIRA and NSICOP reviews tend to be “redacted when … released publicly.” He also claimed that some of those reviews have reported that CSE: “fundamentally obstructs” them as they “carry out their work”; “is slow to provide information”; and “does not provide access to files in a way that allows for independent research and verification.”[12] Tim McSorley elaborated by stating the following:

NSICOP [has] reported that the [federal entities that] it reviews, including the CSE, have refused to hand over information based on reasons that are not allowed for by the law, or have simply decided to refuse to provide relevant information based on their own decisions. NSIRA has reported that CSE has failed to establish a system to grant it independent access to information, resulting in CSE staff themselves determining what information to provide to NSIRA, making it impossible to ensure the independence of a review. NSIRA [has] also reported significant delays in CSE providing it with information, thereby disrupting the progress of reviews and violating the CSE's legal requirements towards NSIRA.[13]

Furthermore, in Tim McSorley’s opinion, CSE and other federal entities that “unlawfully withhold information and obstruct and delay reviews” of national security and intelligence activities do not experience consequences for such actions or inaction. However, Minister Blair provided a different perspective, stating that CSE personnel are “very rigorous in their adherence to [the] various legal requirements” that relate to CSE’s national security and intelligence activities.

Richard Shimooka focused on the effects of the perceived culture of secrecy in DND and the CAF on the ability of senior DND personnel and senior CAF officers to communicate publicly. According to him, over time, there “has been a consistent effort to curtail the ability of [federal] officials to discuss policies with interested parties.” He also said the following:

In the years after the [1993] Somalia inquiry [concerning the torturing and killing of a Somali civilian by two CAF members], DND employed a fairly liberalized communication policy, and access to officials was fairly good. One of the most helpful aspects was that departments made available subject matter experts to discuss specific areas.

However, in 2005, the policy changed dramatically, in part due to the belief that the war in Afghanistan required message discipline, and a preference by the [Stephen] Harper government to centralize communication strategies. Access to information was curtailed and replaced by superficial media response lines from public affairs representatives.

Regarding the use of non-disclosure agreements to maintain the confidentiality of information, Tim McSorley and Richard Shimooka stated that DND and the CAF have used such agreements as “gag orders,” thereby limiting the ability of certain DND personnel and CAF members to disclose information publicly. Richard Shimooka also said that, over time, “working relationships” between DND personnel or CAF members and non-governmental researchers have become “increasingly strained,” adding that “one of the most serious ruptures [in such working relationships] occurred after 2015, when Vice-Admiral Mark Norman was charged with a breach of trust and members of the future fighter capability project were forced to sign a gag order.” He contended that “these events” had a “serious chilling effect” on DND personnel and CAF members, who “felt fear towards the potential consequences of talking outside of government.”

In Richard Shimooka’s view, DND personnel and CAF members involved in major defence procurement projects, such as the Future Fighter Capability Project, are entrusted with “highly sensitive technical classified information” and “have a good sense” of what information can be shared publicly. That said, Richard Shimooka also suggested that the alleged use of a non-disclosure agreement with respect to the Future Fighter Capability Project has affected the morale of DND personnel and CAF members involved in that project, and he claimed that some CAF members have left the CAF “because of [that] gag order.”

Concerning the CAF’s use of “code words,” or pseudonyms, to refer to senior CAF officers in internal communications, Colonel (Retired) Drapeau maintained that “[i]t's common parlance” to use pseudonyms “in various operations and … circumstances.” However, he stated that his “conscience” would be shocked if the CAF were to use pseudonyms “improperly or illegally” to obscure information about senior CAF officers being investigated for wrongdoing.

Finally, in focusing on efforts to enhance public trust in the CAF, General Eyre said that CAF members should communicate regularly with Canadians about the “challenges we face and the successes we have.” He also advocated a “whole-of-society effort,” including from Canadian parliamentarians, to: “showcase the great work” that CAF members complete domestically and internationally; improve understanding of the CAF’s policies, operations and day-to-day activities; and highlight the need to support the CAF. Moreover, General Eyre underlined the importance of transparent discussions among stakeholders—including DND personnel, CAF members, parliamentarians, civil society organizations and others—regarding national defence and national security matters, with the objective not of “spread[ing] fear,” but of “rais[ing] awareness” among the public about the international security environment in which the CAF operates.

Proposals for Strengthening Oversight

Witnesses provided comments to the Committee about strengthening oversight of DND and the CAF, with a particular focus on: resolving grievances through the CAF’s grievance process; establishing a legislative basis for the Office of the National Defence and Canadian Armed Forces Ombudsman; protecting whistleblowers from reprisals; addressing allegations of sexual misconduct in the CAF; and supporting the work of the Military Police Complaints Commission of Canada (MPCC).

Resolving Grievances

Witnesses described the CAF’s process for resolving grievances submitted by CAF members. Minister Blair indicated that these members can access “comprehensive complaint mechanisms,” including the CAF’s grievance process, to “hold their leadership accountable.” In describing the types of grievances that the CAF had received as of 12 February 2024, Bill Matthews estimated that 35% were related to “career management-type issues,” between 28% and 29% reflected concerns about compensation and benefits, and 13% addressed conduct- and performance-related issues. Moreover, Colonel (Retired) Vihar Joshi, Interim Chairperson of the Military Grievances External Review Committee, observed that CAF members infrequently submit grievances related to “the [military] chain of command … mistreating them.”

In outlining the multiple steps in the CAF’s grievance process, Minister Blair said that CAF members generally can submit a grievance to their commanding officer or to another designated senior CAF officer with the “initial authority” to make a decision regarding that grievance. Major-General Erick Simoneau, Chief of Staff and Chief Professional Conduct and Culture at the CAF, observed that the senior CAF officer responsible for providing the initial decision about a grievance usually has four months to provide that decision, with a possible extension to this time period.

Minister Blair noted that CAF members who disagree with the initial decision about their grievance can make a request to have the Chief of the Defence Staff or another high-ranking CAF officer “reconsider” that grievance as the “final authority.” Major-General Simoneau stated that CAF members have 30 days after they receive that initial decision to make a reconsideration request, with an extension of that period sometimes possible.

As well, Major-General Simoneau mentioned that the Chief of the Defence Staff or the designated officer is “not time-bound” in making a final decision. Colonel (Retired) Drapeau suggested that “it is not unusual” for the Chief of the Defence Staff to “take between four and five years” to make a final decision, adding that this lengthy period of time contributes to CAF members feeling frustrated, “unappreciated” and “unvalued.” He also maintained that a CAF member can submit a grievance to the Federal Court for a judicial review “only when the chief of the defence staff signs the final decision.”

Witnesses also identified challenges that CAF members experience when submitting grievances. In his brief submitted to the Committee, Colonel (Retired) Drapeau characterized the CAF’s grievance process as “dysfunctional” and “defective,” and noted that—“as far back as 2003”—former Supreme Court Chief Justice Antonio Lamer’s independent review of the National Defence Act called for that process to be “fix[ed].”^[14] The brief also referenced three additional independent review reports that have identified “major structural problems” with the process: former Ontario Superior Court Chief Justice Patrick LeSage’s 2011 report; former Supreme Court Justice Morris J. Fish’s 2021 report; and former Supreme Court Justice Louise Arbour’s 2022 report.^[15]

Patrick White testified that most CAF members, especially those who lack “legal knowledge” about the CAF’s grievance process, can find it difficult to “navigate” the process. He said that they may lack access to legal advice or to the level of resources available to the senior CAF officers responsible for making decisions about grievances. As well, Patrick White asserted that the process requires CAF members to spend a significant amount of their personal time “to fight a system that is paid and employed full-time to fight back” against their grievances.

In addition to discussing challenges with the CAF’s grievance process, witnesses drew attention to the CAF’s efforts to modernize and streamline that process. Major-General Simoneau noted that, since early February 2024, CAF members have been able to use a digital grievance submission form, which is “step one” of the modernization. He also said that the online submission of grievances will better enable the CAF to “track” the number of grievances it receives. Major-General Simoneau observed that, before the availability of the digital form, the CAF was experiencing challenges in “understanding how many grievances there are in the [process] at any given time, simply because they were paper-based.”

Furthermore, General Eyre highlighted that—by fall 2024—the CAF plans to establish a Grievance Centre of Expertise[16] comprising “grievance experts” who will provide support to CAF members about submitting grievances and to senior CAF officers about adjudicating grievances. As well, he maintained that this centre will “identify systemic issues” concerning grievances that will justify the CAF taking “rapid action.”

In supporting a modernized and streamlined CAF grievance process, Gregory Lick encouraged the CAF to use informal processes for resolving grievances, suggesting that this approach—if used—would “provide another opportunity to resolve a complaint or conflict before getting into the long grievance process.” He also described the CAF’s Conflict and Complaint Management Service Office as a “great initiative” for helping CAF members to address work-related conflicts informally before submitting a grievance.

With a focus on the CAF’s current backlog of unprocessed grievances, General Eyre and Major-General Simoneau mentioned the recent implementation of a CAF-led pilot project designed both to reduce the backlog and to identify new tools and other resources that could help to modernize and streamline the CAF’s grievance process. In General Eyre’s opinion, the pilot project “has set in motion the steps required” for the CAF to process the backlog “in the coming weeks and months,” and has identified the need to promote the “use of informal resolutions” and to provide senior CAF officers with new delegated authorities for resolving grievances.

Moreover, General Eyre underlined that efforts to modernize and streamline the CAF’s grievance process are “part of a broader institution-wide movement” aimed at fostering “a climate of respect, inclusivity and integrity” throughout the CAF. He also stated that, in 2022, the CAF published Canadian Armed Forces Ethos: Trusted to Serve, which outlines principles, values and standards for the conduct of CAF members. As well, General Eyre indicated that the CAF plans to publish a “culture evolution strategy” in the near future.

Witnesses also discussed the Military Grievances External Review Committee’s (MGERC’s) role in reviewing grievances that the Chief of the Defence Staff refers to it. Minister Blair commented that the MGERC’s recommendations may assist the Chief of the Defence Staff in making the final decision about a grievance. Colonel (Retired) Joshi highlighted that the MGERC provides the Chief of the Defence Staff and the CAF member who submitted the grievance with non-binding findings and recommendations for resolving the grievance, with the CAF being required to explain its reasons for deciding not to implement those findings and recommendations. As well, he noted that the MGERC publishes online summaries of—and recommendations relating to—some of its reviews with the goal of informing CAF members who are considering whether to submit a grievance.

Concerning the Chief of the Defence Staff’s referral of grievances to the MGERC, Colonel (Retired) Joshi observed that these referrals can be “discretionary” or “mandatory,” with mandatory referrals occurring with grievances relating to such issues as harassment, wages or allowances, health care, and dental or other benefits, as well as certain “personal decisions” that the Chief of the Defence Staff makes. Regarding discretionary referrals, he noted that the CAF is not required to refer grievances concerning its decisions affecting a CAF member’s professional career. That said, Colonel (Retired) Joshi emphasized that, since 2023, the number of discretionary referrals has decreased “significantly” when compared to earlier years. He also underscored that the MGERC “only see[s] a grievance when it's referred … by the [Chief of the Defence Staff], which is long after the grievance has been [submitted],” and pointed out that the time period between a CAF member submitting a grievance and the grievance being referred to the MGERC can be four to six months.

Colonel (Retired) Joshi proposed that the federal government should enact legislation to compel the Chief of the Defence Staff to refer all grievances to the MGERC. In his view, this approach would help to ensure that CAF members have “the disclosure they need to have their grievances properly considered.” He elaborated by stating the following:

While it may look as if it would take more time [for mandatory referrals of all grievances], at the end of the day, it saves time in the process. Why is that? What the Canadian Armed Forces and the member get back is a fully analyzed file with all the information contained in it and the logical flow of how we arrived at a recommendation or conclusion. When it gets back to the final authority, they have a complete file. They can review it. They have an independent opinion on it. It also explains to grievers why we feel their file should be decided in a certain way. That gives us some transparency and boosts confidence in the system.

In referencing Justice Fish’s 2021 report, Colonel (Retired) Joshi drew attention to the recommendations in two areas: making the MGERC’s findings and recommendations regarding certain grievances binding if the Chief of the Defence Staff does not respond to them within a period of 90 days; and establishing a working group to determine whether the Chief of the Defence Staff should delegate the final decision-making step for grievances to the MGERC or another federal oversight entity.

Finally, regarding Governor in Council appointments to the MGERC,^[17] Colonel (Retired) Joshi noted two lapses in appointments during the previous five years that affected the MGERC’s oversight of the CAF’s grievance process. He indicated that the MGERC’s chairperson and a vice-chairperson “left the committee” in 2022, and added that—as of 26 February 2024—“those positions [had] not been filled yet.”^[18]

Establishing a Legislative Basis for the Office of the National Defence and Canadian Armed Forces Ombudsman

Witnesses discussed the Office of the National Defence and Canadian Armed Forces Ombudsman, with a particular focus on the office having a legislative basis and the National Defence and Canadian Armed Forces Ombudsman having a direct reporting relationship to Parliament.^[19] Minister Blair indicated that establishing such a legislative basis, and determining the nature and extent of independence, would be a “decision of Parliament.”

Gregory Lick supported a legislative basis for an independent Office of the National Defence and Canadian Armed Forces Ombudsman, and said that making the National Defence and Canadian Armed Forces Ombudsman an Officer of Parliament “would place the fair treatment of [DND personnel and CAF members] above politics.” He also argued that the lack of a legislative basis and of independence results in the office being subject to scrutiny by the entities that “it is mandated to oversee”: DND and the CAF. In providing an example, he contended that—during his predecessor’s tenure^[20]—DND conducted an investigation of the office’s personnel that was “riddled with procedural defects and unfairness.”

Moreover, Gary Walbourne, former National Defence and Canadian Armed Forces Ombudsman, stated that the Minister of National Defence sometimes refused to meet with him to "discuss items of importance," adding that DND used "tactics to restrict [his] ability to do [his] job." He recalled that, following his decision to inform then Minister of National Defence Harjit Sajjan about allegations of sexual misconduct directed against former Chief of the Defence Staff General Jonathan Vance,^[21] the Minister's staff refused to schedule regular meetings between himself and the Minister to discuss these allegations and other matters.

Regarding proposed legislation that would establish an independent Office of the National Defence and Canadian Armed Forces Ombudsman, Gary Walbourne expressed support for a private member’s bill introduced in the House of Commons in November 2023: 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. He said that "it is encouraging that others are now seeing the benefits of having an ombudsman legislated."

In comparing Canada’s National Defence and Canadian Armed Forces Ombudsman to similar foreign ombudspersons, Gregory Lick underlined that most “ombudspersons around the world” do not have “enforcement power.” He indicated that they instead tend to use “moral suasion”— including through oversight investigations—to persuade their government to “do the right thing [based on] the evidence.” In his view, Canada is alone among the Five Eyes intelligence alliance countries^[22] in not having “legislated oversight” of its military. He provided the example of the United Kingdom, pointing out that the United Kingdom Service Complaints Ombudsman has the authority to issue certain binding recommendations relating to that country’s military.

Witnesses also made observations about the level of independence of the Office of the National Defence and the Canadian Armed Forces from DND and the CAF. Bill Matthews noted that DND has taken steps to “loosen” some “financial controls” to give the National Defence and Canadian Armed Forces Ombudsman “more independence.” In providing a different perspective, Gary Walbourne stressed that the office does not have "financial control" or "human resources control," with DND making most final decisions regarding the office's budget, the hiring process and other administrative matters. Gregory Lick agreed that the office lacks full control over its hiring process, and asserted that DND has implemented "many [human resources] controls" that affect the office’s ability to "hire the people … best able to do the job."

Moreover, Gary Walbourne drew attention to the need to increase the level of independence of the Office of the National Defence and the Canadian Armed Forces Ombudsman to ensure that CAF members perceive the office’s independence from the military chain of command. He contended that it is likely that some CAF members who “have been aggrieved” will not submit a complaint to the office if they “mistrust” the military justice system and perceive that the office lacks independence from DND and the CAF.

As well, witnesses made comments about the appointment process for the National Defence and Canadian Armed Forces Ombudsman. Gary Walbourne suggested that having the Governor in Council make the appointment on the advice of the Minister of National Defence “goes contrary to any definition of transparency,” and does not ensure independence from DND and the CAF. In his opinion, the current appointment process involves a “quid pro quo,” with the federal government expecting “payback” from the ombudsman “somewhere down the road.” He advocated an appointment process that involves an “open competition,” with “the right person” selected on the basis of merit and ability.

Witnesses also discussed the status of DND’s and the CAF’s implementation of recommendations contained in some reports by the Office of the National Defence and Canadian Armed Forces Ombudsman. According to Gary Walbourne, as of 17 April 2024, DND and the CAF had not fully implemented a number of the recommendations made in the office’s 14 reports published between 2014 and 2018.

Gregory Lick commented that DND and the CAF are not required to implement or respond to recommendations in reports by the Office of the National Defence and Canadian Armed Forces Ombudsman. He also mentioned the following:

Our reports, which are evidence-based, are aimed at eliminating systemic issues facing the defence community. In fact, responses [from DND and the CAF] to our reports are increasingly months late. They contain no tangible implementation details despite the fact that we know the department has developed them.

Furthermore, Gregory Lick stated that a September 2023 report by the Office of the National Defence and Canadian Armed Forces Ombudsman identifies certain mental health needs of CAF Primary Reserve Force members participating in domestic operations, and related supports that are available to them.^[23] He added that, five months after the report’s release, the Minister of National Defence still had not responded to the report’s findings and recommendations.

Protecting Whistleblowers from Reprisals

Witnesses outlined a number of challenges that whistleblowers in DND or the CAF experience when reporting a perceived wrongdoing.^[24] Colonel (Retired) Drapeau stated that, because the Public Servants Disclosure Protection Act does not apply to the CAF, whistleblowers who are CAF members have “no [legal] protection” when reporting a perceived wrongdoing and they must make a report “through the [military] chain of command,” which “may in fact be the culprit.” In highlighting that CAF members are not represented by a labour union and are often “left to [their] own devices” to report a perceived wrongdoing, he suggested that most CAF members do not have access to “legal advice to argue for [their] rights” and incur costs when seeking such advice.

According to Colonel (Retired) Drapeau, CAF members have “a choice to make” when considering whether to report a perceived wrongdoing because the result could be harm to their “career and reputation.” Similarly, Brian Radford, General Counsel at the Office of the Public Sector Integrity Commissioner of Canada, agreed that the “fear of reprisal is definitely an issue” that could prevent DND personnel or CAF members from reporting a perceived wrongdoing.

Patrick White provided examples of reprisals that CAF members have experienced after reporting a perceived wrongdoing. He commented that senior CAF officers have rejected CAF members’ requests “for a posting [they] really wanted” and for which they might have been “the most qualified,” or have denied a promotion. Patrick White characterized such reprisals as a systemic “abuse of power problem” that affects the credibility of the CAF’s whistleblower process.

Furthermore, Patrick White underscored that he “became familiar” with reprisals against CAF members who are whistleblowers through his “ongoing five-and-a-half-year battle” against the Royal Canadian Navy’s (RCN’s) chain of command when attempting to “seek justice” concerning “a serial sexual misconduct offender [from the RCN] known as Officer X.” In suggesting that certain senior RCN officers have been “covering up” Officer X’s multiple acts of alleged sexual misconduct, he elaborated on the situation by stating the following:

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.

Patrick White added the following:

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 [responding to the complaint] 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.

As well, Patrick White drew attention to reprisals he experienced following his decision to submit a complaint to the RCN’s chain of command about Officer X’s alleged sexual misconduct. He asserted that a senior RCN officer sent “defamatory emails” to the Naval Reserve Headquarters to “discredit” the complaint against Officer X, and to imply that the complaint “was false or made in bad faith.” He stated that he submitted several harassment complaints to the RCN in response to the reprisals, with certain high-ranking RCN officers then taking steps to dismiss his complaints, “relying excessively on procedural technicalities and timelines.”

Patrick White also contended that there was a “conflict of interest” involving the senior RCN officer investigating the multiple acts of alleged sexual misconduct by Officer X, arguing that the investigating officer was Officer X’s “friend.” He also said the following:

To the best of my knowledge, Officer X and all members of the [RCN’s] chain of command [who were involved in the investigations or reprisals] are still serving in the [RCN], and not one has faced any disciplinary consequences for their actions.

Moreover, witnesses made proposals aimed at improving the CAF’s whistleblower process. Philippe Dufresne advocated legislative changes that would—as a “legal right”—ensure access to adequate legal recourse for all whistleblowers in DND and the CAF. He also suggested that whistleblowers should “be able to file a complaint and not [have to] worry about repercussions or reprisals” for doing so. Furthermore, Philippe Dufresne drew attention to the need to reduce the number of “disincentives” that prevent whistleblowers from reporting a perceived wrongdoing “because, at the end of the day, [such reporting is] being done in the public interest.”

Patrick White urged the CAF to “move [away] from a system of whistle-blower reprisals to a system of whistle-blower protections” so that CAF members can have “confidence” that any report about a perceived wrongdoing in the CAF “will be looked at or solved” and that making a report will not lead to reprisals. Moreover, Gary Walbourne called on the CAF to implement new policies and other measures designed to ensure that all CAF members are held accountable for misconduct and unprofessional behaviour, including reprisals against whistleblowers.

Witnesses also discussed the Office of the Public Sector Integrity Commissioner of Canada’s role in providing oversight of DND’s and the CAF’s whistleblower processes. Harriet Solloway, Public Sector Integrity Commissioner of Canada, observed that the office both provides support to federal public servants who are whistleblowers and investigates reports of perceived wrongdoing in such federal entities as DND, although not in CSE, the CAF or the Canadian Security Intelligence Service. That said, Brian Radford underlined that the office can investigate situations in which CAF members allege that they have experienced reprisals after reporting a perceived wrongdoing.

Finally, regarding the Office of the Public Sector Integrity Commissioner of Canada’s September 2023 report about its investigation of DND’s delayed release of information concerning reports of perceived wrongdoing,^[25] Bill Matthews indicated that the delays “concerned public servants, not military members.” He also noted that DND has recently hired personnel who will be compiling a list of all reports of perceived wrongdoing, and stated that DND has taken steps to modernize its whistleblower process, including through digitizing reports as a means of “actively [tracking]” them.

Addressing Allegations of Sexual Misconduct

Witnesses made comments about the processes that CAF members can use to report allegations of sexual misconduct in the CAF. Minister Blair said that CAF members can report such allegations through the military chain of command or “independently,” including to the Canadian Human Rights Commission^[26] or to such civilian authorities as a police service. He added that the CAF has prioritized addressing such reports “more appropriately, more speedily and, frankly, more caringly.” According to Major-General Simoneau, as of 12 February 2024, the CAF was processing 21 grievances relating to allegations of sexual misconduct.

As well, witnesses discussed the roles of the military justice system and the civilian justice system in addressing allegations of sexual misconduct in the CAF. Regarding the transfer of investigations and prosecutions of alleged sexual misconduct from the CAF to a police service or another civilian authority, Minister Blair said that he and Canada’s solicitors general have been cooperating “very closely” to ensure that civilian authorities can access relevant information. He underscored the need for amendments to the National Defence Act so that certain investigations of alleged sexual misconduct are “exclusively done by the police of jurisdiction and the civilian policing system in our provinces,” with any prosecutions also occurring within the civilian justice system.

Brigadier-General Rob Holman, Judge Advocate General at the CAF, stated that the CAF’s Judge Advocate General ensures that civilian authorities can access the information needed to investigate allegations of sexual misconduct, with the Canadian Forces Provost Marshal directing the transfer of “evidence or case files” to the civilian justice system to assist with investigation and prosecution.

Concerning CAF women affected by sexual misconduct, Colonel (Retired) Drapeau said that these CAF members “are basically pulled between” the military justice system and the civilian justice system. He elaborated by stating the following:

If a sexual assault victim's case is tried by the military system, she will appear in a court martial. The court martial takes place in the [military] unit…the accused belongs to. When she testifies before the public [through the civilian justice system], the public is made up of her colleagues in uniform with whom she will continue to serve for the rest of her career.

Witnesses also referenced the recommendations relating to allegations of sexual misconduct in the CAF contained in Justice Arbour’s 2022 report. Minister Blair stated that the federal government has taken steps to respond to those recommendations and, with a focus on Recommendation 10 in that report,^[27] General Eyre indicated that the CAF is “working” to “prioritiz[e] and fast [track] grievances related to sexual misconduct.”

As well, witnesses mentioned Bill C-66, An Act to amend the National Defence Act and other Acts (Bill C-66),^[28] which was introduced in the House of Commons on 21 March 2024 and—if enacted—would transfer the appointment process to the Governor in Council for the following three military authorities: the Director of Defence Counsel Services, the Director of Military Prosecution and the Canadian Forces Provost Marshal.^[29] Moreover, General Eyre and Brigadier-General Holman underlined that the bill’s proposed change to the appointment process for the Canadian Forces Provost Marshal is more about a “perception” of independence from the military chain of command than about “actual independence.” Brigadier-General Holman elaborated by stating the following:

Even under the current scheme, once the provost marshal is appointed by the chief of the defence staff, they can still only be removed for cause upon the recommendation of an independent inquiry committee following a public inquiry. The basics of that scheme will remain in place under Bill C-66, but with the additional perceptual piece that comes with the Governor in Council being the appointing authority.

However, Gary Walbourne argued that Bill C-66’s proposed transfer of appointment processes for the three military authorities to the Governor in Council “absolutely opens the door for more interference” by the Minister of National Defence.

Supporting the Work of the Military Police Complaints Commission of Canada

Witnesses provided comments about the MPCC’s oversight of the CAF’s military police, including in relation to conduct-related complaints. Minister Blair said that, in addition to investigating such complaints, the MPCC—which operates “at arm’s length” from DND—investigates “allegations of interference” in investigations conducted by the military police. General Eyre stated that the MPCC plays an “important role” in ensuring “confiden[ce]” that the CAF’s military police “are acting in a professional and independent way.”

Regarding the MPCC’s 2023 Annual Report, which states that the Office of the Canadian Forces Provost Marshal refused access to certain confidential information required for some MPCC investigations, General Eyre described such allegations as “a case of two reasonable actors having a disagreement on certain things, like what constitutes a policing-related complaint, or the access or releasability of information when it's protected by solicitor-client privilege.” He also noted that the Federal Court has been asked to undertake a judicial review concerning the release of confidential information.

Colonel (Retired) Drapeau drew attention to the long timelines for receiving a response to complaints that he has submitted to the MPCC “on behalf of [his legal] clients.” He shared that going through the MPCC’s complaint process “takes months and years,” and provided the following example:

[Y]esterday I wrote to the chair of the MPCC, explaining that one of the complaints has been sitting with professional standards for two years and four months and the complainant is waiting for a decision by the MPCC.

Finally, Colonel (Retired) Drapeau questioned whether the MPCC and the MGERC are independent from the military chain of command. He pointed out that, as of 14 February 2024, “the heads of each one of those two organizations [were] retired judge advocate general officers.”

The Committee’s Conclusions and Recommendations

Like some other western democracies, Canada is experiencing growing levels of public mistrust of democratic institutions for several reasons, including a lack of transparency and accountability regarding certain federal policies and actions. Such federal entities as DND and the CAF should take actions to combat this growing public mistrust. For instance, they should share relevant information in a timely manner, limit unnecessary redaction of information and avoid over-classifying documents. Moreover, they should address the perceived culture of secrecy within them, and should take additional actions to gather the views of Canadians about a variety of defence and security matters. At all times, they should ensure that any information shared publicly does not pose a risk to national security or Canada’s international reputation.

Individuals submitting ATIP requests to DND and the CAF continue to experience challenges despite ongoing federal efforts to enhance transparency and accountability. These ATIP-related challenges include the time that DND/CAF ATIP personnel take to process and respond to such requests. Moreover, the lack of actions by DND and the CAF after receiving OIC-issued orders undermines the OIC’s role in ensuring accountability. The existence of these and other challenges draw attention to the need for additional efforts to ensure that all DND and CAF policies, measures and actions relating to the DND/CAF ATIP process comply fully with the Access to Information Act and the Privacy Act. Those efforts should include providing ATIP personnel with the training needed to process and respond to requests in a timely manner.

Regarding personal information, CAF members who are transitioning to civilian life should have adequate and timely access to their information, including medical records. In past reports, the Committee has made recommendations designed to ensure that CAF members’ transition to civilian life is as seamless as possible, and any of those recommendations not yet implemented should be considered. Moreover, because of allegations concerning privacy breaches, DND and the CAF should urgently address any issues relating to the protection of CAF members’ personal information.

Finally, the CAF is continuing to experience recruitment and retention challenges that might be partially overcome through meaningful culture change. Canada and CAF members want a military that is characterized by mutual respect, integrity and inclusivity. In that context, oversight mechanisms to hold DND and the CAF accountable for their actions are critically important, and they should have the legislative, financial and other resources to ensure their ability to fulfill their mandate.

In light of the foregoing, the Committee recommends:

Recommendation 1

That the Government of Canada prohibit the use of transparency avoidance tactics within the Department of National Defence and the Canadian Armed Forces, such as using pseudonyms and code words that obscure the description of individuals or evidence, to prevent internal and external communications regarding individuals to be searchable.

Recommendation 2

That the Government of Canada ensure that the ATIP requester is informed any time an ATIP is divided into parts and/or assigned a new number.

Recommendation 3

That the Government of Canada enforce consequences for Department of National Defence personnel and Canadian Armed Forces members who breach privacy of individual requests, such as through improper sharing of personnel files.

Recommendation 4

That the Government of Canada ensure that the officers responsible for investigating allegations of misconduct have no conflict of interest.

Recommendation 5

That the Government of Canada reexamine the classification of information system within the Department of National Defence and the Canadian Armed Forces with a presumption of open-source information.

Recommendation 6

That the Government of Canada release a plan and timeline for the Department of National Defence and the Canadian Armed Forces to comply with all outstanding orders made by the Information Commissioner of Canada.

Recommendation 7

That the Government of Canada implement a continuity of records system within the Department of National Defence and the Canadian Armed Forces to ensure that records are available and searchable upon the retirement or release of an individual record holder.

Recommendation 8

That the Government of Canada take comprehensive measures to protect individuals serving in the Canadian Armed Forces from any disciplinary action and any discretionary decision that will consequently affect the future career of the complainant because of submitting a military grievance or submitting an Access to Information and Privacy request.

Recommendation 9

That the Auditor General of Canada undertake an audit of the Department of National Defence’s and the Canadian Armed Forces’ Access to Information and Privacy systems.

Recommendation 10

That the Government of Canada restore the budget and human resources cut from the Office of the National Defence and Canadian Armed Forces Ombuds and remove other impediments to performing their mandate.

Recommendation 11

That the Government of Canada require mandatory disclosure of search terms used by individual record holders in response to information requests.

Recommendation 12

That the Government of Canada take comprehensive steps to protect the personal and medical information of members of the Canadian Armed Forces from third party contractors. However an exception must be provided for front-line health care service providers who need access to these medical records.

Recommendation 13

That the Government of Canada take comprehensive steps to ensure tangible implementation details and minimize the response time from reports released by the Office of the National Defence and Canadian Armed Forces Ombuds to no more than 30 days from its release.

Recommendation 14

That the Government of Canada implement all recommendations in the Office of the National Defence and Canadian Armed Forces Ombuds’ report entitled Hidden Battles, A systemic investigation into the identification of mental health needs and support for Primary Reserve members participating in domestic operations.

Recommendation 15

That the Government of Canada consider enacting Private Member’s Bill C-362, the Department of National Defence and Canadian Forces Ombud Act, to establish an independent officer of Parliament to oversee the Canadian Armed Forces and the Department of National Defence.

Recommendation 16

That the Canadian Armed Forces provide all members with a copy of their full medical and personnel files upon their release, in a modern format.

Recommendation 17

That the Government of Canada immediately begin the statutory review of the National Security and Intelligence Committee of Parliamentarians and the National Security Act.

Recommendation 18

That the Government of Canada give the Office of the Privacy Commissioner of Canada the authority to issue binding orders for federal entities to comply with the Privacy Act.

Recommendation 19

That the Government of Canada develop a privacy impact assessment to be conducted prior to the introduction of new programs or new tools that may have significant consequences for privacy, as it relates to the Department of National Defence and the Canadian Armed Forces.

Recommendation 20

That the Government of Canada conduct a comparative review between our allies’ and Canada’s declassification systems.

Recommendation 21

That the Government of Canada enact recommendations from Justice Morris J. Fish to make Military Grievance External Review Committee decisions binding if the Chief of the Defence Staff does not respond within 90 days, and that the Government of Canada consider whether all final decision making should be referred to the Military Grievance External Review Committee.

Recommendation 22

That the Government of Canada empower the Military Police Complaints Commission with the power to compel all necessary documents for investigations.