Warren Allmand: Keynote Speaker Warren Allmand’s Speech

Keynote Speaker Warren Allmand’s Speech

I first of all would like to thank you and your organization most sincerely for inviting me to be your keynote speaker at this first annual conference of the Forum of Canadian Ombudsmen.

Obviously, you know much more about the subject of being an ombudsman than I do, so I will present a view based on my experiences as a member of Parliament for 31 years, seven of those as a minister and nine of them in opposition. I will also refer to my experiences internationally, having served as the president of Rights and Democracy – that is the short name for the International Centre for Human Rights and Democratic Development – during the last five years.

When I served as a Member of Parliament, I always explained to my constituents that I carried out four roles: first, as a legislator to participate and to prepare the passage of laws; second, as a political activist to press for government action to resolve local and national problems; third, as a watchdog to keep the government in line from excesses, abuse of power or corruption; and finally, to serve as an ombudsman for my electors, investigating their individual complaints and pressing for answers and solutions. In this latter role, I always got more work than I asked for.

You must remember that when I started as a Member of Parliament in 1965, there were very few ombudsmen or ombudsmen-type institutions. The complaints I received at that time covered a wide range of departments, agencies and issues.

Following World War II, Canada and the provinces built up an extensive network of social, economic and cultural programs, which gave Canadians a wide range of rights and entitlements. Consequently, I received complaints as a Member of Parliament from veterans regarding their pensions, housing and benefits; from senior citizens regarding their eligibility for Old Age Security, the Guaranteed Income Supplement and the Canadian Pension Plan; from workers regarding Unemployment Insurance and labour standards; from mothers regarding family allowances and children’s benefits; and from students regarding bursaries and student loans.

By the way, I am talking about individual eligibility and access to existing programs, which is distinct from advocating or campaigning for the establishment and improvement of those programs. I am talking about individual cases we dealt with.

Then there were complaints from taxpayers regarding their eligibility for tax exemptions and the tardiness of their refund cheques; from businessmen regarding their eligibility for contracts, industrial development grants, import quotas and treatment by commissions and tribunals, such as the Anti-Dumping Tribunal and the Competition Bureau; complaints from immigrants and refugees regarding their admission to Canada; and from Aboriginal Canadians regarding band and department programs.

Very often, those who came for help were those who could not afford lawyers or consultants, who had less education, who were less familiar with our political system, who did not have access to those in high places or who were new Canadians and had trouble with the French and English languages.

There were also complaints against the post office, defective and dangerous consumer products, food allergies, medical services, official languages, the treatment of prison inmates and the mentally ill, service on VIA Rail and Air Canada, such things as cancelled flights and bumped reservations, slow and bad treatment at customs at the border or at the airport. And of course, we would also get complaints about matters outside our jurisdiction – garbage and snow removal, broken sidewalks, roads, bridges, the police, schools and hospitals – which required a referral to the provincial Member of the National Assembly (MNA) or to the city councillor.

Then there were complaints about private enterprises and utilities: the banks, credit agencies, hydro, Gas metropolitan, Bell Telephone, Blue Cross and insurance companies. With these, we would write letters to the companies asking them to take action and to resolve the issue in question.

Carrying out this ombudsman role, I would estimate, took up at least 50 percent of my time as a Member of Parliament. I would hold office hours at least once or twice a week in the constituency where I would meet with the constituents and hear their complaints. The complaints would also come in by letter and telephone. I had one full-time employee in the constituency whose work was almost entirely of an ombudsman nature, and another in Ottawa to follow up on the complaints with the ministers, departments and agencies.

The bases of these often-justified complaints were many and varied. There were civil servants who always looked for ways to say no rather than yes, despite the existence of a program meant to serve the citizen. There was a tendency to interpret laws and regulations in a very restrictive way – favourable to the government and against the citizen. There was a tendency for the decisions on internal reviews and appeals to support the earlier decision at a lower or regional level.

Complaints to ministers were often referred to the civil servants who had made the original decision, and so the advice to the minister on the complaint was to stick with the original decision. Most people, including civil servants, don’t want to admit they were wrong in the first place. This, of course, made it very difficult for the Member of Parliament trying to do this type of work for his or her constituents.

In smaller obvious cases, we would have some successes, some wins, and some victories. But in more complex cases, it took considerable time, and we didn’t always have the resources, research and expertise to carry them out successfully. Sometimes, we got help from personnel in the minister’s office and sometimes we did not.

I had certain cases that we in our office – my own constituency office – pursued for two, five and even ten years, and many cases where we hit a stone wall and justice was never done.

It didn’t take me and other members of Parliament very long to realize that if democracy was to be meaningful, more formal approaches and remedies were necessary, and ombudsmen and ombudsmen-like institutions had to be established.

So, in the late 1960s and 1970s, many of us campaigned for such initiatives, and they eventually began to appear: federal and provincial human rights commissions, legal aid, small claims courts, administrative reviews by the Federal Court, the establishment of provincial ombudsmen, first in Alberta and New Brunswick in 1967, the Office of the Commissioner of Official Languages in 1969, the Correctional Investigator, which I established as solicitor general during my term in that office, the privacy and access commissioners, and oversight agencies for the RCMP [Royal Canadian Mounted Police], CSIS [Canadian Security Intelligence Service], the airlines and grievance commissions for the military and the RCMP, and others.

There was also the establishment of ombudsmen in the private sector around that period for the banks, hydro and in the professions, bar discipline committees to hear complaints against lawyers on behalf of citizens and to carry them out, processes established by and for the media, the press councils, the CRTC [Canadian Radio-television and Telecommunications Commission], and several newspapers, radio and TV stations, setting up their own general ombudsmen to receive and investigate complaints, and then through their columns in the newspapers and broadcasts to bring pressure to bear for a solution to the problem.

About the same time, there was also an expansion of international standards and remedies, both universal and regional, not only the International Bill of Human Rights, but also international conventions on the rights of women, children, refugees, labour, offenders and minorities, racial, ethnic, religious and linguistic minorities.

Since Canada had ratified the first optional protocol to the International Covenant on Civil and Political Rights, Canadians could appeal cases to the UN Human Rights Committee. This was done in three major cases.

You might recall that in the Lovelace case – Mrs. Lovelace was a Mi’Kmaq woman from New Brunswick. She had married a non-Indian. According to the Indian Act at that time, if you were a male Indian and married a female non-Indian, you retained your status as an Indian and the female became a member of the band and got status. But if you were a woman and you had status and you married a non-Indian, you lost your status. She felt that was contrary to civil rights, human rights.

She went to court and lost at all three levels in Canada: the court of first instance, appeal court and the Supreme Court of Canada. She went to the Human Rights Committee under the International Covenant on Civil and Political Rights, and the Human Rights Committee said this was wrong, that it was contrary to the international covenant on equality of the sexes.

Although, of course, the Human Rights Committee has no power to force a change anywhere in the world, the political impact of that decision at the United Nations had a serious effect in Canada, and the Canadian Parliament amended the legislation to allow women to have the same rights as men under the Indian Act.

The other case was MacIntyre. Mr. MacIntyre was an undertaker in Quebec who had a small family undertaking business that went back several generations in Huntington, a rural area of Quebec. The business always had its signs in English and French. After that aspect of Bill 101 came into force, which said you only could have your sign in French, Mr. MacIntyre went to court in Quebec. He won in the Quebec court of first instance. He won with a unanimous decision in the Quebec court of appeal, and he won in the Supreme Court of Canada on a unanimous decision. So he won at all levels with all judges, but using the notwithstanding clause, the Quebec legislature at the time overrode the decisions of the courts and said that despite the court decision, the signs had to be only in French.

Mr. MacIntyre went to the Human Rights Committee. The Human Rights Committee said this was contrary to the freedom of expression under the International Covenant on Civil and Political Rights. Again, the impact of that decision led to an amendment by the Quebec legislature to allow English on signs, albeit in a lower position, but nevertheless, to allow it. So a change was made once again.

The third major case was Waldman. Mr. Waldman was an Ontario Jew who took offence to the fact that in Canada, in Ontario, we have schools for Protestants and Catholics but not for Jews. He went to court, lost in the courts in Canada, went to the Human Rights Committee, and the Human Rights Committee said that in Canada if you are going to honour the international covenant on freedom of religion and equality of religion, you either had to have no religious schools at all or you had to support all religions in one way or another.

By the way, many provinces in Canada do have programs that support religions other than Protestant and Catholic. I think five of the provinces do, but Ontario didn’t.

In that case, unlike the two previous ones, the Government of Ontario has thus far refused to honour the decision of the Waldman case brought down by the Human Rights Committee.

Canadians can also appeal cases to the committees or treaty bodies under international conventions dealing with children, discrimination against women, cases of torture and racial discrimination.

Canadians can also bring cases to the Inter-American Commission on Human Rights. But I should point out they don’t have full access to the inter-American human rights system since Canada has not yet ratified the American convention on human rights.

Also, internationally under the UN Commission on Human Rights there are special reporters, country and thematic reporters, who can investigate complaints and situations throughout the world and then report recommendations and proposals for correction to both the United Nations and the country in question. There are more than 20 of these special reporters, and I have personally dealt extensively with the special reporter on the rights of Indigenous peoples and the special reporter on violence against women. In many respects, these special reporters are similar to ombudsmen in their work and the type of recommendations they make.

Finally, we have seen an expansion and the introduction of a large number of NGOs [non-governmental organizations] in human rights, labour, health and environment which also monitor, receive grievances and advocate on behalf of individuals in their particular field of operation.

Well, ladies and gentlemen, despite this growth in the establishment of ombudsmen and ombudsmen-type institutions over the last 35 years, there are still major gaps and problems.

To begin with, there is a serious lack of human and financial resources to properly administer the systems to respond to complaints within a reasonable time. Then, there is a lack of public understanding with respect to ombudsmen mandates due to variations in the jurisdictions of different ombudsmen. Some ombudsmen seem to deal solely with administrative issues – the excessive jurisdiction, abuse of discretion, errors, negligence, failure to act, and so on – while others go further and have a broader mandate and deal with legal interpretation, political action or inaction, regulations, under funding or misdirection of funding, and a general context contributing to the problem and the grievance.

Finally, there are major gaps which are not covered at all, especially at the federal level which only, as most of you know, has ombudsmen with specialized mandates: official languages, privacy, information, prisoners and a couple of others. This leaves large, important areas uncovered, areas which I mentioned at the beginning, such as pensions, veterans’ benefits, unemployment insurance, taxes, student loads and bursaries, immigration, health and customs, to name only a few.

There is also the problem of follow-up and action once the ombudsman has made his or her report and recommendations to the government or the offending body. How do we make sure the report is not forgotten or swept under the rug? How do we keep up pressure on the government agency to take the report seriously?

It’s my belief that more success could be achieved by greater stimulation of public opinion through the more creative use of the media and other communications tools, whether press, radio, television, films or the Internet, and also with greater use of parliamentary committees, and co-operation and joint action with NGOs and other civil society organizations from the national and local governments. I have in mind questions decided by the World Trade Organization, NAFTA [North American Free Trade Agreement], the International Monetary Fund, the World Bank, or those that are proposed to be dealt with by the now-being-considered Free Trade of the Americas Agreement.

Much of the decision-making and dispute resolution for these organizations takes place behind closed doors and is not even subject to review by our courts in Canada or in the United States or Mexico. These bodies not only deal with trade and investment, but also touch on issues of health, environment, social policy and human rights, all of which can affect a citizen at the local level and which might be the subject of a complaint. Examples are patent rights on seeds used by farmers, the availability of certain pharmaceutical drugs, genetically modified foods and the impact on health of additives.

The second emerging issue for ombudsmen is the cutback on rights and the invasion of privacy associated with the new security and anti-terrorism legislation. I am referring to Bill C-36, the Anti-terrorism Act, Bill C-18, the Citizenship of Canada Act, Bill C-17, the Public Safety Act, and the new proposals put out by the Minister of Justice entitled “lawful access” which would deal with the bugging and tapping of the Internet, cell phones, and so on without the same protections as we have for ordinary telephones and for ordinary bugging and wiretapping.

The question is: Can ombudsmen do their job properly with all the limitations and restrictions in these laws?

I should point out that we now have a new network of NGOs called the International Civil Liberties Monitoring Group that was set up under the leadership of the Canadian Council for International Co-operation. This is a network of NGOs, trade unions, churches and other bodies, which are concerned with the impact of these new laws.

We have hired some individuals. What we are doing through that new network is monitoring the administration of these new laws to see if they offend against our charter or against other human rights acts. We are receiving complaints. We are looking into those complaints. We are also preparing advocacy for amendments to those laws. We have appeared before parliamentary committees, and we are also looking for the possibility of challenging some of those laws in the courts on the basis of the constitution.

The third emerging issue for ombudsmen relates to the growing number of elderly and mentally ill people with chronic health care needs such as Alzheimer’s and dementia, and the associated problems of care, housing, transportation, institutionalization, neglect and abuse, and also policies and semi-official policies for non-treatment associated with these illnesses.

This is becoming an extremely serious issue of human rights where some human beings – the elderly and mentally ill – are said to have fewer rights than others. Will there be ombudsmen to speak up on their behalf?

All these situations that I have just described, if not attended to, will seriously undermine the quality of our democracy. At Rights and Democracy, my former employer, we argued that a true democracy was much more than free, fair and regular elections. Some people think that’s all a democracy consists of.

We argued that it was much more. We defined democracy as the political system which gives the fullest expression to the entire body of human rights and which should have the following elements or characteristics:

  1. free, fair and regular elections;
  2. a multi-party system;
  3. respect for the rule of law;
  4. an independent judiciary;
  5. an independent legislature;
  6. full respect for all human rights including minority rights and gender equality;
  7. transparency and access to information;
  8. public accountability not just at the time of election but throughout the years between elections;
  9. an independent, free and active civil society; and
  10. control of the military by the civil authority.

As you can see, ombudsmen and ombudsmen-like institutions are essential, to ensure these democratic elements are present and working – public accountability, respect for the rule of law, a full respect for human rights and access to information – otherwise our laws and programs become a joke and our democracy is a facade.

Frank Scott, my former law professor at McGill University expressed this principle in another way. Frank Scott used to say that in a democracy a citizen is free to do anything unless certain behaviour is specifically forbidden by law, but on the other hand, governments can do nothing at all unless certain activity is specifically permitted by law.

Here again the ombudsman, in a less expensive, quicker and less formal manner than courts of law, can work to assure that these and all democratic rights are adhered to. Furthermore, support for the role of the ombudsman is deeply entrenched in the International Bill of Human Rights. In the Universal Declaration of Human Rights, the preamble states, and I quote:

“Every individual and every organ of society shall strive to promote respect for these rights and freedoms and to secure their universal and effective recognition and observance.”

At the very beginning of the Universal Declaration it says that every person and every organ of society must strive to see that the rights set out in the Universal Declaration are recognized and observed.

  • If you look at Article 8 of the Universal Declaration, it says:
    • “Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by the law.”
  • Article 10:
    • “Everyone is entitled in full equality to a fair and public hearing by an independent impartial tribunal in the determination of his rights and obligations and of any criminal charge against him.”
  • Article 12:
    • “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference and attacks.”
  • Article 21(2):
    • “Everyone has the right of equal access to public service in his country.”
  • Finally, Article 28 of the Universal Declaration:
    • “Everyone is entitled to a social and international order in which the rights and freedoms set forth in this declaration can be fully realized.”

Well, ladies and gentlemen, despite Canada’s commitment to democracy, despite Canada’s ratification of the International Bill of Human Rights, including the Universal Declaration, and despite some measures including ombudsmen introduced to enforce these commitments, there are still, as I said before, major gaps and problems.

Consequently, I would now like to draw some conclusions and make some recommendations. These are made in response to your objectives, that is, the objectives that I read in your bulletins regarding the Forum of Canadian Ombudsmen and also in response to your conference theme, Building The Mosaic.

You state in these documents that one of the objectives of the forum is to encourage the development of the ombudsman institution to promote fairness, social peace, justice and the protection of human rights, and in another objective, to promote the protection of fundamental democratic rights.

In referring to the theme for this conference, building the mosaic, your documents state you will explore how an organization, such as yours, can build on the strength of all its members, each adding its individuality to the creation of the whole. It is in this context and on my experience of 31 years as a Member of Parliament that I would like to make the following recommendations.

First, while the federal specialized ombudsmen do good work, even excellent work, there are too many gaps, too many areas at the federal level which are left uncovered and which I have already mentioned: health, taxation, immigration, social programs and so on. These should be covered and there should be, in my view, an ombudsman with general jurisdiction at the federal level. Such an ombudsman could co-ordinate the existing specialized ombudsmen and fill in the gaps that are not now covered.

Second, because there are many general and specialized ombudsmen and ombudsmen-like institutions at the federal, provincial, municipal and international levels in both the private and public sectors operating in Canada, this situation proves very confusing and complex for the ordinary citizen. Consequently, there is a need, in my view, for a user-friendly booklet, which would set out all the ombudsmen and ombudsmen-like institutions in Canada with a short description of their mandate, addresses, telephone numbers and procedures and which booklet would include such things as the formal type of ombudsman, the small claims courts, legal aid systems, ombudsmen for utilities and private businesses, for universities and colleges, the UN special reporters that I referred to, human rights commissions, and the civil society organizations and NGOs which assist in the ombudsman role.

In other words, we need a comprehensive listing of all types of ombudsman services in Canada that help in the enforcement of rights, freedoms and entitlements. Such a booklet should be indexed according to service need as well as by institution. For example, under health, unemployment insurance or family benefits, you could see which institutions at the federal or provincial level or at the private level would respond to that need or to that complaint with a reference to those ombudsmen institutions and civil society organizations, which would provide assistance. This booklet could be delivered to every household in Canada and placed on the Internet as well.

I am personally convinced you could get funding for such a project, and I would certainly be pleased to help you.

My third recommendation is that along with my suggestions for this booklet, the forum should try to form and expand networks with the international and UN ombudsmen I referred to, the special reporters and the treaty bodies, and also to expand your networking to the principal civil society organizations, including NGOs, which assist in the ombudsman work. This should be part of building the mosaic.

Fourth, I already mentioned how important it was to follow up on your reports and keep them alive. In my view, an excellent agency to carry out this function would be the Canadian Senate. The Senate, unlike the House of Commons, is not hindered by elections. In administrative matters, it has greater political independence and some of its best work is done on inquiries and administrative issues.

I visualize a Senate ombudsman committee to which all ombudsmen reports could be tabled for follow-up hearings and advocacy. In some respects, this would be similar to the Standing Committee on Official Languages in the House of Commons, but it would have a broader mandate and be more independent than the partisan House of Commons committees.

Fifth, to put greater pressure on politicians and bureaucracies, I believe ombudsmen have to make greater use of the media and the Internet, not just newspapers, dailies and weeklies, but also magazines, radio, television, films and other means of publicity. If you can arouse public opinion, then you have a much greater chance of getting bureaucrats and governments to implement your reports.

As my sixth and final recommendation, I would recommend the use of international human rights instruments, especially those ratified by Canada in supporting your cases, your reports and recommendations. There are not only the general instruments I referred to, such as the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, but then you have the specialized conventions relating to children, women, Aboriginal people, refugees, prisoners, workers, students and so on.

There are also now three democratic charters that apply to Canada. There is the inter-American democratic charter which came out of the Quebec Summit a few years ago, and which spells out the rights and responsibilities of a democracy. That applies to all the Americas: North, South and Central America. Then you have the Lusaka Declaration, which is a democratic declaration for all countries in the Commonwealth, which once again, spells out the obligations and responsibilities with respect to democracies. Then you have the Bamako Declaration of the Francophonie, which does the same for all Francophone countries.

I am suggesting that to use these international human rights instruments and to use these international instruments on democracy in backing up your recommendations in your reports would add certain strength to your reports, because Canada has ratified these documents. If they are to have any meaning in Canada once being ratified, it is to assist in the solution of the kind of problems you are working on.

Ladies and gentlemen, these recommendations, I would hope, would add further strength in support of your work and provide Canadians with a stronger democracy where rights are not simply on the books, but also are being enforced.

I want to conclude by thanking you once again for your invitation. I hope, even though I am not an expert in your field – you are the experts – that my experience of 31 years in Parliament receiving so many complaints and my work in the international arena with Rights and Democracy, can be of some assistance to you and that you have a fruitful two days of conference here in Ottawa.

Thank you very much.

Forum of Canadian Ombudsman