AN OMBUDSMAN FOR CANADA
Claude-Armand Sheppard*
Table of Contents
Introd uction …………………………………………………………………………….
Chapter I – Existing Schemes ………………………………………………
291
293
293
300
302
306
311
318
321
A . Sw eden ……………………………………………………………………
B . F inland ……………………………………………………………………
C. D enm ark ………………………………………………………………..
D . N orw ay ……………………………………………………………………
E . N ew Zealand …………………………………………………………..
Chapter II – The Whyatt Report …………………………………………
Chapter III – Common Denominators ………………………………….
Chapter IV – An Analogous Institution:
The Canadian Auditor General ……………………….
Is There a Need in Canada ? ……………………….
327
Chapter V –
330
Chapter VI – Transportation of the Scheme to Canada ………. 336
C onclusion ………………
340
…………………………………………………………….
Introduction
Growth of government activity. – The unceasing growth of gov-
ernment has multiplied the contacts of citizens with the administra-
tion. Increasingly detailed regulations govern most business and
professional endeavours. In addition, the state has assumed a multi-
tude of positive functions in such fields as welfare, hygiene, education,
medical care, traffic and transportation facilities, finances, insurance,
agriculture, and housing. As a result, officials are constantly making
decisions affecting the material and intellectual interests of indivi-
duals. Obviously, the possibilities of dissatisfaction are innumerable.
While generally speaking most people in Canada appear to feel that
* of the Bar of Montreal.
292
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they are being dealt with fairly by the various levels of authority with
which they are in contact, some instances of error, injustice or
negligence are inevitable. Misgivings about particular acts or omis-
sions of the Administration have increased in direct proportion to
the development of official responsibilities and of the departments,
boards and corporations necessary to carry them out.
Shift in legal interest. –
In the present century lawyers and politi-
cal scientists have become increasingly concerned with the relationship
between citizens and the “welfare state” as conceived in our Western
democracies. More specifically they have worried about the protection
of the individual who is caught in the tightening tentacles of the
administrative octopus. For a long time this interest centred chiefly
on the various judicial or political recourses available against the
state.
Interest in the ombudsman. –
In the last few years increasing
attention has been given to the Scandinavian institution of the
Ombudsman designed to investigate, and in some cases, remedy indi-
vudual grievances against the authorities.’ This interest has become
especially keen in Canada, where, in addition to a great deal of discus-
sion about the introduction of a federal Ombudsman, there is evidence
that the governments of Nova Scotia and of Saskatchewan are plan-
ning to establish ombudsmen in their provinces. 2 Furthermore, strong
pressures are being exerted on the Quebec Government to follow suit.3
Purpose of present essay. – Since the Ombudsman is apparently
about to make his entry on the Canadian scene, it becomes imperative
to make a careful study of how this institution operates in the four
Scandinavian countries and in New Zealand where it has been adopt-
ed. It is also essential to examine the manner in which such office can
and should function in the federal and bi-ethnic context of our country.
IAs to the meaning of the word, in Sweden it means “attorney” or “repre-
sentative”; in Norway and Denmark, a person who has a public duty which he
must discharge. But in the present context all countries use it in the sense of
attorney or commissioner of Parliament: of. The Citizen and the Administration,
report of the British section of the International Commission of Jurists, directed
by Sir John Whyatt, hereinafter referred to as the Whyatt Report, London, 1961,
p. 45.
2or at least they so announced in recent Speeches from the Throne: of. the
Montreal Gazette, Feb. 13, 1964, p. 6.
3 In addition to avowed pressures by the Opposition, the Quebec Liberal Feder-
ation and the Liberal government are said to be studying the possibility in
earnest: of. despatch by Gordon Pape: “Support Mushrooms for Quebec ‘Om-
budsman'”, in the Montreal Gazette, May 22, 1964, p. 33. The proposal enjoys
considerable editorial support: cf. for instance editorials in the Gazette, February
13, 1964, p. 6 and Le Devoir, February 14, 1964, p. 4.
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AN OMBUDSMAN FOR CANADA
This is the purpose of the present essay. It is written primordially
from the lawyer’s point of view.4 For the opinions of a political scient-
ist on the subject, reference should be made to the various studies
published by Prof. Donald C. Rowat of Carleton University, in Ottawa,
who is Canada’s expert on the subject.
CHAPTER I
EXISTING SCHEMES
A. Sweden 6
The 1809 Constitution : justitieombudsman. – The institution of
the ombudsman originated in Sweden more than 150 years ago. In
1809 the Swedish Riksdag adopted a new constitution which, inspired
by the ideas of Montesquieu and a desire to curb the powers of the
executive, gave Parliament the power to appoint a special Commis-
sioner “to act as the attorney of Parliament, under the instructions
issued by Parliament, and in that capacity to control the observance
4 Little if anything has been written by lawyers on the subject in Canada. For
the sake of the record, reference should be made to the short comparative essay
of A. N. Patterson: “The Ombudsman”, in (1958) 1 U.B.C. Law Review 777.
On the other hand, the writer is very conscious of the warning of A. W. Bradley
in “The Redress of Grievances”, (1962) Can L. J. 82 at 87 against too legalistic
an approach: “the balance has to be kept between, on the one hand, the interests
of the individual directly affected by a governmental decision, and, on the other
hand, the public interest that the administrative agencies should carry out
effectively the social and economic policies which Parliament has laid down in
the interests of the community.” Cf. also the recently published study of Prof.
D. W. Mundell: “Ombudsman for Canada”, in (1964) 7 Can. Bar Journal, p. 179.
5 Cf. inter alia: “An Ombudsman Scheme in Canada”, (1962) 28 Can. Journal
of Economics and Political Sciences, p. 543; “The Parliamentary Ombudsman:
should the Scandinavian scheme be transplanted ?”‘, (1962) 28 International
Review of Administrative Sciences, p. 399; “Finland’s Defenders of the Law”,
(1961) 4 Can. Public Administration 316 and 412. Moreover Prof. Rowat is
editing for publication in the Fall of 1964 a pioneering volume of essays on the
ombudsman and related institutions in various countries.
6 This section is based on the following material: Modern Swedish Government,
by Nils Andrbn, Stockholm, 1961; “The Swedish Institution of the Justitieom-
budsman”, by the present incumbent, Alfred Bexelius, in (1961) Intl. Review
of Administrative Sciences 243; an undated, 34-page mimeographed essay by the
same author on The Swedish Ombudsman, published by the Press Depart-
ment of the Swedish Ministry for Foreign Affairs; an undated, and unsigned,
8-page memorandum on the Militieombudsman, issued by the Swedish Institute;
the Whyatt Report, ch. 10. For much of this material the writer is indebted to
both the Royal Embassy of Sweden in Ottawa and the Canadian Embassy in
Stockholm.
McGILL LAW JOURNAL
[Vol. 10
of the laws” (article 96 of the Constitution). This official was given
the name of Justitieombudsman which he still bears. His function was
“to make certain that laws and statutes were adhered to by the courts
and other authorities and to prosecute judges and other officials who
in their office had committed unlawful acts or neglected their official
duties”. 7
Fearing an autocratic government, Parliament sought to instill
respect for its laws and thereby to safeguard the rights of the indi-
vidual. The basic idea, in the words of the present incumbent, was
“that the courts and other authorities would be less inclined to dis-
regard the laws in order to serve the wishes of the Government, if
the activities of the authorities were watched by a People’s Tribune
who was independent of the Government”.8
In 1915 : Military ombudsman. –
In 1915, after a debate which
lasted more than a decade, a second commissioner, the Militieombuds-
man, was appointed with jurisdiction over the armed forces. He in-
vestigates the administration of martial and military law, the treat-
ment of military personnel and the use of funds and equipment in the
armed forces. He handles between seven hundred and eight hundred
cases a year, of which 100 to 150 result from complaints. His powers
are similar to those of the Justitieombudsman.
Before 1915, these functions were exercised by the Justitieombuds-
man. Except Norway, other countries which have modelled their Par-
liamentary commissioner on the Swedish pattern have not so divided
his responsibilities and entrust both jurisdictions to one single offi-
cial. On the 26th of June, 1957, Western Germany enacted a law
creating the office of Wehrbeauftragte, a commissioner elected by
the Bundestag to ensure that the constitutional rights of servicemen
and officers in the German army were respected. Article 7 of the
Statute gives to each soldier the right to complain directly to the
commissioner and forbids sanctions against soldiers who avail them-
selves of this right. It must be noted that this is a limited application
of the Militieombudsman and is designed to meet a peculiarly German
problem.
In 1957 : extensions to local matters. –
In 1957 the powers of the
Justitieombudsman were extended to local boards and to local govern-
ment officials which had been previously exempt from his supervision.
However, some restrictions were set on this new jurisdiction in order
to preserve local autonomy. A similar extension of the jurisdiction of
the Ombudsman over local officials will be noted in other countries.
7 Bexelius, op. cit., Intl. Review of Administrative Sciences, p. 243.
8 Ibid.
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AN OMBUDSMAN FOR CANADA
Importance of Swedish Ombudsman. – The Swedish institution
deserves to be studied in detail, both because it is the prototype of all
subsequent legislation and because it has been found necessary in
other countries to modify its form.
Duties of the Ombudsman. – According to Article 96 of the
Swedish Constitution, the Ombudsman is entrusted with the following
general duties :
(a) he controls the observance of the laws and regulations by
government officials;
(b) he institutes proceedings against derelict civil servants;
(c) he reports to Parliament the deficiencies in existing legisla-
tion;
(d) he acts as prosecutor in certain cases before the Supreme Court
of the Realm.
Jurisdiction. – The jurisdiction of the Justitieombudsman com-
prises all government officials at both national or local levels, Sweden
being a unitary, as opposed to a federal, state. However, cabinet
ministers are not subject to his control. This is due to the fact that in
Sweden, cabinet ministers are only advisers to the King and are not
responsible for the acts of civil servtnts within their departments.9
The control of government officials by Parliament cannot be exercised
in Sweden by means of ministerial responsibility; hence the need for
direct supervision such as that of the Ombudsman.
Jurisdiction over the courts. – On the other hand, judges and
court officials are not exempt from scrutiny by the Commissioner, a
jurisdiction he has only in Sweden and Finland. In Sweden, at least,
this power does not seem to have affected the independence of the
judiciary. The present Commissioner, Alfred Bexelius, writes:10
“Foreign visitors who come to study the office of JO sometimes wonder
whether the JO control of the judiciary is commensurate with the inde-
pendence that should be secured to a judge. I myself come from the ranks
of judges, and can assure that I have never heard a Swedish judge complain
that his independent and unattached position is endangered by the fact that
the JO may examine his activity in office. The claim to an independent
position does not necessarily mean that a judge should be free from responsi-
bility or criticism when acting against the law. From the JO’s annual
reports of the past 150 years, anybody may see that there has been a need
for the supervision of judges also. It is to be noted that excepting only the
King’s Chancellor, the JO and the MO may order the prosecution of judges
as well as other high officials for breach of duty. The following examples
of recent actions against judges may be quoted: In a suit instituted by the
JO a few years ago, a judge was fined 1,400 Swedish crowns for behaving
9 Bexelius, ibid., p. 245.
lo Ibid.
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inappropriately towards parties and witnesses. In 1959, the JO sued a
justice in the Court of Appeal for assisting a friend, a lawyer, in drawing
up a great number of documents to be handed to the courts. This was done
outside of the duties of the judge and against payment. For this activity,
which was found incompatible with his office as a judge, he was condemned
by the Supreme Court to pay a fine of 1,600 Swedish crowns. From the
practice of the last few years, it may also be mentioned that two judges
have been fined for delaying suits.”
Inspections are used to check whether the courts decide cases as
quickly as possible, each court being inspected at least once every 10
years. During every such inspection, the files of 25 civil and 25
criminal cases are selected at random and scrutinized with regard to
preparation and delay.
Powers of the ombudsman. –
In order to carry out his duties the
Ombudsman is given extensive powers:
(a) he can request the assistance of all government officials who
must comply with his demands;
(b) he has the right to examine the records of all courts of law
and of all government departments (except internal minutes);
(c) he has the right to be present at the deliberations of all courts
and government authorities including the Cabinet;
(d) he has the right to institute proceedings against government
officials who are guilty of error or neglect, a duty he shares with the
King’s Chancellor of Justice, a government official (the Ombudsman
being Parliament’s own prosecutor);
(e) he can make whatever representations or recommendations
he deems necessary to government officials or to judges;
(f) he reports on his findings and activities annually to the
Riksdag.
Extensive though these powers are, they do not permit the Ombuds-
man to revoke or change administrative decisions, nor is he empowered
to force the authorities to take measures. He will not intervene ordi-
narily in areas where the authorities have discretion.”
Publicity. – One characteristic of the Swedish system is the com-
plete publicity surrounding all complaints, investigations and deci-
sions. Other countries have tended to limit this practice and the New
Zealand statute requires all investigations to be held in camera. In
Sweden all complaints, investigations and reports are entirely public.
Forms of intervention. – While at the beginning the main form of
indeed
intervention by the Ombudsman was criminal prosecution —
11 Bexelius, in above-mentioned mimeographed essay, at p. 3.
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AN OMBUDSMAN FOR CANADA
the punitive characteristics of the Swedish model are striking –
today
his interventions most frequently take the form of representations or
reminders to the officials concerned with a view to ending an illegality
or securing redress. Criminal or civil prosecutions are still undertaken,
but are comparatively rare. A third form of intervention is a recom-
mendation that compensation be paid to the aggrieved party, either by
the guilty official, if the damages are small, or by the government, if
they are considerable. Such suggestions are practically always follow-
ed.12 A fourth method is the exercise of the prerogative of mercy to
correct excessive penal sentences or other miscarriages of justice. In
our country the prerogative of mercy belongs to the Crown and not to
Parliament.
Complaints. – The prime source of action by the Ombudsman are
the formal or informal complaints he receives from various indivi-
duals. There are no legal formalities. Complaints can be made most
informally. For the first 100 years the complaints averaged 70 a year.
But with the development of government activity in every field, the
number of complaints has been rising steadily, as appears from the
following table :13
Year
1956
1957
1958
1959
1960
Number of Complaints
598
757
818
780
983
Few of these complaints (about 10%) are found to be justified or to
come within the jurisdiction of the Commissioner.14 This percentage
is about the same in the four other countries where the institution
operates.
Sweden has almost 8 million inhabitants. Thus on the whole, the
number of complaints is relatively small, as elsewhere. Several reasons
can be given for this. One is the existence of a developed appeal
apparatus through which most complaints against the Administra-
tion can be channeled. Another, is the fact that the various countries
which have adopted an ombudsman have long traditions of respect for
individual liberty and consequently fairly little arbitrary action. Final-
ly, the very possibility of an inquiry by the Ombudsman has an inhibit-
ing effect on government officials.
12 Bexelius, ibid., p. 6.
13 Based on figures supplied by Bexelius in his quoted essays.
14 Bexelius, op. cit., Intl. Review of Administrative Sciences, p. 254.
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[Vol. 10
Other sources of action. –
In recent years attention elsewhere in
the world has been focussed on this aspect of the Ombudsman’s work
and he has come to be visualized mainly as a people’s tribune charged
with handling the complaints of individuals against the administra-
tion. But the investigation of complaints is not his only function. He
makes his own random inspections, particularly of the activities of
the civil service. Press reports also have often led to investigations.
Faults causing intervention by the Ombudsman. –
In Sweden, as
in the other Scandinavian countries or in New Zealand, the Ombuds-
man is seldom called upon to intervene against flagrant violations of
the law. In any case, such violations are comparatively rare in demo-
cracies and are generally dealt with by ordinary courts of law.
Embezzlement, for instance, is prosecuted before the criminal courts.
Ordinary delicts normally lead to damage actions. But there are many
other instances of misconduct or maladministration to be investigated:
(a) One very active area of control is that of imprisonment which
the present Ombudsman calls one of his “most important tasks”.1
From the very beginning, the Ombudsman has been concerned with
the treatment of persons detained for crimes or other reasons. Indeed,
in all the countries studied, communications by prisoners to the
Ombudsman are made in sealed envelopes which cannot be opened and
which must be transmitted immediately. One example of such inter-
vention is the restoration inside a prison of a popular magazine which
had been banned for no other reason than that it had criticized prison
authorities. In Denmark the Ombudsman even obtained an improve-
ment in the quality of the coffee served to prisoners! Since such small
grievances are important to men deprived of their freedom, the
Ombudsman treats them with great attention.
(b) “A great number of actions have been further directed
against prosecutors, judges and county governments for neglect to
hear and decide with sufficient speed such cases where the accused
had been arrested.”‘ 6 Indeed one of the most frequent causes of inter-
vention have been unnecessary delays in bringing cases to trial. In the
past, judges have even been fined for slowness. And the Ombudsman
has not hesitated to request the speeding up of legal proceedings where
the delay was due to neglect or maladministration.
(c) Another area of concern to the Ombudsman has been freedom
of speech and he has intervened, especially in earlier days, to protect
the right of citizens to speak of any subject and to hold public meet-
ings on the most controversial issues. Similarly he has to protect free-
dom of the press against arbitrary action by government officials.
15 Bexelius, mimeographed essay, op. cit., p. 13.
16 Bexelius, ibid., p. 24.
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AN OMBUDSMAN FOR CANADA
(d) The Ombudsman has also sought to suppress, by legal action
if necessary, local regulations which were not founded on statutory
authority or which were unreasonable.
(e) The most frequent cause of intervention, however, is a faulty
interpretation of particular statutory instruments. Judges have been
prosecuted for meting out less than the minimum sentence provided
for by law. 17 He has also been concerned with trying to secure uni-
formity of interpretation and application, a function especially
necessary in a country where stare decisis does not exist.
(f) Occasionally the Ombudsman has intervened to correct im-
proper or haughty behaviour or abusive conduct by officials.
(g) He has even investigated why Sweden’s Film Censors Board
did not cut some allegedly objectionable scenes from the recent movie
The Silence, of Ingmar Bergman.18
Pointing out defects in the law. –
In Sweden, as in other coun-
tries, an important duty of the Ombudsman is to point out defects in
the law or in administrative practices which he discovers in the course
of his investigations. For instance, it was as the result of the recom-
mendations of the Ombudsman that a percentage of alcohol in the
blood was fixed to serve as a limit for determining intoxication. The
Swedish Ombudsman recommended, as has his New Zealand colleague
last year, that administrative bodies be compelled to give reasons for
their decisions.’2
Indeed many complaints and misunderstandings
could be avoided if citizens were always fully informed of the reasons
for administrative actions.
Independence of the Ombudsman. – One important characteristic
of the institution is the complete independence of the Commissioner.
The Ombudsman is appointed by Parliament for a four-year term
with an attractive salary and pension. Every precaution is taken to
ensure his independence and that he will not be reluctant to intervene
for fear of jeopardizing his chances of subsequent advancement. Gen-
erally, he has been chosen unanimously by all the political parties
from among prominent judges. As in other countries, he selects his
own personnel. This desire to protect the total independence of the
commissioner, both from the executive and Parliament, is a common
feature of the institution everywhere.
17 Bexelius, ibid., pp. 23-24.
18 Cf. despatch in The New York Times, Nov. 8, 1963, p. 37: “Swedish Dispute
Renewed over Ingmar Bergman.”
19 Bexelius, op. cit., Intl. Review of Administrative Sciences, p. 247. See also
Report of the Ombudsman, Government Printer, Wellington, N.Z., 1963, p. 4.
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[Vol. 10
B. Finland 20
Adopted in 1919. – The second country to adopt an ombudsman
was Finland. It did so in its constitution in 1919. The institution is
patterned generally on that of Sweden, but with some notable diffe-
rences.
Differences from Swedish system. –
First of all, the Finnish
Commissioner combines the powers of the Swedish Justitieombuds-
man and Militieombudsman although the latter jurisdiction is used
very little and consequently not developed. 2’
Secondly, he shares some of his powers with the Chancellor of
Justice who is appointed, not by Parliament, but by the President and
is charged with the enforcement of the law in a manner somewhat
similar to that of our own Attorney-General. The Ombudsman has
been called a consultative member of the cabinet since he attends
cabinet meetings, but does not vote.22 In effect, he is the govern-
ment’s legal adviser. He is also concerned with enforcement of the
law but rather from the point of view of protecting the rights of the
individual.23 He watches specifically over the civil service, the armed
forces and the penal system.
A third and more significant difference is that the supervisory
power of the Finnish Ombudsman extends to cabinet ministers and
the cabinet as a whole.2 4 In fact, in recent years, the Finnish
Ombudsman has investigated cabinet ministers and even prosecuted
four of them including the prime minister.2 5
Jurisdiction over courts. –
It must be noted that as in Sweden but
as opposed to Denmark, Norway and New Zealand, the Ombudsman’s
jurisdiction extends over the courts as well as over the administra-
tion. Since the very idea of any interference with the courts is anathe-
ma to self-respecting Anglo-Saxon jurists, the remarks of Paavo
2 0 For further study of the Finnish Ombudsman, reference should be made to:
Pricis de Droit Public de la Finlande, by V. Merikoski, translated by Arvid
Enchell, Helsinki, 1954 and to Paavo Kastari’s article: “The Parliamentary Om-
budsman: his functions, position, and relation to the Chancellor of Justice in
Finland”, (1962) 28 Intl. Review of Administrative Sciences, p. 391. Also in-
valuable is the article of Professor Donald C. Rowat: “Finland’s Defenders of
the Law: The Chancellor of Justice and the Parliamentary Ombudsman”, (1961)
4 Can. Public Administration 316 and “Posteript”, at p. 412. The writer ac-
knowledges the kind help of the Embassy of Finland in Ottawa.
21 Kastari, op. cit., pp. 394-5.
22 Ibid., p. 392.
23 Ibid., p. 395. See also, Merikoski, op. cit., pp. 41-42.
24 Ibid., p. 395.
25 Rowat, op. cit., p. 320 and 414.
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AN OMBUDSMAN FOR CANADA
Kastari, former Finnish Ombudsman, are worthy of quotation. They
echo those already quoted of his Swedish colleague :
“Until recent years, the superintending activity of the Ombudsman in Sweden
seems to have been directed mainly towards the courts, ending very often
with the presentation of charges. Neither in Sweden nor in Finland have
such superintendence detracted from the independence of the courts, which
consideration seems in Denmark and Norway as well as in the Anglo-Saxon
countries to be regarded as a hindrance to extending the competence of the
Ombudsman to the courts.”26
Admittedly the idea will appear to be revolutionary, especially to
Anglo-Saxon lawyers who have been taught to cherish the indepen-
dence of the courts. But on occasion individuals have been aggrieved
by the courts. One might well ask how an ombudsman could endanger
the independence of the courts by calling the attention of judges to
illegalities in their behaviour or to arbitrary conduct in the court-
room. In any event, the Ombudsman has no right to intervene in pend-
ing cases or in matters which may go to appeal.27
Right to prosecute. – Although the Chancellor of Justice is also
the Attorney General, the Ombudsman, like his Swedish colleague,
shares with him the right to order prosecutions against negligent
civil servants.28
Independence of the ombudsman. – The Finnish institution does
not appear to have been always free of partisan politics. As the
former incumbent, Professor Kastari writes :29
“In general, as the highest judges have not been willing to undertake the
job, the more outstanding younger jurists have been called upon and, as
political expediency has often played a part in the selection, these matters
have to some extent had a negative influence on the position and prestige
of the Parliamentary Ombudsman. Recently, several Parliamentary Ombuds-
men have been promoted to membership of the Supreme Administrative
Court, which really in itself hardly signified any promotion, but is considered
worth while because of the permanency of the office.”
Obviously, an ombudsman scheme can only achieve its ends if there
is no political interference and if election to the office is not consider-
ed as a mere stepping-stone for better things.
Complaints.30 – Complaints are the largest source of investiga-
tion. Thus, in 1960, the Ombudsman handled 1050 complaints but
made only 52 investigations at his own initiative. The Ombudsman
rejected 831 or almost 80% of these complaints for one reason or
another as being unfounded. It must be noted that the Chancellor of
26 Kastari, op. cit., p. 396, footnote 8. See also Rowat, op. cit., p. 323.
27 Kastari, op. cit., p. 397.
28Merikoski, op. cit., p. 42; Kastari, op. cit., p. 394.
29 op. cit., p. 393. See also: Rowat, op. cit., pp. 322-3.
.30 The figures used in this paragraph are taken from Kastari, op. cit., pp. 89r-6.
302
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[Vol. 10
Justice, during the same period handled 635 complaints (in addition
to 150 referred by him to the Ombudsman), in addition to 254 cases
started at his own initiative and 123 referred to him by government
officials. The Chancellor prosecuted officials in 59 cases and took
disciplinary steps in 68 cases. Most of these charges were brought
against judges. The Ombudsman, on the other hand, brought charges
in only 9 cases and initiated disciplinary action or reprimands in
only 25 cases.
C. Denmark
Importance of Danish statute. – The office of the Danish Om-
budsman was created in 1954 by a statute providing for a single
Commissioner supervising both the civil and military administra-
tion.31 Although the institution is also modelled on the Swedish
example, it differs from it in certain respects and has innovated
in others. Since it was the Danish statute rather than the Swedish
prototype which inspired the Norwegian and New Zealand legisla-
tion on the subject, it is well worth examining these differences in
some detail. Except for the variations noted hereinafter, the office
operates in very much the same manner as the Swedish or Finnish
ones.
32
Duties. – The duty of the Danish Parliamentary Commissioner,
as is stated in article 3 of the Directives issued to him by Parlia-
ment in 1956, is to
“keep himself informed as to whether any person comprised by his jurisdic-
tion pursues unlawful ends, takes arbitrary or unreasonable decisions or
otherwise commits mistakes or acts of negligence in the discharge of his
or her duties.”
Jurisdiction. – His jurisdiction comprises all civil servants and
state employees and, as in Finland but unlike in Sweden, all cabinet
ministers. In 1961 it was extended to cover certain activities of
local government. But, in contradistinction to his Swedish and Fin-
nish colleagues, s. 1 of the statute specifically excludes the entire
judiciary from his jurisdiction. In this connection, the present in-
cumbent writes :33
31 An English translation of the text of this statute together with that of the
general Directives of Parliament issued pursuant thereto are found at p. 37
et seq. of The Ombudsnan, by the current Danish office-holder, Prof. Stephan
Hurwitz, Copenhagen, 1961. This volume contains a detailed statement of the
operation of the office. Ch. 11 of the Whyatt Report also contains a great deal
of useful information. The writer expresses his thanks to the Royal Danish
Embassy in Ottawa for the assistance received in preparation of this essay.
32 Whyatt Report, pp. 59-60.
s3 Hurwitz, op. cit., pp. 6-7.
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AN OMBUDSMAN FOR CANADA
“Regarding judges it was proposed in the original bill in 1953 that the
jurisdiction of the Commissionner should include the administrative functions
of judges, whereas the judicial conduct should be outside his jurisdiction.
During the Folketing debate of the Bill objections were raised against this
provision with the result that also the administrative activities of judges
were set outside the jurisdiction of the Commissioner. In this connection it
should be mentioned that complaints concerning the conduct of judges can
be brought either before a special Court of Complaints or before the presi-
dents of the respective courts.
On the other hand deputy judges did, to a certain extent, come within the
jurisdiction of the Parliamentary Commissioner. However, in practice this
arrangement was not very expedient; therefore in the amended Act of 1959
it is provided that deputy judges as well as all other judges shall be out-
side the jurisdiction of the Commissioner.”
Jurisdiction and administrative discretion. – Ordinarily the
Ombudsman will not criticize an intra vires exercise of adminis-
trative discretion. But he will do so “when he can cite the know-
ledge of experts in support, and when as far as can be ascertained,
there exists reliable documentary evidence of an arbitrary or un-
reasonable decision”.8 4 Art. 3 of the Directives is the Ombudsman’s
authority for such intervention since it requires him to keep him-
self informed of “arbitrary or unreasonable decisions” of the ad-
ministration. But this power to intervene in areas of administrative
discretion is very rarely used.38 Furthermore, this right to criticize
administrative acts or omissions or to make recommendations in
respect thereto does not include the power to change administrative
decisions. As Prof. Hurwitz said:36 “The duty of the Commissioner
is to act as a supervisor of government administration and not as
a special court of appeal.” He does not revise policy, but only en-
sures compliance with the law.
No jurisdiction before administrative recourses are exhausted. –
Complaints against administrative decisions which may be set aside
by a superior administrative authority cannot be lodged with the
Ombudsman until the final authority has rendered its decision. In
other words, the person aggrieved must first exhaust all the proper
administrative recourses before he can complain to the Commis-
sioner. 37 The purpose of this restriction is to prevent premature
complaints. 8
Protection of civil servants. – As in Sweden and Finland, the
Ombudsman can order the institution of prosecutions and of disci-
34Ibid., p. 8; cf. also Whyatt Report, p. 55.
35 Whyatt Report, ibid.
36 Ibid., p. 11.
37 Ibid., p. 16.
38 Whyatt Report, p. 59.
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plinary measures against erring officials.39 On the other hand, there
are a number of provisions to protect civil servants against un-
necessary adverse publicity from his public reports to Parliament.
The first one,40 is that the Commissioner, if he criticizes an official
in his report, shall state what the person concerned has pleaded by
way of defence. The second one 41 states that if the complaint is
unfounded, the name or address of the person, against whom the
complaint was made, shall not be cited unless he has specifically
requested such mention.
Complaints do not require personal interest. – While in Norway
and in New Zealand the right to lodge complaints is restricted to
persons having a personal interest in the matter, s. 6 of the Danish
statute permits “anybody” to lodge a complaint whether he has an
interest or not.42 This is also the rule in Finland.43
Prescription of complaints. – Complaints must be made within
one year after their subject matter arose or after the last adminis-
trative appeal has been heard. But such time limit is not absolute
since there is no prescription of investigations that the Commis-
sioner undertakes on his own initiative. 44 A similar limitation is
found in the Norwegian and New Zealand statutes.
Experience of the Danish Ombudsman. – The experience of the
Danish Ombudsman is similar to that of his Swedish and Finnish
colleagues. 45 He receives approximately 1,000 complaints a year of
which only one-third require investigation prima facie. Most of the
complaints investigated are found to be without foundation or to
be outside the jurisdiction of the Ombudsman. Only between 10 to
15% of the cases have led to criticism or to recommendations.
No persecution of civil servants. –
The fears of Danish civil
servants that the Ombudsman’s office would be used to bully them
has proven to be groundless. 46 :t is significant that in Norway the
civil service raised no objections to the introduction of an Ombuds-
39Ibid., p. 9. Under art. 10 (1) of the Directives he can even recommend to
Parliament the civil or criminal prosecution of cabinet ministers.
40 S. 10 of the statute and art. 13 of the Directives.
41 Art. 13 of the Directives.
42 Hurwitz, op. cit., p. 14.
43 Kastari, op. cit., p. 397.
44 Hurwitz, op. cit., p. 16.
4 5 Hurwitz, op. cit., pp. 20 et seq. See also a report by Leon Levinson, in the
Montreal Gazette of January 2, 1964, p. 5: “He looks after Complaints”, and
Whyatt Report, pp. 59-60.
4 6 Hurwitz, op. cit., p. 22.
No. 4]
AN OMBUDSMAN FOR CANADA
man,47 although in New Zealand, the Prime Minister saw fit to
reassure the civil service that they had nothing to fear. Interestingly
enough, it has been found in Denmark that a large number of com-
plainants are civil servants themselves ! 48
Areas of investigation and action. – The principal form of inter-
vention is by recommendation to the official concerned. 49 As to the
types of complaint which have led to intervention by the Danish
Ombudsman, they cover the usual spectrum: treatment of prisoners,
discriminatory treatment of citizens, ultra vires actions or actions
without authority, breach of prescribed rules of form or procedure
such as failure to inform an accused that he is not obliged to testify
or illegal searches and seizures and delays of the administration
in dealing with cases.50
One significant intervention was his successful recommendation
to the powerful Danish counterpart of our C.B.C. that free political
party program-time be made available not only to parties repre-
sented in Parliament, but to all parties with at least 10,000 proved
backers. 51 This incident illustrates well the flexible ‘uses to which
the institution can be put to settle grievances which may not be
normally subject to the ordinary legal recourses. Similarly, an im-
portant feature of the Commissioner’s activity is to negotiate with
the State on behalf of citizens “where a serious injustice seems to
have occurred but the law does not provide any redress” (e.g. com-
pensation) .52 But this power is exercised sparingly and only after
a careful, impartial investigation.
It should also be noted that the Commissioner, if he finds that
the complaint comes within the jurisdiction of the law courts, may
not only “give guidance to the complainant with that possibility
in view”, but may recommend that the complainant be granted free
legal aid ! 53 The Commissioner has used this power cautiously and
only in cases of indigent complainants, with the result that his
recommendations in the matter have always been followed.54
47 Cf. Audvar Os, “The Ombudsman in Norway”, mimeographed and undated,
p. 3 .
48 Ibid., p. 15.
49Ibid., p. 9.
50 Tbid., pp. 29-30.
51 Levinson, op. cit.
52 Whyatt Report, p. 58.
5 3 Axt. 7 (3) of the Directives.
54 Hurwitz, op. cit., p. 10.
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D. Norway 55
Introduced in 1962. –
The last of the Scandinavian countries
to adopt an ombudsman was Norway which did so in 1962. It
is
noteworthy that this decision was the result of the recommenda-
tions of a Committee on Administrative Procedure which had made
an extensive study not only of Norwegian administrative law, but
of British, American and continental administrative procedure. The
Norwegian system is based on the Danish precedent.
Purpose of institution. – When it introduced its Ombudsman
bill before the Norwegian Parliament (Storting) in 1961, the Gov-
ernment made one of the classic statements rl as to the usefulness
of an Ombudsman in modern society:
“The system with an Ombudsman may be of great help to anyone who feels
that he has been subject to abuse of power by administrative authorities. To
bring a suit at a court of justice may appear to be circumstantial and
expensive. Not everybody will have the opportunity of having a case debated
in the Storting by interpellation and question. Many people will also recede
from the idea of going to the newspapers with the case. By bringing the
matter before the Ombudsman, the private person concerned may have it
examined in a simple and inexpensive manner.
The system will probably be advantageous to the public administration
also, as the Ombudsman will clear up and eliminate complaints which have no
basis in the merits. In this way he may turn out to be protector of govern-
ment employees as against querulous and other quarrelsome persons. Fur-
ther the Ombudsman may lessen the burden of work for the members of
the Storting, who now constantly get complaints from private persons con-
cerning the activities of some administrative authority…
With the standard our administration has today, it is indeed not likely that
the Ombudsman will find basis for criticism in any considerable number of
cases. Experience both in Sweden and Denmark has shown that only in a
relatively small number of the complaint basis is found for further pro-
cedure. But, the system may to some extent contribute to a higher degree
of vigilance in the public administration. And through a longer period of
time its effect may be to strengthen the confidence in the public administra-
tion, ‘and to create a feeling of security in the individual as to his relations
to the public administration.”
Right of Parliament to request opinions. –
The Norwegian
statute contains most of the characteristics of the institution as
55 The writer wishes to acknowledge the assistance of the Canadian Embassy
in Oslo which made available to him an English translation of the 1962 Ombuds-
man bill and of the Rules or Directives of the Storting as well as an undated
21-page mimeographed essay by Audvar Os of the Royal Norwegian Ministry
of Justice entitled “The Ombudsman in Norway”. Some comment on the statute
is to be found in the Whyatt Report, ch. 12.
56 As quoted in Os, op. cit., pp. 3-4.
No. 4]
AN OMBUDSMAN FOR CANADA
found in the other countries, and particularly in Denmark. One
peculiarity of the Norwegian system which distinguishes it from
the Danish one is that the Ombudsman may be required by the
lower or higher Chamber of Parliament to present an opinion on
cases deferred to him.5 7 This provision has been criticized even in
official quarters :rs
“Thereby a special form of procedure was established, which deviates
from the regular procedure in two essential respects: Firstly, the Ombudsman
seems to be under a duty to take up and express his opinion on matters sub-
mitted to him by the Storting in this way. Secondly, his opinion will not
appear in the regular annual report, but in an ad hoc report, which will be
discussed separately in the Storting. In such cases there is an evident risk
that the Ombudsman will not only be opposed or criticized for his opinion,
but even plainly repudiated in the Storting.
Even if such a consequence might only assume to be of a mere theoretical
nature, it does not harmonize particularly well with the principle of inde-
pendency of the Ombudsman.”
It should be noted that s. 11 (3) of the New Zealand statute enables
committees of the House of Representatives to refer petitions to
the Commissioner for investigation and report.
Jurisdiction. – According to s. 4 of the 1962 statute, the juris-
diction of the Ombudsman is the following:
“The ombudsman’s province covers the Government administrative organs
and civil servants and others in the service of Government. His province
does not cover:
1. decisions made by the Cabinet,
2. the functions of the Courts of Justice,
3. the functions of the Auditor of Public Accounts.
In the rules issued to the ombudsman the Storting may determine:
1. whether a particular public institution or function shall be regarded as
being Government administration or part of the service of the Govern-
ment pursuant to this Act,
2. that certain parts of a Government institution’s functions shall not come
within the province of the Ombudsman,
3. that in connection with dealing with the individual case the ombudsman
may also take up the hearing of the case by the municipal administrative
organ which has dealt with the case at a lower level.
The ombudsman can deal with any administrative matter, including mu-
nicipal administrative matters, concerned with the deprivation of personal
liberty or connected with the deprivation of personal liberty.”
Exhaustion of administrative recourses normally required. –
A
characteristic of the Norwegian system is that the Ombudsman nor-
mally has no jurisdiction if there is another administrative recourse
57 Rule 5 of the Storting.
59 Os, op. cit., pp. 7-8.
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(s. 5 of the Rules). Nevertheless, for “particular reasons” he can
intervene even before administrative recourses are exhausted. The
purpose of permitting the Ombudsman to step in at an early stage,
in such cases as in his discretion seem to call for it, is well stated
by Audvar Os: 59
“It has been a matter for consideration whether administrative appeal
should be exhausted before a case can be sent to the Ombudsman. The Govern-
ment was of the opinion that he should not ordinarily deal with decisions as
long as the right to make appeal to a superior authority was open. However,
sometimes it can be an advantage if the Ombudsman may interfere at once
and examine the matter when fresh. It might also give the Ombudsman
better occasion to conciliate if he is brought into the picture before the
decision is “final” and has become a matter of prestige. When the complaint
relates to procedural matters –
e.g. neglect to answer applications or other
it is quite clear that the Ombudsman shall not have to wait
tardiness –
until the case has been dealt with by the superior authority.
The best solution was therefore assumed to be to leave this question to the
Regulation, and the relevant provision is now to be found in section 5 of
the Regulation, stating exhaustion of remedies as the general rule, but at
the same time giving the Ombudsman the opportunity to deal with the com-
plaint right away if “he finds certain reasons to do so”.”
Personal interest required. –
Insofar as complaints are con-
cerned, a difference from Denmark and Finland is that some per-
sonal interest is required from the complainant: “Whosoever con-
siders himself to be unjustly treated by the public administration
may complain to the ombudsman” (s. 6 of the statute). This un-
official translation of the statute does not seem to exclude cate-
gorically complaints by third parties, but such an interpretation
has behind it the weight of the Royal Norwegian Ministry of
Justice: 60
“According to the Draft Bill of the Commission, complaint might be sub-
mitted to the Ombudsman by anybody. The Government tightened the Bill
on this point by demanding a certain party interest as a condition for right
to complain. This is not, however, carried further than to the extent that
the complainant himself must be affected by the matter or by the adjudica-
tion or the rules he brings before the Ombudsman … If the complainant
does not have a party interest as mentioned, the Ombudsman shall not be
obliged to deal with the complaint. In this way one may get rid of some
entirely querulous complaints from persons or instances, who, not being
affected themselves, more or less self-appointed, attempt to act on behalf
of others or exploit the Ombudsman-system for purposes of propaganda.
It is fairly reasonable to believe that this provision especially has regard
to certain organs of the Press, which might otherwise endeavour to profit
by “blowing up” cases in putting them before the Ombudsman.”
59 Op. cit., p. 12.
60 Os, op. cit., pp. 11-12.
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AN OMBUDSMAN FOR CANADA
309
Prescription of complaints. –
The one-year prescription en-
countered in Denmark is also found in Norway.6 ‘ Nevertheless, art.
6 of the Rules states:
“Lapse of the right of complaint will not prevent the ombudsman from
dealing with the complaint at his own initiative.”
No access to internal minutes. – The powers of the Ombudsman
are similar to those of his colleagues in other Scandinavian coun-
tries. He can request information, records and documents from
government officials. On the other hand, this power is limited to
some extent by the need to allow officials to deal internally in
complete frankness:
“The Commission presupposed that the Ombudsman should also have
access to the internal working papers of the administrative organs. Several
administrative instances expressed doubt as to such extensive right to de-
mand information – having in mind the manner in which the administration
performs its duties today. It was feared that such a right would entail a
new routine in the execution of public business; today the officials may use
an informal mode of expression knowing that it will be read only by the
superior officials used to his special form of language. Should all files be
open to the Ombudsman, the official would be compelled to phrase himself
in a more formal way or give his opinion orally only. Such a change in the
daily working routine was thought not to be any advantage at all to the
administrative procedure at large. The frankness and confidence between
the superior and the subordinated officials would especially be injured.
On this background it should be emphasized that the expression “docu-
ments” in the first paragraph of section 7 does not include the internal
working papers, but only the “official” documents. This means firstly letters,
utterances and declarations and the like, forwarded to the administrative
authority or procured by it from others, and letters from the administrative
authority occasioned by the case. By the expression “record” is especially
considered records which the administrative authority concerned, according
to statute or instructions, are required to use. But the Ombudsman should
have power to demand also records used only according to established prac-
tice, unless they ‘are only kept for internal use.”62
Right to subpoena witnesses for in camera hearings. – As in
Denmark,63 the Ombudsman cannot force witnesses to appear before
him but he can subpoena them to be examined before a court of
law. In both countries such hearings before the courts are in
camera.64
Secrecy. –
In Sweden the Ombudsman operates in the full glare
of publicity and to a lesser extent, in Finland and Denmark also.
61s. 6 of the statute.
62 Os, op. cit., pp. 13-14.
63 s. 7 of the Danish statute.
64s. 7 of the Norwegian statute.
310
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A different approach was followed in Norway where it was felt
that since an ombudsman could not work successfully without access
to all sorts of normally confidential information, some secrecy was
needed. Consequently s. 9 of the statute states:
“In so far as it is not necessary for the performance of his duty according
to this Act, the ombudsman must not divulge any information he obtains
in his official capacity regarding circumstances which are not generally
known. Information relating to trade and business secrets must in no case
be made public. He must continue to observe such secrecy after retirement
from office. The same secrecy must also be observed by his personnel.”
This rule is further developed in s. 14 of the Rules:
“If the ombudsman considers a complaint to be unfounded, neither the name
of the complainant nor that of the civil servant (administrative organ)
concerned shall be mentioned in the report. The ombudsman may decide,
in other cases too, to omit names if he finds special reasons for doing so.
The report may not contain information pertaining to business secrets. The
ombudsman shall also prevent from appearing in the report informations
which are subject to professional secrecy.”
The very same approach was adopted in New Zealand.
No right to prosecute. –
The Ombudsman has no power to
order proceedings to be instituted as in Denmark, still less to insti-
tute proceedings himself as in Sweden, although he may “inform
the public prosecutor or the appointing authority of steps he con-
siders should be taken against the civil servant concerned”.05
Administrative discretion. – As in the other Scandinavian coun-
fries,, the Ombudsman has no right to review the exercise of adminis-
trative discretion but may, under s. 10 of the statute, criticize deci-
sions which are “invalid or clearly unreasonable”.
Norwegian experience. – The Norwegian Ombudsman has com-
pleted only one full year in office (1963). During that period he
received 1275 complaints of which 868 were rejected, shelved or
withdrawn and 5 suspended for further information. A total of
402 cases were found to merit further study. 6
65 s. 10 of the statute; cf. Os, op. cit., p. 17.
66 These figures are taken from a despatch in the New York Times, April 22,
1964, at p. 36: “Oslo Ombudsman reports 1,275 complaints in 1963”.
No. 4]
AN OMBUDSMAN FOR CANADA
E. New Zealand 67
Importance of New Zealand bill. –
In 1962, New Zealand intro-
duced its Parliamentary Commissioner (Ombudsman) Act modelled,
with minor variations, on the Danish prototype. The great impor-
tance of the New Zealand experiment is that it constitutes the first
attempt by a country with a system of public law analogous to our
own to adopt this institution.
Reasons for adoption. –
It is consequently of interest to note
the motivation for the bill. As stated by New Zealand’s Attorney-
General, J. R. Hanan,68 the reasons are similar to those which con-
vinced the Norwegian Government and which motivate many of the
advocates of an ombudsman in our country:
“There has been in recent years a rapidly increasing recognition in New
Zealand of the need to give better protection to the private citizen against
the increasing centralisation of power in the hands of the State. The balance
between the citizen and the State has over a long period been swinging more
and more in favour of the State. The process is not new; it has been going
on for several hundred years. Of course, the citizen has had many wins –
the Bill of Rights, the principle of habeas corpus, and a few other great
landmarks in our history –
but during recent times the trend has been in
favour of increasing State power. During the last 30 years it has accelerated
so that our lives today are lived in an increasingly elaborate web of regula-
tions and controls.
Today there are few spheres of activity that are not affected by the exer-
cise of administrative power. The responsibility for this does not rest with
any particular Administration. For good or ill –
and in many respects it has
produced much good –
it is the product of society itself; but this concentra-
tion of power in the State has made it all the more essential, in a democracy,
that the citizen should be protected against the abuses of power.
I do not mean so much the conscious or malicious abuses of power, for
these are happily very rare in this country and the law can deal with them
adequately. I refer to the genuine mistakes, misjudgments, and -what may be
termed unreasonable decisions which are
inevitable wherever power is
exercised. In other words, the question often is, has the best decision been
made ? We tend to think of the increase in the power of the State largely
67 The writer wishes to acknowledge the assistance of the New Zealand High
Commission in Ottawa which made available to him the full text of the N.Z.
statute, of the Report of the Ombudsman for the 6 months ended on March 31st,
1963 and a 13-page mimeographed extract dated at Ottawa on Nov. 20, 1963
of the debates of June 14 and July 25, 1962 in the N.Z. Parliament, hereinafter
referred to as Debates. The Commission also supplied the writer with a copy of
an enlightening speech by Sir Guy Powles, the first New Zealand incumbent,
entitled “The Citizen’s Rights Against the Modern State, and its Responsibilities
to Him” given to the Royal Institute of Public Administration in Canberra,
Australia, in November, 1963.
68 Debates, pp. 5-6.
McGILL LAW JOURNAL
[Vol. 10
in terms of restriction and regulation of our freedom, but there is a further
aspect: the positive functions of the State, aimed at achieving social justice
and security, have waxed enormously during the last century, and we should
ensure not only that restrictions and controls are not abused but also that
assistance and benefits in the welfare State are not wrongfully denied. That
is perhaps the important theme of this Bill.
How can a citizen obtain a review of administrative decisions at present?
If he claims that the Administration has acted unlawfully he can sue the
Crown in the ordinary Courts of the land, and in some cases there are
statutory provisions giving an appeal on the merits to independent tribunals.
It would generally be agreed that these remedies, where they apply, give
substantially adequate protection. In many cases, however, the Administra-
tion has clearly acted within its legal powers and there is no specially
constituted tribunal, but nevertheless it is claimed by some aggrieved citizen
that an act or decision is unreasonable or high-handed, and there is no
really effective redress. Of course, the citizen can do something about it. He
can approach the appropriate Minister if a Minister is concerned; he can
go to his member of Parliament, who will take the matter up with the
Minister or may ask a question in the House; and finally he can petition
Parliament. These methods of redress are important and I do not wish to
disparage their value; nevertheless, there is a widespread feeling that they
are not always sufficient. However fair a Minister may be, he is to some
extent an interested party. He must rely to a considerable extent on his
advisers, who may be the very persons whose decision is in question. Often
a Minister simply will not have the time to go into a highly complicated
technical matter from the beginning; he will not have time to look at all
the papers and form his own conclusions uninfluenced by anyone else; and
it is a great tribute both to Ministers of the Crown in successive Govern-
ments and to their departmental officers that the practice of ministerial
review has worked as well as it has. The system is, however, not well
adapted to ensure that justice is always done. Equally important it is to
see that justice is seen to be done.”
Appointment and term of office.69 –
The New Zealand Om-
budsman is “an officer of Parliament”, appointed by the Governor-
General upon a recommendation of the House of Representatives.
As elsewhere, he cannot be a member of Parliament, but unlike his
Scandinavian counterparts, he need not have legal training or the
qualifications of a judge. He holds office until his successor is
appointed and may at any time be removed or suspended upon
address of the House of Representatives “for disability, bankruptcy,
neglect of duty, or misconduct”. Normally, he holds office for the
duration of Parliament, but can be re-appointed.
Independence. – While the bill incorporates the usual measures
designed to ensure the independence of the Ombudsman, it has a
number of questionable features which could very well be used by
an unscrupulous government to curb the operations of the Ombuds-
69 ss. 2-5 of the statute.
No. 4]
AN OMBUDSMAN FOR CANADA
313
man’s office. For instance, his salary, rather than being stated to
be equal to that of some high judicial official, as it is elsewhere, is
left to be fixed by the “Governor-General by order in council”. 70
By fixing an unattractive salary, the cabinet could very well make
it difficult to find suitable independent candidates. Secondly, while
the Commissioner is allowed to appoint such officers and employees
as may be necessary for the efficient carrying out of his duties, the
number of persons he may appoint “shall from time to time be
determined by the Prime Minister” and their salaries “shall be
such as are approved by the “Minister of Finance”. 71 There is no
need to underline the control which the Government can exercise
with powers such as these over the operations of the Ombudsman.
In Norway, salaries and staff are decided by the Storting itself.72
In Denmark, his salary is stated by law to be that of a judge of the
Supreme Court and his staff is under control of Parliament itself.7
The jurisdiction of the New Zealand Ombuds-
man extends to all government departments and to a large number
of stated boards, commissions and councils. It also covers the army,
navy and air force as well as the police. But it does not extend to
cabinet ministers save for his right to investigate recommendations
made to a Minister of the Crown. In dealing with objections raised
to this limitation on the powers of the Ombudsman, Attorney-
General Hanan stated 74 somewhat ingenuously:
Jurisdiction. –
“although Ministers are not specifically brought into the commissioner’s
jurisdiction, it is not true that their decisions cannot be examined by him.
The Bill expressly empowers the commissioner to investigate a recommenda-
tion by a Department to its Minister. If the Minister follows that recom-
mendation, then criticism of the recommendation will, in effect, be criticism
of the decision. If he does not follow the recommendation, then that fact
will doubtless be stated by the commissionner. In either event the Minister,
in the light of the commissioner’s finding, will inevitably be called on to
justify his action in Parliament, and that is where a Minister should be
called to account for his administrative acts.” 74a
Exclusions from jurisdiction. –
sions which should be noted:
There are a number of exclu-
7o s. 7 of the statute.
71 s. 9 of the statute.
72 ss. 13-14 of the Norwegian statute.
73 ss. 12-13 of Danish statute.
74 Debates, p. 2.
74a The lack of clarity of this provision has been criticized in a stinging manner
by C. E. Purchase in the August 7 and September 4 issues of the 1962 New
Zealand Law Journal, a copy of which criticism in mimeographed form has been
made available to the writer by the New Zealand High Commission in Ottawa.
McGILL LAW JOURNAL
[Vol. 10
(a) The Commissioner has no jurisdiction when there is a right
of appeal or objection or a right of review on the merits of a case
to any court or tribunal, whether such right has been exercised and
whether or not it is prescribed ;75
(b) Decisions, recommendations, acts or omissions of Crown
counsel cannot be investigated ;76
(c) Although the Commissioner has jurisdiction over the armed
forces he cannot investigate matters relating to
i) the terms and conditions of ‘service of any member of the
armed forces;
ii) “any order, command, decision, penalty or punishment given
to or affecting” any member of the armed forces.77
(d) As in Norway, but in contradistinction with other Scandi-
navian countries, the Commissioner has no jurisdiction over cer-
tain local boards and bodies, although the Government has stated 78
in Parliament that if the institution proved to be workable, it would
be extended to cover other public authorities and perhaps also local
matters. We saw that this has been the usual development in Scandi-
navian countries.
Right to demand declaratory judgment. –
If any doubt arises
as to whether the Commissioner has jurisdiction to investigate any
case he may obtain a declaratory order from the New Zealand
Supreme Court.79
Complaints over which jurisdiction. – Article 14 of the statute
by defining which complaints the Commissioner may, in his discre-
tion, refuse to hear, provides a contrario an insight into the kind of
complaints the Ombudsman is expected to deal with. He may “in
his discretion” refuse to hear complaints in the following cases:
(a) when, under the law or existing administrative practice,
there is an adequate remedy or right of appeal, other than the right
to petition Parliament;
(b) when, having regard to all the circumstances, further inves-
tigation is unnecessary;
75 s. 11 (5). In New Zealand, unlike in the Scandinavian countries, the exist-
ence of administrative recourses does not merely delay but totally excludes the
Ombudsman’s jurisdiction. As Attorney-General Hanan stated, op. cit., p. 7:
“His function is to supplement existing procedures, and not to replace them I”
76 Ibid.
77s. 11 (6).
78 Debates, p. 9.
79S. 11 (7).
No. 4]
AN OMBUDSMAN FOR CANADA
(c) he has discretion to refuse to investigate complaints of which
the complainant has had knowledge for more than twelve months,
but it must be noted that this is not an absolute prescription;
(d) he need not entertain complaints which are trivial, frivolous,
vexatious or in bad faith;
Commissioner can waive restriction. –
(e) nor need he investigate when “the complainant has not a
sufficient personal interest in the subject matter of the complaint”.
It is significant that
while the legislator seems to have intended complaints to be made
by interested parties only and within twelve months, the commis-
sioner is not tied down and can investigate complaints received from
people who have no personal interest in the subject matter or whose
complaint is made more than twelve months after the object arose.
This is obvious from the fact that s. 14 of the statute states that
the Commissioner may, “in his discretion”, refuse to act. This is
merely permissive and does not preclude him from acting if he
elects to do so.
Investigations. –
The manner in which the New Zealand Com-
missioner is to carry out his investigations and perform his duties
is carefully enunciated in a number of long articles: 80
(a) all investigations must be preceded by notice to the head
of the Department or organization affected;
(b) all investigations are private;
(c) no one is entitled as of right to be heard by him except that
if the Commissioner finds sufficient grounds for criticizing a de-
partment, organization or individual, he shall give them an oppor-
tunity to be heard;
(d) he may consult the Minister affected and must do so in
certain stated cases upon the Minister’s request;
(e) if he becomes aware of any breach of duty or misconduct
on the part of a civil servant, he must refer the matter to the appro-
priate authority (presumably the disciplinary or prosecuting au-
thorities) ;
(f) he has the power to subpoena witnesses before him as well
as all documents and records necessary to carry out his investigation
and may examine such witnesses under oath. In Denmark and
Norway he can only subpoena witnesses to appear before a court
of law. The following qualifications should be made:
i) Witnesses cannot be compelled to violate professional secrecy
when such is granted by law;
80 ss. 15 at seq.
McGILL LAW JOURNAL
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ii) Witnesses shall have the same privileges and protections in
testifying or producing documents before the Commissioner as they
would have before a court of law;
iii) Evidence given before the Commissioner cannot be admitted
against any person, including the witness, in any court in connec-
tion with any inquiry or any other proceeding;
iv) The Commissioner is entitled to request even information
normally protected by the Official Secrets Act.”‘
v) While no witness is allowed to claim Crown privilege (i.e. the
right to refuse to disclose information or produce documents on the
ground of public interest) the Commissioner cannot require tes-
timony when the Attorney-General certifies that such testimony
might prejudice the security, defence or international relations of
New Zealand or the investigation or detection of offenses or might
involve the disclosure of the deliberations of the Cabinet; or might
involve the disclosure of proceedings of Cabinet, or of any Committee
of Cabinet, relating to matters of a secret or confidential nature and
injurious to the public interest.82
(g) The Commissioner has the right to make on-the-spot inspec-
tions and investigations, but must first notify the responsible official.
He is precluded from such inspections when the security, defence or
international relations of New Zealand might be endangered by such
inspection. 83
It is debatable whether these restrictions are necessary, partic-
ularly in view of the fact that investigations are not public and that
the Commissioner is bound to secrecy.
Secrecy. –
Indeed, not only are the Commissioner’s investiga-
tions held in camera, but s. 18 of the statute imposes on him and
on all his employees total secrecy “in respect of all matters that
come to their knowledge in the exercise of their function:’ An oath
of secrecy is required of them. 84 Nevertheless, s. 18 (4) states:
“the Commissioner may disclose in any report made by him under this Act
such matters as, in his opinion, ought to be disclosed in order to establish
grounds for his conclusions and recommendations. The power conferred by
this subsection shall not extend to any matter that might prejudice security,
defence or international relations of New Zealand (including New Zealand’s
relations with the Government of any other country or with any international
organisation) or the investigation or detection of offenses, or that might
involve the disclosure of the deliberations of Cabinet.”
81 s. 16 (3).
S2s. 17.
83s. 23.
84s. 8.
No. 4]
AN OMBUDSMAN FOR CANADA
In the long run these drastic precautions may prove to be wise and
to increase the efficiency of the Ombudsman. The confidential char-
acter of his investigations and the provisions in the bill aimed at
protecting civil servants will no doubt encourage frankness and con-
tribute to eliminate the natural reluctance of government officials
to open the files of their departments. On the other hand, the Com-
missioner is given enough leeway to disclose his findings not to be
suspected of hushing up things.
Action by the Commissioner. – After his investigation is com-
pleted, the Commissioner shall be entitled to recommend remedial
action provided that he finds the decision, act or omission under
investigation to be
(a) “contrary to law” or
(b) “unreasonable, unjust, oppressive, or improperly discrimi-
natory, or in accordance with a rule of law or a provision of a
practice that is or may be unreasonable, unjust, oppressive, or im-
properly discriminatory”;
(c) based on a mistake of law or fact;
(d) “wrong”;
(e) resulting from the exercise of a discretionary power “for
an improper purpose or irrelevant grounds or on the taking into
account of irrelevant considerations; or that reasons should have
been given for the exercise of such power”.8 5
Protection of civil servants. – To protect civil servants the Com-
missioner must annex to his report the comments, if any, made by
the Department affected, and cannot criticize any one who has not
been given opportunity to be heard.
No power to reverse discretionary decisions. – As in the Scan-
dinavian countries, the Commissioner has no power to reverse ad-
ministrative decisions or to modify them. Nor can he order, or
institute, legal proceedings against erring officials.
Immunity. – An important provision to be found only in the
New Zealand statute and designed to strengthen the independence
of the Commissioner is the immunity of all proceedings before him
or of his own actions from attack before courts of law (except for
bad faith). All testimony before him enjoys the same privilege as
if it were rendered before a court of law. Nor can he, or any of his
employees, be called upon to testify in any court as to anything they
have learned in the exercise of their functions.8 6
s5s. 19.
86 ss. 21-22.
McGILL LAW JOURNAL
[Vol. 10
In practice,
New Zealand experience. –
the New Zealand
Ombudsman, although in office for slightly more than 18 months,
seems to have been highly successful.87 During his first year he
received 760 complaints, of which 90% were disposed of at the time
of writing. Nearly half were found to be outside his jurisdiction. Of
the 389 cases actually investigated, 308 were considered not to be
justified. The Ombudsman found that 81 complaints (i.e. slightly
more than 10 % of the total) were warranted. In 52 of these, officials
rectified the grievance voluntarily and usually even before the
Commissioner’s
inquiry terminated. Rectification was impossible
for practical reasons in the remaining 29 cases. Remarkably enough,
in every instance, the authorities complied willingly with the Com-
missioner’s recommendations so that he has not had to refer any
grievance to Parliament. On the other hand, in several cases, unjus-
tified complainants were advised to cease groundless attacks on
officials. This further illustrates the possible role of the institution
in fostering -confidence in the Administration.
CHAPTER H
THE WIHATT REPORT
The Whyatt Report. – The only Commonwealth country besides
New Zealand where serious consideration appears to have been given
to the institution of an ombudsman is England. Admittedly there is
little likelihood of Parliament following the New Zealand lead in
the foreseeable future. Nevertheless the only authoritative study on
the implantation of an ombudsman in a system similar to ours is to
be found in the The Citizen and *The Administration,88 a report of
the British Section of the International Commission of Jurists,
directed by Sir John Whyatt.
Two recommendations – The Whyatt Report, after a detailed
study of the need for redress of grievances against the administration
in Britain, and an examination of the operations of the Ombudsman
s cf. above-mentioned Report of the Ombudsman and a Canadian Press des-
patch in The New York Times, November 3, 1963, p. 16: “Ombudsman praised
by New Zealanders”; June 19, 1964 despatch: “New Zealand Ombudsman Does
a Good Business in Complaints” in The New York Times, June 28, 1964, p. 24.
88 London, 1961. The Report has received widespread comment, some of it
very critical, e.g.: review by Geoffrey Sawer in (1962) 25 Mod. L.R. 220; review
by Prof Kenneth Culp Davis in (1961-62) 75 Harv. L.R. 1258; “The Redress
of Grievancees”, by A. W. Bradley, (1962) Cam. L.J. 82.
No. 4]
AN OMBUDSMAN FOR CANADA
in Sweden, Denmark and Norway, recommended two important
reforms:
(1)
the appointment of a Parliamentary commissioner to inves-
tigate grievances against the administration and
(2) the creation of a General Tribunal to deal with miscella-
neous appeals from discretionary decisions of the administration.
Gap in the British constitution. –
The report pointed to 89 the
gap in the British constitution which does not provide for dealing
with complaints against either the exercise of administrative discre-
tion or against mere maladministration. Ordinarily, such complaints
cannot form the basis of a legal recourse and leave to the citizen
only such doubtful avenues of redress as writing to the administra-
tion directly or to their members of Parliament or to the press. Indeed,
where the administration has discretion, the citizen has no redress
against a decision which, while not constituting an abuse of power,
is nevertheless inappropriate. The Commission felt that there should
be a right of appeal to an independent tribunal which could sub-
stitute its own discretion. On the other hand, a Parliamentary Com-
missioner would be useful in dealing with acts of maladministration
or official misconduct whether or not such misconduct might give
way to legal redress.90
General Tribunal. – The Commission recommended the creation,
on the model of the Swedish Supreme Administrative Court, of a
General Tribunal to hear appeals from discretionary decisions with
power to substitute its own discretion to that of the administration.
Not only would such tribunal contribute, as in Sweden, to reduce
considerably the number of complaints made to the Ombudsman, but
“it would do much to remove the sense of frustation and injustice felt by
members of the public when faced with departmental decisions which they
believe to be mistaken but which they have no effective means of chal-
lenging” 91
It should be recalled that neither in Scandinavia nor in New Zealand
does the Ombudsman have the right generally to intervene in the
exercise of administrative discretion. The purpose of the proposed
General Tribunal would be to fill this gap.
Proposed Ombudsman. – To curb maladministration and provide
an outlet for individual grievances, the Committee proposed the
creation of the office of Parliamentary Commissioner or Ombuds-
89 pp. 1-5; cf. also Bradley, op. cit., p. 95.
90 The Report did not discuss the difference between a wrong exercise of
discretion and maladministration. The distinction is not always easy to draw.
91 Whyatt Report, p. 29.
McGILL LAW JOURNAL
[Vol. 10
man. As in the Scandinavian countries he would not deal with the
exercise of administrative discretion nor would he have the power
to substitute his own discretion. His functions would be to protect
citizens against oppressive conduct, unfairness, inefficiency, negli-
gence, error or conduct contrary to justice by government officials
and to ensure that the latter “observe proper standards of conduct
and behaviour when exercising (their) administrative powers”.92
This was -the best method of dealing with such
complaints, the Whyatt Report stated, since investigations by a par-
liamentary Commissioner would be both impartial (in view of his
independence from the executive) and informal enough not to dis-
rupt the administration or to provoke a defensive reaction on its
part. As in Norway and in New Zealand the Report also stressed
that the Ombudsman would not replace existing methods of redress
but would serve to supplement them.
Advantages. –
Concrete proposals. –
The concrete proposals of the Whyatt
Report were the following:
(1) Independence. – The Commissioner should have the same
status as the Auditor General and thus be irremovable except by
address of both Houses. He should be answerable only to Parlia-
ment.
(2) Complaints. – With respect to the right to bring complaints
the Whyatt Report showed a surprising reserve which has been
severely criticized 93 and was specifically rejected by the New Zea-
land Government when it introduced its own bill a year later.94
The Report recommended indeed that at the beginning the Com-
missioner should entertain complaints only if channelled through
members of Parliament, although at a later date he might be au-
thorized to receive complaints directly from the general public.
(3) Right to veto. – Furthermore, the Minister concerned should
have the right to veto any proposed investigation, although the
Report piously added: 5
“we hope that a convention would be established that he would not do so
save in exceptional circumstances”.
To justify this right of veto the Committee wrote :96
92 Ibid., p. 34.
93 e.g. by Davis, op. cit., passim, and Sawer, op. cit., pp. 221-2.
94 Debates, p. 1.
95Ibid., p. 68.
961bid., pp. 74-5.
No. 4]
AN OMBUDSMAN FOR CANADA
“Under our Constitution a Minister is responsible for the efficient adminis-
tration of his Department and it might well be said that he would find it
difficult, if not impossible, to discharge this duty if an independent body
could, as of right, enter his Department and investigate allegations of
maladministration without his permission.”
Such restriction could well make a mockery of the institution.
The New Zealand solution of secrecy and consultation with the
Minister concerned is more than sufficient a compromise between
the claims of efficient administration and the needs of the citizenry
at large.
(4) Reports to Parliament. –
The Commissioner should make
an annual report to Parliament of the more important cases he has
handled but should not mention the names of the individual civil
servants against whom grievances have been pressed. His report
should be available to the public. He should also be allowed to draw
attention to the deficiencies he has found in the law.
Criticism. –
The Whyatt Report is undoubtedly a milestone in
that it represents the first thorough study of the possibility of
introducing an Ombudsman in a country having a British constitu-
tion. But it is far too cautious and, as was pointed out by an Ameri-
can critic,9 7 not too logical.
CHAPTER III
COMMON DENOMINATORS
Common backgrounds. –
The existing institutions examined in
the first chapter are found in countries similar to our own. They
are parliamentary democracies with long traditions of stability and
respect for individual rights. Their societies are fairly homogeneous.
To a considerable extent they could all qualify as so-called welfare
states. In other words, in all these countries, citizens make con-
siderable demands upon the community. The result has been a rapid
growth of government regulation and of positive action by the
state in a multitude of areas. On the other hand, increased govern-
ment intervention has brought about a concomitant threat of arbi-
trariness or unwarranted interference with the subjects’ liberties.
Yet all these countries have constitutional traditions of respect for
the rights of the individual. They have unimpeachable and inde-
pendent judicial systems which do not hesitate if need be to grant
redress even against the state and they have a broad range of admi-
97 Davis, op. cit.
McGILL LAW JOURNAL
[Vol. 10
nistrative tribunals to which appeals can be brought from decisions
of the authorities. Nevertheless, all these states have found that
these safeguards do not provide adequate protection to citizens
against a ballooning administration. They have found it necessary
to supplement existing institutions with a parliamentary conmmis-
sioner or ombudsman whose function it is to investigate the com-
plaints of individual citizens and to recommend redress. This in
itself is a lesson.
Common denominators. –
In addition to the resemblances in
the most striking feature of
social and political backgrounds,
existing ombudsman schemes is the number of similarities among
them. The common denominators are numerous; the differences,
rare. We have stressed these differences in the first chapter. Let
us now examine the common denominators:
(1) Officer of Parliament. –
The Ombudsman is an Officer
appointed by Parliament to ensure that the executive carries out
not only the letter but the spirit of the law. He carries out this
duty both by investigating the complaints of citizens against the
administration and recommending appropriate redress, and by un-
dertaking investigations on his own initiative. If he finds flaws in
the law or in adminstrative regulatons he must point them out to
Parliament. In the earlier schemes (Sweden, Finland and Denmark),
he can order or institute actions against erring officials. Except
in Sweden, and even there in more recent years, this power has
been used very sparingly. In Norway and New Zealand he can only
make recommendations. In practice it has been found that the great
prestige of the office and the publicity surrounding the commis-
sioner’s recommendations are more than sufficient to obtain the
desired effect without further sanctions.
(2) Qualifications. –
In Sweden he is selected “from among
jurists of higher reputation”.08 In Finland he must be a “distin-
guished jurist”.9 9 In Denmark he must have legal training.100 In
Norway he must have “the qualifications demanded for a judge of
the Supreme Court”.10 But no such restriction exists in New Zea-
land.
(3) Independence of the Commissioner. – To ensure the proper
functioning of the Office, great stress has been laid everywhere on
the absolute independence of the Commissioner not only from the
98Whyatt Report, p. 46.
99 art. 49 of the Constitution.
100 s. 2 of the Danish statute.
101 s. 1 of the statute.
No. 4]
AN OMBUDSMAN FOR CANADA
323
Executive but even from Parliament. He is granted a high salary
and generous pension rights. On the other hand, he cannot hold any
other public or private office. Economic independence is deemed
essential and rightly so.
The Commissioner is elected for the term of Parliament and
cannot be removed except for grave reasons and then frequently
only by substantial majorities or address of the House, as in New
Zealand. In effect, he is generally given the same independence as
a judge. As a matter of record, no ombudsman appears ever to have
been removed, although some have not been reelected. In all coun-
tries, Parliament can and does make general rules or directives for
his guidance but cannot otherwise interfere with his activities. In
Norway and in New Zealand, Parliament can refer to him specific
matters for investigation and report. We have noted that this has
been felt sometimes to endanger his independence.
He hires and fires his own staff. In this respect, the powers
given in New Zealand to the Prime Minister to determine the num-
ber of employees and to the Minister of Finance to fix their salaries
is exceptional and creates the danger of executive interference. If
some control is desired it would be preferable to leave it to Parlia-
ment itself as it is in Norway.
The Cabinet or government officials cannot in any way inter-
fere with the Commissioner’s investigation. The power of veto pro-
posed by the Whyatt Report is undesirable and has not been found
necessary in any of the existing schemes. The right of the Attorney
General in New Zealand to halt an investigation or inspection by
certifying that it would interfere with security, foreign affairs or
the prosecution of criminals is also a departure from Scandinavian
practice and is not strictly necessary. The Commissioner is a per-
sonage of great prestige who enjoys the highest confidence of Par-
liament. Furthermore, he is sworn to secrecy even in cases not
involving national security. If he cannot be trusted with state se-
crets, who can?
(4) Jurisdiction. – The jurisdiction of the Commissioner is to
investigate complaints against maladministration. He cannot inter-
fere with policy. Except in Finland, he has no jurisdiction over the
Cabinet or over cabinet ministers except perhaps insofar as a minister
commits an act of maladministration. Nor can he normally interfere
with the exercise of administrative discretion although the distinc-
tion is often tenuous. What if the discretion has been validly exer-
cised, but in an arbitrary manner? What if it has been exercised
with too much delay? Norway permits interference if the decision
McGILL LAW JOURNAL
[Vol. 10
was “clearly unreasonable”, 0 2 and New Zealand if it was “unrea-
sonable, unjust, oppressive, or improperly discriminatory…
or
wrong”. 0 3
Similarly he has no jurisdiction over Parliament which appoints
him. But part of his duties are to report to Parliament deficiencies
he has found in existing laws. However, the intention does not seem
to be to permit him to criticize Parliament but only to assist it by
suggesting, on the strength of his findings, suitable reforms in
legislation.
Initially, the jurisdiction of the Commissioner is generally limited
to organs of the central government such as national departments,
boards and commissions. The inevitable trend, however, has been
to expand his power to local matters and local authorities. This
presents little constitutional difficulties in unitary countries such
as those we have studied. In Canada, however, constitutional con-
sideration requires that any Commissioner appointed by the Federal
Parliament confine himself to matters coming within the jurisdic-
tion of Parliament. The same would be true for an Ombudsman
appointed by any Provincial legislature.
(5) Existence of other recourses. – The more recent statutes
require complainants to first exhaust all administrative recourses
before their complaints can be entertained. In other words it is
intended to avoid premature investigations in cases where the ad-
ministration has not rendered its final decision. But Rule 5 of the
Norwegian Storting permits the commissioner to investigate any-
way if “he finds particular reasons for doing so without delay”.
On the other hand, the existence of the ordinary legal recourses
in the courts of law –
such as actions in damages, injunctions, man-
damuses and similar remedies –
in no way prevents the person
aggrieved from seeking redress by complaining to the Commissioner.
Yet in New Zealand, the Commissioner is given the right to refuse
to investigate a complaint if it appears to him that “under the law
or existing administrative practice there is an adequate remedy or
right of appeal”. 10 4 But as a rule it is preferable to give individuals
the choice between a complaint and an action at law. Persons of
means or whose grievances can be translated into substantial finan-
cial damages will in all likelihood still resort to the courts. But
there are many smaller complaints which either do not lend them-
102S. 10 of the Norwegian statute; s. 9 of the Rules says: “manifestly un-
reasonable”.
103 s. 19 (1) of the New Zealand statute.
104 s. 14 (1) of the New Zealand statute.
No. 4]
AN OMBUDSMAN FOR CANADA
325
selves to lawsuits or which it would be too expensive or futile to
take to court. They can be made through the Ombudsman. It is pre-
cisely these small grievances which the institution is designed to
alleviate. Moreover, if some citizens refrain from suing and prefer
to make a complaint to the Ombudsman in the hope that his recom-
mendations will lead to redress, they should be encouraged. Law-
suits, with the expense and bitterness they generate, should be
avoided whenever possible. Moreover, the amicable settlement of
grievances and their voluntary redress by the authorities is socially
a much ‘healthier solution than litigation. On the other hand, if
there is a legal recourse, the Commissioner should be entitled to
point it out to the complainant and, as in Denmark, even recom-
mend free legal aid.
(6) Complaints. – Although the Commissioner can undertake
investigations proprio motu, his main source of action is the com-
plaints that individuals forward to him. In most countries, except
Finland and Denmark, the Commissioner is not compelled to enter-
tain complaints from persons who are not personally aggrieved. Some
personal interest is required. On the other hand, the Commissioner
can use the information provided in complaints by third parties to
initiate investigations on his own. The restriction is thus not very
meaningful. Moreover, as maladministration is a matter of public
interest, there is really no justification for such limitation. Indeed,
a personal interest is not required from the complainant in a crimi-
nal case. As for the one-year prescription on complaints imposed by
Denmark, Norway and New Zealand, it is a useful method of curbing
the more frivolous complaints, particularly in view of the fact that
the Commissioner can always disregard it.
(7) Investigations. –
The ombudsman is given wide investi-
gating powers. He can make inquiries and hear witnesses. In Den-
mark, Norway and New Zealand he is given specifically the right
to subpoena witnesses and documents and to interrogate witnesses
under oath. Officals must reply to his queries and supply him with
all pertinent records. In most countries officials are not obliged
to furnish him with intra-departmental memoranda and with pri-
vate evaluations but only with in-going or out-going docuffiints and
official records, a limitation which has been criticized. Further-
more, as noted, in New Zealand, the Attorney General can bar in-
vestigations involving national security. No such limitation exists
in the Scandinavian countries. In all countries the Commissioner
is permitted to make on-the-spot inspections and investigations,
although in New Zealand he is obliged to give warning of his inten-
tion. Again this restriction does not seem to be advisable since
McGILL LAW JOURNAL
[Vol. 10
unheralded inspections are much more desirable as a means of
checking on real conditions without giving officials an opportunity
to disguise the facts.
The procedure followed in the investigation is informal. The
Commissioner does not constitute a court of law nor is he a Royal
Commission. He investigates the complaint in such a manner as he
deems fit. While no one can claim as of right to be heard, the
more recent schemes (Norway and New Zealand) provide that if
the Commissioner’s report will reflect adversely on any official,
such official must have been heard and the Commissioner must
relate his defence. This is only fair and is a practice which should
be adopted by our own Royal Commissions to avoid the kind of
controversy surrounding the report of the recent Bouchard Com-
mission in Quebec which criticized the conduct of individuals who
had not been given a full opportunity to state their case.
that
the administrative
the suggestion
(8) Reports and recommendation. –
If the Commissioner comes
to the conclusion that the complaint is well-founded he is entitled
to make the appropriate recommendation to the authority concerned
including
action be
modified or, as in some Scandinavian countries, that damages or
compensation be paid. The power to advise the payment of com-
pensation is useful particularly in cases where no legal redress
exists or where it would be protracted and difficult. It is also a
fair method of avoiding unnecessary litigation. Nowhere can the
ombudsman do more than make recommendations, except in Sweden,
Finland and Denmark where he can also initiate or order prosecu-
tions. But nowhere is he allowed to order administrative action. He
can only recommend.
These recommendations are generally followed. The Ombudsman
reports to Parliament the result of his investigations and of his
recommendations. His reports are public. A Minister whose depart-
ment has failed to comply with the Ombudsman’s recommendations
will be called to account before Parliament and before public opinion.
Fundamentally, however, the Commissioner’s effectiveness is the
result of the prestige surrounding his office and the support of
public opinion in a democratic country.
(9) Common experience. – While it is impossible to predict
how many complaints Canadian ombudsmen may have to handle,
the Scandinavian and New Zealand office holders in countries with
varying social conditions and populations of much less than 10 mil-
lion receive an average of between 1000 to 1500 complaints an-
nually. Most of them are unfounded on their face, or outside the
No. 4]
AN OMBUDSMAN FOR CANADA
jurisdiction of the ombudsman, or can be disposed of summarily.
Only about 10% (the proportion, remarkably enough, is the same
in the 5 countries) deserve further investigation. Many of these
complaints deal with relatively minor matters, the importance of
which, to the person aggrieved, nevertheless should not be under-
estimated. On the other hand, there is considerably more variation
in the number of investigations started proprio motu. In any case,
all ombudsmen operate with small staffs and limited budgets. In
Finland, the staff in 1962 consisted of two lawyers. 10 5 In Denmark,
at last count, the ombudsman had 6 part-time lawyers and 5
typists.10 6 In New Zealand, the Commissioner started with a staff
of 4 legal and clerical help, but found it insufficient after 6 months
of operation. 10 7 In the first year, the total cost of his entire office
amounted only to U.S. $32,200.0.107a
CHAPTER IV
AN ANALOGOUS INSTITUTION: THE CANADIAN
AUDITOR GENERAL
Analogy to ombudsman. – While we do not have in Canada
any official whose functions, strictly speaking, resemble those of
an ombudsman as it is generally understood, the office of the Audi-
tor General and of his provincial counterparts, bears enough analogy
with it, if only in an embryonic way, to demonstrate that the notion
of a parliamentary officer appointed to check that the law is applied
in the proper manner is far from alien to our legal and political
traditions.
Appointment. –
Under the Financial Administration Act, 10 8
although in essence he is an officer of Parliament, the Auditor
General is appointed by the Government. He holds office during
good behavior and is removable only on address by both Houses
of Parliament, in the same manner as judges.
105 Rowat, “Finland’s Defenders of the Law”, op. cit., p. 321.
106 Levinson, op. cit.
107 Report of the Ombudsman, March 31, 1963, Government Printer, Welling-
ton, N.Z., pp. 6-7.
107a of. despatch dated June 19, 1964: “New Zealand Ombudsman Does a Good
Business in Complaints” in The New York Times, June 28, 1964, at p. 24.
108 1952 R.S.C., c. 16, as amended by 3-4 Eliz. II, c. 3; 7 Eliz. II, e. 31 and
9 – 10 Eliz. II c. 48. See also on the subject: The Public Purse, by Norman Ward,
Toronto, 1962.
328
McGILL LAW JOURNAL
[Vol. 10
Duties. – His main duties, as stated in s. 67 of the Act, are to
examine the accounts relating to the Consolidated Revenue Fund
(defined in s. 2(e) as “the aggTegate of all public monies that are
on deposit at the credit of the Receiver General”) and to ascertain
whether in his opinion
“(a) the accounts have been faithfully and properly kept,
(b) all public money has been fully accounted for, and the rules and pro-
cedures applied are sufficient to secure an effective check on the assess-
ment, collection and proper allocation of the revenue,
(c) money has been expended for the purposes for which it was appropriated
by Parliament and the expenditures have been made as authorized, and
(d) essential records are maintained and the rules and procedures applied
are sufficient to safeguard and control public property.”
Furthermore, he must make inquiries at the request of the Govern-
ment, the Treasury Board or the Minister of Finance and Receiver
General concerning “any matter relating to the financial affairs of
Canada or to public property and on any person or organization
that has received financial aid from the Government of Canada or
in respect of which financial aid from the Government of Canada is
sought”. 0 9
Reports to Parliament. –
The Auditor General reports annually
to the House of Commons the results of his examinations and he
is bound to call attention to every case in which he has observed
that
“(a) any officer or employee has wilfully or negligently omitted to collect
or receive any money belonging to Canada,
(b) any public money was not duly accounted for and paid into the Con-
solidated Revenue Fund,
(c) any appropriation was exceeded or was applied to a purpose or in a
manner not authorized by Parliament,
(d) an expenditure was not authorized or was not properly couched or
certified,
(e) there has been a deficiency or loss through the fraud, default or mistake
of any person, or
(f) a special warrant authorized the payment of any money,
and to any other case that the Auditor General considers should be brought
to the notice of the House of Commons.”
Furthermore, s. 73 states:
“Whenever it appears to the Auditor General that any public money has
been improperly retained by any person, he shall forthwith report the
circumstances of such cases to the Minister.”
109 s. 71 of the Financial Administration Act, 1952 R.S.C. c. 16.
No. 4]
AN OMBUDSMAN FOR CANADA
Powers. –
In order to carry out his duties, the Auditor General
is given powers which bear some resemblance to those of an om-
budsman. These powers are defined in s. 66:
“(1) Notwithstanding any Act, the Auditor General is entitled to free
access at all convenient times to all files, documents and other records relating
to the account of every department, and he is also entitled to require and
receive from members of the public service such information, reports and
explanations as he may deem necessary for the proper performance of his
duties.
(2) The Auditor General may station in any department any person em-
ployed in his office to enable him more effectively to carry out his duties,
and the department shall provide the necessary office accommodation for
any such officer so stationed.
(3) The Auditor General shall require every person employed in his office
who is to examine the accounts of a department pursuant to this Act to
comply with any security requirements applicable to, and to take any oath
of secrecy required to be taken by, persons employed in that department.”
He also has the right to examine witnesses under oath and to exer-
cise all the powers of a Royal Commissioner in connection with
such examinations. 10
Compared with ombudsman. –
In brief, the function of the
Auditor General is to audit on behalf of Parliament the books of
the Administration and to report to Parliament whether the execu-
tive spends the funds voted by Parliament in the prescribed manner.
He is concerned only with the financial operations of the Govern-
ment. An Ombudsman would exercise a parallel function somewhat
in the same manner but with jurisdiction over the operations of
the Administration insofar as they affect individual citizens. How-
ever, since the effectiveness of the ombudsman depends, to a large
extent, on the deterrent effect of his reports to Parliament, it is
to be hoped that the reports of an Ombudsman would be received
by Parliament and the authorities with a great deal more attention
and seriousness than the erratic reception generally meted out to
the reports of the Auditor General.”‘
110 s. 74.
“‘ocf. The Government of Canada, by R. MacGregor Dawson, 4th ed., revised
by Norman Ward, Toronto, 1963, at p. 399. See also, for instance, the report of
a complaint by the current Auditor General that his recommendations go un-
heeded, in a despatch by the Canadian Press, published in The Montreal Star,
May 27, 1964, p. 30: “Red Tape Stymies Henderson.”
McGILL LAW JOURNAL
‘Vol. 10
CHAPTER V
IS THERE A NEED IN CANADA?
Usefulness. – Having examined the operations of existing om-
budsman legislation in 5 countries, we can now ask ourselves the
two important questions raised by the current debate: (1)
is there
a need for such institution, either at the federal, or at the provincial
level? and (2) if so, under what conditions can it be transplanted?
The second question will be dealt with in the next chapter. As to
the first question, the answer is: yes. Although there has been no
serious breakdown
in the relationship between citizens and the
Administration, there is no doubt that a ‘grievance man’ could be
useful both in the federal and in the provincial jurisdictions. An
ombudsman would provide particularly a vehicule for smaller griev-
ances which at the present time are not easily remedied; he would
reduce litigation; and generally contribute to increasing the con-
fidence of the people in their governments. He would supplement
rather than supplant existing political or legal recourses.
Political recourses are inadequate. – At present what are the
recourses of’a person injured by an act or omission of one of the
hundreds of official entities –
government departments, boards,
commissions, Crown corporations, municipalities, licensing bodies or
professional corporations – with which he comes into contact? He
can write a letter of complaint and hope for the best. He can write
his newspaper. He can write his member of Parliament or of the
Legislature who may find the time to communicate with the official
concerned or ask a question in the House. But especially if the griev-
ance is small, his chances of redress in this way are infilpitesimal
since the question may never be asked or lead to no official action
at all.112
Judicial recourses. –
In addition to these highly unsatisfactory
political remedies, he has in many cases a variety of somewhat more
adequate judicial recourses, not to mention the many administrative
tribunals that may be available. Courts will prohibit or quash ultra
vires decisions and review awards of administrative tribunals who
exceed their jurisdiction, violate natural law, show bias or act un-
reasonably. If an official fails to perform a duty imposed upon him
112 cf. Donald C. Rowat, “An Ombudsman Scheme for Canada”, (1962) 28
Can. Journal of Economics and Political Science, p. 543 at 544, a shortened
version of -which appeared under the title: “The Parliamentary Ombudsman:
should the Scandinavian scheme be transplanted?”
in (1962) 28 Intl. Review
of Administrative Sciences, p. 399, at 402-3.
No. 4]
AN OMBUDSMAN FOR CANADA
by law, they may by mandamus order him to fulfill it. An injunc-
tion may lie in some cases to forbid unjustified conduct. Illegal
detention may be ended by habeas corpus. Finally, an action in dam-
ages or a petition of right can be used to obtain compensation for
the consequences of official misconduct.
Insufficiency of judicial recourses. – These recourses exist and
are resorted to frequently. They constitute important safeguards.
But they too are obviously insufficient to cure many grievances,
particularly smaller ones. Legal action, especially against the au-
thorities, is difficult, expensive and protracted.112a If the govern-
ment loses, it will often go to appeal, not out of malice, but in order
to obtain an authoritative precedent it can follow in the future.
For a citizen of limited means, the battle is indeed unequal. More-
over, in order to ensure that the activities of civil servants are not
paralyzed by prerogative writs, the legislators have anointed them
with privative clauses designed more or less successfully to immu-
nize them against the possibility of litigation. Then, many small
grievances are just beyond the ken of courts of law. The Danish
Ombudsman went to taste the coffee in Danish prisons and obtained
an improvement. Our courts would dismiss curtly such complaint
and add sententiously that de minimis non curat lex.
On the other hand there is no judicial review of the exercise of
administrative discretion. The courts will not substitute their discre-
tion to that of the competent officials. Nor will the law remedy the
manner in which a citizen has been treated: delay or failure to reply
to his enquiries or to decide his problem; disregard of his linguistic
rights; petty obstructionisms and bureaucratic high-handedness.
Obviously there is need for an alternative method of coping with
some disputes.
Examples of cases calling for impartial scrutiny. – A few
examples, selected at random among the more blatant ones, will
illustrate areas within which an ombudsman could operate fruitfully
either at the federal or provincial levels. Hundreds of others could
be found in the statutes or administrative practices.
(a) Driving licenses. – Driving licenses are of vital importance
to most people, especially if they need to drive to make a living.
Section 24 of the Quebec Highway Code 113 gives the Director of the
Motor Vehicule Bureau the discretion to refuse to issue a permit,
to cancel or to suspend it. Save for an exceptional appeal to a High-
112a cf. the analysis by Prof. Mundell, op. cit., pp. 183-193, of the technical
complexities which often render such remedies futile.
113 1941 R.S.Q. c. 141, as amended by 8-9 Eliz. II, c. 67.
McGILL LAW JOURNAL
[VCol. 10
way Safety Board set up under the Highway Victims Indemnity
Act,”1 4 there is no recourse against a discriminatory or unjustified
exercise of the Director’s discretion.
(b) Censorship. –
Provincial censorship boards operate as little
Gods unto themselves. They do not account to anyone for their
decisions. For instance, under the Quebec Moving Pictures Act, 115
no film can be exhibited in theatres or over ‘television, no posters
advertising movies can be displayed, no movie advertisement can be
published without approval of the Board of Censors, which is granted
an unlimited discretion by the statute. The only appeal permitted
is… to the Board itself “sitting in review” of its own decisions! 110
Anyone who violates these provisions is liable to fines, imprisonment
and confiscation and destruction of the film. No one has the right
to challenge the Board’s decision to ban a film or to cut it or even
the Board’s mere neglect or refusal to review an application for
approval.
(c) Detention of insane criminals. –
Sections 523 and 524 of
the Criminal Code provide for the detention of insane criminals “until
the pleasure of the Lieutenant-Governor of the province is known.”
In fact, the government has an absolute and untrammelled discretion
to detain them as long as it pleases the authorities. Habeas corpus
will never lie against the Lieutenant-Governor even if a man has
been wrongly detained for 10 years.117 Unbelievable as it may seem,
this is the law. Nor is the victim, as of right, entitled to compensa-
tion. This properly scandalous situation should be remedied by
statute. But an ombudsman should also be entitled to scrutinize any
such discretionary detentions.
(d) Professional corporations. –
Professional corporations such
as the Bar and medical societies possess great monopolies and exer-
cise considerable powers, not only in relation to their own members,
but also with respect to the general public. A citizen aggrieved by
a professional may appeal to the disciplinary committees of such
bodies. But thereafter, short of going to court against the individuals
114 1941 R.S.Q. c. 142a.
115 1941 R.S.Q. c. 55, as amended by 1947 11 Geo. VI, c. 29; 1949 13 Geo. VI,
c. 18 and 25; 1952-53 1-2 Eliz. II, c. 17; 1960-61 9 Eliz. II, c. 19.
116 s. 16 of the Act.
117As examples of a unanimous jurisprudence to this effect, cf.: Delorme v.
Soeurs de la Chariti do Quibec, (1922) 24 P.R. 435, 40 C.C.C. 218; Duclos v.
Soeurs de la Charitj or Re Duclos or Duclos V. Asile St-Jean-de-Dieu, (1907) 8
P.R. 372, (1907) 32 S.C. 154, 12 C.C.C. 278; Champagne v. Plouffe, (1940)
79 S.C. 310; R. v. Coleman, (1927) 47 C.C.C. 148; Re Brooks’ Detention, (1961)
38 W.W.R. 51.
N o. 4]
AN OMBUDSMAN FOR CANADA
333
concerned, he has no means of checking whether his complaint has
been treated fairly by the colleagues of the accused professional. A
person complaining to the College of Physicians and Surgeons about
the conduct of a doctor or to the Bar about a lawyer’s advice or bill
has no means of forcing the corporation to act or to deal with him
fairly and speedily.
‘(e) Nolle prosequi. – Another example of unchecked adminis-
trative discretion in the field of criminal law is provided by s. 490 of
the Criminal Code which permits the Attorney General, by the mere
statement that he does not intend to prosecute (nolle prosequi) to
stay charges against a person charged with an indictable offence.
No reason need be given. Obviously some such discretion is neces-
sary for the proper administration of the criminal law. It might be
in the best interest of justice not to pursue a particular prosecution,
just as it may be wise in some cases not to charge certain individuals
with the crimes they have committed. But such discretion is also
open to political and other abuse. A suspect could be tempted to
implicate others, including innocents, in exchange for a promise of
immunity. Political friends may escape prosecution altogether. The
possibility of an impartial and confidential investigation into the
exercise of such dangerous discretion is clearly needed.
(f) Security checks. – Another area in which an independent
intervention would be desirable is that of so-called security risks.
Many positions in the public service and in defence industries are
closed to individuals who are found to have unpopular political
opinions or associations or to have weaknesses of character. The
investigation is conducted secretly; confidential reports are circu-
lated; these secret evaluations often result in an effective bar to
employment in certain fields. Not only is there no appeal from such
decisions, but generally there is not even the opportunity to know
the real reason for such dismissal or rejection. The individual is
defenceless. Security checks are necessary, but so are checks on the
way they are carried out, the criteria used and the validity of the
decisions taken. Indeed, qui custodiet custodes? A blatant example
of the need for impartial supervision is the well-known case of
Gordon Knott, discharged from the Royal Canadian Navy as the
result of an erroneous R.C.M.P. report that his uncle was a Com-
munist. It might have come as a surprise to many that a loyal citizen
could be considered as a security risk because of a leftist relative, but
not by any means as much as the fact that the R.C.M.P. had the
wrong uncle!
(g) Prisons. –
The treatment of prisoners, both before and
after sentence, has been a very active area of investigation by all
McGILL LAW JOURNAL
[Vol. 10
Scandinavian ombudsmen. Undoubtedly in a country such as ours,
afflicted with an outmoded penal system, decrepit detention facilities,
epidemics of prison riots and persistent complaints of mistreatment,
this would be a source of constant concern to all the ombudsmen.
Prisoners should be permitted, as in the other countries, to address
sealed complaints to the Commissioner. At the present time, save for
complaints to the warden (who may be the prime culprit) or to a
skeptical judge in the fleeting moments of a court appearance, pris-
oners have no means of redress. Furthermore, the Commissioner
should also have the right to recommend compensation for wrongful
detention with the hope that the authorities would always follow
his advice. Under the present system, the Attorney General some-
times makes ex gratia payments. Otherwise there is no recourse
other than litigation, which may often be futile if the victim is
destitute or if the imprisonment resulted not from negligence but
from honest error (perjured evidence, mistaken identity, etc.).
(h) Immigration cases. –
The handling of cases under the
Canada Immigration Act 118 has given rise to so many misgivings that
even in the event of a major overhaul of the statute constant scrut-
iny by an impartial delegate of Parliament would be highly desirable.
The statute gives broad powers to the Minister of Citizenship and
Immigration to admit or exclude immigrants or to order their depor-
tation. Here again considerable discretion is necessary and policy
decisions are often involved. The discretion should not be curbed
but it should be open to examination, even if only to the confidential
investigation of an ombudsman sworn not to disclose the secret
information on which the Department may have been acting.
The statute provides for Immigration Appeal Boards to hear
appeals from certain but not all deportation orders,”0 but there is
no check on decisions to exclude persons from Canada as immigrants
or visitors or, for that matter, to admit them. Decisions of the Appeal
Board (which is appointed by the Minister) are in any case subject
to final review by the Minister.12 0 The excesses to which this wide
discretion can lead was dramatically demonstrated in May 1964
when it was discovered that due to a departmental error one Eric
Hooper, an American Negro, was, by the Department’s own admission,
11s 1952 R.S.C. c. 325.
119 s. 30 of the Act prohibits appeals against deportation by persons whose
entry into Canada is forbidden under s. 5 (mental defectives, diseased and
impaired persons).
120 S. 31(4).
No. 4]
AN OMBUDSMAN FOR CANADA
“forgotten”
deported.121
in Toronto’s Don Jail for 100 days before being
(i) Linguistic rights. – A growing uneasiness exists in Canada
with respect to the use of the two official languages in the conduct
of public business. French Canadians have expressed numerous
grievances about their inability to obtain communications in their
own language, about delays due to linguistic difficulties and lateness
in publishing the French versions of reports and other documents.
There have also been complaints about neglect of French in the
armed forces and about the poor quality of French translations of
official papers. An ombudsman could accomplish a great deal in this
area and help restore the confidence of French-speaking Canadians
in the Administration. An equally useful function could be per-
formed by the provincial commissioners in relation to ethnic mi-
norities. They could be called upon to investigate complaints of
discrimination by a variety of semi-official entities such as certain
professional corporations, boards and commissions.
(j) Expropriations. –
It is a basic tenet of expropriation law
that once the right to expropriate exists, an expropriated party can-
not complain of premature or discriminatory or useless expropria-
tion. All he can do is fight for a higher indemnity. Yet expropria-
tion powers can be abused, as was seen a few years ago in Montreal
where a parking lot was expropriated for alleged street widening
purposes but instead the City itself operated the land as a parking
lot to the legitimate indignation of the dispossessed owner.
Evaluation of effectiveness. – The preceding examples illustrate
not only the need for impartial investigation of official conduct but
also the practical and political advantages of having such scrutiny
made by an officer who is trusted by the public and by Parliament
and whose enquiries are informal and confidential enough not to
interfere with the operations of government and not to lead to
dangerous disclosures of secret information. On the other hand,
the evident merits of such an institution are no guarantee of its
effectiveness. It will depend on many factors: the prestige of the
office-holder, the willingness of the government to cooperate, and
public opinion. A powerful and arrogant cabinet, benefitting from
an indifferent or tolerant public opinion, could easily ride roughshod
over the Ombudsman. In other words, the institution is no panacea
for administrative ills. It is merely another, albeit very important,
safeguard of individual rights. It will not replace, but only supple-
121 lcf. Canadian Press despatch of May 28, 1964 published in The Montreal
Star of that date, p. 21 under the title: “MP Urges All Jails be Checked”.
McGILL LAW JOURNAL
[Vol. 10
ment existing recourses. In the long run, however, its strength as
that of all democratic institutions will depend on the support of
the citizenry and on the attitude it will take to those who disregard
its recommendations.
CHAPTER VI
TRANSPLANTATION OF THE SCHEME TO CANADA
‘Constitutional problems. – The introduction of an ombudsman
scheme in Canada does not raise serious juridical obstacles. The
main innovation required to adapt it to our country results from
our federal constitution. It is obvious that Parliament could entrust
to its Commissioner only jurisdiction over matters falling within its
own competence. A corresponding limitation would affect provin-
cial Ombudsman. Complaints against municipalities or regional boards
and commissions would fall within the ambit of the provincial Com-
missioner. Complaints addressed to the wrong office could be re-
ferred without formalities. A certain amount of jurisdictional over-
lapping is inevitable, but should not present serious difficulties. In
cases of doubt, both commissioners should be allowed to obtain de-
claratory opinions from the Superior Court of the province concerned
or directly from the Supreme Court, as is permitted in New Zealand
where doubt arises over jurisdiction. 1 22 In view of the grave consti-
tutional consequences of such declaratory judgments, it should be
required that the Attorneys General of the provinces and of Canada
be made parties to any such petition. But apart from these juris-
dictional distinctions, the rules governing the commissioners could
be approximately the same at both levels.
Office of the Commissioner. – One single Commissioner should
be sufficient at each level. Professor Rowat has suggested 123 a
Federal Commission of 3 members who could travel separately to
make inspections and investigate complaints, but would handle ma-
jor cases together. In the undersigned’s opinion there is no need
for such 3-man commission until it is shown that a single Com-
missioner with an adequate staff cannot dispose of all the com-
plaints. After all, both England and Canada make do with a single
Auditor General and Staff. In any case, the expense involved would
122 s. 11 (7) of the N.Z. statute.
123 In “An Ombudsman Scheme for Canada”, op. cit., at p. 555, also quoted
in “Why Canada Needs an Ombudsman”, by Robert McKeown, Weekend Maga-
zine, Jan. 11, 1964, p. 2, at p. 24.
No. 4]
AN OMBUDSMAN FOR CANADA
be relatively small. Smaller countries than Canada average about
1000 complaints a year. No one knows whether this can be a cri-
terion for Canada, a North American state, with deep racial divi-
sions and regional discontent. Professor Rowat’s 124 guess that on
the basis of population the number of cases in Canada must exceed
700, with perhaps 300 at the federal level alone is no better than
that: a guess. Seven hundred cases, assuming that as in other coun-
tries only about 10% of the complaints would be justified, would
mean about 7000 complaints a year. It could be many more, or less.
To ensure the independence of the commissioner, he should be en-
titled not only to hire and fire his own staff, but to make recom-
mendations to Parliament as to its number and salaries and Par-
liament, rather than the Cabinet, should decide, as in New Zealand.
There is no doubt that the func-
tions of the various commissioners will duplicate to some extent
existing administrative or judicial recourses. But there is no reason
to fear this overlapping, on the contrary, particularly. since the
Commissioner can only recommend redress but cannot order it. To
avoid interference with administrative tribunals or ordinary courts
of law the Ombudsman should refuse to investigate complaints before
all administrative recourses have been exhausted or if the matter
is before the courts. On the other hand a previous complaint to the
Commissioner should not estop recourse to the courts.
Overlapping of recourses. –
Jurisdiction over the courts. – A contentious point is whether
the Ombudsman should be given jurisdiction over the administration
of the law courts. Only in Sweden and Finland are they given this
right. There is no reason why this should not also be the case in
Canada.125 Admittedly the Ombudsman should not be allowed to ques-
tion the decisions of the courts. But he should be permitted to en-
tertain complaints about the maladministration of the courts, -the
negligence of court officials, unnecessary delays, the personal con-
duct of court officers, prosecutors and even judges. This would in
no way breach the dignity or intellectual independence of the judi-
ciary but might go a long way in curbing the petty arbitrariness
of many court officials, the practices of some Crown counsel and
even the ill-humored impertinence of some magistrates towards
parties, witnesses and counsel alike. Judicial independence is a cor-
nerstone of our democracy, but it should not serve to hide abuse.
Take but one very recent illustration. On May 28, 1964, in the Que-
bec Legislative Assembly, the Member for Beauce, Mr. Paul Allard,
124 Ibid.
125 Rowat, ibid., pp. 554-5.
338
McGILL LAW JOURNAL
[Vol. 10
quoted case numbers and pertinent details 126 to demonstrate that
in his county, since 1961, there had been 326 prosecutions for viola-
tions of the liquor laws, 127 (i.e. 35%) of which resulted in sen-
tences below the legal minimum. He accused the Crown of having
connived to so circumvent the law and indeed the Crown did not
appeal these apparently illegal judgments. Obviously, if these alle-
gations are true, the bench and the Crown agreed to break the law.
In Sweden the Ombudsman has fined judges for imposing less than
a prescribed minimum sentence ! As the present Swedish incumbent
writes :127
“In the view of many observers, it seems ridiculous to prosecute judges
for such faults as the infliction of one month hard labour upon a person,
although the minimum time for that punishment is two months … However,
one should not underrate the importance of these prosecutions –
and the
fact of their being published in the reports –
for a more correct and careful
administration of justice, and thus for a more efficient protection of private
rights.”
Specific suggestions. –
It is suggested that any Canadian legis-
lation on the subject be patterned on the Danish and New Zealand
models, subject to the remarks made in the present and preceding
chapters. Furthermore, in view of the peculiar Canadian conditions,
the following specific suggestions are made:
(1)
that a Federal and 10 provincial Ombudsman be appointed
with jurisdiction over matters within the competence of their re-
spective Parliaments;
(2) that the jurisdiction of provincial Ombudsman extend to
municipalities, school commissions, regional boards and bodies, pro-
fessional corporations, parity committees and other public and quasi-
public entities within provincial jurisdiction;128
(3) that nominations to the office, insofar as possible, be made
by bipartisan committees;
(4) that the commissioners have tenure during good behaviour,
in the same manner as judges ;129
126 See Dibats de Z’Assemblie ligislative du Qudbec, vol. I, no. 80, (May 28,
1964), pp. 3664-74.
127 Alfred Bexelius, The Sweedish Ombudsman, mimeographed, op. cit., pp. 23-4.
128 A municipal ombudsman scheme is under active study in the City of Rotter-
dam as a result of the recommendation of September 25, 1963 of the mayor and
executive committee to the City Council (copy of this report was made available
to the writer by the Press and Information Services of the City of Rotterdam).
129 Rowat, op. cit., p. 553.
No. 4]
AN OMBUDSMAN FOR CANADA
(5) that the number and salaries of the commissioners’ staff
be approved by Parliament upon the commissioners’ own recom-
mendations, without Cabinet control;
(6) that cabinet ministers in their administrative capacities
(excluding policy making) be subject to supervision;
(7)
that the Ombudsman be permitted to criticize the exercise
of administrative discretion not only where it is illegal or discrimi-
natory but also, as in Norway, where it is “clearly” or “manifestly”
unreasonable;
(8) while the commissioners should not have the right to ques-
tion decisions of the law courts, they should be allowed to investigate
maladministration of the courts and complaints in connection with
the personal conduct of court officials, Crown counsel and judges
in the handling of cases;
(9) complaints should be made within one year of the facts
giving rise to them and, in order to avoid frivolous grievances, upon
payment, as in New Zealand, of a nominal fee –
perhaps $5.00,
except in the case of prisoners, from whom no fee should be exacted
to waive both
–
requirements;
but the commissioner should be permitted
(10) a personal interest in the subject matter of the complaint
should not be required since maladministration is of public interest;
(11) subject to the commissioner’s discretion, no complaint should
be entertained before all administrative recourses have been ex-
hausted but in no case if legal action has been taken, although a
previous complaint to the commissioner should in no way prejudice
the right to legal recourse;
(12) the commissioner should have the right to subpoena and
examine witnesses under oath;
(13) any witnesses examined under oath should have automa-
tically the benefit of the Canada Evidence Act, or, as the case may
be, of the relevant provincial evidence statutes;
(14) none of the evidence received by the commissioner should
be used in subsequent civil or criminal proceedings (except for per-
jury before the commissioner) and all such evidence should be abso-
lutely privileged;
(15) the person against whom a complaint has been laid should
have the right to be assisted by counsel;
(16) the commissioner should be totally immune from any legal
proceedings whatsoever, except for bad faith;
McGILL LAW JOURNAL
[Vol. 10
(17) his investigations should be held in camera, as in New
Zealand, but he should have the discretion to disclose in his reports
as much of his findings as he deems necessary;
(18) he should be permitted to recommend monetary compensa-
tion in all cases where he believes such compensation to be justified.
Conclusion
Evolution of the institution. – From an office created in Sweden
150 years ago to inform Parliament whether its laws were observed,
the Ombudsman has rapidly evolved to an institution whose prime
function is to investigate individual grievances against the state.
Its relation to Parliament has been obscured by this overriding de-
velopment. This evolution is reflected even in the popular appella-
tion of the official. Rather than Parliamentary Commissioner or
Ombudsman, he is now frequently called the “people’s guardian” or
“protector of the people” or “people’s tribune”.
Persuasion is only power. – And yet an ombudsman has no real
powers to procure redress. He investigates, he recommends changes,
he reports to Parliament. But he cannot order remedial action. If
he has become the protector of the people, it is because of the power
of persuasion of the office. Most often his recommendations are
commands. Not that he can punish non-compliance. Public opinion
will. The government will not flout him because to do so would not
only be contrary to democratic principles, but politically suicidal
in the long run. In other words, the Ombudsman is another, but
particularly flexible, method of democratic control of the state.
Stabilizing influence. – Furthermore, an ombudsman contributes
to political stability by fostering in people the confidence that they
are not powerless against a huge civil service and that their griev-
ances will be investigated and cured quickly and what is more,
voluntarily. The psychological value of such non-coercive recourses
should not be underestimated.
Conclusion. – An ombudsman is no cure-all. But it is one of
the gamut of controls devised by an evolving democracy to achieve
its aim of freedom and individual dignity.