Forces' ombudsman candidate under fire
Minister's pick for rights watchdog once fought to limit powers of office
a journalist
The Ottawa Citizen
June 20, 2005
Defence Minister Bill Graham's choice for the new Canadian Forces ombudsman was the legal representative for senior brass as they fought to limit the powers of the independent watchdog agency in its infancy, according to documents obtained by the Citizen.
But Mr. Graham is standing behind Yves Cote as his candidate for the ombudsman's job, arguing that the former legal adviser to the generals and Defence Department bureaucrats is an excellent choice for the position.
The leaked records show that in 1999, Mr. Cote was acting as the lawyer for the military's senior hierarchy in negotiating the mandate of the first Canadian Forces ombudsman, Andre Marin. But the negotiations, over 14 lengthy sessions, which at times also involved members of the Judge Advocate General's office (JAG) and senior defence staff, became deadlocked after Mr. Marin complained he was receiving little co-operation.
Mr. Marin detailed in a March 25, 1999 letter how he expressed concerns to then-defence deputy minister Jim Judd, Mr. Cote and a ministerial aide, that the terms of reference the military leadership wanted him to accept meant his office would lack control over investigations and how they were reported. He noted in the letter to Mr. Judd that the draft terms of reference showed "the apparent abandonment of commitments made by or on behalf of the Minister in respect of the office."
Mr. Marin also pointed out he continued on in negotiations with Mr. Cote, but to no avail. Another draft report produced after Mr. Cote met with the JAG and the chief of the defence Staff was profoundly disappointing, according to Mr. Marin.
It rejected recommendations put forward by Mr. Marin and his staff and failed to ensure methods were in place to deal with retaliation and reprisals against those making complaints to the ombudsman.
In a June 2, 1999 letter, Mr. Marin wrote then-defence minister Art Eggleton to complain that negotiations were deadlocked and the Defence department was being unco-operative. The letter detailed his "growing concern over the resistance encountered during the negotiations."
In addition, Mr. Marin accused department officials of reneging on issues which had already been negotiated and said they produced a document which "unilaterally seeks to impose the will of one party."
In later interviews, Mr. Marin acknowledged the senior brass and the JAG's office, the military legal branch, attempted during this period to limit his powers. The JAG's office has consistently denied that.
Mr. Marin was named ombudsman in 1998 in the wake of the Somalia scandal and concerns the military needed an outside watchdog to investigate complaints from the rank-and-file.
Mr. Cote did not respond to requests for comment.
But Mr. Graham's spokesman, Steve Jurgutis, said he saw no conflict of interest in naming Mr. Cote as ombudsman, despite the lawyer's role in representing the generals and Defence Department during negotiations in determining the ombudsman's mandate. Mr. Jurgutis dismissed concerns Mr. Cote, currently the Privy Council's lawyer, wouldn't be objective in the job and reiterated Mr. Graham considered him an excellent candidate.
"He was involved with the drafting of the parameters of the (ombudsman's) office," Mr. Jurgutis confirmed. "I'm not going to speculate to what his thoughts on that were or his involvement with that." But Mr. Jurgutis added that Mr. Cote started his career as a captain so he knew the type of problems people might face and be able to deal with those.
The Commons defence committee recently rejected Mr. Cote as ombudsman. Some Conservative and Bloc Quebecois MPs on the committee questioned Mr. Cote's close ties to the senior military and government leadership and worried he would not be able to properly represent the lower ranks. Others raised concerns about his job as a federal co-ordinator during the Somalia inquiry and whether he had any role in the Liberal government's decision to shut down that independent civilian probe, which was examining the killings and cover-up during the 1993 Somalia mission.
Mr. Cote told the defence committee he was not involved in the government's decision and that as ombudsman he would be independent and make it a priority to represent the lower ranks. Mr. Graham is under no obligation to accept the committee's rejection of Mr. Cote.
Mr. Marin, now Ontario's ombudsman, was not a favourite of the military's leadership since his high-profile reports often highlighted their failure to take care of their soldiers.
When Mr. Marin was first hired, Judge Advocate General Jerry Pitzul warned him against speaking to the media and taking an adversarial approach in his new position.
Gen. Pitzul told Mr. Marin about the case of the Australian military ombudsman, someone he described as controversial and adversarial. The military and government rode out that ombudsman's term and then hired a more conciliatory candidate, Gen. Pitzul noted. "We should look at their experience," the JAG told Mr. Marin, according to records previously released under the Access to Information law.
Mr. Marin rejected Gen. Pitzul's advice.
© The Ottawa Citizen 2005