Military ombudsman argues for access to cabinet documents

Canada's military ombudsman is reviewing whether he has the right to look at cabinet secrets in light of stonewalling from the Harper government during a recent investigation into the care of reservists.

Pierre Daigle's office ran into roadblocks when it asked for documents related to the inability of National Defence to deliver on a promise to increase dismemberment coverage for part-time soldiers.

Both Defence and the federal Treasury Board declared the records secret because they had been deemed cabinet confidences, a designation that surprised both the ombudsman and his investigators.

Officials working for Daigle were quick to point out they received co-operation on other aspects of the probe, but they are troubled because the declaration has started to surface in other cases as well.

"We're supposed to have access to everything," the ombudsman said. "Cabinet confidences have come a few times on other issues."

The ombudsman said his officials are looking into how far he is able to push the government to co-operate, and precisely what constitutes a cabinet confidence.

"We are looking into the authority of my mandate to have access to documentation, access to everything we need to complete a full investigation," Daigle said in an interview with The Canadian Press last week.

"It's becoming a bit harder. We're getting into more discussions to have access to documentation, instead of just asking for something and having it flow back to us. We need to work a bit harder at it."

A spokesman for Defence Minister Peter MacKay insists they have co-operated, but skirted the question of access to cabinet documents.

"The ombudsman reports to the Minister of National Defence in carrying out his mandate. As with all issues, we will continue to work with his office in the interest of the Canadian Armed Forces, defence officials and their families," Jay Paxton said Sunday.

Other watchdogs in showdown with government

Other federal watchdogs have faced similar bruising fights for information -- the most high-profile example of late being Parliamentary Budget Officer Kevin Page, who last week filed a reference application with the Federal Court. He is seeking a judgment that upholds his jurisdiction to require information on the government's spending restraint program.

'We're supposed to have access to everything' —Military Ombudsman Pierre Daigle

The Military Police Complaints Commission was faced with the dilemma earlier this year of going to court over MacKay's refusal to hand over documents related to a soldier's 2008 suicide, information his officials had declared fell under solicitor-client privilege.

The watchdog also fought a protracted battle over the government's attempts to keep documents related to the treatment of Taliban prisoners secret.

Former veterans ombudsman Pat Stogran was also hit with the cabinet confidences argument, prompting him to commission an outside legal opinion of his mandate, which found he was entitled to look at cabinet information, but was required to keep it secret.

"The department [veterans affairs] stamped documents and reports secret and said it was because they might someday end up in a cabinet briefing," Stogran said. "They use it like a weapon. They keep information for their purposes."

Paul Champ, an Ottawa human rights lawyer who fought the government over Afghan prisoner documents, said watchdogs run the risk of becoming little more than "window dressing" if they're not able to examine secret records.

"They've got no statutory basis. They exist purely on the whim of the minister," said Champ. "A true oversight body and a true watchdog really does need some legal power to back them up because at the end of the day, the government of the day is only going to let them [go] so far."

From his vantage-point, Champ said the government is fine with having ombudsmen as long as they look into minor grievances, but become annoyed when they start looking at larger, more systemic problems.

"People have to keep in mind that democratic government isn't just about votes every four years, it's about setting up checks on power," he said. "And I think we have a very strong tradition in Canada of having independent watchdogs or officers who can provide independent scrutiny to government actions."