LOOKING AHEAD: Symposium on the Future of the Parliamentary Ombudsman Functions and Services

Victoria, June 20-21, 2019 Report of Proceedings

The Office of the Ombudsperson Special Report No. 43 | November 2019 B.C.’s Independent Voice for Fairness to the Legislative Assembly of British Columbia

The Office of the General Inquiries: 250-387-5855 947 Fort Street Ombudsperson Toll-Free: 1-800-567-3247 PO Box 9039 Stn Prov Govt Fax: 250-387-0198 Victoria BC V8W 9A5 B.C.’s Independent Voice for Fairness  www.bcombudsperson.ca

November 2019

The Honourable Darryl Plecas Speaker of the Legislative Assembly Parliament Buildings Victoria, BC V8V 1X4

Dear Mr. Speaker,

It is my pleasure to present the Ombudsperson’s Special Report No. 43, Looking Ahead: Symposium on the Future of the Parliamentary Ombudsman Functions and Services.

The report is presented pursuant to section 31(3) of the Ombudsperson Act.

Yours sincerely,

Jay Chalke Ombudsperson Province of British Columbia

Table of Contents

From the Ombudsperson ...... 3

Executive Summary ...... 7

Introduction: The Future of Ombudship ...... 9

Session 1: Opening ...... 10

Session 2: The Evolving Role ...... 12

Session 3: Administrative Fairness, Decolonization and Self-Government . . 15

Session 4: Research Roundtable ...... 17

Session 5: Fostering Proactive Ombudship ...... 21

Session 6: Ombudship in the Digital Era ...... 23

Section 7: Good Ombuds Practice and Evaluating Success ...... 26

Session 8: Participants’ Suggested Next Steps ...... 29

Organizing Committee and Advisory Committee ...... 33

Appreciation ...... 34

Participants ...... 35

Future of Ombudship 1

From the Ombudsperson From the Ombudsperson

This year marks the 40th anniversary of the BC Office of the Ombudsperson, four decades of receiving and impartially and rigorously investigating complaints from hundreds of thousands of individuals who feel they have been treated unfairly by public sector organizations. It has, and continues to be, work that makes not only a significant difference to the individuals who turn to us, but to the lives of many as we strive to make public administration more fair and just for all.

There is no better time as we look to the future to take a close look at not only how our organization is meeting our goals, but also to examine how the institution of Ombudship itself is meeting society’s needs in a rapidly changing world. Over two days in June 2019 we invited a broad range of people including academics, our Ombuds colleagues across Canada, Indigenous leaders, senior public servants and students to help us consider the future of parliamentary Ombudship.

Through highly engaged dialogue and debate we explored a range of topical issues that intersect with our evolving mandate and role. We discussed how Ombudspersons fit into wider access to justice initiatives, how our individual and systemic investigations could be strengthened, and how our proactive and preventative work can be leveraged to help unfairness from occurring in the first place. We looked at how the learning and expertise of Indigenous communities can be better understood by us as we pursue reconciliation efforts and how we can be available to share our knowledge of administrative fairness with these communities. We looked to the future at major challenges being posed to oversight and accountability as artificial intelligence increasingly replaces humans as decision-makers in public service design. And ultimately, we came together to assess the collective impact of Ombuds work and how we can better measure this impact moving forward.

The insights and reflections contained in this report will continue to be invaluable to our team as we continue to deliver on the vital mission of the BC Office of the Ombudsperson. I know this will be equally so for those who work in all areas where upholding the value of fairness is key. The symposium was a success due to the high level of engagement of the participants. Their individual and collective wisdom served to identify solutions to critically important questions in oversight of public administration.

My deep gratitude to all who participated.

Jay Chalke Ombudsperson Province of British Columbia

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Symposium on the Future of the Parliamentary Ombudsman Functions and Services

Victoria, June 20-21, 2019 Report of Proceedings 6 Future of Ombudship Executive Summary

Over two days in June 2019, invited the major challenge posed to oversight, participants gathered at the Future of governance and accountability of decision- Ombudship Symposium on the campus of the making (and thus, to fairness) by the University of Victoria to consider a number of emergence of artificial intelligence in public timely questions regarding the current and sector service design; and future state of ‘Ombudship’ with particular the difficulty of identifying and/or attention to the role of parliamentary Ombuds measuring effectiveness or progress in offices. Discussion at the Symposium Ombuds practice given the broad range of included such issues as: potential manifestations of success and the evolving role of the Ombuds function the resulting challenges to questions of including questions of procedural vs. attribution. substantive fairness, relationship with legislators, and the currency of mandates; Symposium participants’ ideas about next steps as expressed in plenary can be grouped self-government, reconciliation, and into 11 general thematic suggestions going administrative fairness; forward: proactive/preventative efforts and the 1. Develop and enhance Ombuds digital/data possibility of moving beyond a reactive competence model; 2. Develop strategies for vulnerable effectiveness and performance and the communities, increasing visibility and viability of measuring impact; and accessibility potential changes to Ombudship in the 3. Strengthen national/international Ombuds digital age. networks and comparative understanding In discussions at the Symposium, key issues 4. Build and sustain awareness of Ombuds surfaced by participants included (but were not limited to): 5. Enhance Ombuds approaches to reconciliation and Indigenous self- the importance of the Ombuds model government in illuminating important principles and practice when set against Canada’s current 6. Consider legislative change to strengthen access-to-justice crisis; influence, awareness, and independence insights from Indigenous traditions as a 7. Consider expanding (or contracting) the challenge to colonial assumptions regarding Ombuds mandate what works and what is important 8. Explore the potential of partnership in dispute resolution and fairness by between Ombuds and Information/Privacy governments; Commissioners the close and sometimes blurry relationship 9. Conduct foundational work on between investigation of specific complaints performance measurement and Ombuds work with broader, systemic implications;

Future of Ombudship 7 Executive Summary

10. Develop an operations-specific dialogue gathering addressed questions which had not 11. Share and research these ideas, and keep necessarily been raised before and included a the Symposium dialogue alive blend of practitioners and theorists. Reflecting this mix, a special issue of Canadian Public The Symposium was understood by organizers Administration focused on Ombudship will and participants to be an experiment. The follow the Symposium.

8 Future of Ombudship Introduction: The Future of Ombudship

In an era of changing state-society relations, The Symposium was a unique event; as far rapidly changing communications, and as the organizing committee could establish, increasing demands for institutional not since the creation of parliamentary accountability and transparency, the Ombuds roles beginning in the 1970s had parliamentary Ombuds function is uniquely such a range of practitioners and academics situated as an important voice addressing gathered in Canada to consider the function in ordinary people’s experience of the exercise broader, strategic context. Attendees included of public authority. representatives of parliamentary Ombuds functions from across Canada, including Over two days in June 2019, invited incumbent members of the Canadian Council participants gathered at the Future of of Parliamentary Ombudsman, and like Ombudship Symposium on the campus of the functions; senior public servants, experts University of Victoria to consider a number of in public administration and law, including timely questions regarding the current and academics and practitioners; students of law future state of ‘Ombudship’ with particular and public administration; and other subject attention on the role of parliamentary matter experts and informed observers Ombuds offices. Facilitated by former Deputy of Ombuds. Attorney General of Canada George Thomson, discussion at the Symposium included such As a novel approach, the Symposium was issues as: understood by organizers and participants to the evolving role of the Ombuds function be an experiment. The gathering addressed including questions of procedural vs. questions which had not necessarily been substantive fairness, relationship with raised before and included a blend of legislators, and the currency of mandates; practitioners and theorists. Reflecting this mix, a special issue of Canadian Public self-government, reconciliation, and Administration focusing on Ombudship will administrative fairness; follow the Symposium. Beyond the substance proactive/preventative efforts and the of the Symposium agenda, participants possibility of moving beyond a reactive were also asked to consider whether model; this ‘experiment’ warranted subsequent effectiveness and performance and the gatherings in the future to continue and viability of measuring impact; and update the dialogue begun in Victoria. potential changes to Ombudship in the digital age.

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Day One Session 1: Opening

To open the Symposium Diane Sam, The need for attention to administrative representing Songhees First Nation, fairness predates formal establishment of welcomed participants from across the Ombuds offices by many centuries, whether country to the traditional territory of the in European or Indigenous tradition. The Lekwungen-speaking Peoples. Professor institutional form of Ombudship in Canada Astrid Brouselle, Director of the School of has nevertheless evolved significantly in Public Administration, welcomed participants the past 50 years. With formalization of the to the University of Victoria. parliamentary Ombuds role beginning in 1967 in Alberta and spreading soon to other To provide both the context for the provinces, early aspirational hopes quickly Symposium and to set out the challenge for ran up against the realities of oversight in participants over the two days of the main a constitutional setting in which until quite dialogue, the facilitator George Thomson recently the Crown had been considered introduced remarks from event host Jay infallible. Gradual improvements to Chalke, BC Ombudsperson, and then a administrative fairness made by governments, keynote address delivered by the Honourable and the introduction of checks and balances Thomas Cromwell, retired Justice of the in the form of administrative justice through Supreme Court of Canada. the 1970s and 1980s, were complemented in 1984 by the Supreme Court’s ruling in BCDC Ombuds at Mid-life: The Past v. Friedmann that an Ombudsman could and Future 40 Years and indeed should investigate all aspects of unfairness. Mr. Chalke noted that although (Jay Chalke) the comprehensive scope of Friedmann BC Ombudsperson Jay Chalke stressed has meant little subsequent challenge to that the title of his talk was not intended the powers of parliamentary Ombuds in the to suggest there is a mid-life crisis at play; courts, complacency is unwise. Ombuds but rather that after four or five decades effectiveness is essentially norm-based. Canadian parliamentary Ombuds are asking Norms have recently proven to be fragile in introspective questions about who we are and a number of political settings. Vigilance is what we want to be. In light of this reflective required and the threat to oversight is real, moment, the Symposium organizers had a state of affairs which has prompted the invited an interdisciplinary set of participants European Commission on Democracy and not only to reflect on Ombuds work, but to Law to issue a set of Principles on Protection challenge what Ombuds do. He noted that and Promotion of the Ombudsman Institution while the rationale for Ombudship remains (the ‘Venice Principles’). The dialogue invited strong, given the enduring importance of by the Symposium is thus a timely and fairness in all aspects of our society, it remains important one for the Ombuds role in Canada. important to ask if the work is relevant, inclusive, forward-looking and responsive.

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Changing the Culture of and cultural change in our approach to justice. Disputes: Lessons from Ombuds Currently, a richness of formal process is not matched by the outcomes arrived at through (The Honourable Thomas Cromwell) such formality. More flexibility and suitability The Honourable Thomas Cromwell’s keynote is required. Some important parallels, and remarks centered principally on his contention perhaps a model for some of the systemic that parliamentary Ombuds serve an and cultural change required, may be found in important access to justice purpose, one the way the work of parliamentary Ombuds with broader lessons for the contemporary is conducted. As the Supreme Court noted justice system. in Friedmann, the state’s formal checks and balances “are neither completely suited nor Mr. Cromwell noted that the weakest aspect entirely capable of providing the supervision of the rule of law in Canada is considered to a burgeoning democracy demands,” whereas be the civil justice system, a system which the Ombudsperson is “capable of addressing underperforms in terms of accessibility, many of the concerns left untouched by the affordability and timeliness, neither suited traditional bureaucratic control devices.” to the needs of the people nor capable of The key Ombuds attributes identified by meeting them. There is near consensus that Mr. Cromwell were impartiality, economic solutions to this issue are not to be found in accessibility, informality and investigative incremental reforms, but in broader systemic capacity.

The Future of Ombudship Symposium brought together more than 100 participants, from across Canada and from different disciplines, for two days of expert dialogue at the University of Victoria.

Four additional reasons exist to support pluralism, and the powers and processes of the notion that the Ombuds model can Ombuds are highly suitable to certain kinds contribute to resolving some of Canada’s of legal problems. Second, our respect for access to justice challenges. First, we live parties’ right to choose their own dispute in societies and times that do not simply resolution process renders the flexibility of tolerate, but support and encourage legal approach available to Ombuds – responding

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to complaints, acting on own-motion, and/or is often more fruitful than the vindication pursuing matters referred to the office – very of rights both align well with contemporary valuable. Third, as shown by the effectiveness Ombuds practice. of new dispute resolution platforms, informality and convenience are highly valued: Mr. Cromwell suggested to participants by even though they may offer a perhaps less way of conclusion that the experience of the perfect justice, they also yield more effective Ombuds office points the way to the sort and acceptable outcomes. These attributes are of cultural shift that is urgently needed in shared by the Ombuds role. Finally, the lustre the broader justice system. He encouraged of the adversarial process is wearing off. participants to become part of the change required by advocating for the approaches Collaborative problem-solving and increasing they represent. recognition that accommodation of interests Session 2: The Evolving Role

Following the opening remarks, in Session 2 now moving towards identifying systemic participants formed small discussion groups issues. There is a noticeable trend towards to explore how the Ombuds role has changed proactive work, with attention to fairness in Canada over its five-decade existence, of process, to the application of values and assessing ‘where we are today’ relative to principles, and making early and alternative original intent. There were three questions dispute resolution a priority. considered by participants. The range of Ombuds responses has 1. How has the parliamentary Ombuds become more flexible and can now be function in your jurisdiction evolved since it more or less formal to suit each situation. was introduced? Has it become stronger or Ombuds have been affected by and have weaker? In what way? influenced a shift in government structures 2. Thinking of instances where Ombuds from hierarchical to horizontal. Horizontal reports drove significant changes in public challenges and issues sometimes require administration, what made this possible? that Ombuds investigate across boundaries. 3. The Supreme Court of Canada has The mandates and jurisdictions of described the growing crisis of access to parliamentary Ombuds have typically justice as the greatest threat to the rule expanded. Associated risks include of law in Canada. What role, obligation watering down of the function, erosion of or opportunity does the Ombuds have in process and further ‘mandate creep’ which this area? muddies public understanding of the nature of Ombuds work. Broadening the mandate Themes expressed by participants in the main beyond the traditional role risks diluting discussion period, having considered these effectiveness. questions, were as follows: With some caveats, Ombuds have become stronger over time, with increasing public Evolution of the Parliamentary trust in the office. Their relationship with Ombuds Role government has matured since the offices While there remains a focus on the merits were founded: important early jurisdictional of individual complaints, Ombuds are struggles proved helpful in minimizing similar

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issues down the line.1 Governments now success. This underscores the impact of exhibit greater willingness to modify their the media and external pressure in creating behaviour to avoid Ombuds getting involved. accountability. High profile events like Required skills are changing, raising the the BC Ombudsperson’s report, Misfire, issue of broadening expertise in specific can raise public awareness (and also areas: do we need to expand in-house expectations regarding follow-through). expertise, or contract out? Individual Ombuds personalities can impact how publicity develops. There is more proactive education of public servants, and a more active role in public Individual instances of unfairness can, education. There have been changes in following an Ombuds investigation, result in public management style toward more systemic improvements. collaborative, consultative engagements. Major investigations may require Ombuds are increasingly positioned to extraordinary resources. The Misfire report, provide another level of scrutiny of an which did have systemic and legislative authority’s internal complaint processes, effects, was resourced at a level appropriate and to comment on fairness of process. to its impact. Ombuds are now telling their stories in Fairness is the principal standard applied a more relatable way. Report titles have by Ombuds, and that standard must changed from an academic to a more be managed carefully, particularly as in engaging style and are more inclusive. practical terms it falls to Ombuds to define fairness in public administration. The Effectiveness of Ombuds as The focus on fact-based investigations from a generalist perspective allows Ombuds a Driver of Significant Change to maintain impartial credibility amongst Ombuds are increasingly recognized as other voices. Ombuds’ generalist approach a unique and effective remedy. Case law to fairness provides some assurance to in multiple provinces continues to affirm the public that, as outside observers of the Ombuds responsibility to shine a any given realm of public administration, light on darker corners of administrative Ombuds have not developed the kinds practice. The referral by the Legislative of biases and allegiances or inherited the Assembly of BC regarding the health firings assumptions which may be common in that was a key recognition of impartiality and professional realm. independence by legislators. Writing a report is not enough. Ombuds Influenced by Ombuds work, governments have to invest the resources to follow-up have developed complaints processes and and be prepared to re-engage on an issue improved their overall engagement with down the line. This implies committing citizens. resources to follow-up for more lasting Publicity makes changes possible and success, and raises the question of how maintaining a high public profile during long Ombuds hold the torch before passing or after investigations is a predictor of it on to the broader community. The public

1 The ruling in BCDC v. Friedmann [SCC 1984], in which the Supreme Court endorsed a relatively broad interpretation of Ombuds jurisdiction, was recently reaffirmed by the Nova Scotia Court of Appeal in Nova Scotia Office of the Ombudsman v. Attorney General of Nova Scotia [NSCA 2019], in which the Court of Appeal also noted [at 128] that “[t]he Ombudsman’s authority is a potent force which acts as part of a system of legislative checks and balances on the proper functioning of our democratic institutions. The Ombudsman’s oversight reminds both government and its bureaucracy that they – like the citizens they serve – are bound by the Rule of Law, and will be held to account for its breach.”

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needs to be reminded of what the Ombuds to adviser and advocate more broadly, can and can’t do. particularly for those who have no real There is an important balancing act between access to the courts. Ombuds services collaborating and building relationships may resolve matters and achieve outcomes with a public authority versus public in ways not typically available through reporting and strong recommendations to the courts. create an impact when needed. Success The Ombuds process may be used as an is sometimes linked to networking and early diversion from formal legal process marshalling support across organizations in court. to achieve effective implementation, as in Lack of awareness of the Ombuds function 2 e.g. the Québec ‘Duplessis orphans’ case. is a significant issue; many potential clients Positive feedback, where warranted, can (both individual and institutional) have also contribute to success. little information on Ombuds, which limits Timing: reporting drives change when it access to this avenue of justice. There is a comes at the right time at the right place. broader need to educate the public about Ombuds reporting can be a catalyst for a role of the Ombuds. desired change already under consideration No wrong door: Ombuds have a role in within the authority but has not occurred directing people to the right place with due to lack of priority, funding or other respect to their complaint. reason, resulting in inertia. Ombuds can offer a form of justice Effective reports also pay attention to the different from that delivered by the feasibility of implementation. It is vital courts. Ombuds may not provide justice to get buy-in from key decision makers in direct compensation – though they can and their staff, and to be wary of the recommend it to others – but through instantaneous comprehensive political recommendation of improved policies and embrace of report recommendations only procedures the Ombuds can change the intended to smooth over the release of future in a more just direction. a critical report rather than demonstrate genuine commitment to change. Participants reflected on the merits of the Ombuds being a last resort. There is a concern that at that point, in some cases, Ombuds and Access to Justice it may be too late for the Ombuds to be an The Ombuds role is not that of a lawyer effective remedy for the individual. or a complainant but is an alternative

2 The Duplessis orphans case refers to a 1997 intervention by the Quebec Ombudsman concerning the amount awarded in compensation to thousands of Quebec residents who as orphaned children had suffered a range of harms due to ill-treatment while in the care of provincial and/or Catholic institutions. See the Ombudsman’s report, The “Children of Duplessis”: A Time For Solidarity (https://historyofrights.ca/wp-content/uploads/QCombuds_report1997.pdf).

14 Future of Ombudship Day 1 Session 3: Administrative Fairness, Decolonization and Self-Government

Session 3 explored issues related to the Whether applied to criminal wrongdoing Ombuds function which relate to Indigenous or other matters, the goal is to right the knowledge, tradition and law in the context wrong and heal the community, rather than of emergent self-government. The session to punish or shun. At the time of the treaty, commenced with a roundtable panel a new way was required given the lack of discussion addressing the challenges of appropriate provisions under the Indian Act achieving administrative fairness in the era and the fact that the BC Ombudsperson does of self-government and was followed by a not have jurisdiction over the Nisga’a Lisims general discussion between the panelists and Government. participants. Panelists included Patrick Kelly of Leq’á:mel First Nation, President Eva Clayton The Nisga’a Treaty provides for the Nisga’a of the Nisga’a Lisims Government, and Administrative Decisions Review Board, a Assistant Professor Dara Kelly of the Simon three-person panel appointed by the Nisga’a Fraser University Beedie School of Business, Lisims Government. The Board ensures that also of Leq’á:mel First Nation.3 complaints apply to Nisga’a jurisdiction and legislation, which are in turn derived from Ayuukhl Nisga’a (the inheritance of Nisga’a oral Roundtable Remarks culture and laws). Nisga’a villages established (Patrick Kelly, Eva Clayton, Dara Kelly) under the Treaty have legal status and capacity In setting the stage for the discussion, Patrick and are responsible for ensuring administrative Kelly reminded participants that ‘First Nations’ fairness in village-level programs and services. as a term encompasses significant cultural President Clayton pointed out that there have diversity, with 38 of 53 distinct linguistic and been challenges along this road. The Nisga’a cultural groupings being located in British Lisims Government has no jurisdiction over Columbia. Thus, there is no common ‘First Crown corporations of the BC government, the Nations approach’ to administrative fairness: operations of which have significant impact Stó:l¯o principles apply to Stó:l¯o, Nisga’a on people in the territory. The process of principles apply to Nisga’a, and so on. In the understanding how self-government works absence of colonization, these principles would is also a long one. Given the many years of have applied in each corresponding territory. being disempowered by the Indian Act, many citizens do not yet understand that they have a Nisga’a Lisims President Eva Clayton noted right to fairness. that under the Indian Act, prior to the treaty with Canada and BC,4 the Nisga’a did not have Dara Kelly noted that life under the Indian Act a process for administrative justice, or a voice created a significant gap in administrative to ensure fairness in the delivery of programs fairness in Indigenous communities. and services. However, the Nisga’a have Moving to self-governance and developing always had a process for fairness, exercised administrative responsibilities after the Indian through hereditary chiefs and matriarchs. Act means piecing the story together from

3 Leq’á:mel First Nation (LFN), formerly known as Lakahahmen First Nation, is located in the Fraser Valley east of Agassiz. Nisga’a Nation is located along the Nass River, north west of Terrace. 4 For information on the Nisga’a Treaty, see https://www.nisgaanation.ca/about-accomplishments-and-benefits-nisgaa-treaty.

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oral history and tradition in many different under the Review Act. The Review Board communities: trying to look through a can also conduct hearings concerning tiny hole at something that existed and issues associated to the Elections Act. The trying to see the whole picture. Not every Review Board makes recommendations community has Elders that can inform what to government and is required to report to the knowledge of the past looked like, though government on hearings conducted. No some Nations are now able to articulate a evaluation has yet been conducted regarding role for someone involved in administrative performance under the Review Act. fairness quite clearly. We are at a time when the exclusionary process for Indigenous Question colonial assumptions about people who had not participated in the disputes. The assumption of an adversarial Canadian economy is winding down. There relationship inherent in colonial justice does is an opportunity now for communities to not resonate in some Indigenous contexts. choose how and when they want to engage, In considering the challenges of developing and to revive and reclaim their own traditions self-government, the Maori comparison is and philosophies and apply those to economic useful. Long-standing conflict resolution and administrative relationships. mechanisms are applied in the setting of traditional gatherings (hui), to create alignment Patrick Kelly set out some of the prospective and cohesion and reinforce a sense of provisions of the forthcoming Stó:l¯o treaty (to responsibility to prior generations. Linkage be signed with Canada and the province of to culture and history and deliberation in a British Columbia) applicable to the discussion. community setting have a powerful effect on Under the proposed text, Stó:l¯o would the chances of resolving disputes. have six village governments responsible for program and service administration, Consensus-based decision-making takes and a national government which would time. This time is typically not available include a justice council responsible for the and not reflected in colonial processes, administration of justice. Within this setting, and this is an important consideration in an independent body similar to an Ombuds reconciliation. The way Stó:l¯o people solved role, acting independently of the national conflict was through feasting practice and government, will have the ability to review the feast economy. Hosting a feast allowed matters that may have been decided by Indigenous laws and governance to play out national or village governments. This office and strengthened good relationships internal will build on traditions of fairness which have and external to the community: 12 days is existed for hundreds of generations. how long it took to come to agreement. It is hard to imagine we could take that kind of time now when ‘time is money.’ Yet building in Discussion greater amounts of time holds great promise In a question and answer session with when it comes to creating the kinds of participants, the following additional points societies that we want to live in. emerged. Ombuds for Indigenous and Human Rights. Mandate and independence of Review Panelists welcomed the Missing and Murdered Board. The Nisga’a Review Board functions Indigenous Women and Girls Commission independently from the Nisga’a Lisims of Inquiry recommendation of a National Government, with its authority provided Indigenous and Human Rights Ombudsperson.

16 Future of Ombudship Day 1 Session 4: Research Roundtable

Linked to the Symposium, a special issue of Canadian Perspective on the Canadian Public Administration (forthcoming) will address several contemporary themes Emergence, Diffusion and in the Ombuds sphere of practice, with Evolution of Ombuds Models authorship teams being drawn from academic (Norman Dolan and Colin Bennett) experts in public administration and from the In discussing this work, Norman Dolan noted community of practitioners. Session 4 was that the Ombuds office provides an especially an opportunity for participants to learn about interesting example of the institutional some of this contemporary research on the development which can occur as the initial Ombuds function and provide researchers concept is subject to practical experience with practitioner feedback. Selected authors which shapes both the functions performed from four of the research teams contributing and the public’s expectations. The proliferation to the special issue participated on this panel, of national and international associations has engaging the audience with key issues arising provided valuable arenas for sharing ideas from their research and stimulating dialogue and experiences as well as standardizing among participants. best practices. That information sharing also In introducing the panel, Professor Evert contributes to a common understanding about Lindquist, editor of the special issue, described institutional definition, and a desire to stake the overarching question animating the research out an institutional profile, that is distinctive as: what does contemporary Ombudship look within the broader constitutional and like? The limited literature on Ombudship tends administrative culture of a particular society. to be institutional and historical. Very little of the The construction of an institutional identity literature applies insights from other fields, and supports individual Ombuds offices and the Symposium and the special issue afford the justifies their position and importance in opportunity to do just that. The authors were, contrast to other agencies such as courts, through a variety of approaches, taking on tribunals, commissioners and so on. After a the range of issues surfaced in the morning’s review of the various national and international opening sessions. efforts at institutional definition and Each of the four research teams represented standardization of ‘ombudsperson,’ the paper on the panel provided participants with an in- will offer a typology of current forms including process summary of their research, with the an in-depth examination of how the concept summary of their abstracts reproduced here. and application appears in the Canadian context. The authors will contend that some agencies call themselves ombudsman, regardless of the international consensus and the wider attempts to impose some conceptual clarity; and contend, in conclusion, that there are some important explanations for the apparent disconnect between the theory of what an Ombuds should be, and the comparative evidence of institutional practice.

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The Symposium was designed as a working event, with formal presentations alternating with sessions of multidisciplinary discussion on key issues. Facilitator George Thomson placed the focus on participants’ own expertise and experience.

In discussion, participants considered Reimagining Public Sector the relevance of Ombuds’ traditionally rigorous investigation and rational analysis Complaint Systems: of complaints in an age of social media and Constructing Justice with instant individual reaction. It was observed Citizens that one of the most important roles Ombuds (Tara Ney, Aaron Leakey and Alyson Miller) can play is as a communicator of high-quality information, a skill which is increasingly Tara Ney and Alyson Miller summarized the relevant in an era of prevalent, instantaneous, work of this team to date, which focuses on poorly researched information. Ombuds can the design of complaint systems. Complaint provide a guiding light, offering thorough, systems play an important administrative robust reporting on particular issues, providing justice role to challenge the status quo, a cornerstone for discussion that will only enhance democratic governance, and ensure increase in value over time. direct participation in public decision-making, but do not always meet the needs of those Participants felt there was a clear need for who use them, those who operate them, proactive engagement with public authorities, and others who have a stake in them. The but that there was also a strong onus on the research being undertaken involves re- Ombuds to be very clear about how and why thinking how internal complaint systems in that engagement happens. It is important public services are designed and makes the in doing proactive work that all parties case that a dispute system framework using understand what you’re doing and what your principles and best practices aligned with role is. It is particularly important to consider ‘Human Centered Design’ will support dispute downstream implications of this work: can designers to make good administrative Ombuds offices investigate and comment on justice design choices. Using this lens, a policies on which they have engaged in prior critical analysis of the dominant ‘Dispute consultation?

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System Design’ approach will provide insight technologically advanced, computer-mediated into underlying principles and practices for settings. Rouzbehani and Flader will argue designing effective complaints systems that that if time and opportunity for human contact can unlock innovation and transform public and personalized attention to issues continues services. to contract as expected, the services of Ombuds offices will become ever more In discussion, participants observed that the essential and will require increasingly effective existence of the Ombuds role has had the triage mechanisms. Based on application collateral effect of spurring the development of organizational theory combined with of appropriate complaint mechanisms observation of Ombuds offices in practice, within organizations. There are continual the authors will recommend strategies improvements in this area, but still plenty for managing higher volumes and diverse of occasions when those avenues present complaints. more difficulty than they should. Government ministries and departments are also reaching In discussion, participants observed that out to Ombuds with growing frequency Ombuds clients/complainants have usually for assistance in designing complaint developed theories about what has happened mechanisms. It is important for Ombuds to within the agency in question by the time a encourage public agencies to view complaints complaint is laid with Ombuds. This tends as a constructive opportunity to spur to increase the challenge of taking sufficient improvement. time for a proper investigation – or of electing not to pursue an investigation – while the How Ombud Offices Triage court of public opinion is ‘in session.’ Cases, Organize Expertise, and Ombuds Offices and Public Prepare for New Challenges Sector Reform: From the NPM (Roya Rouzbehani and Suzy Flader) to the Digital Era This research, focusing on Ombuds case triage, was summarized for participants (Stewart Hyson and Evert Lindquist) by Suzy Flader. Three hundred years ago, Evert Lindquist and Stewart Hyson provided fewer layers existed within institutions to the final research overview to participants, hold citizens at arm’s length. Technology and summarizing their work on recent evolution mechanization had not yet replaced front of Ombuds offices. Legislative Ombuds line human contact. From the beginnings of offices first emerged in Canada during the Ombuds practice in Sweden through later 1960s, inspired by the Swedish model and global dissemination of the function, Ombuds understood as democratic institutions. While have facilitated the resolution of grievances a literature has developed on the global related to executive and administrative diffusion of the Ombuds model, there has branches of government and bridged power been less effort expended on understanding distances between citizens and institutions. Ombuds offices as a population or class of Ombuds practices have evolved considerably organizations acting to establish, consolidate since their debut. There is every reason to and modify their niches and repertoires in believe that they will continue to evolve and broader evolving institutional environments. proliferate, especially in Canada where several Likewise, little writing has explored how new offices have been established over the Ombuds models have intersected with waves last two decades, particularly in the federal, of reform in broader public administration university and private sectors. Contemporary reforms like those associated with the great Canadians are caught up more and more in growth in government of the 1960s and

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1970s (policy analysis, evaluation, democratic In discussion, participants considered engagement, and system coordination), the the issue of whether an Ombuds office’s rationalization and performance orientation jurisdiction extends over private sector of the New Public Management (1980s actors involved with the delivery of and 1990s), the more partnership and government services. This varies by collaboration-oriented New Public Governance jurisdiction and by practice. movement (2000s and 2010s), and the current era of digital government and open Participants also identified issues associated innovation (2010s plus). The paper will with the proliferation of parallel offices with connect these three strands of literature, Ombuds-like functions. Agreements are explore how Ombuds offices have been required to avoid parallel investigations. influenced, energized, or constrained these The digital era is presenting Ombuds offices developments. It will also consider whether, with significant challenges. The scarcity of as caseloads, responsibilities and expectations necessary skill sets has occasionally meant have evolved, legislative Ombuds have contracting with third parties to get to the become materially different in terms of roles, information required for an investigation. repertoires, culture, and niches in broader These skills will be increasingly necessary government systems. given the rise in complaints about the delivery of services via complex technology.

20 Future of Ombudship Day Two Session 5: Fostering Proactive Ombudship

Session 5, which began the second day of promising route is to focus the investigation the Symposium, provided an opportunity rigorously on the particulars of a complaint, for participants to consider the appropriate while drawing wider lessons to enable balance of proactive and reactive broader recommendations to be made for functions. An initial presentation by David improvement. In egregious cases, where no Loukidelis, former Information and Privacy real remedy is otherwise available, an Ombuds Commissioner of British Columbia, seeded might conclude intervention is necessary and the discussion. Commentary and plenary may decide to expend moral or institutional discussion was led initially by Marianne Ryan, capital in a broader investigation that is about Alberta Ombudsman and Public Interest policy, not maladministration. These cases, Commissioner, and Howard Sapers, former however, are relatively rare and the risks Correctional Investigator of Canada, before substantial. The exercise of judgment is critical. being opened up more generally to the room. A well-functioning Ombuds office should make the proactive tool of policy guidance Proactive or Reactive: What’s the available to public bodies and the public, Right Balance for Watchdogs? particularly where the guidance has to do (David Loukidelis) with the core fairness mandate of the office. Guidance – however it originates – supports David Loukidelis commenced his address better practice, better administration and better by referring participants to the core features policies. Critically, guidance must not become of the Ombuds role as expressed in the advocacy of a kind that risks perception – and Supreme Court’s decision in Friedmann, legal reality – of bias or partisanship. Neutrality, i.e. that the Ombuds function is impartial, impartiality, and independence are key to the often informal, does not impede government moral authority necessary for any Ombuds operations with its investigations, and can office to be effective. Systemic scrutiny, maintain or restore the confidence of the where warranted, should be grounded in solid public service. These features, he argued, are empirical research which clearly justifies such relevant to the question of proactivity. Noting attention. Data collection and analysis are that the line between reactive and proactive key to track trends, inform budget requests, operations was often blurry, Mr. Loukidelis identify appropriate allocations between identified three clear categories of proactive individual complaints and systemic needs, for work: systemic investigations, policy guidance transparency, and to demonstrate value of the and advocacy. Ombuds plan to legislators. Systemic investigations involve an Ombuds examining a matter of administration that is Discussion of concern because it is widespread within a (Howard Sapers and Marianne Ryan) public institution or across multiple institutions. Howard Sapers noted that the line between If investigations must be complaint based, responding to individual complaints and it is unwise for an Ombuds to be seen to addressing systemic issues is often blurry. leverage a specific complaint into a much Investigations of individual complaints broader, systemic, evidence gathering exercise. often involve or result in policy analysis Where a systemic issue is apparent, a more

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and recommendations, and remedies are chance to respond. This has worked well and mostly future oriented to help prevent the has led to positive changes in Ontario. occurrence of similar concerns. Responses to individual complaints may become wide- Communicate frequently. Despite occasional ranging investigations, as in the Ashley Smith stakeholder concerns to the contrary, Ombuds case. Moreover, triaging cases with the aid of are not looking for ‘gotcha’ moments. There a strategic plan and priorities is tantamount can and should be ongoing discussion, even to being proactive. He noted that in his work at early stages of investigations, such that he had benefited from advice passed on by by the time a recommendation is made, a Cree Elder to the effect that in such a role the authority may already have begun one needed to look at the world both with implementation of needed changes. It is even a ‘moose eye’ (strategic lens) and a ‘mouse more important to have early discussions eye’ (tactical lens). Specific versus systemic in the case of own-motion investigations. may thus be a false dichotomy. Sometimes an Response needs to be flexible and exists on a individual complaint is best addressed through continuum, but ongoing discussion is typically a systemic investigation. what serves the public the best and results in positive change. Marianne Ryan reflected that in principle it is healthy to have a balance between Embrace transparency. The ‘value added’ reactive and proactive work. For her, the of an Ombuds includes managing key more challenging issue is the concept of stakeholder relationships and building ‘advocacy,’ and the importance of defining relationships and trust with Deputy Ministers, what is and is not appropriate advocacy on parliamentarians and the media. It is important the part of Ombuds. We cannot advocate for to be accessible and open with information. individuals or causes, but we can advocate for In managing communications before and the principle of fairness and its manifestation after an investigation, Ombuds offices should in policy. There is a high value in having a keep in mind the longer-term relationship strategic lens and thus being able to put with authorities. individual complaints in context. The challenge Use data to seek patterns of unfairness. of selecting those complaints where an When it comes to balancing individual and investigation will have the most meaning systemic investigations, Ombuds should for fairness as a whole is made easier comb data to look for patterns. The media will when we track available data and engage in focus attention on easily visible issues, but environmental scanning which allows us to we don’t know what we don’t know. When see the broader landscape. Following up on processes are opaque, people don’t know recommendations is a related practice which what to complain about, and thus there is will increase institutional memory regarding a need for proactive audit and investigation administrative fairness. functions. Individual complaints may not be In plenary discussion, participants made representative of the scope of underlying the following observations with respect to issues. proactive Ombudship. How to define advocacy? Some participants Value of behind-the-scenes work. Proactive felt that advocacy has a place in the Ombuds Ombudship can be exercised in a more toolkit, appropriately defined. In this view, private setting with stakeholders, particularly advocacy is certainly justified when the time where there is history of a high volume of comes to make a persuasive case to the complaints. Ombuds can share feedback and public and to government on behalf of the statistics and in doing so give the authorities a Ombuds’ own recommendations.

22 Future of Ombudship Day 2

Clearly communicate boundaries. Ombuds Broadly applicable recommendations don’t need to get into justifying or defending can arise from individual investigations. what they investigate, but they do need to be Individual complaints can enable Ombuds strategic when choosing what to investigate offices to make broader recommendations. and in communicating. The work often needs One example would be recommendations to touch policy, but Ombuds need to be very related to training. The common goal shared clear that they aren’t making policy and that by independent offices and government they recognize the right of government to agencies is for the government to have the do so. Rather, the Ombuds role is to identify best policies and processes for serving and expose how a particular policy renders citizens and strengthening the administration an unfair outcome and to recommend of public services. improvements. Session 6: Ombudship in the Digital Era

Session 6 was designed to engage tracking; burgeoning social media and an participants regarding the impact of increasingly user-driven Internet; and big data technology on government services and the accompanied by its natural consequence, resulting effect on oversight of government, artificial intelligence (AI). all in an era of instant social media with transparency an increasingly entrenched AI development can be divided into three norm. Issues arising within this topic categories. The first, the algorithmic approach, include open government, digital tools for sets rules for computers to follow in administration and investigations, algorithmic analyzing data, a specific set of instructions decision-making, user-centric and precision/ which can be coupled together. The second, personalized citizen services, and the double- machine learning, is a guided approach in edged sword of social media. which the computer is tasked with looking at data and providing feedback on what is The discussion began with a presentation observed. Advances due to machine learning from Professor Justin Longo, Johnson- include many applications in everyday use, Shoyama Graduate School of Public Policy and such as autopilot control of vehicles, email Cisco Chair in Digital Governance, University categorization, and recommendation systems. of Regina. New Brunswick Ombud and Public The third category is deep learning, where Interest Disclosure Commissioner Charles machines look at the world and come to Murray took the role of discussant. ‘understand’ what they are seeing, similar to natural language processing. In both deep and Ombudship in a Time of machine learning: algorithms develop on their own without human involvement, becoming Disruption: Scanning Some a ‘black box’ which is difficult for outsiders Implications of the Digital Era to examine. The computer cannot explain to (Professor Justin Longo) humans what the algorithm means and how it came up with it. This presents significant Professor Longo noted a number of defining theoretical and increasingly practical characteristics of the digital era. These include challenges for oversight of public sector the ubiquity of computing and multi-function computing. Citizens may have the right to an smartphones; the trend of miniaturization; explanation of a decision, and we may encode the state of constant connectivity and

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this right in law, but all the same it may not be human decision making. There are many possible for AI to provide an explanation. questions, but currently few answers. How can Ombuds offices evaluate fairness in There are various ways in which these an algorithmic decision-making scenario? and other digital developments – such as How does bias emerge, as it can even in user-centered service design, robotics, the digital arena? How do we embed values recommendation systems, or geo- and ensure they are applied with appropriate tracking – impact public administration. social context? Most of all there are clear New technologies and approaches can be administrative law concerns around procedural applied to what governments do to make fairness, the right to be heard, the right government more efficient and more to impartial decision making, the right to effective. Expectations within government are reasons, and the right to appeal. changing regarding the sharing of information and knowledge. Externally, citizens now have The Treasury Board of Canada has issued different expectations of what government’s a directive on algorithmic decision making response should be and look like. that seeks to ensure that principles of administrative fairness apply in such systems. There are three broad implications of the However, it is unclear how these standards digital age for administrative fairness. would be enforced and by whom. First, the trend favouring efficiency and personalization in service design based on the Professor Longo concluded his remarks by ‘user’ may lead to the development of public asking if an independent oversight body for services which are exclusionary or provide digital public administration – an algorithmic unfair advantages to certain groups. These Ombuds – might be considered and practices are often based on the voluntary or established, similar to steps being taken in unwitting surrender of personal information. the United States. However, our expectation Only those who can be traced have the that government explains its actions will be potential to become the prototype. Second, challenging to apply in certain versions of the social media environment has altered the AI development. Sometimes the computer potential influence of the Ombuds, and of the cannot explain. public, on specific issues of fairness. Ombuds can use social media to identify issues for Discussion government, and – to a degree – determine (Charles Murray) the pulse of sentiment. Social media may confuse the issue of what constitutes a Discussant Charles Murray reflected on the complaint and may invite multiple voices particular challenge the digital era poses of varying standing into an issue, though for Ombuds offices, offices whose primary offering no central authority in the discussion function is to offer a check on bureaucratic venue. Third, the digital era may increase power. There is a frequent tension between expectations placed on Ombuds offices. what is fairest (what is championed by There may be pressure to engage in proactive the Ombuds) and what is most efficient/ investigations using predictive analytics. The effective (what is attractive to government), social media reality of everyone having a a situation which allows bureaucrats to make voice may come to affect expectations around an argument from a risk/efficiency position hearings: who counts, who gets heard, and when addressing unfair outcomes. And unlike what constitutes true civic engagement? efficiency of investment or action, fairness is very difficult to measure and is rarely The issue of AI requires specific attention, measured, which means the counterargument as algorithms come to support and replace to efficiency is usually neither codified nor

24 Future of Ombudship Day 2 quantifiable. Furthermore, the question of Participants raised further points in plenary curated, user-focused design raises the discussion. problem of outliers, which exist in all systems and are vitally important for Ombuds work Failure to evaluate fairness. The difficulty of often being the test cases for fairness. Digital judging the fairness of black box processes technologies risk isolating or ignoring outliers. risks defaulting to evaluating programs based on outputs, rather than on the process used The introduction of more complex algorithms to get there. For example, if the driverless car allows a potential blurring of accountability: gets us where we need to be, and minimizes often an objectionable effect of technology accidents, the outcome (who was injured, introduced by government is legitimately who was not) is the way we will evaluate that unintended, but sometimes it is intended system. Society risks arriving at a point where and yet the opacity spoken of by Professor we accept those outcomes, determining Longo allows government to ‘blame the morality based on results. Only if we get too computer.’ Mr. Murray gave the example of many bad outcomes will we evaluate how a Facebook AI experiment in computer-to- this occurred. computer negotiation. In the experiment, the machines learned to be deceptive and Ombuds/OIPC partnership. In determining altered their language of communication how data is collected and used, and if to a degree that the negotiations could no it is fairly processed, there is a growing longer be understood by the experimenters. rationale to align elements of the work of The negotiations were still successful, but Ombuds with that of Information and Privacy we just don’t know what they were about. Commissioners. In both areas of work, These were unintended consequences, and the machine must often be ‘taken apart’ to unintended consequences happen all the time determine if processes are fair and lawful. in government. But the difference is in our The cost alone of retaining technical services ability to understand, rectify and create public to take the black box apart to explain what’s trust in government, to be able to say ‘this will happening suggests this alignment should be not happen again.’ Increasingly Ombuds will explored actively. not have the tools to understand and address Ombuds must be human ‘last resort.’ There unfair outcomes. are limitations to the use of algorithms and Mr. Murray offered three questions AI in Ombuds work. While in theory, AI might for Canadian Council of Parliamentary be very applicable to e.g. triaging complaints, Ombudsman members and others present we must remember that one of the services to consider. First, can/should Ombuds Ombuds provide is being a human voice investigate algorithmic unfairness, and if so that listens, validates and treats people with what changes within Ombuds office would respect. It’s not just about what happened, it’s be needed to do this? Second, given the large about how it made them feel. The majority of capital costs involved in most IT/AI projects, complainants will accept a decision they don’t should Ombuds be requested to ‘pre-certify’ like, but what they object to is being made to public sector AI applications as being fair feel unimportant by big government. We are before they are put into use? Third, what unlikely to be able to trust algorithms to fix are the implications for traditional Ombuds that piece. investigations of rapid, mass social media Digital divide. Existing requirements for engagement on instances of public sector electronic access to government services unfairness? excludes many people without the necessary skills or devices and may involve a breach of confidentiality if those people are forced to go

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to a third person to obtain access. We should outlier represents more work, it’s naïve to be considering these citizens when assessing think the system is going to embrace the fairness, notwithstanding improvements to outlier. Ombuds must be alive to concerns web design and user interfaces. We need the with bias towards early digital adopters, equivalent of storefront service accessibility because they are the group programming new online, not workarounds. systems. We need to look closely at who is designing these services, including issues of Culture trumps policy. If you have built a diversity in the IT sector. Our job is to get in service where these devices are the mainstay front of the train and wave the red flags. it will start to show up in the culture. If the Section 7: Good Ombuds Practice and Evaluating Success

The final discussion, Session 7, engaged the they have lacked political traction. Ombuds question of the Ombuds mission – and how are often able to bring or enlist a high level we would know if success is being achieved. of expertise to specific investigations; their recommendations are usually right and should Participants heard an initial set of panel be implemented. remarks intended to seed the discussion. Panelists included Allan Seckel, former Deputy Systemic reviews, Mr. Seckel argued, are a Minister to the Premier and Head of the BC different matter, and tend to veer towards the Public Service, Professor Linda Reif of the political as well as the administrative. Issues University of Alberta Faculty of Law, and Les management, already a time-consuming Leyne, provincial parliamentary columnist for aspect of government, is amplified when the Victoria Times-Colonist. Ombuds scrutiny is systemic in nature, and the outcome of the investigation is more likely Ombuds, Public Sector to attract media attention. In these cases, it has become increasingly frequent for us to Response, and Impactful see an immediate response from the Minister, Investigations accompanied by instant acceptance of the full (Allan Seckel) suite of recommendations. It is reasonable to ask how sincere such an acceptance is, Allan Seckel’s remarks focused on the reaction when it occurs moments after the report of the public service to work of Ombuds has dropped, and can lead in some cases to and other independent officers. Of the three unthinking acceptance of bad policy. general categories of Ombuds investigations – specific cases, aggregations of specific cases, Such encroachment on the political risks and systemic reviews – he suggested that usurping democracy. Public servants are the first two are generally well received by not elected, and nor are those appointed as the public service, allowing that the political Ombuds. We elect people to make choices side of government is hypersensitive to about resource allocation, and when the perceived criticism. In many cases, Ombuds report of an independent officer becomes reports of these types are actually helpful to untouchable in the media or in the political the public service, by highlighting a problem arena, we sideline two normally healthy they would like to solve but for which to date sources of policy change and this is not

26 Future of Ombudship Day 2 right. We have to be careful to consume and in a variety of ways, including the Ombuds implement recommendations in a manner that process. Similarly, issues of intersectional is consistent with democracy. Independent discrimination need to be paid greater officers often do not have area expertise attention. Professor Reif’s research sets out to make policy decisions. Good policy is recommendations for increasing Ombuds based on two underlying principles: first, it is focus on women’s rights and gender issues, rigorously determined, not based on single as Ombuds may not be receiving complaints episodes or anecdotes; and second, decisions from vulnerable groups. We need to ask: over that policy are taken following debate by who is not complaining at all? The Canadian elected officials. Human Rights Commission identified twenty barriers to Indigenous women accessing that Canadian Ombuds in an institution; these barriers surely apply equally to Ombuds. Given the constitutional difficulty International Context which may attend creation of an Ombuds for (Professor Linda Reif) Indigenous people, we should start thinking Professor Linda Reif examined the now about what provincial Ombuds can international context to see where we can do within their jurisdictions to improve the situate Canadian Ombuds. How do other situation of Indigenous women. countries define success? Increasingly, this is through the exercise of an Ombuds mandate Ombuds, the Media, and with a substantial human rights, women’s Sustaining Attention on rights, and access to justice component. Unfairness Internationally, many formerly ‘classic’ (Les Leyne) Ombuds offices have taken on additional mandates, such as human rights, information, Les Leyne reflected on the Ombuds role privacy, and public interest disclosure. from the perspective of a career in political Internationally, Ombuds with a human journalism. There is some commonality rights mandate have increased from 50 to between Ombuds work and the work that 64 percent of national Ombuds institutions reporters do or really want to do. Despite around the world. The classic Ombuds is differing mandates, the two areas of work now a minority, a phenomenon driven in intersect at certain point. Appealing news part by new treaties on human rights – for for reporters is where officialdom has locked example, treaties on torture and on people itself into a wrong position that leaves a with disabilities – which require parties to citizen holding the short end of the stick. designate national institutions to monitor and Ombuds resolutions are an appealing end to implement obligations. Ombuds offices are the David and Goliath story. often the default choice. Unfortunately, the mainstream media’s Several Canadian Ombuds use international stamina to sustain interest is such stories human rights law and norms in their work, is waning, and newspapers have to pass on even if not officially designated as such. issues that they used to tackle, because the For example, some special investigations necessary time and staff don’t exist anymore. have dealt with egregious treatment of While the media still relish reporting findings, prisoners, and women prisoners in particular, their attention span is shorter than it used to using international law as a normative be and maintaining focus on an issue is hard. approach. However, there is still more to be There are of course some exceptions, as with done in this area. Ombuds can and should the health firings scandal in BC, which the prioritize women’s need to access justice

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media helped keep alive before the Ombuds following an investigation? Are a larger inquiry was set in motion. number of small ‘wins’ to be preferred over a smaller number of landmark investigations? Thus, a key and continuing success for Ombuds is their capacity to pay sustained Challenge of performance measurement. attention to everyday stuff that only matters Related points were made with respect to to the citizen. The Ombuds reputation is built the idea of the most useful measures with brick by brick on the small stuff, rather than which to assess Ombuds performance. the really big stuff. The media’s involvement Is it in the public interest to have a single, now appears to be to backstop and amplify impactful report? Is it important to process those findings, having previously been more a lot of cases? Or is having fair government involved at the front end of those breaking practice to be preferred to both? Participants stories. observed that linkages between the Ombuds community and academia could still be Discussion strengthened, particularly if scholars had a role in developing indicators. In Europe there is a Reflecting on the panel, participants raised closer relationship between government and a number of related points in the following researchers, bringing the advantage of a range plenary session. Ideas generally fell into one of methodologies to work with. of two categories, as regards success of the Ombuds venture: empirical success in the Deterrence as evidence of effectiveness. form of demonstrated effectiveness, and Some participants identified the deterrent reputational success by being known to be effect of Ombuds work and potential scrutiny operationally fair-minded and independent. as a kind of success which could be detected yet was very difficult to measure. Some Empirical Success offices offer complainants the option of being When are recommendations successful? able to copy the Ombuds office on all of It was suggested that one could look at the their correspondence with the authority, and percentage of Ombuds recommendations anecdotally this is held to be effective. accepted by government. However, Does increased scope equal greater there are numerous caveats to this. If success? From one perspective, having more the recommendations are accepted and jurisdiction and a greater number of distinct implemented, but the complainant and/or mandates assigned to Ombuds offices can be the public are unsatisfied the outcome is fair, seen as a sign of success – if accompanied by is that success? Participants observed that sufficient resources to execute the additional governments often accept recommendations required activity. Conversely, the addition of and then proceed to implement something mandates on top of ‘core’ or ‘classic’ Ombuds entirely different. Governments may accept work without additional funding may only recommendations because it is politically serve to dilute the office’s efforts across expedient to do so. This doesn’t always mean the board. the problem is solved.

Differing interpretations of effectiveness. Reputational Success In terms of empirical demonstrations of Independence vs. advocacy. Reflecting on effectiveness – performance measurement the Supreme Court of Canada’s description – participants saw that success might have of the public reporting role of the Ombuds many different manifestations and possibly in BCDC v. Friedmann as being that of competing definitions. For example, is it a “marshal[ling] public opinion behind success or a failure not to issue a report appropriate causes,” some participants felt

28 Future of Ombudship Day 2 that characterization was problematic. In their reproach and modelling the behaviours sought view, Ombuds seek to illuminate issues, not in others. These behaviours include avoiding causes. However, remaining independent is delay, maintaining a focus on fairness, not an issue as long as good processes are maintaining human rights standards, and followed, investigations are rigorous, and the otherwise functioning as a role model in the philosophy remains that of everyone being on public administration community. the same side (i.e. the side of fairness). Addressing how the disempowered Caution in allying with media. Ombuds and experience unfairness. Some participants journalists can be allies in creating impact, and noted that the knowledge and self-confidence participants provided examples of the effect needed to register a complaint may be elusive of those two areas combining to prompt early for marginalized groups of people. To be change. However, clear boundaries must exist: successful, Ombuds should be conscious of a good media story often has an element of and address this diversity of capacity. This may sensationalism, which is not what Ombuds require finding ways to educate vulnerable are looking for. Additionally, to be effective groups who have systemically been treated Ombuds must remain aware of the iterative unfairly, and whose experience of public nature of their relationship with government. authority may leave them without the tools or experience to be able to name the unfairness. Maintaining a focus on fairness and equity. Success in this sense is staying beyond Session 8: Participants’ Suggested Next Steps

In the final session, participants were asked technologies with implications for Ombuds to reflect on the experiment of the past two work, including developing the expertise days and develop suggestions for approaches and capacity to engage, seeking funding to by Ombuds, governments and others to capitalize on available tools, and partnering ensure relevant, useful oversight over the with private sector expertise where possible coming decades. Participants also considered and appropriate. Improved strategic use of if and how the Symposium dialogue should social media was also seen as an important be reconvened in the future and were asked goal. In particular, artificial intelligence as a to bring forward ideas for collaborative work locus of public sector decision making was or research which may have germinated in identified by participants as a significant discussion. challenge looming in the near future, and in some cases as a challenge today. Ombuds Symposium participants’ thoughts are must rapidly learn how these technologies summarized here, grouped into 11 more are being applied, and work with the general thematic suggestions. public service and academia to ensure that procedural fairness is not only built in but can Develop and enhance Ombuds be assessed after the fact. Finally, participants digital/data competence suggested that intake data was an untapped source of information on public demand for Participants felt it important for Ombuds Ombuds services, and who is/is not engaging to catch up/get ahead of contemporary with these offices.

Future of Ombudship 29 Day 2

Strengthen national/ international Ombuds networks and comparative understanding It was suggested that international representation and case studies at such gatherings would be helpful, to build comparative knowledge and learn best practices from other jurisdictions. This could include attention to international norms and standards such as the Venice Principles, as well as more rigorous assessment of the effects and outcomes of assigning the human rights mandate to Ombuds offices. Nationally, participants suggested enhanced collaboration between parliamentary Ombuds offices in Canada via sharing of resources Dialogue during the final session and ideas, or via staff exchanges. More of the Symposium was focused unified communication between offices on immediate steps as well as across Canada was also suggested. Such possibilities over the longer term. an approach would have the potential to keep the actual and implied questions of this Symposium – how have Ombuds changed? Develop strategies for is success being achieved? is the model still vulnerable communities, valid? and what challenges exist? increasing visibility and Build and sustain awareness accessibility of Ombuds Numerous participants recommended Participants commonly observed that Ombuds offices develop stronger connections awareness of Ombuds’ existence and with vulnerable communities and with the activities remains too low. Specific research groups who serve and advocate for them, may be required to assess awareness of our including but not limited to partnerships with offices across Canada and adopt strategies Indigenous communities and governments. to bridge identified gaps, and this work will It is important to make efforts to reach require resources. It was also observed people who don’t have a voice; participants that Ombuds must find better ways to asked how we might focus on people and communicate the impact of the work. populations that we know Ombuds are not Ombuds should develop compelling stories reaching. One suggestion was a requirement that show the relevance of the function for all government departments to include and look to augment ‘dry’ annual reporting information on all routine communication with other vehicles, such as podcasts. Such to make it easier for the public to make work might assist in enlisting allies willing complaints and to socialize/normalize the idea. to promote the Ombuds’ role, mandate and

30 Future of Ombudship Day 2 importance in democratic process. At the Consider expanding (or client level, Ombuds can only benefit from a well-informed and aware population, and this contracting) the Ombuds might be enhanced by working regularly with mandate civil society entities that are involved with high In dialogue, participants identified a tension volume complaint areas. between the costs and benefits of an expanded mandate for parliamentary Ombuds. Enhance Ombuds approaches While the addition of human rights advocacy, to reconciliation and public interest disclosure or other issue areas to the mandate expands the theoretical impact Indigenous self-government of the role, in practice some participants saw Participants saw considerable benefit for all the dangers of resources being spread too parties in a more fully elaborated relationship thinly and of creeping politicization emerging between Ombuds offices and Indigenous with this trend. Participants suggested government. This included developing Ombuds promote an intentional, proactive a better understanding of Indigenous discussion about these issues and the related governance models which are engaged, issue of organizational capacity. A recurring adapted or developed, but also included corollary of this discussion was the issue of direct benefit to the Ombuds community the term Ombudsman/Ombudsperson. Some through incorporation of wisdom, experience participants noted that the obscure nature of and philosophical approaches to fairness and the word is already an issue; whether or not community stemming from Indigenous law new mandates are added, it may be time to and tradition. Through these relationships, ‘re-brand’ the role as a step towards increased Ombuds goals with respect to reconciliation accessibility. can be developed through direct dialogue and exchange of information. Explore the potential of partnership between Ombuds Consider legislative change and Information/Privacy to strengthen influence, Commissioners awareness, and independence Participants saw a growing rationale for Some participants suggested a legislated aligning elements of the work of Ombuds requirement mandating debate in the with that of Information and Privacy legislature on the Ombuds reports when Commissioners, examples of which are issued. This step would likely require that already occurring through necessity. In both legislative committees examine and discuss areas of work, the machine must often be the work of the Ombuds office, bringing ‘taken apart’ to determine if processes are more attention and more traction to Ombuds fair and lawful. The cost of investments in work. To bolster the independence of technical services to aid in this determination, Ombuds offices and their ongoing insulation now common to both functions, suggests this from political influence, participants also alignment should be explored actively. suggested embedding the Venice Principles5 in legislation.

4 See: https://www.venice.coe.int/webforms/documents/default.aspx?pdf=CDL-AD(2019)005-e&lang=EN

Future of Ombudship 31 Day 2

Conduct foundational work on Share and research these ideas performance measurement and keep the Symposium Useful measures with which to assess dialogue alive Ombuds performance remain outstanding. Participants wished to see a summary of Participants observed that in Canada there the two days distributed broadly within the is room to strengthen linkages between Ombuds and partner community, ideally the Ombuds community and academia, paired with an online venue in which others particularly if scholars assume a role in could add to these ideas, share new insights, developing indicators. In Europe there is a and otherwise contribute to the discussion. closer relationship between government and Follow-up research on some of the issues researchers, bringing the advantage of a range raised was also desired, in order to capitalize of methodologies to work with. on the engagement with academia which has begun with the Symposium. Participants Develop an operations-specific suggested that future Symposia could be dialogue attached to national meetings of the Canadian Council of Parliamentary Ombudsman: if not Participants identified a number of specific every year, perhaps biannually. This would operational issues where an enhanced office- provide an opportunity to check in on progress to-office dialogue or forum may be warranted. made regarding the key issues raised here. These include strategies around employee Some participants felt there should be greater mental health and wellness, timeliness of diversity of symposium attendees, with the reporting, Ombuds transparency, the use agenda including the voices of complainants’ of plain language and other accessibility lived experience and more of a ‘bottom-up not measures in reporting, creating opportunities top-down’ event design, such that we are not for front line/senior staff to chat about simply speaking amongst ourselves. specific emergent issues, and sharing best practices (in e.g. own-motion or systemic investigations), as well as lessons learned from failures.

32 Future of Ombudship Organizing Committee and Advisory Committee

The Symposium was developed by a core The organizers were supported by an expert organizing committee chaired by BC Deputy advisory committee, whose members Ombudsperson David Paradiso. Other included: members of the organizing committee Stewart Hyson, Independent Researcher included: Patrick Kelly, Leq’á:mel First Nation and Colette Baty, Principal, Castle Consulting Past Board Chair, Coastal First Nations Allan Castle, Principal, Castle Consulting Andrea Migone, Director of Research and (Symposium Coordinator) Outreach, Institute of Public Administration John Greschner, Deputy Ombudsperson, of Canada BC Office of the Ombudsperson Charles Murray, New Brunswick Ombud Evert Lindquist, Professor, School of Public Carol Anne Rolf, Adjunct Faculty Member, Administration, University of Victoria School of Public Administration, University Jay Chalke, Ombudsperson, BC Office of of Victoria the Ombudsperson Marianne Ryan, Alberta Ombudsman George Thomson, Senior Director, National Judicial Institute (Symposium Facilitator)

Future of Ombudship 33 Appreciation

The organizers would like to express their President Eva Clayton, Patrick Kelly, Dr. Dara appreciation to Diane Sam of Songhees First Kelly, David Loukidelis, Howard Sapers, Nation for taking time to welcome participants Marianne Ryan, Professor Justin Longo, to the traditional territory of the Lekwungen- Charles Murray, Allan Seckel, Professor Linda speaking Peoples, and to Professor Astrid Reif, and Les Leyne. Thanks are due as well to Brouselle, Chair of the UVic School of Public the participants in the research roundtable led Administration, for her welcome on behalf by Professor Evert Lindquist: Norman Dolan, of the University. Thanks are also due to the Professor Tara Ney, Alyson Miller, Suzy Flader, staff and management of the UVic Legacy and Stewart Hyson. Art Gallery, Cadboro Commons Conference Centre, the UVic University Club, and Degrees Thank you to Symposium Coordinator Allan Catering, for their contributions to the success Castle for his work through the planning of the event. of the event and preparation of the draft proceedings report. He and Colette Baty The organizers would like to acknowledge were instrumental in bringing this initiative the generous financial contributions of the to life from start to finish. Law Foundation of British Columbia and the International Ombudsman Institute, as well as A special thank you is due to Alycia Bockus- the meaningful in-kind contributions of the BC Vanin of the BC Office of the Ombudsperson Office of the Ombudsperson, the UVic School for management of hotel, financial and travel of Public Administration and the Institute of logistics and details throughout the delivery of Public Administration of Canada. the event, as well as for expert notetaking on both days. Thanks as well to Nicole Smith and Thanks to those participants who kindly Sean Smith for volunteer conference support shared their expertise in formal speaking roles: throughout the event. Jay Chalke, the Honourable Tom Cromwell,

34 Future of Ombudship Participants

Agnello Alex Policy Analyst BC Ombudsperson Executive Director / Chief Avison Don Law Society of BC Executive Officer Aziz Atif NCA Student University of Victoria Bellringer Carol Auditor General Auditor General of BC Biscoe Chris Manager of Investigations BC Ombudsperson Boegman Anton Chief Electoral Officer Chief Electoral Officer of BC Bouman Chad Manager, Investigations Alberta Ombudsman Brennan Christine Deputy Ombudsman Nova Scotia Ombudsman Byrne Wendy Ombudsperson Officer BC Ombudsperson Byrne Patricia Executive Director People's Law School Chalke Jay Ombudsperson BC Ombudsperson Chapman Matthew Ombudsperson Officer BC Ombudsperson Representative for Children Office of the Representative for Children Charlesworth Jennifer and Youth and Youth BC Ministry of Social Development and Chiu Cary Executive Director Poverty Reduction Executive Director, Clarke Bruce BC Ombudsperson Investigations Clayton Eva President Nisga’a Lisims Government Clements- Amanda Communications Manager Alberta Ombudsman Harvey Director, Children and Youth Cooke Diana Ontario Ombudsman Unit Superintendent of Office of the Superintendent of Professional Craven Paul Professional Governance Governance Cromwell Hon. Thomas Senior Counsel Borden Ladner Gervais BC Ministry of Municipal Affairs Curtis David Assistant Deputy Minister and Housing Darling Sara Communications Lead BC Ombudsperson Davis Harrison Ombudsperson Officer BC Ombudsperson School of Public Administration, Dolan Norman Adjunct Professor University of Victoria Drown Emily Tribunal Chair Employment and Assistance Tribunal Dubé Paul Ombudsman Ontario Ombudsman Elder Kathy Executive Director Residential Tenancy Branch Flader Suzy Student (JD/MPA) University of Victoria Fong Rodney General Counsel Alberta Ombudsman Fraser Annette Ombudsperson University of Victoria Public Sector Integrity Commissioner Friday Joe Commissioner of Canada Fung Anna Commissioner BC Utilities Commission Fyfe Richard Deputy Attorney General BC Ministry of Attorney General Garrett Stephanie Chief Operating Officer BC Human Rights Commissioner Gavigan Renee Deputy Ombudsman Saskatchewan Ombudsman

Future of Ombudship 35 Participants

Greschner John Deputy Ombudsperson BC Ombudsperson Haddock Mark General Counsel Forest Practices Board Hardie Katherine Legal Counsel Human Rights Tribunal President, Graduate Law Hassan Maira Allard School of Law, UBC Students' Society Hyson Stewart Independent Researcher Saint John, New Brunswick Jardine Kevin Associate Deputy Minister BC Environmental Assessment Office Johns Daniel Manager Alberta Ombudsman Kaban Andrew Law Student Thompson Rivers University Past Board Chair, Coastal Kelly Patrick Leq’á:mel First Nation First Nations Kelly Dara Assistant Professor SFU; Leq’á:mel First Nation Commissioner for Teacher Kushner Howard Province of British Columbia Regulation Lakes Tish Executive Director Okanagan Advocacy and Resource Society Langlois Colette Ombud Northwest Territories Ombud Lansdell Hayden Chief Data Officer Integrated Data Division LeBlanc Christine Investigator New Brunswick Ombud Lessard Heather Intake Supervisor Manitoba Ombudsman Levine Greg Lawyer Law Office of G.J. Levine School of Public Administration, University Lindquist Evert Professor of Victoria Cisco Chair in Digital Johnson-Shoyama Graduate School of Longo Justin Governance Public Policy, University of Regina Ministry of Advanced Education, Skills Loughran Tony Executive Lead and Training Loukidelis David Lawyer David Loukidelis Law Corp Low-Beer Benjamin Legal Advocate MOSAIC Lusk Maddie Co-op Student BC Ombudsperson Malan Sarah Ombudsperson Officer BC Ombudsperson Malette Lise Manager Office of the Taxpayer's Ombudsman BC Office of the Information and Privacy McEvoy Michael Commissioner Commissioner McFadyen Mary Ombudsman Ombudsman Saskatchewan McLeod- Diane Ombudsman Yukon Ombudsman McKay Michta Bryan Senior Investigator Alberta Ombudsman Miller Alyson Fairness Coordinator Carcross / Tagish First Nation Morse Bradford Dean of Law Thompson Rivers University Moss Bradley Citizens' Representative NF Office of the Citizens' Representative Murray Charles Ombud New Brunswick Ombud Nakata Shirley Ombudsperson for Students University of British Columbia School of Public Administration, University Ney Tara Associate Professor of Victoria Paquin Charlene Civil Service Commissioner Government of Manitoba Paradiso David Deputy Ombudsperson BC Ombudsperson Police Complaint Pecknold Clayton BC Police Complaint Commissioner Commissioner

36 Future of Ombudship Participants

Pedersen Kirsten Executive Director BC Farm Industry Review Board Perron Jill Ombudsman Manitoba Ombudsman Manager, Public Interest Phillips Lisa BC Ombudsperson Disclosure Implementation Communication and Pollock Julie BC Ombudsperson Education Advisor Ray Wendy General Counsel Ombudsman Ontario Reid Laura Ombudsperson Simon Fraser University Reif Linda Professor Faculty of Law, University of Alberta Richards Tim Professor Faculty of Law, University of Victoria Manager, Public Interest Roberts Lori Manitoba Ombudsman Disclosure Investigations Robertson Wayne Executive Director Law Foundation of BC Roh Michelle Manager, Investigations Alberta Ombudsman School of Public Administration, University Rolf Carol Anne Adjunct Faculty of Victoria School of Public Administration, University Rouzbehani Roya Postdoctoral Research Fellow of Victoria Ryan Marianne Ombudsman Alberta Ombudsman Justice Services Branch, BC Ministry of Sandstrom Kurt Assistant Deputy Minister Attorney General Sapers Howard Independent Advisor Ottawa, Ontario Savard Johanne Ombudsman Ville de Montréal Seckel Allan Chief Executive Officer Doctors of BC BC Ministry of Solicitor General and Sieben Mark Deputy Minister Public Safety Starodub Samuel Co-op Student Faculty of Law, University of Victoria Manager of Investigative Statz Len BC Police Complaint Commissioner Analysts Stewart Megan Ombudsperson Officer BC Ombudsperson Stone Taylor Student Allard School of Law, UBC Thompson Scott Chief Executive Officer Institute of Public Administration of Canada Thomson George Senior Director National Judicial Institute Turner James Deputy Ombudsman Ombudsman Saskatchewan Vallières Hélène Vice-protectrice Protecteur du citoyen, Québec Vickers Cheryl Chair BC Surface Rights Appeal Board Acting Director of Walker Alicia Ombud New Brunswick Investigations Wallington Stephen J.D. Law Student Faculty of Law, University of Victoria Manager of Prevention Warren Rachel BC Ombudsperson Initiatives Curriculum Development Wright Adrian Foundation of Administrative Justice Coordinator Wylie Conner Law Student University of British Columbia Zeleschuk Lauren Co-op Student BC Ombudsperson

Future of Ombudship 37

The Office of the Ombudsperson B.C.’s Independent Voice for Fairness

Office of the Ombudsperson | PO Box 9039 Stn Prov Govt | Victoria, B.C. V8W 9A5 General Inquiries: 250 387-5855 (Victoria) or 1 800 567-3247 (Rest of B.C.) | Fax: 250 387-0198 www.bcombudsperson.ca