andre marin

8 / OGRA MILESTONES FALL 2014

Over the summer the

provincial government

announced that it would

be re-introducing Bill 8,

The Public Sector and

MPP Accountability and

Transparency Act.

OGRA’s Policy Advisor,

Thomas Barakat, set out

to gain a more thorough

understanding of the bill

by speaking to the

individual at the forefront

of this new legislation,

Ontario Ombudsman

André Marin. Under this

bill, Marin’s offi ce,

independent from the

government, would gain

the authority to

investigate complaints

arising from the MUSH

sector (municipalities,

universities, schools, and

hospitals).

Marin was appointed

Ombudsman by the

Legislative Assembly in

2005 and was

reappointed in 2010 to a

second fi ve-year term.

Prior to 2005, he was the

fi rst Ombudsman for the

Canadian Armed Forces

and Director of the

Ontario Special

Investigations Unit.

André

Marin:Ombudsman

OGRA MILESTONES FALL 2014 / 9

interaction BY THOMAS BARAKAT

Bill 8: Public Sector and MPP

Accountability and Transparency Act

Why do you believe this bill is necessary?

To be clear, the bill is a government initiative, and it covers a

wide range of accountability measures other than extending

the mandate of my offi ce. But part of my role is to promote

openness and accountability in government, so naturally I

support measures to do that. Th e world’s fi rst ombudsman

was created more than 200 years ago in Sweden to serve as

the “citizen’s representative” in the corridors of power –

that’s what “ombudsman” means in Swedish. I think citizens

today have high expectations that public bodies will be

transparent, responsive and accountable. Th ere is no excuse

for paternalistic politicians who take the attitude “we know

what’s best for you,” or inscrutable, secretive bureaucracies.

So that’s why I favour greater accountability in general. Th is

particular bill is a huge step forward because it will fi nally

catch Ontario up with other provinces. Every other

provincial ombudsman in Canada has some jurisdiction over

the “MUSH” sector – municipalities, universities, school

boards, hospitals and long-term care homes, children’s aid

societies and police (a.k.a. the broader public sector). Every

Ontario Ombudsman since our offi ce was established in

1975 has pointed out the glaring lack of accountability in

this sector.

For several years you’ve been urging the provincial

government to open up the so-called MUSH sector

- municipalities, universities, school boards and

hospitals - to scrutiny. Why do believe the government

decided to act now?

Th is change has been almost 40 years in the making. I can’t

speak for the government, but from my perspective, the

momentum for change was impossible to ignore. In my

tenure alone – since 2005 – we have received more than

20,000 complaints about MUSH sector organizations that

we were forced to turn away. Th at’s thousands of people who

had nowhere to go with terribly serious problems. Yet they

kept coming to our offi ce in even greater numbers. Many

started organizing public rallies and protests, and contacting

their MPPs. More than 130 petitions were tabled in the

Legislature, calling for the MUSH sector to be opened to

Ombudsman scrutiny, and MPPs of all political parties

introduced 18 private member’s bills to that eff ect as well.

A couple of years ago, former premier Dalton McGuinty was

the fi rst to propose expanding my mandate – to hospitals,

long-term care and chlidren’s aid societies. But that was just

before he left offi ce. When the Wynne government revived

that eff ort, for whatever reason they instead proposed

extending my oversight to municipalities, universities and

school boards. Bill 8 will create a separate Patient

Ombudsman within the Health ministry, and give the

existing Provincial Advocate for Children and Youth

jurisdiction over child welfare.

Many have suggested that Bill 8 is punishing all of

Ontario’s municipalities for a Toronto problem.

What’s your response to such a criticism?

Anyone who suggests that Toronto is the only city with an

accountability problem – basically, that other cities are being

penalized because of the Rob Ford scandal – is completely

misinformed. Th e truth is, the vast majority of Ontario’s

444 municipalities have no accountability mechanisms

whatsoever. Of course, there is an election every four years,

but what recourse do citizens have between elections? Th e

province gave all municipalities the power in 2008 to

establish accountability offi ces – ombudsman, integrity

commissioner, auditor general, lobbyist registrar. How did

that go? Right now there are only two auditors general in

the entire province – in Toronto and Ottawa. Several


interaction

municipalities had them but shut them down – in some

cases after they issued critical reports. Th ere are about two

dozen integrity commissioners, two lobbyist registrars

(Ottawa and Toronto again) and only one municipal

ombudsman – in Toronto, which was the only city required

by law to create one. I don’t think Bill 8 is a “punishment” by

any means, but I do think the record of municipalities in

embracing accountability mechanisms speaks for itself.

At the provincial level, there are 7 offi cers of the Legislature

overseeing all aspects of the government: Th e Ombudsman,

Auditor General, Information and Privacy Commissioner,

Integrity Commissioner, French Language Service

Commissioner, Environmental Commissioner and Provincial

Advocate for Children and Youth – and soon there will also

be a budget offi cer. Yet the municipal sector has almost no

oversight. Surely it’s time to bring some scrutiny to local

governments as well. Five other provinces have ombudsman

oversight of municipalities – why not Ontario?

Some have argued that municipalities already have

the checks needed to protect their citizens from

out-of-control municipal politicians. How do you

respond to them?

Not only does the lack of accountability offi cers in

municipalities speak for itself, we have seen in our years of

investigating complaints about closed municipal meetings

since 2008 that there is ample need for greater scrutiny of

elected representatives. A few municipalities embrace the

rules and keep their council meetings open to the public

whenever possible – and they make recordings of closed

meetings so there’s a clear record of why they closed the

doors. But far too many are secretive and resistant to

scrutiny. Th is has to change.

Since 2008, every municipality has had the ability to

set up their own ombudsman’s offi ce. If a municipality

already has its own ombudsman, which offi ce becomes

that of last resort, the municipality’s or the

province’s?

Since there is only one municipal ombudsman right now, it’s

a bit of a moot point. And Bill 8 still has to go through

several stages, including committee hearings, before anyone

will know what its fi nal wording will be. What I can do is

explain how our offi ce has always worked with existing

accountability mechanisms – we don’t duplicate their work

or simply substitute our decision for theirs. Our role is to

review what’s been done and whether it’s adequate, and

perhaps go where they were unable to – for example, probe

the larger, systemic issues that gave rise to a large number of

complaints. Just look at any of our big provincial

investigations and reports – we tackle the root problems

underlying hundreds or thousands of complaints and

recommend solutions that can save the government endless

headaches in future. Th at’s what we’ll bring to the municipal

sector – and the U and S in MUSH as well.

On Transparency and Accountability

Across Canada there have been scandals at all levels of

government. Do you believe that this is a result of a

lack of ethics, a sense of entitlement, or just

mismanagement?

Since there is only one

municipal ombudsman right

now, it’s a bit of a moot point.

And Bill 8 still has to go through

several stages, including

committee hearings, before

anyone will know what its fi nal

wording will be.

12 / OGRA MILESTONES FALL 2014

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interactionI’ve been in the oversight business for most of my career,

and I’ve seen examples of all three – they all defi nitely lead

to scandal if allowed to fester. But probably the most

common cause of problems within the public service is a

sense of complacency, especially in big, monolithic

organizations where people feel like cogs in the machine and

lose sight of the real people they are supposed to serve. Th ey

become slaves to systems and rules – I call that “rulitis” –

and forget the human impact of their decisions. Whether

you’re a clerk at a Service Ontario offi ce or an executive at

the Ontario Lottery and Gaming Corporation, you have to

remember you are a public servant – and the public must

come fi rst.

What type of results have your reports generated?

Has anything changed as a result of your work or have

you just been successful in shining light on certain

practices?

Almost every one of our recommendations since 2005 has

been accepted and implemented by the government. It’s not

an exaggeration to say that the changes that resulted from

those recommendations have aff ected millions of Ontarians.

An obvious one is the overhaul of the lottery system – all

players now have to sign their tickets to ensure they are

protected against theft and fraud. But in 2006 when we

investigated that issue, the lottery corporation initially said

that couldn’t be done. Our investigation of the Municipal

Property Assessment Corporation prompted a two-year

freeze on assessments and ultimately a much fairer system,

aff ecting millions of property owners. Our investigation of

the newborn screening system convinced the government to

increase the number of tests on newborn babies from 2 to

29 – aff ecting every baby born in the province in the past 9

years, and saving hundreds of lives. And of course, we help

thousands of people every year with individual problems

like getting child support or disability payments – we detail

these cases in our Annual Reports, and on our website

(www.ombudsman.on.ca) as well as our Facebook page.

How would you better protect whistleblowers?

In our work, confi dentiality is assured to complainants and


our investigations are conducted in private. Th ose principles

are essential to encouraging citizens to come forward with

complaints about their government, even if they are part of

that government.

At the federal level, Kevin Page, the former

Parliamentary Budget Offi cer, who performed a role

similar to an Ombudsman, found that the government

purposely obstructed his investigations. Have you run

into problems like this in the past?

Th at kind of reaction comes with the territory – being a

watchdog does not make you popular. Th at’s why another

essential part of an eff ective oversight body is that it be

independent and arm’s length from the organization it

oversees. Th e parliamentary ombudsman model is based on

this – the ombudsman is hired for a fi xed term and can’t be

fi red at the whim of government. Th at’s how it works for

provincial ombudsmen; unfortunately, Canada doesn’t have

a national ombudsman.

I should add that the government has been overwhelmingly

co-operative with my investigations. Th at is a requirement

of the Ombudsman Act – it’s an off ence not to co-operate.

It’s entirely up to the government whether it accepts my

recommendations, however. I report publicly on the

government’s response, and in those rare cases where it

accepts my recommendations but then doesn’t follow

through, I report that too – and I have the option of

reopening my investigation.

Personal

You worked as an assistant Crown attorney and

part-time law professor until 1996. Th en you went on

to become Director of Ontario’s Special Investigations

Unit. Were these experiences the motivating factors

in your pursuit of the position of Ontario

Ombudsman?

Yes, certainly. I realized early in my work as a Crown

attorney that I wanted to tackle larger issues outside of the

court system. Once I became involved in civilian oversight of

the police for two years at the SIU, and then of the military

as Canada’s fi rst ombudsman for National Defence and the

Canadian Forces, I saw the opportunity to tackle systemic

issues and push for accountability within these powerful

organizations. But what those bodies lacked – since they

reported within the government ministries responsible for

them – was the true independence that comes with the role

of Ontario Ombudsman. Th e Ombudsman Act provides

citizens with the best, most robust kind of oversight. Its

only fl aw is that it shields the broader public sector from the

scrutiny it provides to more than 500 provincial government

organizations. And Bill 8, with any luck, will soon change

that.

Are you planning on running for a third term as

Ontario Ombudsman? If not, what’s next in the cards

for you?

One doesn’t “run” for the position of Ombudsman; the

appointment is made by an all-party committee of the

Legislative Assembly. Right now my focus is completely on

our huge volume of complaints, our ongoing investigations

(notably Hydro One billing problems) and preparing for the

expected passage of Bill 8.

You’re known to work out regularly and eat healthy.

In your weaker moments, what food is your guilty

pleasure?

Wendy’s quarter-pounders. But when I indulge, I work it off

at the gym. Fortunately, I don’t have a sweet tooth – sugary

dessert and chocolate don’t tempt me.

andre marin

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