Successful legal advocates must not only bring together evidence to successfully make their case, they must also craft a clear argument around a compelling narrative, and the same goes for an ombudsman or public advocate.
In Australia, reports from Victorian ombudsman Deborah Glass stand out for their powerful use of language. Her counterpart in the Canadian province of Ontario, Paul Dubé, has a similar reputation. A good example is the opening lines of his 2017 report on the use of solitary confinement in correctional facilities, Out of Oversight, Out of Mind:
“Twenty-four-year-old Adam Capay of Lac Seul First Nation suffered the intense isolation of segregation in Ontario’s correctional system for more than four years.
“If not for a fortuitous visit from the Chief Commissioner of the Ontario Human Rights Commission to the Thunder Bay Jail in October 2016, he would likely still be confined alone in a Plexiglas-fronted cell where incessant bright lights blurred the line between night and day.”
Next comes the widespread systemic problem illustrated by Capay’s extraordinary stint in solitary; we learn he is one of hundreds more, apparently invisible to a ministry that had no way of keeping an eye on them:
“When the Chief Commissioner asked for information about the duration of segregation placements, Adam’s – more than 1,500 days and now the longest known placement – wasn’t provided because the Ministry didn’t know about it.”
Dubé is a highly experienced lawyer, legal educator and ombudsman whose office is renowned as a provider of specialised training for other watchdogs, with its “Sharpening your Teeth” program.
He is presenting a condensed version as a half-day pre-conference workshop next Tuesday as part of the National Investigations Symposium in Sydney, alongside others on building institutional integrity, electronic evidence gathering, and forensic accounting.“…if you have sharp teeth, sometimes you only have to show them, you don’t have to bite”
It will focus on maximising the chances that recommendations are implemented, through a fair and reasonable investigatory process, consulting the relevant agency ahead of publication, and following up after. The solitary confinement investigation will be used as a case study.
“I think one of the messages that comes through in our training is if you have sharp teeth, sometimes you only have to show them, you don’t have to bite,” Dubé explains.
The second half of the short-course is devoted to building and maintaining a public profile and getting the message out via news and social media to the widest possible audience. This is an absolutely vital part of the job, in Dubé’s view.
“Our objective is to add value,” he told The Mandarin. “We are here to enhance governance, and we do that through providing transparency, accountability and fairness. And so if our work doesn’t get attention paid to it, if it sits on a shelf somewhere, then we’re not being very effective.”
There’s five key steps: compile irrefutable evidence; use a fair and balanced investigative procedure; make feasible recommendations, by getting feedback on drafts from the relevant department before publication; turn the facts and figures into a clear and compelling narrative based on stories of real people; and publicise as widely as possible.
“Our power is in our voice,” the Ontario ombudsman says.
“And when we do all those things, we make it really hard for a reasonable organisation not to accept our findings, and we take care in all of those steps, from the planning of the investigation, right up to the choice of covers and photos that we use and the titles that we come up with.”
Different integrity agencies have different approaches to publishing that are shaped by tradition, convention and legislation. Some make headlines; others render even the most shocking revelations in detached, anodyne language.
“I think it’s just a question of what is acceptable, permissible, under various regimes, but it’s also to a certain degree, I think, the style of each individual ombudsman,” comments Dubé.
“I mean, the legislation can go so far in defining the mandate, but there’s always a certain amount of interpretation, personalisation, that each office holder can bring to the role.”
Correcting a correctional system
Such investigations can encounter opposition from government, but Dubé says there’s usually a lot of senior public servants who are grateful for his work, as it highlights long-standing problems that were not being addressed within the normal processes of the executive.
A deputy secretary might struggle to get funds allocated to a particular issue for months or years “but when your report lands on a minister’s desk and it’s on the front page of the national newspapers” there tends to be a pretty immediate reaction, observes the provincial public advocate.
Corrections staff were reportedly very helpful and cooperative; they generally felt something had to change too. It was a union representative who asked the human rights commissioner to speak to frontline staff and have a look downstairs, where she discovered Capay, after she announced her visit to Thunder Bay on Twitter.
“It speaks to something that we see in pretty much all investigations,” says Dubé.
“First of all, most public servants want to do a good job, and they want to work in good conditions, so when we do investigate an issue, we don’t often find issues that that organisation – the management and the staff – are not aware of.
“And quite often there’s a large contingent within that organisation that would like to change things already, but for whatever reason, whether it’s a lack of political will, a lack of resources, they just can’t get that change done.
“And so when we come in … and we shine a lamp on those issues, the political will and the resources usually materialise. They almost always do.”
Often it can be hard to generate public sympathy for prisoners, and in some cases the safety of correctional officers is deployed as counter-argument to explain or defend the use of heavy-handed measures. Neither happened here.
“I was quite pleasantly surprised actually by the responses when our report came out, and the conversations, the comments to online news articles, and the general conversation on social media.
“I was very proud of Canadian sensibilities at that time and quite surprised at the degree of support for our findings and for the calls for reform to corrections.”
Protecting the rights of people in custody and running correctional facilities is obviously a very challenging area of public sector service delivery, where risks of corruption and human rights abuses swirl into age-old arguments around how best to pursue one or both of two often conflicting goals.
There is political pressure on governments to rehabilitate inmates and reduce recidivism, but also not to punish criminals too lightly or put them up in overly comfortable conditions.
Officers who keep people in custody also legitimately want be safe at work like anybody else, but as the Don Dale Youth Detention Centre case suggests, this can lead to a progressive normalisation of increasingly heavy-handed and possibly illegal measures to constrain and control inmates, under the banner of behavioural management.
“I don’t think the two are mutually exclusive – officer safety and providing a more humane and a more fair and more respectful conditions of incarceration that respect people’s human rights,” says Dubé. The main message he heard from corrections staff was they needed a wider range of options, through better training and resources.
To get the point across to more sceptical or unsympathetic members of the public or parliament — the “people who are less than empathetic” for prisoners in this case — he says one can explain how the issue affects them personally.
“They’re going to be back in society some day, so it’s in all of our interests to have them coming out as rehabilitated and as healthy as possible, as opposed to coming out broken – you know, broken spirits and broken psyches, because that’s going to present us all with more challenges as they return to our communities.”
The familiar story of gaps in disability support
The Ontario ombudsman will also deliver a presentation at the conference proper, based around a four-year investigation into what happened when children with developmental disabilities turned 18. The 2016 report, Nowhere to Turn, exposed a severely inadequate and fragmented system of support, following the well-meaning policy shift away from the institutional model of care beginning in the 1960s.
The report explores why the shift to a community-based model — both in support for people with developmental disabilities, and mental illness treatment — did not lead to the worthy goal of “promoting social inclusion, individual choice and independence” as envisaged. Again, this is an issue that resonates strongly in Australia as well.
“The necessary community supports that were supposed to be in place” after the closure of the old-fashioned group homes and residential mental health hospitals were not put in place, Dubé explains. “Or if they were there, they were really hard to access, and the demand far outstripped the supply.”
In a similar story to what unfolded in Australia, many of these vulnerable people were then shuffled between inappropriate accommodation like hospitals, homeless shelters and the aforementioned correctional facilities, where their needs were not met and they risked illness, injury or abuse.
The Ontario ombudsman’s report made it clear to the community that institutional care was still happening, but by default instead of design. “We also discovered that without adequate safeguards, early warning systems, and effective monitoring of agency reporting obligations, in some cases adults with developmental disabilities are placed in jeopardy of domestic abuse,” it states.
The New South Wales Ombudsman’s office, which is jointly hosting the Investigations Symposium, has been advocating for change to address a similar issue of late.
A special report published on Friday refers to 206 cases of vulnerable people with disabilities suffering abuse and neglect by family members or informal carers in NSW.
The ombudsman’s office has been running a standing inquiry since 2016, but it concludes halfway through next year. It is urging the state government to establish a new public advocate, like those in other states, to address this looming gap in the system permanently.
This work has been led by deputy ombudsman Steve Kinmond, the NSW Community and Disability Services Commissioner, who is presenting a workshop next week on investigating serious incidents in the disability sector.
Dubé says the “overarching take-away” from the Ontario experience was that “the ministry more or less thought it was done and thought it was absolved of any leadership responsibility” after the old asylums and group homes were shuttered. At first, there was resistance to the government stepping back into the monitor and regulate the sector.
“But over time, we kept bringing these difficult cases, because as we do systemic investigations, we continue to investigate individual cases and try to assist with resolution of these cases on an ongoing basis,” he explains.
“And so we just, we didn’t give up, and our resolution officers and our investigators just kept going to the ministry with these stories and trying to advocate for fairness.
“And eventually the ministry acknowledged and accepted its leadership role, and started to monitor and play a closer role in assuring the quality of care, and ensuring more readily accessible resources for these people.”