Update on Madame Arbour’s Independent External Comprehensive Review Final Report and Culture Change Reforms in the Department of National Defence and Canadian Armed Forces to Address Sexual Harassment and Misconduct

Backgrounder

December 13, 2022 – Ottawa – National Defence / Canadian Armed Forces

Timeline

On May 20, 2021, former Supreme Court Justice, Madame Louise Arbour was engaged to conduct a review of policies, procedures, programs, practices, and culture within the Canadian Armed Forces (CAF) and the Department of National Defence (DND). The review is entitled the Independent External Comprehensive Review (IECR).

From May 2021 – May 2022, Madame Arbour and her team conducted an extensive review of CAF recruitment, training, performance evaluation, posting, and promotion systems, as well as the military justice system’s policies, procedures, and practices to respond to allegations of harassment and sexual misconduct, the Sexual Misconduct Response Centre’s (SMRC) mandate, as well as an assessment of the progress made in addressing the recommendations contained in former Supreme Court Justice Marie Deschamps’ 2015 report, and existing external oversight and/or review mechanisms related to misconduct.

During this time, Madame Arbour provided interim recommendations to Minister of National Defence (MND), Anita Anand, which the Minister immediately accepted on November 4, 2021, to refer the investigation and prosecution of Criminal Code sexual offences from the military justice system to the civilian justice system. Since then, an intensive effort across federal, provincial, and territorial partners to refer the investigation and prosecution of these cases to civilian authorities has been underway.

On May 20, 2022, the final IECR report was provided to the Minister of National Defence (MND), which contains 48 recommendations across a range of areas that seek to address issues of sexual harassment and misconduct in the DND/CAF.

On May 30, 2022, the Minister welcomed all 48 recommendations in the IECR, announced that work to implement 17 of the recommendations would begin immediately, and instructed DND/CAF to provide an assessment and path forward for the remaining recommendations in short order.

On December 13, 2022, the Minister tabled a report in Parliament that outlines the path forward that she has directed DND/CAF to undertake on all 48 of Madame Arbour’s recommendations.

Madame Arbour’s May 2022 Independent External Comprehensive Review Report on the Department of National Defence and the Canadian Armed Forces and Minister Anand’s December 2022 Report

Madame Arbour’s final report, which Minister Anand welcomed in May 2022, provides 48 recommendations to effect transformative change.

Madame Arbour’s recommendations range from issues such as the CAF’s definitions of sexual misconduct and harassment, to the mandate and responsibilities of the Sexual Misconduct Response Centre (SMRC) to the jurisdiction of the CAF over criminal sexual offences, to issues around recruitment, military training and colleges, and internal and external oversight mechanisms.

Since receiving Madame Arbour’s report, DND/CAF analyzed, undertook consultations, and provided options to Minister Anand on the path forward.

Pursuant to Recommendation 47, the report tabled in Parliament today serves as Minister Anand’s official response to all of Madame Arbour’s recommendations.

As outlined in the report, Minister Anand has rejected none of the 48 recommendations that Madame Arbour has made and has directed DND/CAF to move forward on all of them. The report also outlines the work that has been taken to implement the 17 recommendations that were immediately directed for implementation upon receipt in May, the steps that will be undertaken to address the remaining 31 recommendations, as well as ongoing and forthcoming DND/CAF initiatives that will further advance culture change within the institution.

Definitions of Sexual Misconduct and Sexual Harassment

In order to provide clarity and certainty in the articulation of prohibited conduct, Madame Arbour recommends that the formal definition of “sexual misconduct” in the Defence Administrative Orders and Directives (DAOD) 9005-1 and other policies be abolished (IECR Recommendation 1), and that sexual assault be included as a standalone item in the definitions section of relevant CAF policies, with the following definition: ‘…sexual assault (aggression sexuelle): Intentional, non-consensual touching of a sexual nature’ (IECR Recommendation 2). As part of IECR Recommendation 2, Madame Arbour also states that the relevant policies should then refer to the Criminal Code as the applicable law regarding sexual assault.

Minister Anand confirms in her report that she has directed DND/CAF officials to implement both of these recommendations together, and that DND/CAF officials are working to ensure that these crucial changes to CAF policy are aligned with existing definitions in the Criminal Code of Canada, Canada Labour Code, and Canadian Human Rights Act.

Military Justice

Madame Arbour builds on her interim recommendations regarding the transfer of cases from the civilian system to the military justice system, and goes further in IECR Recommendation 5 by calling for the removal of Criminal Code sexual offences from the jurisdiction of the CAF, stating that:

They should be prosecuted exclusively in civilian criminal courts in all cases;
Where the offence takes place in Canada, it should be investigated by civilian police forces at the earliest opportunity;
Where the offence takes place outside of Canada, the MP may act in the first instance to safeguard evidence and commence an investigation, but should liaise with civilian law enforcement at the earliest possible opportunity.

As stated in her report, Minister Anand has directed the DND/CAF to implement Recommendation 5. As such, and as stated in her report today, the Minister has asked DND/CAF, to present options regarding how such jurisdictional change can occur, and to do so in consultation with federal, provincial and territorial partners and other actors. The Minister has also further directed that the implementation of this recommendation address potential issues such as: the capacity for civilian police services to investigate historical cases; Canada’s obligations under international law; the ability of civilian authorities to investigate cases outside of Canada (including civilian police force capacity to deploy to conflict zones); and discrepancies in providing victims’ services between the civilian and military justice systems, among other things.

The Canadian Human Rights Commission and Tribunal

Pursuant to Recommendations 7 and 9, the Minister also confirmed in her report today that she has directed that the Canadian Armed Forces should cease filing any objections under Section 41 (1) (a) of the Canadian Human Rights Act – and thus, allow the Canadian Human Rights Commission to investigate CAF complaints for sexual harassment or discrimination on the basis of sex.

Military Colleges

In response to Recommendation 29, the Minister confirmed today that she has directed the establishment of a Canadian Military College Review Board. DND/CAF is developing draft Terms of Reference and ideas for the composition of the Board, which will focus on the quality of education, socialization, and military training at the military colleges.

Accelerated Promotion

The Minister has also directed the DND/CAF to establish a system of progressive targets for the promotion of women, to address Recommendation 36. This will increase the number of women in each rank, with a view to increasing their representation in the general and flag officer ranks above their level of representation in the military overall.

Update on the 17 IECR recommendations immediately directed for implementation

Sexual Misconduct Response Centre

IECR Recommendation 12 calls for the SMRC name to be changed to the Sexual Misconduct Resource Centre to better reflect its role as a support centre, stating that the SMRC’s role is not well understood, and that its current name suggests that it is a reporting centre for sexual misconduct. Following Minister Anand’s direction, work is well underway to change the name of this entity to the Sexual Misconduct Support and Resource Centre. This name describes the scope of programs that SMRC offers and reflects stakeholder discussions on this matter, and the name change will be in place by the end of 2022.

IECR Recommendation 13, advises that the SMRC should be reinforced as primarily a resource centre, with adequate expertise and capacity, solely for complainants, victims, and survivors of sexual misconduct. In line with the Minister’s direction, DND/CAF is moving forward on reviewing the mandate and client scope of the SMRC as the first step of its implementation.

To better offer a full suite of supports to survivors, IECR Recommendation 14 endorses recommendation 72 of the Third Independent Review of the National Defence Act by the Honourable Morris J. Fish, former Supreme Court Justice: the SMRC should ensure that it can facilitate immediate access to legal assistance to survivors of sexual misconduct. The SMRC should compile a roster of civilian lawyers able to provide such services and ensure that they are properly trained to do so, and that the SMRC should also prepare a schedule of fees for such services, as well as direct payment to the lawyers.

DND is making progress on this front with the SMRC’s development of an Independent Legal Assistance program that will provide legal information, advice, and representation to victims of sexual misconduct in both the military and civilian criminal justice systems. The program will be launched in phases to address immediate needs, while the final program model is developed. Work on the interim model, which will involve the reimbursement of legal expenses via ex gratia payments and hiring internal legal resources, is well underway and expected to be available in early 2023.

To focus the SMRC on its survivor support mandate, IECR Recommendation 15 states that the ownership of training and prevention of sexual misconduct be transferred to the Chief Professional Conduct and Culture (CPCC). Work to transfer the SMRC’s authority for sexual misconduct training and education to the CPCC is well underway and will be formalized in a service level agreement.

IECR Recommendation 17 is regarding the independence of the SMRC. In her report, Madame Arbour concludes that the current reporting structure – wherein the SMRC reports directly to the Deputy Minister (DM) of National Defence – strikes the appropriate balance that enables the SMRC to be an independent body for survivor support services, while ensuring that it is able to access the necessary information and resources. In line with Minister Anand’s direction, the SMRC will continue to report directly to the DM.

IECR Recommendation 18 calls for a review of SMRC’s administrative structure in order to increase its perceived and structural independence, and the SMRC is in the process of implementing it.

Improving Recruitment Processes and Basic Training

IECR Recommendation 20 states that the CAF should restructure and simplify its recruitment, enrolment, and basic training processes in order to significantly shorten the recruitment phase and create a probationary period in which a more fulsome assessment of the candidates can be performed, and early release effected, if necessary.

The CDS/DM Directive for CAF Reconstitution, issued October 6, 2022, identifies personnel generation as an immediate strategic priority. It includes reducing staffing processes as an immediate strategic priority. It directs the Vice Chief of the Defence Staff to analyze and invest in means to improve and accelerate security clearance assessments for the DND/CAF, especially in support of CAF recruiting efforts, and it directs the Chief of Military Personnel (CMP) to undertake a range of additional efforts to improve and expedite recruitment and training processes.

Additionally, the following actions have been taken, or will soon be undertaken, to simplify and improve the CAF’s recruitment and basic training processes:

Basic military training (the Basic Military Qualification (BMQ)) is being re-designed to build inclusive teams with a focus on character, professional conduct (values in action), individual and team resilience, and core/common military skills. As part of the re-design process, scheduling efficiencies and training delivery improvements will result in the BMQ course being shortened to eight weeks from the current 10-week model. Three validation serials (two English and one French) are due to commence in early 2023, with full roll-out commencing in Spring 2023.

This summer, CAF established the Recruiting Modernization Implementation Team (ReMIT), which will deliver on a digital applicant portal and IT infrastructure, redesign and refine medical and security screening processes to reduce bottlenecks, adapt aptitude testing to relieve internal pressures on the recruiting establishment and ensure a candidate-centric approach. To help facilitate the process, ReMIT will also explore civilianizing limited, non-military specific tasks (relevant to IECR Recommendation 21 below).

The CAF is continuing to improve its suite of scientifically validated assessment tools, with a number of research projects in their final stages, and with improvements to suitability testing rolling out over the next 12 to 24 months.

Efforts to digitize the management and oversight of personnel in training (pre-occupational functional point) and to explore expedited pathways to employment within occupations are also being explored by a team of subject matter experts.

Creating a probationary period (as IECR Recommendation 20 also calls for) will require legislative change and will take time. Tools within existing regulation and policy to effect early release when problematic behaviours are detected will continue to be used, while the DND/CAF concurrently work to undertake the necessary legislative changes relating to the creation of a probationary period.

To further improve recruitment, enrolment, and basic training processes, IECR Recommendation 21 states that the CAF should outsource some recruitment functions, so as to reduce the burden on CAF recruiters, while also increasing their professional competence.

Work on a comprehensive contracting strategy to support recruiting and training modernization has commenced and will be scaled up throughout Fiscal Year 22/23 and into Fiscal Year 23/24 and beyond.

Efforts to improve the professional competence of recruiters are underway, with the updating of the Recruiting Indoctrination Course for new recruiters, an annualized professional development plan, and better screening processes for selecting recruiters.

As part of the new professional development plan, over 200 members (approximately one third) of the Canadian Forces Recruiting Group staff participated in contracted Diversity & Inclusion training this year, with contract options for additional training sessions scheduled for early 2023.

IECR Recommendation 22 states that the CAF should put new processes in place to ensure that problematic attitudes on cultural and gender-based issues are both assessed and appropriately dealt with at an early stage, either pre- or post-recruitment. Delivery of this recommendation would help ensure CAF members understand their obligations with respect to sexual misconduct early on, and that it would help to reduce the CAF’s investment in unsuitable members.

Research on an ongoing basis to determine the most appropriate suite of suitability screening tools. Suitability screening includes aptitude testing (with elements of testing scientifically developed and validated for right-fit, cognitive, personality, and character determinations), interviews, and supplementary screening (including tattoo and body adornment screening). A symbology dataset was created and will be continually updated, in consultation with, or outsourced to, external experts, to increase CAF recruiters’ awareness of extremist, racist, discriminatory, or hateful conduct, or other unacceptable attitudes that are displayed through applicant tattoos and body adornments. The Canadian Defence Academy (CDA) is implementing measures to address failures in conduct and values as a performance deficiency that will enable commandants of the military colleges to exercise release authority and effect earlier release for problematic behaviours.

Personnel Appraisal and Assessment

With a view to improving diversity in the senior ranks of the CAF, IECR Recommendation 32 proposes that the Minister should be assisted by a senior civilian advisor, who is not currently a member of the DND/CAF, in fulfilling her responsibility in approving general and flag officer (GOFO) promotions. Furthermore, it recommends that in the Minister’s consultation with the CDS, the Minister should examine what efforts are being made to correct the over-representation of white men in GOFO ranks.

The role and terms of reference for an external senior civilian advisor on the GOFO selection and promotion process are being developed. In addition, a 10-year talent spotting plan for women is in development, to be followed by similar initiatives regarding for underrepresented groups. The Minister has had numerous discussions with the CDS to address the over-representation of white men in GOFO ranks, and to ensure the composition of GOFOs better reflects the demographic composition of Canada.

IECR Recommendation 33 proposes that the new processes for psychometric evaluation and confirmatory 360-degree review should be carefully reviewed by an external expert on an annual basis, with a view to their progressive refinement, and the results of this annual review should be reported to the Minister.

An internal CAF review has been conducted of promotion year 2022 activities with refinements implemented for promotion year 2023 based on lessons observed and ongoing research carried out by the Director General Military Personnel Research and Analysis (DGMPRA). Additional external review processes will also be introduced.

In related work, as supported by funding for culture change initiatives from Budget 2022, CAF is moving forward with the expansion of evidence-based assessments of character for the promotion-selection process. This initiative expands the rigour and science presently applied to the GOFO promotion-selection process by introducing evidence-based assessments of character to other senior ranks. Research is underway to refine the framework. Next steps include hiring the assessment team and procurement of commercial assessment tools.

With a view to selecting senior leaders with the character and competencies to lead the institution, IECR Recommendation 35 states that the Performance and Competency Evaluation (PaCE) system should be modified to include a self-certification requirement on the Performance Appraisal Report (PAR) for those being considered for promotion to the rank of lieutenant-colonel/commander or above, or to the rank of chief warrant officer/chief petty officer 1st class, similar to that already in place for GOFO nominations. The candidate would need to certify that they are not subject to any current or prior investigation or proceeding, whether criminal, disciplinary, administrative or otherwise, related to sexual misconduct; and, if they are, provide all relevant details.

This is straightforward in situations where the investigation has been concluded; however, the inclusion of untested allegations subject to an ongoing investigation in performance appraisals deprives members of procedural fairness. To that end, the DND/CAF intend to meet the recommendation’s objectives while taking steps to avoid the significant risk associated with implementing it as written. As such, self-certification will be linked to the promotion/appointment selection due-diligence framework and not the annual appraisal process.

Input and Oversight

IECR Recommendation 41, is as follows: The Minister should be briefed by the Associate Deputy Minister (Review Services) (ADM(RS)) directly on all investigations related to sexual harassment, sexual misconduct, and leadership culture in the DND/CAF. Work is well underway to achieve this recommendation, with the goal of providing the first bi-annual presentation to the MND by the end of Fiscal Year 22/23

IECR Recommendation 42 seeks to further improve accountability and oversight: the ADM(RS) should report annually to the Minister on statistics and activities related to investigations under the Defence Administrative Orders and Directives (DAOD) 7026-1, in line with what is required under the Public Servants Disclosure Process Act (PSDPA).

The ADM(RS) will provide an annual report based on the current PSDPA, in accordance with DAOD 7026-1. The reporting period will be synchronized with the Government of Canada Fiscal Year calendar, April 1 to March 31 (inclusive), which aligns with the current submission of annual reporting on PSDPA and CAF Disclosure Process (DP) statutory reporting.

Transparency - Public online database

IECR Recommendation 45 states the CPCC should host a public online database for all internal Defence Team research and policies relating to sexual harassment and misconduct, gender, sexual orientation, race, diversity and inclusion, and culture change. If a document cannot be made public for security reasons or otherwise, it should still be listed in the database to facilitate access by persons with the requisite clearance or approval.

Currently, work is being undertaken to review existing research and policy products, and to prepare them for online publication. CPCC is working to land an initial capability within Fiscal Year 2022/23, with the goal of ensuring that all extant policies be accessible for the CPCC web portal. Approximately 80 publications have already been identified to be made available online within Fiscal Year 2022/23.

Defence Research and Development Canada (DRDC) currently maintains an online, publicly accessible database for Defence research reports published by, and for, DRDC. DRDC is currently working to enhance access and usability of its database, and the intent is for CPCC to contribute to this ongoing work to ensure that the documentation can be made more readily available to areas of research identified in this recommendation.

In related work, DND/CAF recently started developing a publicly accessible data dashboard, supported by funding for culture change initiatives from Budget 2022, which will report on progress of key initiatives related to sexual misconduct, harassment, discrimination, and culture change; facilitate information sharing; and provide access to relevant research.

Another of the immediately accepted recommendations is IECR recommendation 47, which requested that the Minister should inform Parliament by the end of 2022 on any recommendations she does not intend to implement. Pursuant to this recommendation, Minister Anand tabled a report in Parliament on December 12, 2022, that outlines the work that has been undertaken to implement the 17 recommendations that were immediately directed for implementation upon receipt in May, the steps that will be undertaken to address the remaining 31 recommendations at the direction of the Minister, as well as ongoing and forthcoming DND/CAF initiatives that will further advance culture change within the institution, thus satisfying Recommendation 47.

IECR recommendation 48 said that the Minister should appoint an external monitor, and on October 24, 2022, the Minister appointed Jocelyne Therrien as External Monitor to oversee the DND/CAF efforts to implement the IECR recommendations – thus satisfying this recommendation.

Associated links

Contacts

Daniel Minden
Press Secretary
Office of the Minister of National Defence
Phone: 613-996-3100
Daniel.Minden@forces.gc.ca

Media Relations
Department of National Defence
Phone: 613-904-3333
Email: mlo-blm@forces.gc.ca

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Date modified:: 2023-02-22