Introduction

Sexual misconduct is a serious issue that continues to exist in society at large.

In 2017, the formidable #MeToo movement unleashed a wave of sexual misconduct denunciations and revelations going back decades. This led to a widespread public recognition of the existence and severity of the phenomenon, and a sustained repudiation of the secrecy and tolerance that had allowed it to remain rampant.

The discriminatory and unconscionable damage caused by these practices has had an immeasurable impact not just on the women who were subjected to the harmful behaviour, but also the institutions in which they have occurred. These include the Canadian Armed Forces (CAF), the police^{Endnote 1}, churches^{Endnote 2}, public institutions and private corporations. Each one of these institutions has deep-rooted cultural understandings, expectations and practices that will not be easy to reverse, even assuming a modicum of political will to do so.

Reversing the sinister abuse of the private sphere of sexual conduct by occupying loudly the public space of denunciation, women have created an environment in which they are now ready to define the terms under which they will live and work. The class actions against the Royal Canadian Mounted Police (RCMP), and the Department of National Defence (DND)/CAF (Heyder and Beattie class actions) have proven to be a watershed moment, turning victims into successful litigants and demonstrably successful combatants.

In 2015, my former colleague, Justice Marie Deschamps documented the sexualized culture in the CAF, shocking many Canadians who, until then, might have been content to believe that previous media accounts of sexual abuse in the Armed Forces were merely anecdotal and marginal^{Endnote 3}. The revelations of Justice Deschamps led to a flurry of activity by the CAF in an attempt to fix the problem. Unfortunately, those efforts have so far failed.

My mandate is to support the changes that this momentum has made possible. The CAF was not ready to fully embrace the paradigm shift required to produce these changes. They now need to adapt to a new reality – the women warriors are here to stay. And they will stay on their terms, seeking the substantive equality to which they are entitled. Women should no longer feel like guests in the CAF, as a former senior female officer told me many felt.

This Report will not focus so much on the already clear picture painted by the Deschamps Report, the Heyder and Beattie class actions, and the many surveys and media stories. Instead, I examine the institutional shortcomings and structural impediments that have allowed this state of affairs to remain uncorrected. In addition, there will be a focus on the avenues of reform that will be essential to effecting the culture change that is long overdue.

The term “culture” can mean different things to different people. For the purpose of this Report, I will use it to mean: a series of assumptions, understandings, expectations and practices, sometimes entrenched in rules and procedures, often unstated but deeply rooted.

Culture evolves, and cannot change by mere decree. Despite slow progress towards women moving into positions of influence, authority and power, and into fields of professional work historically not open to them, we continue to see resistance, particularly in historically male-dominated organizations with “boys’ club” mentalities, such as the CAF.

But thankfully, there is now a palpable change in the air. The question before us is not whether or when, but how. The CAF and the DND have an opportunity to take a major, decisive step in the creation of a safe, secure, equitable working environment, not only for women, but for the many others long left out of the profession of arms despite their desire and ability to serve. Firmly entrenched in its historical way of life, the military has failed to keep pace with the values and expectations of a pluralistic Canadian society, increasingly sophisticated about the imperatives of the rule of law. Operating as a totally self-regulated, self-administered organization, entirely reliant on deference to hierarchy, it has failed to align with the ever-changing, progressive society we live in. This disconnect is a liability for the CAF and for Canada.

The long-established way of doing business in the CAF is anchored in operational imperatives that are often nothing more than assumptions. One of the dangers of the model under which the CAF continues to operate is the high likelihood that some of its members are more at risk of harm, on a day to day basis, from their comrades than from the enemy.

This must change.

A flurry of activities

What I have observed in the way the CAF operates is the perfect example of “if you hold a hammer, everything looks like a nail.”

Every problem must have a solution. The solution must be immediate and actionable. It matters little whether it actually fixes the problem, particularly if the problem is ill-defined and poorly understood, not unlike culture change. The response is a flurry of activities usually consisting of making lists, charts, inventories and PowerPoint presentations, as well as enacting new orders, policies and directives on top of an already complex structure. In a more ambitious move or, more likely as a result of public pressure, the leadership will respond with an operation, like Operation HONOUR, or a new high-level position, like the Chief Professional Conduct and Culture (CPCC), a Level 1 (L1) organization reporting directly to the Chief of Defence Staff (CDS).

When thinking about culture change in response to the sexual misconduct crisis, the CAF leadership seems to have been incapable of examining which aspects of its culture have been the most deficient. In none of the initiatives it has launched, is there a single reflection on whether its insular, hierarchical structures may have facilitated the abuse of power that characterizes most sexual misconduct. Rather, the focus has been on mapping steps, pathways and activities, and turning to periodic external reviewers (such as Justice Deschamps, Justice Morris Fish^{Endnote 4}, the Auditor General of Canada (AG) and me), whose recommendations are then the subject of lists, charts, inventories and PowerPoint presentations. This formulaic, perfunctory method of operating is ill-suited to the present problem.

The hyper-active response I describe above is not grounded in profound insight.

In the introduction to The Path to Dignity and Respect: The Canadian Armed Forces Strategy to Address Sexual Misconduct published in 2020, the leadership discloses how narrowly it approaches the failure of its initiatives:

The problem was first highlighted publicly in 1998 in a series of news articles citing allegations of sexual harassment, rape and racism in CAF ranks. At that time, the CAF responded by establishing the Standards for Harassment and Racism Program (SHARP), a sensitization and skills development program intended to change attitudes and behaviours. In addition to the program, the CAF established a hotline to encourage personnel to report incidents. Unfortunately, the program did not have the enduring impact expected. Subsequent analyses of the effort indicated that the institution did not assign sufficient military personnel to this initiative, and the lack of a dedicated expert cadre may have resulted in focusing on the symptoms of the problem, rather than the underlying causes^{Endnote 5}.

[Emphasis added.]

So when its first initiative failed, the response was to put more resources behind it. After that failure was publicly exposed in 2014, the CAF turned to external assistance. In response to Justice Deschamps’ recommendations, the CAF said:

It was clear that the CAF’s previous attempts to address sexual misconduct had not achieved the desired effect, and a more comprehensive and sustained approach to addressing sexual misconduct was required^{Endnote 6}.

The CAF subsequently launched Operation HONOUR as its highest priority. Four years later, the Office of the AG (OAG) found that:

...the CAF had not yet fully accomplished what it intended through its actions to respond to and support victims and to understand and prevent inappropriate sexual behaviour^{Endnote 7}.

This is when a focus on culture change was born:

…it was clear that Operation HONOUR had to evolve into a more comprehensive and sustained institutional approach focused on changing those aspects of CAF culture that were contributing to a permissive environment that allowed incidents of sexual misconduct to occur^{Endnote 8}.

To tackle what it described as “a wicked problem”^{Endnote 9}, CAF leadership decided to focus on culture, not on structure. It embarked on the conceptualization and operationalization of culture change, a field in which it had no expertise. This is how the Path to Dignity came to be:

The Path to Dignity and Respect: Sexual Misconduct Response Strategy (The Path) is a bespoke culture change strategy created by the CAF to align behaviours and attitudes of CAF members with the ethical principles and core values expected of all persons who practice the profession of arms in Canada. These foundational values and beliefs are set out in the Statement of Defence Ethics and Duty with Honour: The Profession of Arms in Canada^{Endnote 10}.

And this is where we begin to encounter the disconnect between rhetoric and reality. The rest of the Path to Dignity is abstract, highly aspirational and not easy to read^{Endnote 11}.

Even though the problems faced by the CAF are difficult and complex, my referencing the expression “a wicked problem” should not be viewed as defeatist. These problems are not impossible to solve.

But solving them has not been made easier by the CAF’s procedures which are unduly complex and opaque. One case in point is the CAF’s handling of the concept of “sexual misconduct” and its definition, which I discuss below. The number of documents, rules, directives, policies and orders is numbing. Indeed, the spirit of the rule of law is eroded, rather than reinforced, by the existence of a multitude of rules but weak compliance with the fundamental ones.

Recommendations ignored or forgotten

The CAF has received hundreds of recommendations from external and internal reviewers in the past few years. It has now created a matrix of these recommendations and stood up a command to help navigate this landscape.

Subject to civilian control, but extraordinarily self-regulated, the CAF has been unwilling or unable to embrace the intent and vision that came from external sources, choosing the letter over the spirit, often the appearance of implementation over its substance, thereby entrenching their ways of operating. I believe this is a consequence of the insularity within which the CAF has traditionally operated, and its determination to perpetuate its old ways of doing business.

As I conducted this independent external comprehensive review (Review), it became apparent that if I were to support the impulse for culture change that the CAF and many of its members have committed to, my overarching recommendation to its leadership has to be clear – they need to change how they do many things – and profoundly so.

On the one hand, I was heartened by the willingness, including at high levels of the CAF, to entertain and put into action significant structural and transformative change. In a different context, the 6 conditions of system change have been expressed as: policies, practices, resource flows, relationships and connections, power dynamics and mental models^{Endnote 12}. Much of this should find echo here. For each recommendation I make, I heard echoes internally within the Defence Team, and also within constituencies deeply committed to the Canadian military. To be clear, I did not find unanimous support for everything I am putting forward, but I did discover some in the most surprising places.

Additionally, I was struck by the number of thoughtful initiatives I uncovered during my Review, such as the Defence Advisory Groups (DAGs). The CAF should tap into this local expertise, and at the same time open up to the outside world. It should consolidate the command and control needed to run its operations by focusing on what it does best, and letting go of what others can do better.

My mandate

While comprehensive, my mandate required me to examine two key issues: sexual misconduct and leadership. The two are demonstrably interrelated. The cultural shortcomings that have allowed widespread sexual misconduct in the CAF have been amply demonstrated. Events in the last few years have exposed the extent to which this culture was present in the CAF’s senior ranks.

Unlike my predecessor, Justice Deschamps, I was required to examine the handling of sexual misconduct by the military justice system. Furthermore, in connection to issues related to the leadership, I was asked to scrutinize the recruitment, training, performance evaluation, posting and promotion systems in the CAF. This had not been done before.

While I attempted to do a deep dive on all issues, time and resources precluded me from doing so in some areas. I have indicated those which would benefit from further external input. However, where other external reviewers had already examined the issues, I relied on their work, where possible, to avoid a duplication of efforts when I was in agreement with their conclusions.

I wish to note that, while my mandate provided that I would examine these two issues as they related to both the CAF and the DND, the focus of this Report is clearly on the CAF. Some issues, such as leadership and military justice, have little connection to the DND. Indeed, what led to the present Review was allegations of incidents of inappropriate behaviour by senior CAF members – not DND employees – allegations of complicity of inaction throughout the chain of command, and concerns about the quality of leadership development in the CAF. I had no mandate, nor did I see any need, to examine issues related to the public service at large.

Furthermore, the overwhelming response I have received during my Review related to the situation at the CAF. Most of the stakeholders who communicated with me were current or former CAF members, and those who were from the DND made submissions relating to the conduct of the CAF. In addition, my communications with high-ranking officials of the Defence Team were primarily with members of the CAF (although I am grateful for the contribution of the DND members). The weighing of submissions toward the CAF is not surprising when one examines the data, particularly the claims that were filed in relation to the Heyder and Beattie class actions. The vast majority of these claims were from CAF members, although some came from the DND or Staff of the Non-Public Funds. This is not to obscure the vulnerability of civilians who interact with CAF members. I believe the recommendations I make in this report will also benefit them. In some instances, I have identified matters that are particular to DND civilian employees. For instance, it is not uncommon for DND civilians to be reporting to CAF members, sometimes resulting in human resources-related issues. While few such issues were brought directly to my attention, I believe that my recommendations will have a positive impact of the workplace, including for DND civilians who interact with the CAF hierarchy.

Sexual misconduct

Throughout this Report, it will become apparent that “sexual misconduct” is too broad a term, in that it captures everything from sexual assault and harassment, to the many micro‑aggressions that are the weapons of choice for the expression of discriminatory views, harmful stereotypes and even unconscious biases. It is merely a convenient expression to refer to the whole range of issues when differentiation amongst them is not required.

The scope and extent of sexual misconduct in the CAF have been well documented, from the Deschamps Report, Statistics Canada surveys, the Heyder and Beattie class actions, and the reports of the AG.

Sexual misconduct has brought the CAF into disrepute, both internally and in the eyes of the general public. This reaction should not be viewed as reflecting a kind of moral panic in society at large, an unfair changing of the game to penalize those who have been successful under a different set of rules. Rather, it is a justified condemnation of an archaic and deeply damaging organizational culture. What the sexual misconduct crisis in the CAF reveals is complex and subtle. It combines abuse of power, antiquated practices unsuited to a more diversified workplace, the glorification of masculinity as the only acceptable operational standard for CAF members, and the continued unwillingness to let women in particular, as well as members of the LGBTQ2+ community, visible minorities and equity-seeking groups occupy their proper place in the military.

This is not a morality play. It is above all a matter of right. Corrective measures are urgently needed to create an even and safe playing field for women in the profession of arms, and these measures will benefit the other marginalized members of the CAF. This cannot be left to the hope that generational change will suffice to provide equality. When a critical mass of women at all levels and in all trades and occupations of the CAF, including combat arms, has been achieved, the CAF will transition to a modern organization, fully reflective of Canadian values and aspirations. However, this will not happen any time soon under the current state of affairs.

For a new culture to take root, the CAF must be prepared to undertake much more significant changes in its practices than is currently being envisaged. If it is willing to do so, I believe the leadership of the CAF will rebuild the trust it lacks today, without which it cannot operate at maximum efficiency.

This is why, under this first pillar of my mandate, I recommend that civilian authorities have exclusive jurisdiction over Criminal Code^{Endnote 13} sexual offences alleged against CAF members^{Endnote 14}. This is the natural next step from the interim recommendation I made in October 2021.

Further, I recommend that cases of sexual harassment be handled by the Canadian Human Rights Commission (CHRC)^{Endnote 15}. These two recommendations are based on the idea that civilian authorities should be the first “port of call” for the reporting and investigation of all serious forms of sexual misconduct. This does not leave the chain of command without tools to address these issues; rather, “civilianizing” these processes ensures their independence from the chain of command – as well as the appearance of independence that the CAF so desperately requires to rebuild confidence in its ability to address misconduct and take care of its own. It also provides much needed ongoing civilian input into the conduct of CAF members and the application and content of its policies.

As became apparent during my Review, it is critical that victims be provided independent legal advice at the earliest opportunity, so that they can assess the panoply of options available to them, be able to navigate the complex systems, and make fully informed decisions.

Unfortunately, there remain many unresolved complexities in these systems, in large part due to uncertainty regarding the CAF’s implementation of An Act to amend the National Defence Act and to make related and consequential amendments to other Acts, or Bill C-77^{Endnote 16}, which will restructure the CAF’s disciplinary proceedings.

Leadership

The CAF is a complex and unique organization. Its most striking feature is the role of leadership. It is developed early and is omnipresent in a hierarchy that is broken down by numerous ranks, trades and postings under a chain of command designed to enforce the principle of “command and control.”

The particular importance of senior leadership is expressed in one of the foundational documents of the CAF, Duty with Honour: The Profession of Arms in Canada 2009:

Under the direction of the CDS, the senior leadership of the Canadian Forces, starting with members of the Armed Forces Council (AFC), and the CDS’s Command Council, is responsible for the overall health and stewardship of the profession, including the maintenance of a healthy military ethos. The ethos reconciles the functional and societal imperatives in ways that create trust and confidence in the minds of Canadians, and together with the mutual respect between military professionals and political authorities, this allows for a substantial degree of self-regulation.

[...] Leadership in this area also involves managing the evolution of the profession to meet future requirements. Therefore, beyond providing the resources for today’s needs, professional judgement is necessary to address the issues surrounding resources for emerging requirements. This includes reassessing the expertise required to execute changing roles and new tasks. Equally, such stewardship must anticipate, recognize and respond to changing social and cultural conditions while ensuring that fundamental values, both military and Canadian, are preserved^{Endnote 17}.

I believe that CAF leadership has fallen short of this ideal. That failure of leadership is responsible for the long-standing culture of sexual misconduct, itself a manifestation of discriminatory attitudes that remain present today. That responsibility cannot be laid at the feet of only a few individual leaders. Fundamentally, it is the collective failure of an organization that has preserved such a high degree of self-regulation and resistance to external influence and progress.

While the current leadership of the CAF has expressed a strong commitment to culture change, I believe it is unlikely to be effected without first a change in its culture of isolation and resistance.

The CAF’s leadership has historically been inhospitable to external input, and yet major, significant changes in the organization have come from outside. This is true in the area of justice, where change has mostly been a response to court decisions, and in the rest of the CAF’s operations, whether it is the government’s decision in 1968 to unify the CAF, or the measures taken in response to the inquiry into the deployment of Canadian soldiers to Somalia.

The resistance to external influence exacerbates the shortcomings of leadership. Even as a part of the Defence Team, which includes the DND, the CAF remains insular, closed, self-confident, persuaded of the merit of its methodology, and rarely exposed to the broader civilian organizational culture, particularly outside government. The CAF’s leadership, at all levels, relies on its own history, culture, articulated values and repeated practices, in its attempt to effect the kind of change that requires revisiting these very practices.

My terms of reference required me to address the process through which leadership is identified and consolidated; and to examine why, despite recent efforts, the necessary change of culture with respect to sexual misconduct has not been successful.

There have been many calls for the establishment of additional external oversight over the CAF. In my view, this approaches the issues too narrowly. Oversight suggests an “after the fact” approach, with a critical review of past events, actions or failures. To be truly effective, at least in the context of an unduly insular organization, I believe that external input should be a common thread throughout all CAF activities impacted by the issue of sexual misconduct. In particular, I believe the Minister of National Defence (Minister or MND) must be prepared to play an active role in holding Defence Team senior leadership accountable, and ensuring that the CAF remains ready and able to adapt and change.

External input will go a long way to assist in the much-needed cultural change that the CAF claims it is committed to. Opening up to outside input and assistance, not just occasional non-binding advice, could have far-reaching impact, ultimately enabling the CAF to keep pace with Canada’s evolving society, and demonstrate an earnest effort to effect organizational change.

The current situation is partly the result of unyielding adherence to an impenetrable hierarchical structure that is determined to perpetuate itself, good and bad, and constant mobility as part of career progression, leading to chaotic management and a lack of accountability. It produces a leadership rooted in old ways, focused primarily on excellence in operational deliveries, but oblivious to the societal forces that have compelled changes elsewhere. The corporate world, universities, professional organizations, and much of civilian life throughout Canada has made significant inroads. Unfortunately, the very success of CAF operations, which I am not in a position to assess, reinforces its view that it is unique, and that CAF can do everything without the assistance of outsiders, as it always has.

This goes to the root of the traditional concept of an expeditionary force, which is designed to be completely self-reliant, including in respect of its response to sexual misconduct, where the CAF acts as investigator, advisor, prosecutor, defender and even judge. Adherence to this fundamental notion is at odds with an increasingly interconnected world, and the interdisciplinary approach that has benefited all other sectors in the workplace. The change of culture the CAF needs to implement is much more fundamental than what its current initiatives suggest. It requires a willingness to examine broader, more progressive options, and not simply a better version of the same old things.

In order for the CAF to keep pace with the expectations of Canadians, without compromising the operational excellence to which it is committed, it must embrace some change in its structure. As an example, the discipline requirements in a military environment may seem at odds with the much more permissive ways in which civilians live their lives. I do not suggest that this should in any way be compromised, as the imperative of discipline in military life is indisputable. Conversely, a flexibility to learn from advances in human resources management in other sectors would be beneficial and contribute greatly to the evolution of the CAF as a whole. My recommendations reflect this dual approach: a renewed leadership formed and informed by a better connection with external actors, and the principle of civilian oversight of the military operationalized throughout the relevant aspects of military culture.

My recommendations

In the same way as the issues of sexual misconduct and leadership are inter-related, so are most of my recommendations. Each one is based on the assumption that others will also be implemented. Some are precise and capable of implementation without further studies, working groups, committees or consultations. Others merely point to a direction, a different way of doing certain things. I know that those who live with these issues on a day-to-day basis are eminently capable of determining how best to proceed, if they accept the general direction and changes I am proposing. On the other hand, I am equally convinced that if they do not, no amount of detailed recommendations will produce the desired result.

To assist with this implementation, I recommend that the Minister immediately appoint a person mandated to oversee the implementation of the recommendations in this Report. That person should be external to the Defence Team, have access to, and be supported by, both the Deputy Minister (DM) and the CDS, produce monthly assessment reports for the Minister that are ultimately shared with the public^{Endnote 18}.

Terminology

When referring to victims of criminal or service offences, like Justices Deschamps and Fish, I use the term “victim” (rather than “survivor” or analogous expressions), as victim is the term used in the Declaration of Victims Rights (DVR) enacted by section 7 of Bill C-77, and in the Canadian Victims Bill of Rights^{Endnote 19}. In the grievance and harassment context, I will sometimes use “grievor” and “complainant”. When discussing support to these two groups, I will use interchangeably victim or survivor.

In addition, in the French version of this Report, I have not included both the feminine and masculine version of words in all instances, as would be the norm, preferring instead to refer to the dominant gender in that position or rank. For example, I will refer to plaignante et survivante instead of plaignant or survivant, seeing as most complainants and survivors are women. But I will refer to officier instead of officière when referring to officers, seeing as most officers are men.

In accordance with my terms of reference, I have refrained from attributing any of the insights that were provided to me in the context of confidential meetings and written submissions. In addition, when referring to matters conveyed to me by members of the Defence Team in their official capacity, I have chosen to refer to the person’s position rather than name, unless several individuals held the position during my mandate and it proved helpful to know who was in charge.

Acknowledgments

My Review would not have been possible without the contributions of many stakeholders – survivors, victims, past and present CAF members, academics and others, who generously shared with me their knowledge, experiences and insights. I am very grateful to all of them.

I am also indebted to the members of the CAF and the DND who invested considerable time and effort in providing me with information, shared their views with me as well as arranged and hosted my base and college/school visits. A special thank you to Lieutenant-General Frances Allen (Vice Chief of the Defence Staff (VCDS)) and Lieutenant-General Jennie Carignan (CPCC), and Heather Walsh (DND employee, who acted as Liaison Officer for my team) and Melanie Armstrong (DND employee, who assisted Ms. Walsh).

My Report is written in the first person. I take full responsibility for its content, although the Report was the product of a team. I want to express my profound gratitude to: Nadia Effendi, senior legal counsel; Christine Muir, senior legal counsel; Carina De Pellegrin, legal counsel; Benedict Wray, legal counsel; Chanel Sterie, legal counsel; Casey Thomas, special advisor; Airianna Murdoch-Fyke, articling student; Nasra Moumin, articling student; Julie Peacock-Singh, law clerk; and Cheryl Curran, document specialist. They are all members of the law firm Borden Ladner Gervais LLP (BLG), except for Casey Thomas, Assistant Auditor General at the Office of the Auditor General, who was seconded to me by that office. I am thankful to the AG for having provided me with the benefit of Casey Thomas’ expertise. I am grateful for the work of H3Creative Inc. and Larrass Translations, who assisted with editing, translation and design. I also want to sincerely thank our administrative assistants Michelle Longchamps, Vincenza Carrera and Martina Udovicic, also all from BLG.

These are not perfunctory expressions of gratitude. I feel privileged to have worked with such a competent and dedicated team. I want to single out Nadia Effendi and Christine Muir, with whom I have had the most frequent interactions, for their professionalism and invaluable advice.