Part I – Sexual Misconduct
On this page
- Focus on the system
- History of women in the CAF and prevalence of sexual misconduct
- Brief history of women in the CAF
- Number of women in the CAF
- Reporting on sexual misconduct in the CAF begins
- The Deschamps Report and initial steps taken by the CAF
- The 2016 Statistics Canada Report and next steps by the CAF
- Class actions
- The 2018 Statistics Canada reports
- The 2018 OAG Report
- Surveys of the military colleges
- History of Operation HONOUR
- Chief Professional Conduct and Culture
- Focus On The Offender
- Definitions of Sexual Misconduct and Sexual Harassment
- Criminal Code sexual offences under the NDA
- Service offences under the Code of Service Discipline
- Sexual misconduct
- Sexual assault
- Sexual harassment
- Personal relationships and fraternization
- Military Justice
- Criminal jurisdiction over sexual offences
- The investigations process
- The court martial process
- Incoherence regarding other offences
- Barriers to the implementation of concurrent jurisdiction
- Approaches in other countries
- The need for exclusive civilian jurisdiction
- Rights of the accused
- Disciplinary jurisdiction over sexual misconduct
- Summary trials under the current system
- Bill C-77 and the new system of service infractions
- Criminal jurisdiction over sexual offences
- Administrative Action
- Sexual misconduct is a conduct deficiency
- Interim measures
- Investigation and next steps
- Remedial measures
- Administrative reviews
- Release from the CAF
- Concerns about administrative action for sexual misconduct
- The DAOD 5012-0, Harassment Prevention and Resolution
- The Integrated Conflict and Complaint Management
- The Canadian Human Rights Commission and Tribunal
- Complaint process review by the CPCC and McKinsey
- Military Grievance System
- Grievances related to sexual misconduct, sexual harassment and discrimination on the basis of sex
- Current delays in processing grievances
- Exhausting remedies under the grievance system
- Concerns with the military grievance system
- Grievances related to a complaint or situation of sexual misconduct, harassment or discrimination
- Definitions of Sexual Misconduct and Sexual Harassment
- Focus On The Victim
- Duty to Report and Barriers to Reporting
- Duty to report in general
- Duty to report as it relates to sexual misconduct
- Impact of the duty to report
- Numerous calls for change
- Duty to report should be abolished
- Victim Support and the SMRC
- History of the SMRC
- The creation of the SMRC and the evolution of its mandate
- PGoing forward – the SMRC’s name and mandate
- The SMRC’s beneficiaries
- The chain of command and alleged perpetrators
- DND employees and former CAF members
- Focus on sexual misconduct
- The SMRC’s function
- Governance and independence of the SMRC
- History of the SMRC
- Local initiatives
- Defence Advisory Groups
- Duty to Report and Barriers to Reporting
The profession of arms is unique in many ways. No other self-regulated profession has the same monopoly over the conduct of its members. Lawyers, doctors, architects, all professionals are subject to two, often three, levels of accountability: the criminal courts, like all other citizens; the code of discipline of their professional body, which protects the public and oversees the profession at large; and possibly their employer, who is entitled, under certain rules, to protect its own interests and those of its employees. A lawyer may be dismissed by their employer, disbarred and sent to jail, all through separate independent, often parallel, processes.
In the military, all these processes are handled internally by way of criminal, disciplinary and employment standards. The fact that they are administered by a single entity should produce some efficiencies. Unfortunately, it has not. This is particularly evident in how the CAF addresses the issue of sexual misconduct in its ranks.
The CAF discharges these interrelated tasks through a maze of processes, the details of which are exposed throughout this Report. To paraphrase one stakeholder, the CAF has put the “activities cart” before the “conceptual horse.” They have collapsed crime and discipline, which in my view is an error when it comes to serious sexual misconduct; and yet they have kept separate disciplinary measures, said to be punitive, from administrative ones, said to be remedial, when the two are often indistinguishable, particularly given the intersection between punishment and rehabilitation.
The devil, here, is not in the details. Each stream, each silo, may function relatively well and is the subject of periodic attempts at improvement. The real problem rests on the overall structure, which produces unnecessary complexities, inefficiencies, and delays. All of this has led to mounting frustration and an erosion of trust among members, stakeholders and Canadians at large.
Important reforms can still take place under the present structure. I make recommendations to that effect. But the incremental changes of the past, and the ones that seem about to take place may not yield the optimal result that conceptual clarity from the outset would bring.
Deficient as it has been in dealing appropriately with offenders, the CAF has been even more neglectful in addressing the plight and needs of victims and survivors, who eventually had to turn to an external party, the courts, through a class action, to obtain some form of recognition and redress. Until recently, few efforts were made to address their legitimate concerns and claims.
The changes I propose in how the CAF addresses offenders will also serve to empower survivors, as they will be less at the mercy of a chain of command in which they have largely lost confidence.
Focus on the System
History of women in the CAF and prevalence of sexual misconduct
Sexual misconduct is not new in the CAF, nor is it unique to the Canadian military; it exists within many defence forces around the world and in society at large. This is not an excuse for the sorry state of affairs in which the CAF finds itself, but it does call for an understanding of the specific circumstances in the CAF that make it a “wicked problemEndnote 49.”
Despite being an endemic problem in the CAF for decades, the issue of sexual misconduct, its root causes and its prevalence throughout the ranks, was largely undocumented until relatively recently.
Brief history of women in the CAF
Women have a long history in the Canadian military, with their first integration occurring in 1885, during the North-West Rebellion. During the First and Second World Wars, women once again lined up to serve. According to a 2019 Canadian Military journal article, over 2,800 women joined the Royal Canadian Medical Corps during the First World War and, during the war years, approximately 50,000 women enlisted to serveEndnote 50. Women were prohibited from taking on a combat role, and most were employed in traditional fields where they received less pay, fewer benefits and, in some cases, operated within a separate system of rank and rules. After the war, women were dismissed from service, with the exception of nurses who continued to care for injured veteransEndnote 51.
The Cold War and the Korean War reignited the demand for servicewomen, but the CAF imposed a ceiling on the number of women permitted into the Regular Force (Reg F) and restricted them to occupations with fewer than 16 weeks’ worth of training, and in a lower pay scale than traditionally male-dominated areasEndnote 52.
In 1967, amid calls for greater gender equality in Canadian society, the Royal Commission on the Status of Women in Canada was created. The Commission was mandated to “inquire into and report upon the status of women in Canada, and to recommend what steps might be taken by the Federal Government to ensure for women equal opportunities with men in all aspects of the Canadian societyEndnote 53.”
The Commission tabled its report in 1970. Regarding military service, the Commission noted that women had fewer opportunities to enter the CAF than men and were generally required to be older and have higher levels of education. Married women were not allowed to enter the Forces, because they were considered less free to move to new postings. Women who married after joining were generally allowed to remain in the Forces, but not if they had children. Unmarried mothers were released but may have been permitted to re-enlistEndnote 54. To resolve these inequalities, the Commission recommended that:
- women be admitted to the military collegesEndnote 55;
- all trades in the CAF be open to womenEndnote 56;
- the prohibition on married women in the CAF be eliminatedEndnote 57;
- the length of the initial engagement for which personnel are required to enlist in the CAF be the same for women and menEndnote 58; and
- release of a woman from the CAF because she has a child be prohibitedEndnote 59.
The government adopted most of the Commission’s recommendations but refused to open all military occupations to women in the belief that, for operational reasons, specific positions should only be filled by menEndnote 60.
In 1978, the Canadian Human Rights Act came into effect, which prohibited discrimination based on gender, unless for a bona fide occupational requirementEndnote 61. A year later, the government finally permitted women to attend military colleges, opening military education and increasing opportunities for womenEndnote 62.
The 1980s saw more improvements to the integration of women in the CAF, and it appeared as though the CAF were making a real effort to be more inclusive through the launch of the Service Women in Non-traditional Environment and Roles trials. These trials were conducted over five years (1979-1984) and evaluated women’s ability to function in “near combat” unitsEndnote 63. By 1987, all Royal Canadian Air Force (RCAF) occupations opened to women, and the CAF promoted the first women to the rank of brigadier-generalEndnote 64, the fourth highest rank in the organizationEndnote 65.
From 1987 to 1989, in response to the equality rights that came into effect pursuant to the Canadian Charter of Rights and Freedoms, the CAF ran the Combat Related Employment of Women trials, to evaluate the operational effectiveness of mixed gender units engaged in direct combatEndnote 66.
However, comprehensive integration remained elusive as the government continued to prohibit women from occupations and units preparing for direct involvement in combatEndnote 67. This prohibition, however, was met with opposition from women in the Defence Team, including a complaint to the Canadian Human Rights Commission (CHRC) claiming discrimination on the basis of sex, which led to a 1989 CHRT ruling that required the CAF to:
- integrate women into all aspects of the Reg F and Reserve Forces (Res F), except submarines;
- remove all employment restrictions and implement new occupational personnel selection standards; and
- devise a plan to steadily, regularly, and consistently achieve complete integration within ten yearsEndnote 68.
In 1989, the CAF opened all military occupations to women except submarine serviceEndnote 69 and improvements to female integration continued through much of the next decade. The 1990s saw the first mixed-gender warship participate in NATO exercises, the first women to serve in combat arms, the first female major-general, and the first air force squadron commanded by a woman. Additionally, in 1990, the Minister created an Advisory Board on Women in the CAF to monitor the progress of gender integration and employmentequityEndnote 70.
Number of women in the CAF
The CAF finally permitted women into all areas of the organization in 2001. Women have now reached more senior positions in the organization, with the first woman promoted to rear-admiral in 2011, and the first woman promoted to lieutenant-general in 2015Endnote 71. Since 1997, the CAF has endeavoured to have women represent 25% of membersEndnote 72, a goal that has not been reached to date. In 1989, when the government finally permitted women to serve in all occupations except on submarinesEndnote 73, women hovered at 10%, according to the DGMPRAEndnote 74. Thirty years later, this has only increased marginally. As of October 2021, women represented 17.4% of intakes and 15.8% of releases, according to CAF data and made up 16.3% of the combined Reg F and Primary Reserve (P Res), as per the 2020-2021 CAF Employment Equity ReportEndnote 75.
I do not think that the low representation of women in the CAF is due to a lack of interest on their part in wearing the uniform and serving Canada. It is evident to me that, despite legislation mandating equality, life for women in the CAF is anything but equal. Many women experience harassment and discrimination on a daily basis with one stakeholder noting, “a man can be seen as stoic and forceful and a woman is a bitch. I was told early in my career that I had three choices: to be a slut, bitch or dyke.” This uneven treatment of women, coupled with other forms of systemic discrimination and widespread sexual misconduct, feeds into poor recruitmentEndnote 76 and retention, as well as underrepresentation at all ranksEndnote 77.
Reporting on sexual misconduct in the CAF begins
In 1998, Canadians received their first real glimpse at what military life was like for women. In a series of three articles, Maclean’s exposed the existence of military sexual misconduct through the experiences of 13 victims of sexual assault. While not an exhaustive review, the articles noted that these cases could represent a larger pattern of sexual harassment and assault in the Forces. Further, these interviews revealed a systemic mishandling of sexual assault cases by noting that the “investigations were perfunctory, the victims were not believed and often they – not the perpetrators – were punished by senior officers who either looked the other way or actively tried to impede investigationsEndnote 78.”
The victims pointed to the toxic and sexist culture of the CAF as the root cause of sexual misconduct. A culture that promoted heavy drinking and the humiliation of women through degradation and violence created an environment in which women, who, at the time, accounted for 11% of members, were often little more than pawns for predators according to Maclean’sEndnote 79.
In the spring of 2014, L’actualité and Maclean’s published articles that revealed sexual assault in the CAF as rampant as it had been in 1998, and that the number of reported assaults only scratched the surfaceEndnote 80. The authors estimated that incidents of sexual assault in the CAF could be as high as five per dayEndnote 81. While this rate of sexual violence may have shocked civilians, women in the CAF had grown accustomed to being mistreated and abused. One stakeholder told me: “You wake up every day wondering if you are going to make it through the day, what name you will be called and if they will find something you cannot do.”
On the basis of these articles it was clear that the barriers to reporting, first raised in 1998, remained in place, revealing that senior leadership had taken no serious steps to resolve them. Victims of sexual misconduct feared reprisal, lacked access to proper support services, and experienced poor investigative responses. Further, the culture of the CAF had not evolved significantly, even as more women signed up to serve; the culture of excessive drinking and toxic masculinity still promoted an environment in which female colleagues were sexually harassed and abused as part of bets, rituals and the assertion of power.
Responding to public pressure, the government appointed Justice Deschamps to conduct an external review into sexual misconduct in the CAFEndnote 82.
Justice Deschamps was mandated to consider and make recommendations concerning the definition of “sexual misconduct”; the adequacy of CAF policies, procedures, programs and training around sexual misconduct and harassment; resources dedicated to the implementation of said policies, procedures and programs; rates of reporting and reasons why reporting may not occur; and any other matter relevant to the prevention of sexual misconduct and harassmentEndnote 83. However, her mandate prohibited her from addressing any matter relating to the military or criminal justice system. This denied Justice Deschamps the ability to address two fundamental pillars of sexual misconduct: how it is investigated and how perpetrators are punished.
During her review, Justice Deschamps consulted with over 700 individuals at various military bases and heard numerous accounts of sexual misconduct in the CAFEndnote 84. She also visited the military colleges, where participants reported sexual harassment as being a “passage obligé” and that sexual assault was an ever-present riskEndnote 85.
The Deschamps Report and initial steps taken by the CAF
On 27 March 2015, the Deschamps Report was published and confirmed many of the conclusions drawn in both the 1998 and 2014 media articles. In particular, Justice Deschamps found that there was a sexualized culture in the CAF, particularly among recruits and NCMs, “characterized by the frequent use of swear words and highly degrading expressions that reference women’s bodies, sexual jokes, innuendos, discriminatory comments about the abilities of women, and unwelcome sexual touchingEndnote 86.”
Justice Deschamps also found that certain cultural behaviours and expectations within the CAF were directly related to the prevalence of inappropriate sexual conductEndnote 87. While the CAF as an organization has established codes of conduct, she found there was “a significant disjunction between the aspiration of the CAF to embody a professional military ethos which embraces the principle of respect for the dignity of all persons, and the reality experienced by many CAF members day-to-dayEndnote 88.” Although Justice Deschamps heard fewer reports of sexual assault, she noted, “it was clear that the occurrence of sexual harassment and sexual assault are integrally related, and that to some extent both are rooted in cultural norms that permit a degree of discriminatory and harassing conduct within the organizationEndnote 89.”
She concluded that there was chronic underreporting of sexual misconduct and harassment, attributable to fears of reprisal, removal from one’s unit, concern about not being believed, stigmatization as being weak or a troublemaker, and a lack of confidentiality. Finally, she highlighted that the emphasis on low-level resolution stifled complaints, intimidated victims, or resulted in meaningless sanctions – the proverbial “slap on the wristEndnote 90.” None of this encouraged victims to come forward nor dissuaded perpetrators from predatory behaviour.
The Deschamps Report provided an authoritative assessment of sexual misconduct in the CAF. She provided 10 recommendations to address the problem.
In July 2015, General Vance was appointed as CDS. In his inaugural speech he stated: “Any harmful sexual behaviour undermines who we are, is a threat to morale, is a threat to operational readiness, and is a threat to this institutionEndnote 91.” He launched Operation HONOUR with the mission to “eliminate harmful and inappropriate sexual behaviour within the CAFEndnote 92.”
From the outside, there was a perception that senior leadership was finally taking the problem of sexual misconduct seriously. However, within the ranks, many victims, past and present, were considerably more sceptical about the sincerity of the leadership on that issue. That scepticism was validated when Operation HONOUR quickly became referred to as “Hop on her.”
In April 2016, the CAF started to collect statistics on sexual misconduct reporting and responses. According to the CAF’s Second Progress Report, from April through July 2016, 148 incidents were investigatedEndnote 93. Ninety seven of these were still under investigation at the time of the report. Of the 51 investigated, 19 resulted in administrative action in the form of remedial measures, and seven led to laying of chargesEndnote 94.
The 2016 Statistics Canada Report and next steps by the CAF
To gain a fuller understanding of the issue, in 2016, the CAF asked Statistics Canada to conduct a survey on sexual misconduct. The survey received over 43,000 responses from active members of the CAF. The results of the survey indicated that 27.3% of women and 3.8% of men reported having been victims of sexual assault at least once since joining the CAFEndnote 95. Half of the female respondents identified the perpetrator as a superior. In contrast, for men, it was more likely to be a peerEndnote 96. Further, the likelihood of sexual assault was highest among younger female CAF members who were five times more likely to be sexually assaulted than their male counterpartsEndnote 97.
The results of the survey also revealed that 79% of CAF members saw, heard or were the victims of sexualized behaviour, including sexual jokes and discriminatory behaviour. Women were twice as likely as men to be the target, with 31% of women identified as the victim versus 15% of menEndnote 98.
Despite the startling prevalence of sexual misconduct, it was apparent from the survey results that CAF members still had significant trust in the system, with 81% of survey respondents believing that the organization, or at the very least their unit, would take complaints of inappropriate sexual behaviour seriously. Moreover, 36% of men and 51% of women thought that inappropriate sexual behaviour was a problem within the CAFEndnote 99.
Unsurprisingly, the survey revealed that women were less likely to report sexual assault to someone in authority for fear of negative consequences, 35% of women versus 14% of men who were victims, or due to concerns about the complaint process, 18% of women versus 7% of menEndnote 100.
Most CAF members reported being “very aware” or “somewhat aware” of Operation HONOUR. However, 30% of respondents believed that Operation HONOUR would be ineffective or only slightly effective. The most junior officers and NCMs, the largest victim groups, were the most pessimistic about its effectivenessEndnote 101.
I understand that, shortly thereafter, new policies were released and subject matter training was developed. On the surface, victims were being encouraged to come forward, and bystanders were reminded of their obligation to do so. However, the day-to-day reality in the CAF differed significantly from the policies created in Ottawa. Stakeholders reported that after Operation HONOUR was launched, there was a significant change in attitude in their male counterparts, not to one of acceptance, awareness, or altruism but to one of fear, fury, and frustration. Stakeholders also reported that many men did not take Operation HONOUR seriously and would share their stories of being “Op Honoured.”
By April 2016, the CAF had implemented a monthly tracking system to track incidents of harmful and inappropriate sexual behaviour (HISB), and assist with analyzing the progress of Operation HONOUREndnote 102. This included monthly reporting on HISB at the unit level. Between April 2016 and March 2017, 504 incidents of HISB were reported at the unit level, of which 47 were sexual assaultsEndnote 103. By far, the largest category, with 281 reports, was “inappropriate sexual behaviour,” covering frequent sexual language or jokes, displaying pornography, pressuring for sexual activity, taking photos during sex without consent, and “other.” Women filed 75.8% of the reports during this period, and 180 incidents resulted in administrative action being taken by the chain of command.
On the other hand, within the military justice system and during that same time period, 288 offences were reported, of which 235 were sexual assaultsEndnote 104. While 267 were ultimately declared “founded,” only 64 charges had been laidEndnote 105.
In 2016 and 2017, seven former CAF members initiated class action lawsuits against the Government of Canada. The plaintiffs of these class action lawsuits alleged sexual harassment, sexual assault, or discrimination based on sex, gender, gender identity or sexual orientation in connection with their military service and/or employment with the DND and/or Staff of the Non-Public FundsEndnote 106. The Government of Canada agreed to a $900 million settlement for the Heyder and Beattie class actionsEndnote 107. I return to the Heyder and Beattie class actions below, in the section on Data.
The 2018 Statistics Canada reports
In May 2018, Statistics Canada published reports on both the Reg F and P Res of the CAF. The Reg F survey was a follow-up to the 2016 survey and found that there was no significant statistical change from the prevalence of sexual assault Endnote 108. However, there was a change in demographics, with young NCMs making up a larger proportion of victims, while senior NCMs and white able-bodied women reported a decline in the prevalence of sexual assaultEndnote 109.
On the perpetrator side, women reported fewer assaults committed by superiors than in 2016 with 38% of sexual assaults carried out by a superior or higher ranked individualEndnote 110. There could be a number of factors, other than an absolute reduction in assaults, to explain this decrease. The survey did not include members who had left the CAF for any reason, potentially not capturing victims who released because of the assaultEndnote 111. Further, women may not have reported an assault by a superior even on a survey for fear of reprisal. This, the survey noted, posed a significant barrier to reporting any type of sexual assault, with 37% of all women citing it as a reason to not reportEndnote 112.
When it came to sexualized and discriminatory behaviours, there was some evidence that Operation HONOUR was working. According to the survey, the number of CAF members who witnessed or experienced sexualized or discriminatory behaviours decreased, from 80% in 2016 to 70% in 2018Endnote 113. Reporting of sexualized and discriminatory behaviour increased slightly, from 26% in 2016 to 28% in 2018Endnote 114.
In the P Res, the results were largely the same as in the Reg F. Overall, 2.2% of reservists were victims of sexual assault in 2018Endnote 115. Among the victims, one in six used CAF support services and one in 10 used civilian support servicesEndnote 116. When it came to sexualized and discriminatory behaviours, the P Res saw a decline from 82% in 2016 to 71% in 2018, which was almost identical to the Reg F, which went from 80% in 2016 to 70% in 2018Endnote 117. Women were more likely than men to witness or experience such behavioursEndnote 118, and found the behaviours offensiveEndnote 119.
The 2018 OAG Report
In September 2018, the OAG conducted an audit of the CAF on its implementation of Justice Deschamps’ recommendations and its efforts to address sexual misconduct. It made the following findings, among others:
- 5.17 We found that Operation HONOUR increased awareness of inappropriate sexual behaviour within the Canadian Armed Forces. However, the Operation had a fragmented approach to victim support as well as unintended consequences that slowed its progress and left some members wondering if it would achieve the expectations set for it.
- 5.18 We found that, after the implementation of the Operation, the number of reported complaints increased from about 40 in 2015 to about 300 in 2017. The Forces believed that the increase was an indication that members trusted that the organization would effectively respond to inappropriate sexual behaviour.
- 5.19 However, we found that some members still did not feel safe and supported. For example, the duty to report all incidents of inappropriate sexual behaviour increased the number of cases reported by a third party, even if the victim was not ready to come forward at that time. Moreover, the Military Police had to conduct an initial investigation of all reports, regardless of a victim’s preference to resolve the issue informally. This discouraged some victims from coming forward. Many victims also did not understand or have confidence in the complaint systems.
- 5.20 Information gathered by Statistics Canada during a 2016 survey indicated that there were many unreported incidents of inappropriate sexual behaviour in the Canadian Armed Forces. In mid-2018, the Forces acknowledged that inappropriate sexual behaviour remained a serious problem and that a significant focus on victim support and the use of external, independent advice were requiredEndnote 120.
Surveys of the military colleges
In 2019, Statistics Canada focused on the military colleges, replicating its earlier surveys on the Reg F and P ResEndnote 121. The primary point of comparison in the survey was the non-military civilian student population. It found that 28% of female students at a military college experienced some form of sexual assault as opposed to 15% of women in the general student populationEndnote 122. One in seven women at a military college had been sexually assaulted in the past 12 monthsEndnote 123. When it came to unwanted sexualized behaviour, the survey found that 68% of students witnessed or experienced such behaviour, which was in line with the proportion in the broader CAF in 2018Endnote 124. Most unwanted behaviours occurred when others were present and were generally committed by fellow studentsEndnote 125.
Overall, most students were aware of the procedures for dealing with sexual assault and harassment (85% of men and 70% of women), but women students and those who experienced unwanted sexualized behaviours held more negative attitudes regarding school-related support and servicesEndnote 126.
The Deschamps Report as well as the work of Statistics Canada, exposed the prevalence of sexual misconduct in the CAF. What could have been dismissed as a series of isolated, anecdotal incidents is now recognized as a deeply-rooted organizational problem that requires a real culture change throughout the CAF. These studies have enabled academics and subject matter experts to provide input and improve collective knowledge on the subject, and it has provided a solid foundation for the Defence Team to take the steps necessary to recognize and acknowledge the magnitude of the problem.
History of Operation HONOUR
Before the Deschamps Report was released, the CAF stood up the CSRT-SM under the authority of the CDSEndnote 127. The CSRT-SM “was tasked to serve as the focal point for the development and implementation of a comprehensive strategy and associated action plan to address the recommendations of [Justice Deschamps] in order to modify and improve behaviour throughout the [CAF]Endnote 128.”
In August 2015, in response to the Deschamps Report, then CDS Vance officially launched Operation HONOUR with a mission to “eliminate harmful and inappropriate sexual behaviour” within the CAF. Operation HONOUR’s preliminary aims were: to understand harmful behaviour; respond to harmful behaviour through cultural change; support victims (including establishing the SMRC) and prevent HISB through a unified policy approachEndnote 129.
Initially, Operation HONOUR was divided into four phases:
- Phase One, Initiation: Complete a comprehensive strategy and action plan and set up the SMRC;
- Phase Two, Preparation: Roll out discipline, leadership doctrine, orders and policies throughout the chain of command; the CSRT-SM begins operations;
- Phase Three, Deployment: Deliver, train, and transition the SMRC to full operational capability; and
- Phase Four, Maintain and Hold: Reabsorb the CSRT-SM while commanders continue to “personally oversee the maintenance of values and the application of administrative and/or disciplinary measuresEndnote 130.”
Preparatory steps and Phase One, Initiation
In June 2015, the CSRT-SM focused on setting up the new centre for accountability for sexual assault and harassment based on the recommendation made by Justice Deschamps.
As part of its approach to understanding the problem, during Phase One, the CSRT-SM conducted a series of domestic and international visits to learn from allied militaries and civilian organizations. In particular, it visited the relevant military authorities in the USA, Australia, France, the Netherlands, Denmark, and Sweden, and various Canadian police forces, crisis response centres, and victim support institutionsEndnote 131.
Building on the work of the CSRT-SM over the summer, the SMRC became operational on 15 September 2015Endnote 132. It was independent from the chain of commandEndnote 133, while supporting both victims and the chain of command. The intention was that victim support services would ramp up with each successive phase of Operation HONOUR, and the SMRC would reach its “final operational capability” in 2018.
Following the launch of the SMRC, the first phase of Operation HONOUR was declared officially complete as of 30 September 2015Endnote 134.
Phase Two, Preparation
In the second phase of Operation HONOUR, the CAF focused on increasing awareness and implementing Operation HONOUR activities among L1 organizations. This included encouraging participation in training and Operation HONOUR-related initiatives. All L1 commanders were required to provide periodic reports on all Operation HONOUR‑related activities undertaken by their organizations and all incidents of HISB within their organizations. Further, certain L1 organizations were given additional responsibilities relating to the implementation of Operation HONOUR. For example, the VCDS was tasked with supporting and coordinating an integrated approach to developing the mandate, governance and operational model of the SMRC, providing resources to the CSRT-SM, and working with the JAG and the CFPM to develop victim reporting protocols. The CMP was ordered to assume responsibility for the CSRT-SM and tasked with identifying future resource requirements, training development, facilitating chaplain support, and developing common terminology and definitions. The JAG was asked to review the military justice system from an Operation HONOUR perspective, alongside the CFPMEndnote 135.
In the spring of 2016, the CAF claimed it had started collecting statistics on sexual misconduct reporting and responsesEndnote 136. Before Operation HONOUR, no dedicated central database to track incidents of sexual misconduct existed. However, in April 2016, the CDS ordered that all “Level 1 organizations report incidents of sexual misconduct to the [CSRT-SM]Endnote 137.” In addition, the CAF asked Statistics Canada to conduct a survey on sexual misconductEndnote 138. Aside from statistics, the CAF updated its harassment prevention policy, the Defence Administration Order and Directive (DAOD) 5012-0Endnote 139, and the JAG committed to ensuring that his comprehensive review of the court martial system would include Operation HONOUREndnote 140.
Phase Three, Deployment
Phase Three commenced on 1 July 2016Endnote 141. According to the CAF, the SMRC’s operating hours had increased, and additional training had been provided to military health care professionals. The CFPM had introduced new training on data collection and victim interviewing techniques for the MPEndnote 142. The MP also added 18 positions to the CFNIS to create a “Sexual Offences Response Team” with three members in each regional office for additional support to complex filesEndnote 143.
By August 2016, the CMP was charged with overseeing the coordination of Operation HONOUR, supported by the Director General of the CSRT-SM. However, the CDS remained responsible for the overall execution of Operation HONOUR, and accountable for its successEndnote 144.
The CAF determined that two entities were necessary to achieve institutional culture change: a strategic-level steering committee, mandated to provide direction and harmonize the overall response to sexual misconduct in the CAF, and an advisory council with external subject matter experts to develop victim support services, training, education, and policyEndnote 145.
To evaluate the success of Operation HONOUR’s implementation, the CAF planned to conduct internal and external research and update its “Unit Climate SurveysEndnote 146.”
Phase Three saw the continuation of many tasks started in Phase Two, but with a shift “from developing awareness and understanding the problem to implementing a comprehensive training, education and prevention approach across the CAFEndnote 147.” The dissemination of training and educational materials began shifting down the chain of command. Commanders were directed to ensure that instructors were appropriately trained and that all personnel in supervisory roles were provided information about available trainingEndnote 148.
In addition to other Operation HONOUR-related tasks, the VCDS was responsible for supporting the CFPM and the CSRT-SM in creating victim support mechanisms, and facilitating the alignment of the new ICCM program with the SMRC and the CSRT-SM initiativesEndnote 149. Although the initiating directive for the ICCM was first issued in 2014Endnote 150, full implementation of the ICCM was only scheduled for 2019Endnote 151. The CMP also gained additional responsibilities, including coordinating efforts between the CSRT-SM and the SMRC regarding a new national subject-matter expert group on sexual harassment within the SMRC, developing a Victim Assistance Program, and developing a national peer support program under the supervision of the Canadian Forces Morale and Welfare Services (CFMWS)Endnote 152.
November 2016 saw the publication of the results of the first Statistics Canada surveyEndnote 153. The survey’s results were alarming, with a majority having witnessed sexualized behaviour, and 27.3% of women and 3.8% of men reported being a victim of sexual assault since joining the CAFEndnote 154.
In April 2017, the Third Progress Report on Operation HONOUR was released. It again claimed a number of achievements during the reporting period. The CFHSG, the CFPM, the DMP, the CFMWS, and the Chaplain General had all instituted new victim support initiatives. The SMRC was poised to roll out 24/7 access to support services. Plans were in the works for a peer support network, a Victim Assistance Program to help victims better navigate the system. Also planned was the introduction of a “third option reporting” which would safeguard crucial evidence without pressuring a victim to first press chargesEndnote 155. However, I was not provided with any documents to show that this reporting option was ever implemented.
The report also noted that the JAG and Department of Justice were drafting regulations to implement the victims’ rights provisions of Bill C-15Endnote 156. Although certain provisions of Bill C-15 came into force in 2013, the victims’ rights elements had still not been implemented four years later. In particular, Bill C-15 sought to “provide victims of service offences with specific procedural rights, such as their right to make victim impact statementsEndnote 157.”
The SMRC introduced a modified case management system and the CAF implemented the HISB tracking and analysis system to track the occurrence of sexual misconduct. A variety of training programs were also rolled out during this period, including unit-level training on addressing sexual misconduct, bystander intervention training, and a “Respect in the CAF” (RitCAF) workshop. A RitCAF mobile app was in development and meant to roll out on 17 June 2017Endnote 158.
On 24 July 2017, the SMRC launched a “one-year pilot of 24/7 service delivery [...] to ensure that all CAF members would have access to support on a 24/7 basis, whether deployed internationally or domesticallyEndnote 159.” According to the 2017-18 SMRC Annual Report, in the fall of 2017, the Your Say survey was sent out to 9,000 Reg F and P Res members; the SMRC also launched new web content that was audience-orientedEndnote 160.
In January 2018, the Operation HONOUR Tracking and Analysis System (OPHTAS) was “created for use by the chain of command as a dedicated means of recording, tracking and conducting trend analysis of incidents of sexual misconductEndnote 161.” At the same time, the JAG also brought an end to the internal Court Martial Comprehensive Review, which was supposed to examine courts martial from an Operation HONOUR perspective, and downgraded the draft report to a discussion paperEndnote 162.
In 2018, the External Advisory Council (EAC) on sexual misconduct was established namely to “provide advice and recommendations to the DM and the CDS on Operation HONOUR activities,” including the implementation of Justice Deschamps’ recommendationsEndnote 163.
The institutionalization of Operation HONOUR
On 5 March 2018, Operation HONOUR was changed from a limited operation to a permanent institutional initiative and the previous four-phase approach was abandoned. The CSRT-SM was moved back to the VCDS and placed on a permanent footing that would eventually become the DPMC-OpH. The new objective was to establish an institutional framework across the CAF to effect culture change and measure performanceEndnote 164.
In March 2018, the SMRC also “refined the training framework to specify the mandatory training that Counsellors and Senior Counsellors must complete to become and remain proficientEndnote 165.”
In the fall of 2018, the OAG released a report that focused on whether the CAF “adequately responded to inappropriate sexual behaviour through actions to respond to and support victims and to understand and prevent such behaviour.Endnote 166” The OAG found that, despite Operation HONOUR being in its third year, several of the problems identified by the Deschamps Report remained. In particular, victim support services were patchy, difficult to access, and under-resourced; the duty to report presented a barrier to reporting; education and training around inappropriate sexual behavior failed to address the root causes of such behavior; and there was inadequate monitoring of the CAF’s effortsEndnote 167.
In February 2019, a Fourth Progress Report was released. It was considerably more subdued than the previous progress reports. The report did, however, note various actions taken over the preceding 21 months. For example, the OPHTAS reached its initial operating capability on 1 October 2018. The CAF also claimed it had improved response to complaints through the ICCM, introduced a more victim-centred approach to investigations and prosecutions, improved research around sexual misconduct in the CAF, and benefited from external collaboration through the EACEndnote 168.
However, the Fourth Progress Report acknowledged that a comprehensive strategy of culture change had yet to be developed. It considered the following to be areas in which the CAF’s response to sexual misconduct was “significantly less successful”:
- Delayed development and implementation of a unified updated policy on sexual misconduct;
- Failure to produce strategic direction and a campaign plan to guide the necessary culture shift;
- Absence of a plan against which to assess performance, creating an emphasis on statistics on performance measures;
- Establishment of an optimal governance structure between the SMRC and the CAF, which protects the independence of the SMRC while allowing enough integration to meet the institutional needs of the CAF;
- Implementation of a consolidated CAF-wide tracking capability to provide a comprehensive institutional picture of sexual misconduct in the CAF;
- Effective strategic communications with CAF members to avoid subject matter fatigue and ensure the continued relevance of Operation HONOUR;
- Sufficient interaction with external entities and stakeholders; and
- Capturing the experiences and lessons learned during the implementation of Operation HONOUREndnote 169.
The terms of reference for the Operation HONOUR Steering Committee were issued on 28 June 2019, some two-and-a-half years after this part of the governance structure was first identified as a requirementEndnote 170. They directed the Steering Committee to “provide a forum for the chain of command to inform, provide input, and discuss Operation HONOUR and the CSRT-SM’s efforts to meet the CDS’ intent from the immediate requirements through to the long term goalsEndnote 171.” The Steering Committee met semi-annually to ensure “CAF‑wide situational awareness, information sharing, and leadership, focused on the elimination of sexual misconduct from the CAFEndnote 172.” Members of the Steering Committee included L1 deputy commanders, select chief warrant officers/chief petty officers 1st class, the Executive Director of the SMRC, the Surgeon General, the DND/CF Legal Advisor, the CFPM, the Chaplain General, the DGICCM, the DGMPRA, and the JAG. The Steering Committee was overseen by and accountable to the VCDSEndnote 173.
In May 2019, Statistics Canada released the results of its 2018 survey on sexual misconduct in the CAFEndnote 174. Following this, the SMRC’s mandate was expanded beyond the provision of support to CAF members, to include provision of expert advice and guidance to the CAF, and monitoring of the CAF’s progressEndnote 175. Further, it was noted that despite significant attention given to Operation HONOUR in Ottawa, “low awareness of the resources continues to be a problem. Finding strategies to simplify the content and improv[e] its intelligibility should be a priority. Working with different communities within the CAF through a [Gender-based Analysis Plus (GBA+)] lens would be helpful to identify the best information dissemination strategies for each of themEndnote 176.”
In July 2019, the CSRT-SM was renamed the DPMC-OpH. As noted below, this name change was in response to criticism that CSRT-SM was too similar in name to SMRC and was causing confusion. New mandates were issued for the DPMC-OpH and the SMRC. On 15 July 2019, the operating agreement between the SMRC and the DPMC-OpH was approved by the VCDSEndnote 177.
According to its mandate, the DPMC-OpH was “the strategic level planning and coordination staff leading the [CAF]’s institutional change efforts to address sexual misconduct and promote a focus on the dignity and respect of the individualEndnote 178.” Its responsibilities included developing policy and direction, implementing expert guidance from the SMRC, including training, and monitoring the application of policy, administration and training regarding sexual misconductEndnote 179.
At the same time as the DPMC-OpH’s new mandate was issued, the interim version of the Operation HONOUR Manual was released. This version was developed in cooperation with the SMRC in consultation with the EAC, and issued on the authority of the CDS. It provided an overview of Operation HONOUR, its governance and key training packages and initiatives. It also introduced readers to critical concepts and definitions of sexual misconduct, sexual harassment, and victim-blaming. It provided information about support services, tools and resources and an overview of prevention measures and guides for reporting and responding to incidents of sexual misconductEndnote 180.
Further, on 25 July 2019, the CAF issued a direction that permitted commanding officers to “provide victims with information about the outcomes and conclusions of administrative reviews related to their complaint, as well as administrative actions imposed by the chain of command on the person who caused them harmEndnote 181.” This directive sought to close “a critical information gap identified by complainants in cases of sexual misconduct and victim advocates” while complying with the Privacy ActEndnote 182.
In August 2019, the CAF released its first report based on statistics collected from tracking tools such as the OPHTAS during Operation HONOUR. The CAF noted that “work is underway to fully integrate [the] OPHTAS with all other key personnel-related and sexual misconduct incident-related databases,” including select MP data, the Justice Administration and Information Management System (JAIMS) for military justice outcomes, and the Integrated Complaint Registration and Tracking System (ICRTS) for sexual harassment outcomesEndnote 183. In September 2019, the CDS issued a directive to institutionalize and improve the OPHTASEndnote 184.
At the same time that the CAF released its first Sexual Misconduct Incident Tracking Report, the Operation HONOUR Steering Committee met and discussed changing the Operation HONOUR communications strategy. It was noted that the media, in particular, had a hard time distinguishing between CAF programs and “there was […] never any over-arching goal in the messagingEndnote 185.” As a result, the Steering Committee produced a “strategic narrative” to provide essential information on sexual misconduct in the CAFEndnote 186.
In December 2019, the Operation HONOUR Manual was updated, and the CDS issued a final version in January 2020Endnote 187. However, despite this advancement, many of the initial problems highlighted by Justice Deschamps still existed. For example, “despite the CAF claiming to have achieved progress on many of Deschamps’ recommendations, victims and survivors continue to report dissatisfaction with the process, and service members in general have been exhibiting signs of fatigue, even resistance, when it comes to Operation HONOUREndnote 188.”
In 2020, the CAF released the Path to DignityEndnote 189, intended to be the CAF’s long-term campaign and strategy to bring about cultural change and address sexual misconduct permanently. The strategy consisted of four elements:
- Part 1: Strategic Approach to Cultural Alignment, intended to identify the elements that constitute and influence CAF culture and provide a cultural alignment model that can be applied to a broad range of issues;
- Part 2: Strategic Framework to Address Sexual Misconduct in the CAF. It applies the model in Part 1 and sets out the objectives and desired outcomes of the strategy;
- Part 3: Operation HONOUR Strategic Campaign Plan 2025 sets out a five-year plan for implementation; and
- Part 4: Operation HONOUR Performance Measurement Framework is a system for monitoring the progress of Operation HONOUR over time.
With the creation of the DPMC-OpH and other governance structures, the intention of the strategy appeared to be to embed Operation HONOUR for the long term. Even the EAC noted the evolution of Operation HONOUR from an “incident based, transactional approach to longer-term holistic view towards changing the CAF culture. The key message for The Path is that Op[eration] HONOUR is never going away; it is a steady state, there is no end stateEndnote 190.”
The end of Operation HONOUR
However, Operation HONOUR did not survive the new reporting on sexual misconduct that arose in 2021. As Justice Fish summarized:
- The third period of the CAF’s struggle with sexual misconduct since 1998 began on February 2, 2021, when Global News reported allegations of inappropriate behaviour between a retired CDS and two female subordinates. Three weeks later, another CDS stepped aside after several news outlets had contacted the DND to confirm that he was the subject of a sexual misconduct investigation. And on March 31, 2021, the Chief of Military Personnel stepped aside as well, this time amid allegations of sexual assault on a subordinate female memberEndnote 191.
On 24 March 2021, then Lieutenant-General Eyre, Acting CDS, announced the end to Operation HONOUR. In his words:
- Operation HONOUR has culminated, and thus we will close it out, harvest what has worked, learn from what hasn’t, and develop a deliberate plan to go forward. We will better align the organizations and processes focused on culture change to achieve better effectEndnote 192.
Lieutenant-General Eyre stated that he remained committed to learning from the exercise and improving the processes, and in his letter to CAF members, he pledged to:
- identify and take the steps necessary to create a workplace where individuals feel safe to come forward when they experience sexual misconduct;
- finalize and publish our Code of Professional Military Conduct, including a new focus on power dynamics in our system;
- add new rigour and science to leader selection, starting at the highest levels;
- implement the Restorative Engagement aspect of the Final Settlement Agreement of the Heyder and Beattie class actions; and
- improve mechanisms to listen and learn from the experiences of those who have been harmed.
Having heard from numerous stakeholders, the scepticism that marked Operation HONOUR is not surprising. The documentary record shows a top-down, Ottawa-led process marked by sporadic flurries of activity and long periods of apparent inaction. I heard numerous stories of cancelled, poorly attended, poorly implemented, or poorly taught training. Many initiatives lacked resources. I heard accounts of Operation HONOUR fatigue and how “Operation HONOUR” quickly became “Hop on Her” and was not taken seriously by large parts of the organization.
Some of this is confirmed by the CAF’s internal documents, but mostly the flaws in Operation HONOUR were exposed by external reports such as the Statistics Canada surveys and the AG’s report. In particular, I am struck by the change in tone between the early progress reports and the Fourth Progress Report. This report followed the 2018 OAG Report, which criticized the CAF’s implementation of the Deschamps Report over the preceding three years. Until that point, there seems to have been an assumption by the CAF that Operation HONOUR was being effectively implemented only because Ottawa mandated it. The CAF’s internal audit processes do not appear to have been focused on this issue, or if they were, their reports went unread.
Rather than focus on the clear recommendations of the Deschamps Report, the CAF leadership developed a plan with no measurable key performance indicators – oblivious to its own limitations as it attempted to manage and transform issues on which it had no expertise.
Chief Professional Conduct and Culture
At the end of March 2021, then Lieutenant-General Eyre, Acting CDS, announced that the CAF would welcome an external review of the institution and its culture. As set out above, he also announced the closeout of Operation HONOUR and indicated that a plan was underway to develop a “deliberate” approach to culture in the futureEndnote 193.
The DND and the CAF subsequently released a directive on culture concluding that change could not be achieved by merely establishing a named operation, and announced instead the immediate stand up of the CPCC as part of National Defence Headquarters (NDHQ), to “develop a detailed plan to align Defence culture and professional conduct with the core values and ethical principles we aspire to uphold as a National InstitutionEndnote 194.”
The CPCC’s aim is to become the single functional authority on aligning defence culture with the standards expected of the profession of arms and the Defence TeamEndnote 195. It is to become the principal advisor to the DM and the CDS for all matters related to professional conduct and culture, including sexual misconduct and hateful conduct.
I learned of the existence of the CPCC on the same day as my appointment to conduct this Review was announced. I was not made aware until then that the CPCC – the new functional authority for culture change, including in relation to sexual misconduct – was in the process of being stood up. This is symptomatic of a broader issue. For example, while little was done to implement some relatively straightforward recommendations made in the Deschamps Report, big initiatives were launched that may have benefited from a more considered, comprehensive and unified approach. The parallel launch of the CPCC and this Review has likely created some duplication of effort, such as consultations on bases and wings and other inefficiencies.
This is not a comment on the CPCC’s mandate or staffing. The CPCC and the VCDS have been in communication with me and readily accessible throughout my Review. I have benefited from their insight and work and appreciate their efforts.
Generally, the CPCC has focused its effort on four main areas: supports for survivors, justice and accountability, culture change and consultation and communicationEndnote 196. The CPCC describes these four “pathways to progress” as its action plan to “capture and consolidate some of the key efforts planned or underway” to address harm to members of the Defence Team. I have received updates on these pathways over the course of my Review which are generally consistent with the “change progress tracker” that the CPCC has made available online to publish its current and future plans for changeEndnote 197.
Each of the “pathways to progress” is addressed in the CPCC’s work. For instance, with respect to “supports for survivors,” the CPCC is working with the SMRC to expand the SMRC’s services to DND employees and former CAF members and is working to increase the SMRC’s regional footprint. The CPCC is also supporting the SMRC in its launch of the Restorative Engagement Program required under the final settlement of the Heyder and Beattie class actions, and is establishing a joint veteran and DND peer support programEndnote 198.
Further to “justice and accountability,” the CPCC has reviewed the complaints management process to better understand the existing complaints framework. With respect to “culture change,” the CPCC has taken on several initiatives, including the review of culture and professional conduct training delivered by the CFLRS.
The CPCC has also, further to its consultation mandate, been engaged in a multi-month consultation tour of the CAF, holding town hall presentations and focus group discussions. At each stop, in-person and virtual, the command team for the CPCC engaged in a discussion of organization’s culture problem, how to define success in addressing this problem, what could be done better, and the strategy to improveEndnote 199.
I understand that the CPCC comprises four Directorates: Policy, Engagement and Research; Culture Change; Professional Conduct and Development; and Conflict Prevention and Resolution. There are currently 425 approved positions, not all filled. The ICCM program has been moved under the CPCC, as has DPMC-OpH, which is winding up Operation HONOUR. Overall, the CPCC initiative appears well-resourced and supported and is taking on a wide range of mandates relevant to this ReviewEndnote 200.
I turn to the way the CAF has collected and made use of data regarding sexual misconduct in its ranks. My examination of that issue reveals, once again, a series of initiatives unconnected to the global needs of the organization, including the need to capture what it knows and maximize the usefulness of that knowledge in decision-making. Fortunately, the CAF and the DND have recently begun to take steps to address these issues.
Data analysis will be a vital component in effecting meaningful, sustainable change in the CAF and the DND. Without data, organizations are ill-equipped to make informed policy decisions and measure the impact and effectiveness of those decisions. As well, data can be especially powerful in determining the root causes of particular events and identifying risks before they become serious issues.
Many organizations within the DND and the CAF already gather a significant amount of information – related to complaints, charges and cases – for their own purpose. But the information is disjointed and misses links to other parts of the Defence Team.
Ideally, a more thoughtful approach would ensure that the sum of each organization’s data represents the whole picture of sexual misconduct in the DND and the CAF. With the current silo model focused on achieving individual organizational mandates, this is simply not possible.
The following table provides examples of sexual misconduct incidents and related actions reported to, and recorded by, various organizations within the DND and the CAF.
Table 1. Number of sexual misconduct incidents and related actionsEndnote 201.
Description of what is collected
CCPC, DGPMCEndnote 202
Number of incidents reported to the chain of command and recorded in the OPHTAS, renamed the Sexual Misconduct Incident Tracking System (SMITS).
Number of new cases opened by SMRC.
Releases due to inappropriate sexual behaviour.
Court martials related to sexual misconduct.
Not yet tabled
Table 2. Number of sexual misconduct incidents and related actionsEndnote 206.
Description of what is collected
Number of sexual related incidents by calendar year.
Victims released via Medical Employment Limitation due to inappropriate sexual behavior (number of MELs opened in the year/number of releases in the year).
Number of sexual harassment complaints by year recorded in ICRTS. The 2018 data is as of July 2018.
Statistics CanadaEndnote 210
(External to the CAF and the DND)
Number of Reg F members who stated that they were victims of sexual assault in the military workplace or involving military members.
One question that bears asking is what is actually happening in a given year. For example, a member’s release may not be for incidents perpetrated in that year, in the same way that reporting date and date of incident cannot be assumed to coincide. Without question, there is a missed opportunity here. If the CAF and the DND make a concerted effort to coordinate data findings among their various organizations, a detailed analysis could produce useful insights.
I am not the only one to have noticed these data weaknesses. Over the last seven years, a number of people have observed and expressed concern about these issues. They include:
- Justice Deschamps – 2015;
- the AG – 2018;
- the Senate Standing Committee on National Security and Defence – 2019;
- Executive Director of the SMRC – 2020;
- the ADM(RS) – 2021; and
- the Public Service Alliance – 2022.
Clearly, CAF leadership is well aware of the issues.
In 2019, the DND and the CAF released the DND/CAF Data Strategy, a document that sets out a vision for the DND and the CAF where “data are leveraged in all aspects of Defence programs, enhancing our defence capabilities and decision-making, and providing an information advantage during military operationsEndnote 211.” The Strategy does not specifically mention sexual misconduct data; however, it presents an opportunity to use data for sexual misconduct prevention efforts, and to focus resources, improve culture and minimize risk.
In addition, the Operation HONOUR Performance Measurement Framework outlined how progress towards cultural alignment would be measured over time. Using this framework, the CAF intended to “move beyond the short-term measurement of self-reported experience and behaviours and attempt to address the less tangible dimensions of culture that will influence and sustain desired patterns of behaviour over the longer termEndnote 212.”
In April 2021, the Initiating Directive for Professional Conduct and Culture stated that the “ability to understand the scope and seriousness of [the CAF and the DND’s] challenges is limited. Multiple databases collect and track misconduct-related information making analysis difficultEndnote 213.” Its terms directed the Assistant Deputy Minister (Data, Innovation and Analytics) (ADM(DIA)) and the Assistant Deputy Minister (Information Management) (ADM(IM)) to co-lead an effort to “inventory and consolidate data assets and IT systems currently used across [the DND and the CAF] to capture and manage misconduct-related files in accordance with the Access to Information and Privacy Act and information security provisionsEndnote 214.”
In late spring of 2021, ADM(DIA) and ADM(IM) “were mandated to identify existing data assets related to systemic misconductEndnote 215.” They found that there were “31 unique data assets” across the DND and the CAF that “enable service delivery, tracking and reporting on systemic misconduct across [the DND and the CAF]Endnote 216.” The report proposes options to improve data governance, data integration and data analytics. Key findings of the data exploration efforts include:
- lack of mechanisms for integration or interoperability between data assets with unique mandates;
- low level of data quality;
- lack of overarching data governance for conduct-related data (including lack of standard definitions for types of conduct across CAF and DND approaches and policies); and
- limited automated reporting capabilitiesEndnote 217.
In August 2021, ADM(DIA) requested funding to build capacity and accelerate the collective efforts to improve conduct-related tracking, reporting and analytics. In his briefing note, he emphasized the data weaknesses:
- “Complaints, reporting, and tracking systems related to misconduct are fragmented and complex. They are made to or through multiple organizations and the associated investigations are registered and tracked across multiple disparate systems. Many of these systems were not designed for analytics and reporting and the lack of interoperability makes aggregate analysis difficult. They also face significant data challenges including a lack of data governance, data standardization, and other data quality issues resulting in system and data redundancy issues. The A/CDS and DM have identified the lack of integration and centralization of data in IT systems, as well as limited data accessibility and reporting as key issues that must be addressedEndnote 218.”
Operation HONOUR Tracking and Analysis System
When I asked how the highest-ranking CAF officers are assured that the policy and process set out in DAOD 9005-1 are implemented, the commanders who responded pointed to their use of the OPHTASEndnote 219.
For example, the OPHTAS is used not only to “ensure compliance to all reporting requirements but also ensures that [the environment] follows up on the application of [administrative]/disciplinary actions being takenEndnote 220.” Moreover, the OPHTAS is “the primary means by which the [environment] oversees sexual misconduct response and the application of DAOD 9005-1.Endnote 221” According to a presentation on the OPHTAS, “[f]or the purposes of reporting, if incidents are not in OPHTAS, they don’t existEndnote 222.”
Prior to the introduction of Operation HONOUR in 2015, the CAF did not use a dedicated central database to record all cases of sexual misconductEndnote 223. As of 1 April 2016, all L1s were directed to report sexual misconduct incidents to the CSRT-SM (changed to the DPMC‑OpH).
In January 2018, the OPHTAS was launched for use by the chain of command as a dedicated means to record, track and conduct trend analysis of incidents of sexual misconductEndnote 224. Once an incident is reported to the chain of command, the OPHTAS user has 48 hours to enter the case in OPHTASEndnote 225.
While the OPHTAS was implemented in 2018, a CDS directive to institutionalize and improve the system was issued in September 2019 because “not all L1s [were] fully aware of their responsibilities and not all CAF units [were] aware of the requirement to record and update sexual misconduct cases in OPHTASEndnote 226.”
On 24 March 2021, the Acting CDS announced the termination of Operation HONOUR. However, the CAF continues to record and track sexual misconduct incidents in the established database, now called the SMITS, and this data will continue to be published regularlyEndnote 227. There was also an attempt to extend OPHTAS to DND employees, although this was never finalizedEndnote 228. This was unfortunate, as it missed an opportunity to track sexual misconduct across the wider Defence Team.
Four Operation HONOUR annual reports have been produced to provide a summary of what the CAF has accomplished to date, including areas of success and areas where more work is required. Information reported includes number of incident reports, types of sexual misconduct, profile of who reported incidents, location/circumstance profile, disciplinary action, and administrative review. These annual reports were published prior to the launch of the OPHTAS.
The first report using the OPHTAS database was released in August 2019, in the Sexual Misconduct Incident Tracking Report. This report provides incident trends by date, sexual misconduct incident statistics, and actions taken for reported incidents. The report also claimed that “work [was] underway to fully integrate [the] OPHTAS with all other key personnel-related and sexual misconduct incident-related databases” such as “select information on Military Police investigations.” In addition, the report stated that the “OPHTAS will also be integrated with other systems, such as the Justice Administration and Information Management System (JAIMS) for military justice outcomes and the Integrated Complaint Registration and Tracking System (ICRTS) for sexual harassment outcomesEndnote 229.”
In a March 2022 technical briefing on modernizing the military justice system, the Office of the Judge Advocate General (OJAG) stated that it has been “working in partnership with ADM(IM) to modernize how cases within in [sic] the military justice system are managed and related information is gathered and maintainedEndnote 230.” The Justice Administration and Information Management Systems (JAIMS 2.0) is supposed to roll out in winter 2023. While already integrated with Guardian (the military HR system), the intent is that JAIMS 2.0 will also integrate with the DMP’s Case Management System. According to the OJAG, this integration is meant to reduce the number of times a victim will need to repeat their story.
In a January 2020 report, the SMRC pointed out that “the information contained within the [2019 Sexual Misconduct Incident Tracking Report] report demonstrates its potential as a critical tool for organizational awareness, program development, and centralized reporting.” However, it also noted that “its utility is limited by a number of factors, including compliance with and consistency in reportingEndnote 231.” To exemplify this lack of consistency, we reviewed the 13 Q2 2021 report cards that OPHTAS officials provide to L1s with a snapshot of the quality and completeness of data in the OPHTAS. On average, according to the report cards, 40% of all cases lacked critical information, with administrative and disciplinary actions representing the most incomplete data.
In addition, while the OPHTAS is intended to be a centralized database for all cases of sexual misconduct and includes comprehensive case-specific information, the system only records incidents reported by or to the chain of commandEndnote 232. As a result, “not all incidents of sexual misconduct are included, namely those that are reported to police or [the] ICCM, or disclosed to the… [SMRC] or [the CFHSG]Endnote 233.”
The 2020 Sexual Misconduct Incident Tracking Report was finalized but not released to the public. Typically, it would have been ready for publication in March 2021, but the impact of COVID-19 and an impending federal election delayed the preparation of the report.
I received data downloads from the OPHTAS system, but information was removed due to concerns about identifying individuals. Privacy proved to be a common concern and consequent deadlock during my Review. I appreciate the need to protect privacy; however, it is important to ease the tension between using data for analysis and decision-making, and privacy concerns.
In the same vein, in October 2021, the ADM(DIA) pointed out that the OPHTAS “clearly prohibits the use of its information ‘for any purpose other than sexual misconduct incident recording, tracking and updatingEndnote 234.’” Such restricted use is unfortunate as the large amount of information captured in the system provides an opportunity to analyze trends and support evidence-based decision-making. This means that “it is possible for [the] OPHTAS to leverage other data sources but not for other systems to integrate OPHTAS dataEndnote 235.” While the OPHTAS has “effectively connected to the Guardian military personnel administration systemEndnote 236” to “automatically [populate] the service number when cases are built (…), it has not been possible for [the] SMRC to gain direct access to OPHTAS data for its own reporting for legal reasons, including the Privacy Act, the Privacy Impact Assessment for [the] OPHTAS, and need-to-know requirements for accessEndnote 237.” The SMRC “has formally requested direct access to [the] OPHTAS on many occasions, without successEndnote 238.” As an alternative, the “SMRC is working with [the] CAF to receive reports to enable them to exercise their mandate to the extent possible, while continuing to pursue direct accessEndnote 239.”
The ADM(DIA) recognized the need to strike the right balance. It stated that “[i]mproving organizational situational awareness across the spectrum of conduct requires clearly defined roles and responsibilities that centre the sensitivity of the information but enable it to be harmonized effectively to support enterprise-level, strategic decision-making.” I encourage them to continue the exploration of how “making data related to professional conduct as open and accessible as possible, including to the Canadian publicEndnote 240” and researchers.
We have heard that, in addition to entering data into the OPHTAS, at least one base tracks its own sexual misconduct cases, as they believe their system is more effective. We have also heard that much time is spent adding information into the OPHTAS because new fields are introduced and/or users need to change data that has already been inputted to reflect changes in the system. This has at least two impacts – the practical problem of double data entry, and the lack of trust in the system. It also begs the question of how many other secondary databases are being maintained.
Other weaknesses that I heard during my Review are worth mentioning. First, over 250 pieces of information per incident are potentially collected in the OPHTAS. Some of this information could be useful for data analysis; however, no effort on this front appears to have been made. One example brought to my attention of how this data could be useful is the field to input a member’s obligatory service end date. This information could test the hypothesis that members are more likely to report an incident close to the time of their release.
Second, we were told that missing information in the database could be due to uncertainty/fear/resistance by members to provide the information.
Third, there is a risk that information in the database may not be reliable, as members may choose not share all information including, for example, the identity of some of the persons involved in the incident.
Fourth, it is not possible to include information about civilians, which means that repeat victims cannot be identified for risk mitigation. And offenders who leave the CAF, but enter DND employment as veterans, similarly cannot be tracked if they reoffend. The lack of a consolidated system for tracking incidents across the Defence Team is therefore problematic. In short, there are many shortcomings in the OPTHAS that must be addressed.
Overall, the work underway to collect sexual misconduct data is ambitious but by no means unachievable. There is a lot of information to be streamlined and integrated across organizations. The end reward for these efforts will be a data collection system that is invaluable to organizational knowledge and decision-making, and will represent ground-breaking change for understanding the issue of sexual misconduct in the CAF.
I can only repeat recommendations made in the past that data collection should aim at usefulness to support evidence-based decision-making and not simply as a ways of counting events or accounting for action.
Final Settlement Agreement – Heyder and Beattie class actions
The CAF and the DND have acknowledged “the harmful impact that sexual misconduct and discrimination has had on members of the Defence TeamEndnote 241.” In July 2019, the parties involved in the Heyder and Beattie class actions entered into a Final Settlement Agreement, approved by the Federal Court on 25 November 2019. As a result, the DND and the CAF will “compensate members of the Canadian military who experienced sexual misconduct.” In March 2020, class members began submitting claims to seek financial compensationEndnote 242.
As the period for filing claims expired in November 2021, the class action administrator received 19,516 claims of sexual misconduct, according to data received from the DND/CF Legal Advisor. Class action claimants reported 4,709 incidents of sexual misconduct that occurred in the decade between 2000 and 2010Endnote 243. According to Canadian Military Prosecution Service data, 106 sexual misconduct cases were brought to court martial during that timeEndnote 244. From 2010 to 2020, class action claimants reported 7,714 incidents of sexual misconductEndnote 245 and only 140 cases were brought to court martialEndnote 246.
Breaking the total number of claims down by type, 14,123 claims were made by CAF members. While current or former DND employees and Staff of the Non-Public Funds were also eligible to make a claim and receive compensation, only 847 claims were made by DND employees, and only 142 claims were made by Staff of Non-Public FundsEndnote 247.
Although several factors could explain this disparity, such as informal resolution or an incident not being severe enough to warrant a court martial, it is clear that the structure of the class action enabled victims of sexual misconduct to obtain a form of redressEndnote 248.
As part of this process, a variety of information was collected. However, in structuring the Final Settlement Agreement, confidentiality concerns seem to have prevented any effort to ensure that information collected as part of the claims could be used for research purposes – without in any way compromising privacy and confidentiality imperatives. This is incredibly unfortunate.
Had this information been gleaned, we could have achieved deeper insight into the history of sexual misconduct in the CAF up to 2019. For instance, I requested data points such as ranks of claimants and alleged perpetrators, types of allegations, and whether incidents had been previously reported. Even though it is possible to present aggregated data without compromising the identity of individuals, I was unfortunately only provided with high-level claims statistics, and was told it would not be possible to go back into the claims database to extract anything else.
Focus on the Offender
Definitions of Sexual Misconduct and Sexual Harassment
Members of the CAF are subject to more rules and prohibitions regarding their sexual conduct than most Canadians. Sexual conduct (and misconduct) is currently regulated by the CAF in several different ways:
- Under the National Defence Act (NDA): All criminal sexual offences under the Criminal Code are incorporated by reference into the NDAEndnote 249;
- Under the Code of Service Discipline: The Code of Service Discipline broadens the list of prohibited activities relating to sexual conduct for which CAF members may be sanctioned;
- Under the DAOD 9005-1, Sexual Misconduct Response: The DAOD 9005-1 defines and prohibits “sexual misconduct” in a broad way. The policy covers any sexual misconduct from Criminal Code offences to sexual harassment, viewing or displaying sexually explicit material in the workplace, jokes of a sexual nature, sexual remarks, advances of a sexual nature or verbal abuse of a sexual natureEndnote 250;
- Under the DAOD 5012-0, Harassment Prevention and Resolution: Sexual harassment is also prohibited under the CAF’s general harassment policyEndnote 251; and
- Under the DAOD 5019-1, Personal Relationships and Fraternization: Fraternization (e.g., relationships with an enemy, or a civilian in some circumstances), and intra-CAF personal relationships are also regulatedEndnote 252.
Some of these documents define, while others prohibit. Some do both. They may be applied differently depending on the environment and circumstances, but with little question there is considerable overlap.
I believe there need to be corrective measures to bring coherence, clarity and accessibility, to the broad range of prohibited conduct in the CAF that currently fall under sexual misconduct. To achieve this, we must have a solid understanding of how the terminology is currently interpreted across the CAF.
Criminal Code sexual offences under the NDA
All Criminal Code offences, including sexual offences, are incorporated into the military justice system through section 130 of the NDA, which provides:
- 130 (1) An act or omission
- that takes place in Canada and is punishable under […] the Criminal Code or any other Act of Parliament, or
- that takes place outside Canada and would, if it had taken place in Canada, be punishable under […] the Criminal Code or any other Act of Parliament,
- is an offence under this Division and every person convicted thereof is liable to suffer punishment as provided in subsection (2)Endnote 253.
It is through this provision that Criminal Code offences committed by CAF members can be prosecuted under the NDA. They may, of course, continue to be charged in civilian criminal courts and a few offences can only be prosecuted there as they are excluded from the regime of military justice if committed in Canada. These include murder, manslaughter and various child abduction offencesEndnote 254. Chief Justice Brian Dickson suggested that the rationale for this exclusion was “presumably because Parliament has determined that such offences have repercussions in society which transcend the interest of the CF in maintaining military disciplineEndnote 255.”
Historically, sexual assaults were also excluded from military jurisdiction if committed in Canada. As originally enacted, the NDA provided as follows:
Long description of NDA figure
Offences not triable by service tribunal
- Limitations with respect to Certain Offences
- 70. A service tribunal shall not try any person charged with any of the following offences committed in Canada:
- sexual assault;
- sexual assault committed with a weapon or with threats to a third party or causing bodily harm;
- aggravated sexual assault; or
- an offence under sections 280 to 283 of the Criminal Code. R.S., c. N-4, s. 60; 1980-81-82-83, c. 125, s. 32.
- 70. A service tribunal shall not try any person charged with any of the following offences committed in Canada:
- Limitations with respect to Certain Offences
This changed in 1998, when the military was granted concurrent jurisdiction over sexual offences for the first time. In Bill C-25 An Act to amend the National Defence Act and to make consequential amendments to other Acts (Bill C-25)Endnote 256, the new jurisdiction extended to both investigations and prosecutions. Before this, sexual offences were subject to the exclusive jurisdiction of the civilian criminal courts when the offence took place in CanadaEndnote 257, as were murder, manslaughter, and various child abduction offencesEndnote 258.
The change happened in the wake of the Commission of Inquiry into the Deployment of Canadian Forces to Somalia (Somalia Commission)Endnote 259, the Dickson Report IEndnote 260, and contemporary media reporting in Maclean’s about rape and sexual assault in the CAFEndnote 261. Although none of the external reports conducted at the time specifically recommended granting the CAF jurisdiction over sexual offences, this step was thought necessary by the government.
According to the former Minister, Art Eggleton, the aim of the reforms was to improve morale, unit cohesion, and both the speed and toughness of response to sexual assaults, all in the name of improved military efficiency. As he told the Senate during the passage of the Bill:
- We already deal with cases of sexual assault outside Canada, but we feel we should be dealing with them inside Canada as well. That kind of thing is very corrosive to the morale and cohesion of our military units. It can threaten the effectiveness of our operations, and that carries a great deal of risk. Our personnel risk life and limb, in many cases, in different theatres of operation. It is very important that we keep morale and cohesion high. We need to have a fair, but swift, military justice system.
- When you have men and women working together, they need to trust each other. This is vital because, if their lives are on the line, one could be saving the other. We cannot afford to have sexual assault occur. In many respects, the penalties may well be tougher when we deal with it. It needs to be tougher for the cohesion of the unitEndnote 262.
I was also provided with various discussion papers by the OJAG from this time periodEndnote 263. These repeated the following concerns, although no factual basis was presented for these conclusions:
- The inability to try sexual assaults represents a serious handicap to the CF’s ability to do promptly justice and maintain discipline… This inability undermines the system’s ability to ensure men and women are treated equally. Furthermore, sexual assault cases that the CF consider important are not always given the same priority in civil courtsEndnote 264.
It was also suggested that, since the CAF prosecuted sexual assault cases outside of Canada, that “jurisdictional symmetry requires concurrent jurisdiction both outside of Canada and inside Canada with no inflexible jurisdictional prohibition on Criminal Code offencesEndnote 265.”
This appears to be the entire rationale for granting the military justice system concurrent jurisdiction over Criminal Code sexual offences. As discussed below in the section dealing with military justice, I believe that concurrent jurisdiction has failed to bring about the desired objectives.
Service offences under the Code of Service Discipline
As mentioned above, sexual offences under the Criminal Code constitute both a crime in civilian Canadian law and a breach of the Code of Service Discipline. When handled by military justice, such conduct may be charged both under section 130 of the NDA, and as outlined below.
Forms of sexual misconduct described in the DAOD 9005-1 not amounting to a violation under the Criminal Code, such as viewing sexually-explicit materials in the workplace, may be prosecuted as a service offence under the Code of Service Discipline. However, the prohibited conduct must be characterized as a violation of one of several potential service offences contained in the NDA. According to the OJAG, depending on the specific nature of the alleged sexual misconduct, there are five principal service offences under the NDA that can apply, and are commonly used to base a charge. These are:
- section 92: Scandalous conduct by officers;
- section 93: Cruel or disgraceful conduct;
- section 95: Abuse of subordinates;
- section 97: Drunkenness; and
- section 129: Conduct to the prejudice of good order and disciplineEndnote 266.
For a charge to be brought under section 129, the underlying conduct must be prohibited, for example by regulation, directive or order. This is where the CAF’s internal definitions around sexual conduct inform the laying of charges under the above provisions. Conduct amounting to a Criminal Code violation may also be prosecuted under one of these sections. Indeed, it is not uncommon to charge both under one of the sections listed above, and under section 130 of the NDA.
The military justice system is currently in flux, pending the full implementation of Bill C-77. I revisit this in the section dealing with the military justice system.
The CAF’s definition of sexual misconduct has evolved over time, most notably in the wake of the Deschamps Report. Before this, sexual misconduct was defined in the DAOD 5019-5, Sexual Misconduct and Sexual Disorders. The 2008 version of this policy provided the following definitions:
Sexual Disorder (trouble sexuel)
Sexual disorder means any mental disorder of a sexual nature described in the Diagnostic and Statistical Manual of Mental Disorders, published by the American Psychiatric Association.
Sexual Misconduct (inconduite sexuelle)
Sexual misconduct consists of one or more acts that: are either sexual in nature or committed with the intent to commit an act or acts that are sexual in nature; and constitutes an offence under the Criminal Code or Code of Service Discipline (CSD).
Note – Sexual misconduct includes offences such as sexual assault, indecent exposure, voyeurism and acts involving child pornography.
This definition was then cross-referenced in other Defence Administrative Orders and Directives (DAOD) and CAF policies, such as the DAOD 5019-2, Administrative ReviewEndnote 267.
Harassment, including sexual harassment, was defined at the time in a separate policy, the DAOD 5012-0, Harassment Prevention and Resolution as:
- [A]ny improper conduct by an individual that is directed at and offensive to another person or persons in the workplace, and that the individual knew or ought reasonably to have known would cause offence or harmEndnote 268.
Workplace was also defined at the time in the DAOD 5012-0 as:
- Workplace means the physical work location or the greater work environment such as work-related functions and other activities where work relationships existEndnote 269.
Justice Deschamps’ recommendations regarding definitions
Justice Deschamps was highly critical of these definitions of sexual misconduct and harassment:
…the definitions of both sexual harassment and of sexual misconduct in the DAOD policies are ineffective at clearly articulating a standard of behaviour that best protects the dignity and security of members. For example, participants commented that while extreme cases of sexual harassment or sexual misconduct are easy to recognize, it is often difficult to discern whether conduct that is less overt or egregious – but nevertheless offensive – would be covered by the relevant definitions. Interviewees also commented that the line between sexual harassment and misconduct is sometimes difficult to draw. […] Members also reported that they found the policies complex and ineffective at addressing the systemic nature of sexual harassmentEndnote 270.
As a result, Justice Deschamps recommended that the CAF:
- Develop a simple, broad definition of sexual harassment that effectively captures all dimensions of the member’s relationship with the CAF;
- Develop a definition of adverse personal relationship that specifically addresses relationships between members of different rank, and creates a presumption of an adverse personal relationship where the individuals involved are of different rank, unless the relationship is properly disclosed;
- Define sexual assault in the policy as intentional, non-consensual touching of a sexual nature; and
- Give guidance on the requirement for consent, including by addressing the impact on genuine consent of a number of factors, including intoxication, differences in rank, and the chain of commandEndnote 271.
This was a relatively straightforward recommendation. Yet, despite a delay of more than five years between the Deschamps Report and the issuance of the DAOD 9005-1, key parts of that recommendation have not been sufficiently addressed, and some not addressed at all.
From Deschamps to the DAOD 9005-1
On 30 April 2015, shortly following the release of the Deschamps Report, the CSRT-SM released an action plan to address inappropriate sexual behaviourEndnote 272. In this plan, the CSRT-SM accepted Justice Deschamps’ recommendation in principle and stated that the CSRT-SM would “coordinate an in-depth review of definitions to simplify the associated language where possible and w[ould] seek clarity with respect to the complex issue of consent.”
On 14 August 2015, then CDS Vance, provided a definition of HISB in the Order initiating Operation HONOUR:
... actions that perpetuate stereotypes and modes of thinking that devalue members on the basis of their sex, sexuality, or sexual orientation; unacceptable language or jokes; accessing, distributing or publishing in the workplace material of a sexual nature; offensive sexual remarks; exploitation of power relationships for the purposes of sexual activity; unwelcome requests of a sexual nature, or verbal abuse of a sexual nature; publication of an intimate image of a person without their consent, voyeurism, indecent acts, sexual interference, sexual exploitation, and sexual assaultEndnote 273.
Following the issue of this Order, the CAF released three successive progress reports on addressing inappropriate sexual behaviour, each addressing the issue of definitions:
- 1 February 2016, First Progress Report on Addressing Inappropriate Sexual Behaviour: This report highlighted that the lack of progress in developing a definition for sexual misconduct was a serious concern, given its foundational nature. Consequently, the CAF undertook to “complete a more fulsome review of definitions and terminology associated with harmful and inappropriate sexual behaviour” over the next quarterEndnote 274;
- 30 August 2016, Second Progress Report on Addressing Inappropriate Sexual Behaviour: This report stated that the CAF had completed the development of a common terminology related to HISB, and that a CDS directive with common terminology, definitions and lexicon related to HISB would be disseminated in the following weeksEndnote 275;
- 28 April 2017, Third Progress Report on Addressing Inappropriate Sexual Behaviour:
This Report stated that Justice Deschamps’ recommendation with respect to definitions was “being implementedEndnote 276.”
On 27 July 2018, the DAOD 5019-5, Sexual Misconduct and Sexual Disorders was modifiedEndnote 277. However, the definitions of sexual disorder and sexual misconduct remained the same as in the previous versions.
In the 2018 OAG Report, the AG found that little progress had been made in addressing the concerns raised by Justice Deschamps:
- Operation HONOUR’s definition of inappropriate sexual behaviour was very broad; it included everything from jokes to sexual assault. This meant that members felt responsible for reporting all types of incidents, which placed a heavy administrative burden on the chain of command to manage the complaints.
- The Forces also failed to develop a single, unified policy to communicate clearly the definitions and rules for inappropriate sexual behaviour to members and what behaviours are expected of themEndnote 278.
In March 2019, the CAF presented a draft Canadian Forces General Message (CANFORGEN) containing a definition of sexual misconduct to the EAC of the SMRC. Like the AG, however, the EAC had concerns about the clarity and consistency of the definition proposed that echoed the original problems identified in the Deschamps Report, and conveyed its reservations in detailEndnote 279.
In April 2019, the CAF issued a CANFORGEN updating the definition of sexual misconductEndnote 280. This was also codified in an update to the DAOD 5019-5 released a day earlierEndnote 281. This definition was substantially the same as that eventually adopted in the DAOD 9005-1, as set out below.
In May 2019, the Senate Standing Committee on National Security and Defence recommended that the CAF review and amend the applicable DAOD “to clarify the definitions of certain terms, such as harassment, sexual misconduct and adverse personal relationships, as well as to address the concepts of consent, hostile work environment, military sexual trauma, and duty to reportEndnote 282.”
In July 2019, the CDS released an interim edition of the Operation HONOUR Manual. The manual was a guidance document, which does not carry the same force as a DAOD, CANFORGEN, or other order or regulation. The manual repeated the definition of sexual misconduct from the updated DAOD 5019-5, but also added definitions of sexual harassment and sexual assaultEndnote 283. In general, it is counterproductive to have non-binding secondary documents that introduce new or different elements to the definition. This only increases the confusion around sexual misconduct, with no certainty as to which document contains the binding or authoritative definition.
In October 2020, the CAF released the Path to DignityEndnote 284. Without providing a specific definition, the Path to Dignity emphasized the CAF’s zero-tolerance approach to sexual misconduct, and repeated the need for clear definitions and a unified policy approach, as set out in the Deschamps Report.
On 18 November 2020, following consultations throughout 2019 and 2020, but without cancelling the Operation HONOUR Manual or its repetition of earlier definitions, the CAF replaced the DAOD 5019-5 with what is the current policy, the DAOD 9005-1, Sexual Misconduct Response.
DAOD 9005-1, Sexual Misconduct Response
The DAOD 9005-1, Sexual Misconduct Response, issued on 18 November 2020, is the CAF’s response to Justice Deschamps’ recommendation regarding definitions, which I address below. It broadly defines sexual misconduct as:
- sexual misconduct (inconduite sexuelle)
- Conduct of a sexual nature that causes or could cause harm to others, and that the person knew or ought reasonably to have known could cause harm, including:
- actions or words that devalue others on the basis of their sex, sexuality, sexual orientation, gender identity or expression;
- jokes of a sexual nature, sexual remarks, advances of a sexual nature or verbal abuse of a sexual nature in the workplace;
- harassment of a sexual nature, including initiation rites of a sexual nature;
- viewing, accessing, distributing or displaying sexually explicit material in the workplace; and
- any Criminal Code offence of a sexual nature, including:
- section 162 (voyeurism, i.e. surreptitiously observing or recording a person in a place where the person exposes or could expose his or her genital organs or anal region or her breasts or could be engaged in explicit sexual activity, or distributing such a recording);
- section 162.1 (publication, etc., of an intimate image without consent, i.e. publishing, distributing, transmitting, selling or making available an intimate image of another person without their consent, such as a visual recording in which the person depicted is nude, exposing his or her genital organs or anal region or her breasts, or is engaged in explicit sexual activity); and
- section 271 (sexual assault, i.e. engaging in any kind of sexual activity with another person without their consent) […]
- Note – Brief summaries of sections 162, 162.1 and 271 of the Criminal Code are provided above strictly for the convenience of readers. The actual sections in the Criminal Code should be consulted for all elements and other provisions of these offencesEndnote 285.
The DAOD 9005-1 also provides the following definition of “workplace”:
- workplace (milieu de travail)
- Any location where work-related functions and other activities take place and work relationships exist, such as:
- on travel status;
- at a conference where the attendance is sanctioned by the DND or the CAF;
- at DND or CAF sanctioned instruction or training activities, or information sessions; or
- at DND or CAF sanctioned events, including social events. (Defence Terminology Bank record number 43176)
- Note – The workplace for CAF members can include ships, aircraft, vehicles, office spaces, classrooms, garrisons, hangars, messes, dining halls, quarters, gyms, on-base clubs, online forums and locations for sanctioned events such as holiday gatherings and course parties. CAF members do not simply serve in the CAF, but work, socialize and often live within institutional and social structures established by the CAFEndnote 286.
These broad definitions capture what the CAF refers to as “the spectrum of sexual misconduct,” without distinguishing between what is a crime, a form of harassment, and other prohibited activities.
Figure 2. The Spectrum of Sexual Misconduct
Source: Workplace conflict, misconduct, and harassment resolution
Figure 2 Long Description
- Dignity and respect for all
- Good order and discipline
- Highest ethical standards
- Safe and supportive environment
The following behaviours and actions range from unacceptable to criminal in nature, and are in no specific order:
- Sexualized language/jokes
- Visually displaying sexually explicit materials
- Sexual innuendos
- Unwanted sexual attention
- Pressuring for sexual activity
- Sexist or sexually demeaning comments
- Sexually discriminatory conduct
- Online sexual misconduct
- Inappropriate use of social media
- Unsolicited sexually explicit text/email/images
- Inappropriate work relationships
- Sharing private images without consent
- Indecent exposure
- Child pornography
- Criminal harassment, stalking, threats
- Sexual exploitation
- Sexual interference
- Sexual Harassment
- Sexual assault
Finally, the DAOD 9005-1 addresses in part “adverse personal relationships,” a related issue that falls more appropriately under DAOD 5019-1, and is discussed more fully below.
This brief history of the current DAOD 9005-1 shows a combination of long periods of inertia followed by initiatives that largely overlooked the near unanimous external guidance provided to the CAF in support of Justice Deschamps’ recommendation. Part of this guidance called for proper, distinct definitions and processes for dealing with sexual harassment, as well as fraternization and adverse personal relationships.
I agree with Justice Deschamps’ approach, as well as more recent criticisms of the definition of “sexual misconduct” as an umbrella termEndnote 287. The broad definition in the DAOD 9005-1 is unhelpful. While there is nothing inherently wrong with referring to sexual misconduct in conversation, as a defined term creating a discipline offence and a basis for policy it lacks coherence and clarity. I propose that the CAF abolish the definition of “Sexual Misconduct” and instead focus on sexual assault, sexual harassment, and personal relationships and fraternization. This is what Justice Deschamps recommended, and for the reasons explored above and below, there is no reason to depart from it.
The formal definition of “sexual misconduct” in the DAOD 9005-1 and other policies should be abolished.
In respect of sexual offences, the CAF should first bring its definitions in line with the wording of the Criminal Code, as interpreted by the Supreme Court of CanadaEndnote 288. There is no value to including sexual assault as one part of “sexual misconduct,” an umbrella term that has only caused enduring confusion.
Sexual assault should be included as a standalone item in the definitions section of the relevant CAF policies, with the following definition:
- sexual assault (aggression sexuelle): Intentional, non-consensual touching
of a sexual nature.
The policies should then refer to the Criminal Code as the applicable law regarding sexual assaults.
The current state of the law regarding sexual harassment in the CAF has a history similar to the one on sexual misconduct and suffers from similar deficiencies. It fails to reflect adequately the repeated external recommendations given over the years and should be brought in line with current federal law.
In addition to being referred to in the DAOD 9005-1, sexual harassment is also covered under the CAF’s policy on harassment. The process for harassment complaints is provided in the DAOD 5012-0, Harassment Prevention and Resolution and the Harassment Prevention and Resolution Instructions. The DAOD 5012-0 defines harassment as:
Improper conduct by an individual, that offends another individual in the workplace, including at any event or any location related to work, and that the individual knew or ought reasonably to have known would cause offence or harm. It comprises objectionable act(s), comment(s) or display(s) that demean, belittle, or cause personal humiliation or embarrassment, and any act of intimidation or threat. It also includes harassment within the meaning of the Canadian Human Rights Act (i.e., based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, marital status, family status, genetic characteristics, disability, or conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered). Harassment is normally a series of incidents but can be one severe incident which has a lasting impact on the individual. Harassment that is not related to grounds set out in the Canadian Human Rights Act must be directed at an individual or at a group of which the individual is known by the harassing individual to be a memberEndnote 289.
Justice Deschamps dealt extensively with the issue of sexual harassment and gave clear directions as to the way forward. She noted that the six elements necessary for a finding of harassment “narrow the scope of prohibited conduct significantly, making the definition much less inclusive than the definitions of several provincial human rights and labour law statutesEndnote 290.” I heard similar complaints from stakeholders.
She added: “the CAF definition of sexual harassment is narrower and more complex than the definition articulated by the Supreme Court of CanadaEndnote 291.”
In her view:
[It] fails to capture a range of inappropriate conduct, and has been ineffective at driving necessary organizational reform…. Likewise, the requirement that the conduct take place in the workplace is unduly restrictive. […] The limitation of sexual harassment to incidents that occur in the workplace is artificial, given the unique nature of the CAF as a “total institution”. Unlike in the case of a civilian employer, members of the military do not simply work for the CAF, but work, socialize and often live within institutional and social structures established by the militaryEndnote 292.
As such, she recommended:
[…] the ERA finds that the term sexual harassment should be clearly defined in the relevant policy, recognizing that it is separate and distinct from other forms of workplace harassment. […] The CAF should remove from the definition the reference to directed at and in the workplace. The policy should define sexual conduct that is “unwelcome” as harassment, rather than sexual conduct that is improper or offensive. The focus of the definition should be on protecting individuals from negative work consequences and a hostile environment. The policy should further clarify that all means of communication, including on-line and via social media, are covered by the policyEndnote 293.
In its May 2019 report, the Senate Standing Committee on National Security and Defence stated the following:
- In addition, the suite of relevant DAODs (5012-0, 5019-1, 5019-5 and 9005-1) should be made consistent with the most recent federal legislation addressing harassment and violence that occurs in the course of employment [...] Policy documents and directives should also clearly state that complainants of harassment have the option to pursue their complaint outside of the military system should they so choose.
- Specifically, DAOD 5012-0 should be redefined to cover the harassment that potentially could occur outside the workplace for CAF members, given the nature of military organizations as “total institutions” where members of the military live, work, train and socialize together. DAOD 5012-0 should also cover:
- sexual harassment through the use of various forms of social media; and
- examples of conduct that, while not exhaustive, will assist in understanding what constitutes prohibited sexual harassment, such as:
- use of belittling language referring to body parts;
- unwelcome sexual invitations or requests;
- unnecessary touching or patting;
- leering at a person’s body;
- unwelcome and repeated innuendo or taunting about a person’s body, appearance or sexual orientation;
- suggestive remarks or other verbal abuse of a sexual nature; or
- visual displays of degrading or offensive sexual statements or imagesEndnote 294.
Since the Deschamps Report, the DAOD 5012-0 has been amended twice, in 2017 and in 2020. It is important to note that prior to 1 January 2021, the DAOD 5012-0 applied to both CAF members and DND employees. As such, the definition of harassment needed to comply with the Treasury Board of Canada Secretariat Policy on the Prevention and Resolution of Harassment in the Workplace. Since 1 January 2021, however, the DND is subject to Workplace Harassment and Violence Prevention RegulationsEndnote 295 under Part II of the Canada Labour CodeEndnote 296 and has therefore adopted its definition of harassment and violence:
- any action, conduct or comment, including of a sexual nature that can reasonably be expected to cause offence, humiliation or other physical or psychological injury or illness to an employee, including any prescribed action, conduct or commentEndnote 297.
Harassment may also be the subject of a human rights complaint to the CHRT, in which case an objective three-part test is applied to determine if the conduct complained of amounts to harassment:
- (…) for a sexual harassment allegation to be substantiated, the following must be established:
- The acts that form the basis of the complaint must be unwelcome, or ought to have been known by a reasonable person to be unwelcome;
- The conduct must be sexual in nature;
- Ordinarily, sexual harassment requires a degree of persistence or repetition, but in certain circumstances even a single incident may be severe enough to be detrimental to the work environment (…)Endnote 298.
As of today, CAF members remain subject to the definition of sexual harassment under the DAOD 5012-0 and the DAOD 9005-1. Read in their totality, both of the definitions stated in these policies fall short of Justice Deschamps’ recommendation, which was echoed by the the Senate Standing Committee in its 2019 report. And neither is in line with the definitions of the Canada Labour Code or the CHRT case law.
Rather than repeat in detail the calls made by others, I recommend the CAF simply adopt the Canada Labour Code’s definition of harassment, which includes sexual harassment, in line with the DND and the rest of the federal public service.
I further elaborate on the interpretation of this definition in my section on Complaints.
The relevant CAF policies should adopt the Canada Labour Code definition of harassment.
Personal relationships and fraternization
This is the last area in which the CAF regulates conduct of a sexual nature. This is where there is a departure from what most non-military Canadians are subjected to, even at work. Additionally, there is considerable confusion both in the exact nature of the prohibitions, and in the application of what many in the CAF simply refer to as “frat”.
The DAOD 5019-1, Personal Relationships and Fraternization, originally issued in December 2004, and last modified in July 2014, provides the following definitions:
- Fraternization: Any relationship between a CAF member and a person from an enemy or belligerent force, or a CAF member and a local inhabitant within a theatre of operations where CAF members are deployed.
- Personal Relationship: An emotional, romantic, sexual or family relationship, including marriage or a common-law partnership or civil union, between two CAF members, or a CAF member and a DND employee or contractor, or member of an allied force.
- Adverse Personal Relationship: If a personal relationship has a negative effect on the security, cohesion, discipline or morale of a unit, the personal relationship is considered adverseEndnote 299.
Adverse personal relationships are also summarized in the DAOD 9005-1:
- An “adverse personal relationship” refers to a personal relationship that has a negative effect on the security, cohesion, discipline or morale of a unit. In accordance with DAOD 5019-1, Personal Relationships and Fraternization, administrative action must be taken to separate CAF members who are involved in an adverse personal relationship. Restrictions may also be imposed on the duty or posting of CAF members involved in a personal relationship if the circumstances could result in an instructor/student relationship that would have an effect on the security, morale, cohesion and discipline of a unit, or a senior/subordinate or inter-rank personal relationship in the same direct chain of command if there is a difference in rank or authorityEndnote 300.
Unit or operational commanders have considerable discretion in applying these provisions.
In the case of fraternization (relations with a non-ally), this is not prohibited as such but may be restricted or prohibited by in-theatre provisions. The DAOD 5019-1 provides:
- Fraternization can have detrimental effects on unit operation effectiveness due to potential threats to the security, morale, cohesion and discipline of a unit. Task force commanders must issue orders and guidance on fraternization appropriate to the situation in their area of operationsEndnote 301.
No guidance is provided for situations in which the task force commander is the individual involved in the fraternization.
Similarly, personal relationships are not prohibited as such. In fact, many CAF members over the years have married or formed long-term relationships. Several have children or siblings serving concurrently with them in the CAF. CAF members in a personal relationship must, however, refrain from conduct that may be considered unprofessional in a military context. For example, a CAF member while wearing uniform in public with another person must not:
- hold hands;
- kiss, except in greeting and farewell; or
- caress or embrace in a romantic mannerEndnote 302.
Unfortunately, the guidance on what constitutes an “adverse” personal relationship is less clear. With respect to power imbalances, the DAOD 5019-1 states that in order to protect CAF members in vulnerable situations and to ensure fair treatment, restrictions may be imposed on the duty or posting of CAF members involved in a personal relationship if the circumstances could result in an instructor/student relationship or a relationship in the same direct chain of command involving a difference in rank or authorityEndnote 303. But, again, it does not prohibit these types of relationships as such.
Nor does the DAOD 5019-1 provide an exhaustive list of what type of restrictions may be imposed. However, it provides that a CAF member in a personal relationship must not be involved, regardless of rank or authority, in the other person’s:
- performance appraisal or reporting, including training evaluations and audits;
- posting, transfer or attached posting;
- individual training or education;
- duties or scheduling for duties;
- documents or records;
- grievance process; or
- release proceedingsEndnote 304.
CAF members must notify their chain of command of any personal relationship that “could compromise the objectives of” the DAOD 5019-1, which are:
- The prevention of erosion of lawful authority;
- Maintenance of operational effectiveness;
- Protection of vulnerable CAF members and others;
- Maintenance of general standards of professional and ethical conduct; and
- Avoidance of detrimental effects on unit operational effectivenessEndnote 305.
I find this problematic. Members engaged in a personal relationship may not be in any position to determine whether their relationship may have “a negative effect on the security, cohesion, discipline or morale of a unit,” or could otherwise “compromise” any or all of the objectives stated above. And although signaling that instructor/student and direct or indirect supervisory relationships may require particular attention is valuable, it still confronts the basic problem that the individuals involved in the relationship may not be in the best position to assess whether the relationship is adverse and warrants disclosure.
This problem is not only theoretical. CAF members have been prosecuted at both summary trials and courts martial for failing to disclose a relationship determined to be “adverse”. Perhaps the most high-profile example is the court martial of Commander Nord MensahEndnote 306. Commander Mensah pleaded guilty to a charge under section 129 of the NDA (conduct to the prejudice of good order and discipline) for failing to report a relationship with a subordinate officer. At the time, Commander Mensah was the officer’s commanding officer (CO), was perceived by her as a mentor, and was responsible for writing her personal evaluation reports.
At the summary trial level, 35 such trials have taken place since 2015 that related to fraternization or adverse personal relationships, according to OJAG data. A range of penalties, including cautions, reprimands and fines were applied to those persons found guilty of failing to report an adverse personal relationshipEndnote 307.
In addition to prosecution for failing to report a relationship, when a CO considers a personal relationship “adverse”, the CAF members involved may face additional consequences. The DAOD 5019-1 states that “administrative action must be taken to separate CAF members who are involved in an adverse personal relationshipEndnote 308.” It goes on to provide that “[i]f an adverse personal relationship cannot be changed within the applicable unit/sub-unit for the CAF members in a supervisor/subordinate relationship, the CAF members must be separated by attached posting, posting, change in work assignments or other actionEndnote 309.” While this is not intended to punish or stigmatizeEndnote 310, there is obviously a risk that such measures may disproportionately impact the lower-ranked member, including affecting their career progression.
Despite Justice Deschamps’ clear recommendation to “[d]evelop a definition of adverse personal relationship that specifically addresses relationships between members of different rank, and creates a presumption of an adverse personal relationship where the individuals involved are of different rank, unless the relationship is properly disclosed,” no changes have been made to the DAOD 5019-1.
In her appearance before the Standing Committee on the Status of Women (FEWO) on 25 March 2021, Justice Deschamps addressed the enduring confusion around intimate relationships in the CAF:
- My second point concerns the lack of clarity of the policies and procedures on intimate relationships. That, I understand, was mentioned by the current acting chief of the defence staff. On that issue, I refer to section 6.2 of my report, where I expressed the view that the policies needed to be clarified to address more explicitly the power imbalance, including by creating an administrative presumption that where the relationship is not properly disclosed, the relationship should be considered to be an adverse personal relationship.
- To my knowledge, the policy on personal relationships – that’s DAOD 5019-1 – has not been changed.
- The text of that policy is a source of confusion. The organizational structure of the Canadian Armed Forces is the reason behind an inherent risk of abuse of power. That is what my recommendation on the presumption of harmful relationships was intended to remedy. I can only note that there appeared to be a lack of will to change in 2015. I hope the message is now clearEndnote 311.
In the SMRC’s 2016-17 Annual Report, adverse personal relationships were included in the definition of inappropriate sexual behaviour. It was also clear from my discussions with stakeholders that the concepts of fraternization or “frat” and adverse personal relationships are still poorly understood. The current definitions of fraternization and adverse personal relationships therefore contribute to the confusion surrounding the concept of “sexual misconduct.” Fraternization and adverse personal relationships are treated separately from sexual misconduct in CAF policy, but are included in the same spectrum elsewhereEndnote 312.
The inaction following the clear and cogent directives given by Justice Deschamps with respect to personal relationships between CAF members is appalling. The existing regulatory framework fails to capture the most problematic aspect of this area, which is the potential abuse of power that may arise when relationships in such a controlling hierarchy are not properly disclosed.
The current state of affairs also infringes the principle of legality which requires clarity and certainty in the articulation of prohibited conduct. The circumstances under which members of the CAF should notify their chain of command that they are in a personal relationship are often not within their grasp. Under the current definition, the “adverse” aspect of a relationship can only be determined after the fact, by a third party (a commander) deciding that it has “a negative effect on the security, cohesion, discipline or morale of a unitEndnote 313”.
The inertia in bringing clarity to this relatively straightforward matter coincides with the interest of senior CAF members who have the most to lose by regulating this appropriately, and enforcing it accordingly.
Fraternization and adverse personal relationships in the CAF require a unique set of regulations. There are clearly good reasons to regulate intimate relations in a theatre of operations. And there are equally good reasons to regulate with clarity what is inevitable: CAF members will have romantic and sexual relationships with each other, and with DND civilians. This is unavoidable and not itself problematic. It needs to be properly managed, not only in the best interest of the CAF, but, most importantly, in the name of protecting its most vulnerable members.
Given the nature of the CAF as a highly hierarchical institution, the risk of fallout from personal relationships within the same unit or workplace is exacerbated compared to many other working environments. And given the power associated with differences in ranks, the proportionately smaller number of women, their concentration in more junior ranks, and the long history of discrimination and sexual misconduct in the CAF, further protection is clearly needed. A rebuttable presumption should be clearly articulated that, unless properly disclosed, a personal relationship involving members of different rank is not consensual, and any negative consequences from the non-disclosure should be primarily applied to the senior-ranked member.
This is what Justice Deschamps recommended. I cannot see that anything has been done to address it. If the CAF leadership disagrees, it should say so.
The current definition of personal relationship should remain:
- A personal relationship is: An emotional, romantic, sexual or family relationship, including marriage or a common-law partnership or civil union, between two CAF members, or a CAF member and a DND employee or contractor, or member of an allied force.
The concept of “adverse personal relationship” should be abolished. All CAF members involved in a personal relationship with one another should inform their chain of command.
Commanders should be given appropriate guidance as to how to handle the situation presented to them. It could range from doing nothing, to accommodating the relationship through available measures, or, if need be, ensuring that the members have little professional interaction with each other. There are, of course, a whole range of intermediate measures that may be appropriate to address the best interests of the organization, the parties, and other stakeholders.
Should an undisclosed personal relationship come to light between members of different rank, or otherwise in a situation of power imbalance, there should be a rebuttable presumption that the relationship was not consensual. Any negative consequences should be primarily visited on the member senior in rank or otherwise in a position of power.
This brings me to the issue of consent.
Justice Deschamps recommended that the CAF provide “guidance on the requirement for consent, including by addressing the impact on genuine consent of a number of factors, including intoxication, differences in rank, and the chain of commandEndnote 314.”
This part of her recommendation was addressed in the DAOD 9005-1, which provides the following interpretation of consent:
- “[C]onsent” refers to the voluntary, ongoing and affirmative agreement to engage in the sexual activity in question. Submission or passivity does not constitute consent as a matter of law. For the purposes of the Criminal Code, no consent is obtained if:
- the accused induces the victim to engage in the activity by abusing a position of trust, power or authority;
- the victim is unconscious;
- the victim is incapable of consenting to the activity for any reason other than being unconscious, including due to intoxication;
- the victim submits or does not resist by reason of the application of force or threat of the application of force, or by reason of fraud;
- the victim expresses, by words or conduct, a lack of agreement to engage in the activity;
- the victim, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity; or
- the agreement is expressed by the words or conduct of a person other than the victim.
- Note – The above summary of “consent” is provided strictly for the convenience of readers. The actual sections in the Criminal Code and applicable common law should be consulted if requiredEndnote 315.
I believe that this definition adequately addresses Deschamps’ recommendation, as well as the recommendations made by the EAC. I simply add that in the context of a personal relationship, this definition must be adapted, as in that case it must cover the whole relationship, more than just sexual activity.
It is not difficult to understand why there is still confusion with respect to CAF policies on sexual misconduct. The multiplicity of “new” definitions, scattered across numerous policy documents, has no doubt contributed to current muddled interpretations. Moreover, the CAF’s insistence on having an umbrella concept of “sexual misconduct,” rather than clear separate definitions as recommended by Justice Deschamps, only serves to further confuse matters (in addition to conflating all sexual misconduct, thereby placing conduct as serious as sexual assault on a level playing field with issues less severe such as sexualized jokes).
I heard from numerous stakeholders – including victims and those involved in administering investigations, complaints and grievances – that this leads to problems. It creates confusion as to how to navigate the system, particularly where conduct may fall into several categories, and prevents clear and predictable routes for redress. I discuss these issues further below, in the sections on Military Justice, Complaints, and Victim Support and the SMRC.
My terms of reference require that I review “the military justice system’s policies, procedures and practice to respond to harassment and sexual misconduct,” and that I make recommendations about “any barriers within the military justice system to reporting harassment or sexual misconduct or to dealing with such behaviourEndnote 316.”
On 18 March 2022, two days before my draft Report was due to the Minister, I was provided for the first time a copy of the results from the Declaration of Victims Rights Consultation, which surveyed CAF members’ recent experiences with the military justice systemEndnote 317. The findings of the report, dated January 2022, largely echo what I heard from numerous stakeholders over the course of my Review, which I set out below.
Criminal jurisdiction over sexual offences
As discussed above, the CAF was granted jurisdiction over sexual offences for the first time in 1998. Before that, sexual assaults, including aggravated sexual assault and sexual assault with a weapon, as well as certain child abduction offences, were subject to the exclusive jurisdiction of the civilian criminal courts when the offence took place in Canada. After Bill C-25, the military system obtained concurrent – not exclusive – jurisdiction over these offences. As mentioned before, this was driven by a desire to improve efficiency, discipline and morale in the CAFEndnote 318.
As we stand today, not only has this objective not been met, but if anything, the handling of sexual misconduct by military justice has eroded trust and morale among the organization. This systemic failure is the combination of many factors at play over time, and in different parts of the organization.
The changes to jurisdiction happened along with incremental reforms to improve the independence of the military justice systemEndnote 319. As Justice Fish noted in his recent review of the military justice system:
- The military justice system began as “a command-centric disciplinary model that provided weak procedural safeguards”. Historically, the chain of command maintained an important role in the military justice system. But over time, the actors involved in the investigation and adjudication of serious service offences were afforded an increased measure of independence from the chain of commandEndnote 320.
Progress has not always been swift. In many cases, recommendations took many years to implement or were not implemented at all. For example, Justice Fish noted that Chief Justice Antonio Lamer had recommended the creation of a permanent military court in 2003. Although certain amendments were made, the core suggestion was still unaddressed by the time of the Fish Report, in 2021. In this respect, according to Justice Fish, “the words of Chief Justice Lamer are as true today as they were in 2003.” Similarly, Chief Justices Lamer and Patrick J. LeSage both recommended that section 129 of the NDA be amended to clarify the elements of the offences of “conduct to the prejudice of good order and disciplineEndnote 321.” Again, however, no attempt to implement these recommendations had been made. Other examples aboundEndnote 322.
Perhaps unsurprisingly, the Fish Report found that significant concerns with the independence of military justice actors remain. This includes the MP, the DMP, the Director of Defence Counsel Services (DDCS), and military judgesEndnote 323.
In the course of my Review, I have heard similar concerns. These address both the independence and competence of the military justice system when it comes to sexual offences. In October 2021, I submitted an interim recommendation to the Minister. I recommended that Justice Fish’s recommendation No. 68 be implemented immediately and that all sexual assaults and other criminal offences of a sexual nature under the Criminal Code, including historical sexual offences, alleged to have been perpetrated by a CAF member, past or present, be referred to civilian authorities.
For the reasons explored in detail below, I now expand upon my interim recommendation. I recommend that going forward, all Criminal Code sexual offences be exclusively investigated and prosecuted by civilian authorities, and that all charges be laid in civilian courts.
The investigations process
Unit disciplinary investigations
This first stage in investigating conduct is often an investigation by the unit. When a unit is made aware of allegations against one of its members, an investigation must be conducted to determine the appropriate action. COs are directed to consult with their unit legal advisor to determine the appropriate type of investigationEndnote 324. This may consist of a unit disciplinary investigation, an administrative investigation, or a harassment investigation. In theory, unit-based investigations generally wait until any ongoing police investigation is complete. However, circumstances may arise where a unit-level investigation begins and reveals conduct that requires police investigation.
According to the Charge Laying Aide Memoire:
A disciplinary investigation is an investigation conducted pursuant to ref A to determine whether or not a service offence was committed. A disciplinary investigation shall, as a minimum, collect all reasonably available evidence bearing on the guilt or innocence of the person who is the subject of the investigation, identify those responsible and identify the required elements of the specific offence in order to support a chargeEndnote 325.
The Charge Laying Aide Memoire sets out in general terms the approach for a CO or unit disciplinary investigator, from complaint up to laying of charges. It makes clear that there will be circumstances in which a disciplinary investigation by the unit will be the first step in determining whether a service offence has been committed and may not involve the MP at this stageEndnote 326.
The Charge Laying Aide Memoire states, “If there is any question about whether an investigation should be referred to the military police, the unit legal adviser or the military police should be contacted for adviceEndnote 327.” I was told that, generally, if there is any indication of sexual misconduct, the MP get involved. If the matter is serious, it is immediately referred to the CFNIS. Still, initiation at the unit level creates risks of contamination of evidence, failure to maintain clear chains of custody of evidence, and improper questioning of witnesses, serious concerns in any criminal investigation.
The Canadian Forces Provost Marshal
The CFPM is appointed by the CDS. In addition to his overall responsibilities, the CFPM is also the commander of the CFMPG and oversees all the MP in the CAF. This includes general MP units attached to the environmental and special operations forces commands, the CFNIS, and other specialized MP units, such as the Military Police Academy.
The CFPM candidate must be an officer and must have been a member of the MP for at least 10 years. The CFPM holds a rank not less than colonel, and the current CFPM is a brigadier-general, in line with the recommendation by Justice Fish that the CFPM should hold a General and Flag Officer (GOFO) rankEndnote 328. The CFPM’s responsibilities include:
- investigations conducted by any unit under his or her command (including CFNIS);
- the establishment of selection and training standards applicable to candidates for the MP and ensuring compliance with those standards;
- the establishment of training and professional standards applicable to the MP and compliance with those standards; and
- investigations in respect of conduct that is inconsistent with the professional standards applicable to the MP or the Military Police Professional Code of ConductEndnote 329.
The CFMPG “provides professional policing, security and detention services to the CAF and the DND globally, across the full spectrum of military operationsEndnote 330.” In short, it fulfills four core functions for the CAF: policing, security, detention and “support to environmental commandersEndnote 331.” Individual MP have the powers of a peace officer in respect of any person subject to the Code of Service Discipline and may arrest any such person, found or suspected of committing a service offence, without a warrantEndnote 332. Non-MP CAF officers also have powers of arrest without a warrant for service offencesEndnote 333.
Outside certain specialized units, such as the CFNIS, MP are acknowledged to have a “dual role.” This means they sometimes fall under the authority of non-MP commanders when performing general military duties, and only under the MP chain of command when performing law enforcement functionsEndnote 334. In particular:
- MP deployed on an operation must obey all lawful orders issued by the Comd of the operation and comply with applicable Rules of Engagement (ROE) governing the Use of Force (UoF) for the purpose of achieving military objectives, like other CAF members. MP will only question orders issued to them if these raise concerns about their police independenceEndnote 335.
The CFPM reports to the VCDS, who is empowered to issue instructions and guidelines with respect to the CFPM’s responsibilities, or concerning a particular investigationEndnote 336.
Justice Fish expressed concerns with these limitations on the independence of the CFPM. He recommended that the NDA be amended to provide that the CFPM be appointed by the Governor in Council (GIC), rather than by the CDS, and report to the Minister, rather than to the VCDS. He further recommended that neither the Minister nor the CDS/VCDS be authorized to direct the conduct of specific investigationsEndnote 337.
I agree that these changes are necessary to provide formal guarantees of independence to the CFPM from the chain of command, which falls under its investigative competence.
This is not a purely formal or theoretical concern. Recent allegations of sexual misconduct by senior CAF officers, which have been the subject of investigations by the military police, have highlighted the problems with the current state of affairs.
In addition to the legal issues affecting the independence of the CFPM, a problem also arises from the small size of the GOFO and senior officer pool. The CFPM, a brigadier-general, is one of some 140 GOFOs. Among this small group of senior officers, many know each other well. Several are alumni of military colleges. Some will have worked together. Others have been in positions of command or subordination vis-à-vis one another during their career. As such, many have formed strong bonds of loyalty and fraternity by the time they reach GOFO rank, yet all are still competing with each other for fewer opportunities for promotions.
Among NCMs, there is a view that officers will band together and may be inclined to support each other, rather than outsiders, even victims. For example, there is a perception that the officer corps – and GOFOs in particular – will protect their peers first and apply rules impartially second. During my Review, I heard numerous criticisms of this type from NCMs and officers alike.
Recent events have thrown this issue into stark relief. A former CDS is alleged to have said that he “owned” the CFNIS and was “untouchableEndnote 338.” Whether or not the remarks attributed to him were truly made, they reflected what many believe. There is some basis for this perception. The CDS appoints the CFPM and may give orders to the VCDS, who in turn is empowered to give orders to the CFPM, and so on down the MP chain of command. Section 18.5 of the NDA provides as follows:
- General supervision
- 18.5 (1) The Provost Marshal acts under the general supervision of the Vice Chief of the Defence Staff in respect of the responsibilities described in paragraphs 18.4(a) to (d).
- General instructions or guidelines
- (2) The Vice Chief of the Defence Staff may issue general instructions or guidelines in writing in respect of the responsibilities described in paragraphs 18.4(a) to (d). The Provost Marshal shall ensure that they are available to the public.
- Specific instructions or guidelines
- (3) The Vice Chief of the Defence Staff may issue instructions or guidelines in writing in respect of a particular investigation.
Justice Fish recommended that section 18.5(3) be repealed, and that the supervisory authority of the VCDS be replaced with that of the Minister. I agree with this recommendation.
I was assured by the CFPM and the VCDS that instructions with respect to specific investigations were never and would never be given. Despite having the statutory authority to do so, the VCDS expressed the opinion that should she attempt to influence or direct the CFPM in a specific instance, she could face charges of improper interference with police activities before the MPCCEndnote 339. Section 250.19 of the NDA provides that “improper interference with an investigation includes intimidation and abuse of authorityEndnote 340.” I doubt that the exercise of the VCDS’s powers under section 18.5 of the NDA could amount to “improper interference” in an MP investigation. But the mere fact that the VCDS believes so gives credence to her position.
Yet, the CFPM seems to have more concerns about his relationship with his superiors. When asked to investigate a matter involving the then-VCDS, the CFPM responded as follows:
I have further considered your below request and discussed with CO CFNIS. I am concerned of the potential conflict of interest (real or perceived) in looking in the below matter for two principal reasons: my “general supervision” relationship with the VCDS and, more importantly, that the matter/circumstances would not amount to the level of service/criminal offence(s). For those reasons, and in order to preserve the independence of my office in relation to policing matters, I will not be investigating the matter and recommend that the facts you are seeking … would be best determined by ADM(RS)Endnote 341.
The first reason expressed by the CFPM for declining to investigate is at odds with his testimony before the FEWO where he assured members of Parliament that his command would investigate any officer “regardless of rank or statusEndnote 342.” Easy as it may be to assert that in theory, when confronted with the reality of having to do so, I believe the CFPM correctly identified the conflict of interest in which he found himself.
Needless to say, similar, if not worse, problems would arise if the CFPM were required to investigate the CDSEndnote 343. The CDS appoints him and would have to approve his subsequent promotions. The CDS is, of course, the immediate superior of the VCDS, to whom the CFPM reports. This structure is problematic at the best of times. When sensitive matters, such as sexual misconduct arise, it is simply unworkable.
There are other problems with internal MP or CFNIS investigations of sexual misconduct, although these concerns were dismissed when I put them to MP and CFNIS members. One is the difficulty of MP investigating someone superior to them in rank. I was told that investigators may choose not to wear a uniform during an interview, so the rank doesn’t pose a problem. Considering the extent of deference to rank in the military, I am not persuaded that this can be so easily dismissed.
The other, related, problem arises when victims are questioned by someone who may be superior to them in rank. This goes beyond the common problem of being interrogated by a man, who may or may not be sufficiently competent in the use of trauma-informed interview techniques. Here again, the rank difference may add to the level of intimidation and related reluctance that victims may experience in an already difficult process.
These problems tend to reinforce each other. The formal lack of independence supports the impression that CAF senior leadership controls the MP – and by extension any investigations into sexual misconduct. In addition to the ever-present hierarchy, the informal networks of loyalty and fraternity reinforce the potential, both perceived and real, for undue influence in the course of investigations. Although MP investigations are subject to the jurisdiction of the MPCC, which can review complaints of alleged improper interference, this type of undue influence is often subtle and undetectable.
This has led to expressed scepticism about the integrity of MP investigations, particularly of senior officers charged with various types of sexual misconduct.
CFNIS and MP investigations
In theory, the only unit within the CAF that has the authority to investigate sexual offences is the CFNISEndnote 344. The CFNIS was created following the Dickson Report I, which recommended a new investigations branch that was independent from the immediate chain of commandEndnote 345. The CFNIS is based in Ottawa and replaced the former special investigation unit. It is commanded by a lieutenant-colonel who reports directly to the CFPMEndnote 346. Unlike local MP, CFNIS investigators always remain under the command of the CO of the CFNIS, regardless of where they are postedEndnote 347.
The CFNIS takes its investigators from the ranks of the larger CFMPG. The CFNIS conducts an interview and aptitude test, and those who are selected then do 12 to 24 months of training to become qualified investigatorsEndnote 348. However, the CFNIS has no direct control over the hiring process; the MP hiring process is CAF-controlled. Since 2015, the CFNIS has instituted additional training and competency requirements for its investigators regarding sexual assault. Based on current training protocols, all CFNIS investigators receive sexual assault training, including trauma-informed approach training, as one of their core competencies. This has also been required for all MP to complete as part of ongoing training and is now embedded at the Military Police AcademyEndnote 349.
In addition, since 2016 the CFNIS has also has a specialized sub-unit, the Sexual Offence Response Team (SORT), which receives additional training and deals with complicated sexual assault files. It was intended “not… to absorb all sexual related investigations but to bolster the existing infrastructure and build a depth of experience in regards to sexually-based offencesEndnote 350.” The SORT has been described as a “team within a team,” to provide specialized support to more complex filesEndnote 351.
Although sexual offences are supposed to be the exclusive responsibility of the CFNIS, this does not mean that there is no role to play for the local MP. As Justice Fish noted in his report:
- The specialized investigative arm of the military police, known as the Canadian Forces National Investigation Service (“CFNIS”), has a right of first refusal over the investigation of serious offences and sensitive offences, including criminal sexual offences. Except in the case of criminal sexual offences, the CFNIS may however defer its investigative responsibility to the local non-CFNIS military police (often referred to as the uniformed military police) when the commander of the CFNIS considers it appropriate to do so. Even where the investigative responsibility is not deferred, the uniformed military police may be requested to assist the CFNIS in investigationsEndnote 352.
According to data provided by the DMP, between 1999-00 and 2020-21, MP were involved in investigating 48 cases that led to court martial prosecutions related to sexual misconductEndnote 353. In a number of cases, including after the Deschamps Report and after the launch of Operation HONOUR, MP were the only investigating unit listed.
I also heard from stakeholders, including serving MP and victims, that it is not uncommon for local MP to be actively involved in an investigation. Local MP are often the first point of contact with a complainant making a reportEndnote 354. According to the CFPM and the CO of the CFNIS, it is common for the CFNIS to make use of local MP to take the initial evidence gathering steps, including taking a statement from the victimEndnote 355.
All this puts a degree of discretion into the hands of uniformed MP in the early stages of an investigation. Where they are the first point of contact, it is up to them to decide if a complaint should go to the CFNIS, or whether the conduct can be characterized in some other way and investigated as a lesser service offence. This places a large burden on the shoulders of uniformed MP including interviewing a potentially traumatized complainant, and making assessments about whether an accusation is criminalEndnote 356.
During the course of my Review, several stakeholders expressed their scepticism about the independence, and some about the competence, of the CFNIS and the MP in general. While one felt that her case had been handled appropriately, several women who met with me shared concerns about how their complaints were investigated. These ranged from multiple re-traumatizing interviews with different people, to constant changes to the investigator roster, leading to delays and failure to move the investigation forward.
Among the stakeholders I spoke with were provincial crown prosecutors and other lawyers in the civilian system – with experience in military sexual offence cases. Save for one, they were generally critical of the quality of investigations conducted by the CFNIS and the MP, in comparison to the files they received from civilian police forces. Among the deficiencies they highlighted were: a tendency to fall back on rape myths, including irrelevant material in their reports; often failing to follow up on relevant matters; general problems of evidence management; and inexplicable delays.
This is supported by the findings of the recent Declaration of Victim’s Rights Consultation carried out by the CAF. This consultation found that, of those surveyed, victim-blaming and failing to treat victims with respect was a problem at all stages of the military justice system, including the investigation stageEndnote 357.
Investigative delay was also raised as a concern in the Fish Report, for both the CFNIS and the uniformed MPEndnote 358. Justice Fish noted that a previous 30-day limit for investigations, which had been criticized by the AG, was revoked in 2018, and replaced with a general requirement that “investigations must be conducted as quickly and efficiently as possible.Endnote 359” In 2019, a Military Police Analytics Program (MPAP) was created to track compliance with investigative efficiency. Justice Fish accepted that the new measures were “still in their infancy” and the data was “insufficient to assess their likelihood of success in reducing investigative delay in the longer termEndnote 360.”
I was provided with some data from the MPAP. This showed that for sexual assault investigations since 2016, that resulted in charges being recommended, the median length of investigation was between 140 and 207 days and the mean was between 202 and 265 daysEndnote 361. Investigations that had concluded without a charge being recommended were shorter, with a mean between 45 and 138 days and a median of two to 33 daysEndnote 362. To put it another way, for files where charges were recommended, in every year but one since 2016, investigations took, on average, more than 5 months. While I accept that there are particular complexities to investigating in an environment such as the CAF, this does not even approach the 30-day limit recommended by Chief Justice LeSage and previously in force.
In addition to survivors and lawyers, I heard from serving MP, senior officers including COs, and others within the CAF and the DND system. Finally, I consulted a range of independent observers, including civilian police forces and academics.
It emerged from these consultations that the perception of a lack of independence and concerns about competence on the part of the CFNIS in the investigations of sexual misconduct have been brought to the surface by recent events. As I explained in my Interim Report to the Minister:
- While the secrecy that surrounds the early stages of a police investigation may be necessary, in the current climate it serves to increase suspicion about the CAF’s ability to police itself. Further, the fact that CFNIS investigations are meant to be kept confidential, even from the CAF’s leadership, inevitably invites suspicion and disbelief, and puts the CAF leadership in a difficult – if not impossible – position. This has been recently illustrated by the disclosure of promotions granted to GOFOs undergoing investigation, inviting speculation about the motivations and competence of CAF leadership. Such speculation would not happen if, as is normally the case, the investigations were demonstrably at arm’s length, conducted by outside investigative authoritiesEndnote 363.
While measures advocated by Justice Fish would improve the formal independence on the CFPM from the CAF chain of command, I believe that in the area of sexual offences this would not be enough to cure the trust deficit that currently exists, particularly when senior officers are the subject of investigations.
This trust deficit is a liability for the CAF. Rather than improving “efficiency, discipline and morale,” jurisdiction over the investigation and prosecution of sexual offences has undermined confidence in the chain of command while doing little to eradicate the proscribed conduct.
Review of file clearance codes
Another aspect of the investigations process that has come under scrutiny is the clearance of files (i.e., the closure of the active investigation). When an incident is “cleared”, it may be cleared as “founded” or “unfounded”. An “unfounded” case proceeds no further. If “founded,” there are a number of different clearance codes used to indicate the circumstances in which it was cleared or not cleared. Issues were identified in the use of “unfounded” codes, both within and outside the MP. In 2017, the CFPM tasked the CFNIS with putting in place an external review team to review all sexual assault investigations coded as “unfoundedEndnote 364”. This resulted in the launch of the Sexual Assault Review Program (SARP) in 2018 with a mandate to review sexual assault files coded “unfounded” by the investigatorEndnote 365.
The review noted that the “unfounded” clearance code was still being used improperly and emphasized the need for trauma-informed training across the entire MP corps. It also identified a need for training to address implicit and unconscious bias regarding sexual assault and other gender-related crimes, and improved training on credibilityEndnote 366. Following the review, the CO of the CFNIS developed an action plan tracking all observations from the report and related initiativesEndnote 367. As one of the measures put in place following the review, all “unfounded” codes now require prior approval from the CO of the CFNISEndnote 368. This is intended to avoid past misuses of the “unfounded” code.
Overall, the SARP was a useful exercise for the CAF to undertake, and its model could be adopted elsewhere to review how procedures meant to respond to sexual misconduct are being used. However, these measures are still in their infancy. It is impossible to assess what impact, if any, they could have on the integrity of sexual assault investigations; although the overall proportion of cases affected was small, the findings of the SARP confirm the concerns expressed elsewhere about the capability of the MP to handle investigations with a sexual element.
Perceptions versus reality
In his review of military justice in 1997, Chief Justice Dickson commented that, where a justice system is concerned, perception is as powerful as reality:
- It is often said that perception is reality. Perhaps this is especially true in the administration of justice because any justice system, whether it be military or civilian, depends for its legitimacy on the respect of the individuals that are subjected to it. When a significant number of individuals who are governed by that system have lost respect for this institution, and feel that there is a double standard, then there is a serious problem that must be addressed or the system will collapseEndnote 369.
I agree with these sentiments. The scale of sexual misconduct in the military exposed in the media, well-documented in the Deschamps Report, acknowledged in the Final Settlement Agreement of the Heyder and Beattie class actions, confirmed in surveys and highlighted in recent highly visible cases, affects both reality and perception. It has cast a long shadow over the role of military justice in efforts to eradicate this kind of conduct, often criminal in nature. Past a certain point, it is irrelevant whether CAF members and the general public perceive the military justice system to be unfit for the task – whether due to a lack of independence or otherwise – or whether it truly is unfit.
Murder, manslaughter and certain offences against children have always been outside the realm of military justice and reserved for civilian courtsEndnote 370. It certainly suggests that they stand well above matters of military discipline. I believe the same is true of sexual offences.
In any event, the investigation and prosecution of Criminal Code sexual offences have proven to be a major challenge for the military justice system. I believe that challenge is now insurmountable for the CAF. Victims, perpetrators, other stakeholders and the institution itself will be better served if sexual crimes are investigated by civilian police and prosecuted in civilian criminal courts. Although the civilian process is far from perfect, at least there will be no suggestion that some special treatment, good for some, bad for others, is accorded to members of the military who are entitled, like every other person in Canada, to equality before the law.
The court martial process
The military justice system is presently in a state of flux. On 21 June 2019, Bill C-77 was passed into law. Bill C-77 amends the military justice system in a number of ways. It introduces victims’ rights aligned with those already provided for in the civilian criminal justice system by the CVBR. It changes the classification of offences, overhauls the summary trial process and lays down additional victim and witness protection.
However, most of these legislative provisions are not yet in force. Justice Fish noted in his report that he had not been given any “firm or even target date” for implementation of Bill C-77Endnote 371. Similarly, I was not offered any clear timeline for implementation until after completion of my draft report, when I was informed that it would enter into force on
20 June 2022. Further, I was told that the language of Bill C-77 precluded piecemeal or incremental implementation and that considerations around the new summary hearings process are ongoingEndnote 372.
Prosecution and defence of sexual offences
Justice Fish examined the independence and tenure of the DDCS and the DMP, as well as the defence counsel and prosecutors who work under their direction. He made a number of recommendations, including that legal officers posted to either directorate remain there for a minimum of five yearsEndnote 373. These are all welcome.
It is widely accepted that sexual assault and other serious sexual offences are among the most challenging crimes to prosecute. In 2018, a working group of the Federal-Provincial-Territorial (FPT) Meeting of Ministers Responsible for Justice and Public Safety reported that:
- The law on sexual assault is complex and requires an understanding of discriminatory myths and stereotypes that have been applied to sexual assault victims. Accessing ongoing training on the law, including relevant law reform, can be challenging for police, prosecution services and victim servicesEndnote 374…
Indeed, some provincial prosecutorial services have dedicated expertise in sexual and domestic violenceEndnote 375.
There are long-standing questions about the experience of counsel prosecuting and defending at courts martial compared to their civilian counterpartsEndnote 376. Even today, there are differing views inside the JAG about this questionEndnote 377. This can be a challenge in the context of sexual offences. The current system within the JAG is not particularly well-suited to meet this challenge. Although the JAG committed to keeping legal officers posted to defence counsel services or the Canadian Military Prosecution Service for a minimum of five yearsEndnote 378 – which will, if Justice Fish’s recommendation is implemented, be institutionalized – it is not a very strong basis for developing and retaining a cadre of specialist defence counsel or prosecutors experienced in handling complex sexual offence trials.
Moreover, the military has a low volume of courts martial for sexual assault. Between 2015 and 2018, there were 29 reported court martial cases involving a charge of sexual assault, according to a Dalhousie Law Journal articleEndnote 379. In comparison, Statistics Canada data shows there were 4,651 cases in Ontario from 2015-16 to 2018-19, 1,958 in Quebec, 1,444 in British Columbia; 803 in Manitoba, and 370 in Nova ScotiaEndnote 380. Even smaller jurisdictions such as Prince Edward Island and Yukon saw 53 and 97 sexual assault cases respectivelyEndnote 381. Thus, in even the smallest of Canada’s civilian jurisdictions, there is a much greater caseload and a corresponding opportunity for lawyers and judges to gain significant experience in the trial of sexual assaults and other criminal sexual offences.
Justice Fish accepted that military experience is relevant for prosecuting and defending in a military contextEndnote 382. I agree with this insofar as military justice actors, including counsel, are involved in the trial of specific military offences. I also agree that military experience may be helpful to understand the context in which sexual offences may have been committed, such as the proximity of living arrangements, the functioning of units and the importance of hierarchy in the appreciation of consent. But in my view, this is not inherently different from the many environments in which Canadians interact with each other and which have to be appreciated and understood by judges and juries every day in Canadian courtrooms.
Conviction rates and sentencing
In what is claimed to be the first empirical study of sexual assault in the Canadian military justice system, Professor Elaine Craig noted that between 2015 and 2018:
The conviction rate for the offence of sexual assault disposed of through court martial proceedings in Canada (either by plea bargain or trial) over this four-year period was approximately 14 per cent. If convictions for lesser included Criminal Code offences such as assault are included, the conviction rate during this period was approximately 28 per cent. These figures are markedly lower than the conviction rate in cases disposed of in Canada’s civilian criminal court system. For example, the conviction rate for sexual assault and lesser included offences disposed of in Canada’s civilian criminal courts during this same time period was between approximately 42 and 55 per centEndnote 383.
She went on to note:
Nearly all courts martial guilty findings for sexual misconduct involve plea bargains in which the accused pleads guilty to either the section 129 offence of ‘conduct to the prejudice of good order and discipline’ or the section 93 offence of ‘disgraceful conduct’ and in exchange the sexual assault charge is withdrawn or stayedEndnote 384.
This practice seems well entrenched. For example, in the 2021 case of R v. Bankasingh, the accused admitted to having “fondled her breasts, buttocks and vagina” of a 17-year-old private who was incapacitated at the timeEndnote 385. A plea bargain was struck by which no evidence was presented on the charge of sexual assault and the accused pled guilty to the lesser charge of disgraceful conduct under section 93 of the NDA and received a sentence of imprisonment for 60 days.
Professor Craig concluded that, based on data from 2015 to 2018, the “rate of conviction for sexual assault through courts martial proceedings is dramatically lower than in the civilian systemEndnote 386.”
The OJAG provided me with data on all courts martial relating to Criminal Code sexual offences from 1999-00 to 2020-21, that is, since the CAF first gained jurisdiction over those offencesEndnote 387. According to that data, there were 134 courts martial for sexual assault between 1999-00 and 2020-21Endnote 388. Of these, 37 were found guilty of sexual assault, 17 were found guilty of the lesser included offences of assault and 47 were acquitted. In addition, 35 of the cases were withdrawn, terminated or stayed. This represents a base conviction rate of 27% for sexual assault, and 13% for lesser included offences.
Although this presents a slightly better picture over time than the more recent period examined by Professor Craig, with an average combined conviction rate of 40% for sexual assaults and lesser included offences, it is still below the conviction rate for sexual assaults and included offences in the civilian system reported by Statistics Canada (between 41% and 46% from 2005 to 2020, with the exception of 2018-19 when it was 39%)Endnote 389.
Professor Craig also noted that “One of the primary justifications offered in support of permitting the military to operate its own parallel legal system is the claim that the need for military discipline necessitates the ability to impose stricter punishments.” This was also emphasized by the then MND to justify the original grant of jurisdiction in 1998. He stressed that the penalties needed to be tougher because women and men in the CAF needed to trust each other to put their lives on the lineEndnote 390.
And yet, as Professor Craig’s research makes clear, even since the Deschamps Report and Operation HONOUR, sentencing for sexual assault has repeatedly resulted in light penalties such as fines, reduction in rank, and reprimandsEndnote 391. While it is sometimes difficult to directly compare statistics between the military and civilian systemsEndnote 392, I have considered the overall sentencing statistics for the military justice system. In the 22 years’ worth of court martial data provided to me, there were 247 prosecutions – if all courts martial for sexual misconduct are considered – including sexual assaults and lesser chargesEndnote 393. Many of the charges were for lesser service offences, including cruel and disgraceful conduct (section 93 of the NDA) and conduct to the prejudice of good order and discipline (section 129 of the NDA). In the latter case, a conviction is considered disciplinary only and does not result in a criminal record if the sentence consisted of one or a combination of a reprimand, severe reprimand, fine of up to one month’s basic pay, or a “minor punishmentEndnote 394.”
Another concern with section 129 of the NDA in particular is its vagueness. Justice Fish noted that while enacted as a residual power it is hardly used as such. Rather, it is one of the two most commonly adjudicated service offencesEndnote 395. In the context of sexual offences, this is problematic, since by its very vagueness almost any conduct – including acts that would otherwise constitute a Criminal Code sexual offence – can be used as the basis for a charge under this section. The data bears this out; it regularly is used to deal with sexual misconduct, including sexual assault.
Out of 187 guilty verdicts, 102 (55%) resulted in a reprimand only, with a further 20 offenders (11%) sentenced only to a reduction in rank. A mere 38 cases (20% or approximately 1.7 per year) resulted in immediate confinement, detention or imprisonment. The rate was higher for sexual assault cases only: 20 guilty verdicts (54%) led to a custodial sentenceEndnote 396. However, this does not tell the whole story, as a number of courts martial for sexual assault resulted in guilty verdicts for the lesser included offence of assault. If these cases are included, the rate of custodial sentencing for sexual assaults drops to 41%. I also note that in the data I was given there are numerous cases of sexual assault which were dealt with by way of summary trial, although it is difficult to pin down exact numbers.
By comparison, Statistics Canada data shows that between 2015 and 2020 across Canada, custodial sentences for sexual assault ranged between 55% and 59%, while for other sexual offences, the rate was 67% to 70%Endnote 397. Combining the totals for sexual assault and other sexual offences according to Statistics Canada results in an overall custodial sentence rate of between 63% and 65%. Overall, the rate of custodial sentencing at courts martial is low compared to civilian courts.
Justice Fish identified delay in the court martial system as a particular problem. He noted that between 2013-14 and 2018-19, the average time from the laying of the charge until completion of the trial, as reported by the OJAG, was 384 days. He also cited analyses by the OAG and the authors of the Court Martial Comprehensive Review who pointed out that it took a total of 17.7 months and 434 days, respectively, to complete court martial cases. In particular, the OAG pointed out that nine cases out of the 20 studied took more than 18 months to completeEndnote 398.
Delays such as these are particularly problematic for CAF members involved in a case of sexual assault or another criminal sexual offence. The stress related to facing criminal charges is well understood and is just as intense, in the context of a military career. CAF members charged with sexual assault are entitled to the same fairness and procedural safeguards as other Canadians, including a right to be tried within a reasonable time. Victims/survivors of sexual assault are often traumatized by the criminal justice process. This is often intensified in the military context. They often face ostracization and reprisals, which ultimately affects their careers. This includes deliberate reprisals and the more subtle, but no less pernicious, effects of stress and trauma associated with ongoing criminal proceedings in a relatively closed community. Where resolution of a case takes more than one year, and possibly multiple years factoring in the initial investigation, the victim’s performance appraisal may be affected, with repercussions for the individual’s career.
Since 2015, victims of sexual offences in the civilian system have benefited from the CVBREndnote 399. Although Bill C-77 provided for an equivalent set of protections in the military justice system, the DVREndnote 400, this has yet to be implemented (in common with the other parts of Bill C-77).
Justice Fish noted that “in enacting Bill C-77 in the aftermath of the Deschamps Report, Parliament decided to afford victims the same rights in both military and civilian proceedingsEndnote 401.” In his view, as far as criminal sexual offences are concerned, the failure to implement the DVR was sufficiently serious as to merit temporarily removing the investigation and prosecution of sexual offences from the military justice systemEndnote 402.
Justice Fish’s Recommendation No. 68 states:
- The Declaration of Victims Rights should be brought into force as soon as possible, ensuring that victims investigated or prosecuted under the National Defence Act will be entitled to substantially the same protections as the Canadian Victims Bill of Rights affords. Until the Declaration of Victims Rights comes into force, and unless the victim consents:
- sexual assaults should not be investigated or prosecuted under the National Defence Act and should instead be referred to civilian authorities; and
- there should also be a strong presumption against investigating and prosecuting under the National Defence Act other offences committed against a victim.
- Moreover, the National Defence Act should be amended to expressly incorporate, in substance, the rights and protections afforded by the Criminal Code to victims and to persons accused of sexual offences.
I agree that the lack of implementation of the DVR is problematic for victims of sexual assault and other Criminal Code sexual offences.
Insofar as seeking the victim’s consent for a sexual assault case to remain in the military system, the matter is, in my view, equally problematic. In light of this recommendation, the CFPM developed a draft protocol for seeking the “informed consent” of victims to determine whether their case should be transferred to the civilian justice systemEndnote 403. It provided as follows:
- Informed Consent
- Upon CFNIS receipt of a complaint of a possible criminal sexual offence, it is of the utmost importance that the CFNIS informs the victims about their rights and protections afforded to them by the CVBR and the Civilian Justice System (CJS) as well by the DVR and the MJS. As part of the provision of information, the CFNIS will provide the victim with a copy of the pamphlet on victim rights (ref G).
- Victims need to be informed that until the DVR is in force, the protections afforded to them by the MJS are not established by law as it is in the CJS but by policy. While these mechanisms serve the same purposes and achieve substantially similar results, policy-based protections may not instil the same degree of confidence as rights anchored in legislation.
- While MP must provide victims with substantial and accurate information about these rights, it should not be construed as legal advice. Victims have the right to seek legal or other advice if so needed which should be encouraged and facilitated whenever possible.
- Furthermore, when providing information to establish informed consent, the CFNIS will exercise discretion in order to avoid biasing the victim towards one system or the other. It must be explained that the CFNIS cannot guarantee the victim a specific outcome in either system.
- Once victims have an informed understanding of their rights and the differences between the MJS and CJS, the CFNIS shall confirm choice of the victims in relation to whether they wish to have their complaint investigated by the CFNIS or by a civilian police authority. The CFNIS will ensure that the informed consent of the victims is documented. Moreover, victims shall be advised that they may withdraw their informed consent at any time.
- In the absence of receiving informed consent after information is provided and understood, or upon notification that the victims have withdrawn their informed consent, the victim’s file will be referred to the appropriate civilian authority. In this event, the CFNIS will assist the victims in establishing contact with the appropriate civilian authority as necessary and transfer any information or evidence collected thus far upon request by the new investigative agency. The CFNIS will also create a shadow file to facilitate the follow up of the matter IAW applicable policy.
- It is important to note that the provision of information about their rights as victims must be imparted in consideration of their state of mind and ability to comprehend the informationEndnote 404.
This document illustrates the minefield that victims, investigators and prosecutors will face trying to implement a victim’s choice of forum in any meaningful way. Quite apart from the traumatized state in which a victim may be at the outset of an investigation, or even later, this exercise is totally unrealistic.
On what basis could the CFNIS ever be satisfied that a victim has “an informed understanding of (…) the differences between the [military and civilian justice systems]”? Many professionals, be they investigators or lawyers, would be hard-pressed to provide an accurate picture of the differences between both systems in a concise and comprehensive way, let alone to highlight the differences that are truly material to this “informed understanding”. The likely delays in each? The possibility, or not, of a jury trial in civilian courts? The likely composition of a court martial? Whether the accused will get free legal representation in one but possibly not in the other?
In my view, requiring the victim’s consent before deciding whether to investigate or prosecute a crime in the military or civilian justice system merely puts an unrealistic burden on the victim. It puts victims in an untenable position, requiring them to make a decision about which system is likely to work better for them, with little understanding of the factors at play. They may regret their decision down the road if the trial results in an acquittal and may be left forever wondering, “what if I had chosen the other system.” In the end, I do not believe this serves any public interest.
In my Interim Report, I recommended that all new cases be transferred to civilian authorities for investigation and prosecution. If this interim measure is to stay in place pending legislation to provide exclusive jurisdiction to civilian courts, all new cases should go to the civilian system regardless of any preference expressed by the victim. When charges have already been laid in military courts, they should continue to proceed in that forum. But no new charges should be brought there.
Incoherence regarding other offences
The CAF currently does not prosecute certain offences but sends them instead to civilian authorities for investigation and/or prosecution. According to the relevant order from the CFPM:
- The following offence types, if committed in Canada, will normally proceed within the civil justice system after consult with the local CF legal advisor (Deputy Judge Advocate or Regional Military Prosecutor, as appropriate) and informing the accused member’s CO:
- domestic violence;
- child assault; and
- impaired driving offencesEndnote 405.
It is not clear why these offences are prosecuted outside of the military justice system. However, it is instructive to consider the CAF’s approach with respect to its reasons for wishing to retain jurisdiction over sexual offences.
Intimate partner violence
In the exercise of its concurrent jurisdiction over most Criminal Code offences, the CAF has developed some practices. Contrary to its choice to prosecute most sexual offences, except those committed off-base, the CAF does not investigate or prosecute cases involving intimate partner violence (also called domestic violence).
The only justification given is that “certain circumstances do exist, such as in the case of alleged domestic violence, or the prosecution of impaired driving offences, where the recourse to the provincial court system is considered more appropriate, on a policy basisEndnote 406.”
The poorly documented decision to defer intimate partner violence prosecutions by or against a CAF member to civilian courts is difficult to reconcile with the determination of CAF authorities to retain quasi-exclusive competence over sexual offences. The only additional explanation I was given was that, like in impaired driving cases, civilian courts have specialized expertise in that area. True as this may be, many civilian courts today have specialized expertise in prosecuting sexual assaults and view the two as interrelated. For example, in Quebec, the recently launched specialized tribunals for sexual assaults will also deal with cases of intimate partner violenceEndnote 407. And in Ontario, the Crown Prosecution Manual indicates that sexual abuse can fall under the umbrella of intimate partner violence from a prosecution perspectiveEndnote 408.
Sexual assault and intimate partner violence are similar in many ways and often overlap. They are predominantly gender-based crimes against womenEndnote 409. They are both power-based, and the psychology of both domestic and sexual violence perpetrators are closely relatedEndnote 410. Various similarities have been demonstrated between the two offender groups, including similarities in early childhood developmentEndnote 411. Both sexual and non-sexual domestic abusers were more likely than the normative group to have had less responsive fathers, experienced physical abuse as children, and parents who imposed less restrictive boundariesEndnote 412. This reality is recognized in the current Military Police Group Order on Family Violence, which notes that domestic and family violence are abuses of power, and includes sexual assault as a related offenceEndnote 413.
In many jurisdictions, the specialized expertise developed in handling sexual and intimate partner violence jointly will benefit the treatment of both these issues in the same way, when they arise in a military context.
Driving under the influence
More surprisingly, the CAF does not currently investigate or prosecute impaired driving offencesEndnote 414. The justification I was given for this is that civilian authorities have specialized equipment and processesEndnote 415, as well as “challenges associated with the administrative suspension of drivers’ licences resulting from arrest for impaired driving, which falls outside of the current authorities afforded to the MPEndnote 416.” I was also told that this involves discreet, specialized legal issues best handled by high volume civilian courts.
Whether they occur on or off-base, it seems to me that these offences have a very close military nexus, in terms of discipline, use of equipment, and alcohol abuse. Even if original investigations of such offences off-base were in the hands of civilian police, who would have intercepted the alleged offender, I assume they could be prosecuted in the military system to bring visibility to these serious breaches of discipline. Should that be the case, it may free up civilian court resources to handle the slight increase in workload that would come from their taking over military sexual offences.
Barriers to the implementation of concurrent jurisdiction
In my Interim Report, I recommended “establish[ing] a process that will facilitate the handling of allegations of sexual offences in an independent and transparent way outside of the CAF.” In particular, I recommended:
- 1. Justice Fish’s recommendation No. 68 should be implemented immediately. All sexual assaults and other criminal offences of a sexual nature under the Criminal Code, including historical sexual offences, alleged to have been perpetrated by a CAF member, past or present (“sexual offences”) should be referred to civilian authorities. Consequently, starting immediately, the CFPM should transfer to civilian police forces all allegations of sexual offences, including allegations currently under investigation by the CFNIS, unless such investigation is near completion. In any event, in all cases charges should be laid in civilian court.
- Correspondingly, civilian authorities should exercise investigative and prosecutorial jurisdiction over all sexual offences by CAF members. Should civilian authorities decline to proceed, the matter should be returned to the CAF to determine whether disciplinary action is desirable under the NDA. Administrative Review related to sexual misconduct in the CAF should continue to proceed, for the time being, in parallel to, in addition to or in the absence of the criminal charges.
- 2. In parallel to the immediate transfers described above, the Minister should confer with the relevant federal, provincial and territorial authorities, to facilitate the transfer process and the sharing of expertise, between civilian authorities and the CAF, and consider the resources that could be made available to facilitate this work.
I also recommended that I be informed on a monthly basis of the progress in the implementation of this recommendation.
On 3 November 2021, the Minister accepted my interim recommendation and informed me that the CFPM and the DMP were “working quickly to develop the mechanisms and processes that will be required to implement your interim recommendationsEndnote 417.” After that, I met regularly with the Minister and with the CFPM and the DMP to receive an update on implementation.
I had conversations with police and prosecution representatives from different parts of the country, although not all, which led me to believe that taking over this relatively small number of cases would not be a problem for them.
Statistics provided to me by the CFPM from 2016 to 2021Endnote 418, show that the overall volume of sexual assault investigations by province breaks down to the following:
Table 3. Sexual assault investigations by province.
|Province / Territory||Cases per yearNote de fin d'ouvrage *|
|Newfoundland & Labrador, Northwest Territories, Nunavut, Prince Edward Island, Saskatchewan, and Yukon (combined)||5|
Thus, with the exception of Ontario, sexual assaults (generally the more complex and challenging investigations), amount to an increase of around 20 additional investigations per year, or less, for most provinces and territories. Other sexual offences accounted for far fewer investigations, for a total of around 47 cases per year across the whole of Canada.
When it comes to how many investigations resulted in a prosecution, during the six year period, from 2015 to 2020, there were 82 courts martial for sexual offences, or around 14 cases per year across the CAFEndnote 419. For the same period, there were 122 summary trials or around 20 cases per yearEndnote 420. In other words, the increased caseload for civilian prosecutors arising from my interim recommendation would likely be around 34 files per year across the whole of Canada.
Yet, over the months that followed, it became clear to me that there was considerable resistance to implementing my recommendation. While some external police forces were open to receiving files almost immediately, others refused to accept any files involving CAF membersEndnote 421. At the provincial level, some associations of chiefs of police and the OPP commissioner also joined the list of refusalsEndnote 422. Of these, the most negative positions taken were those of the Association des directeurs de police du Québec (ADPQ) and the British Columbia Association of Chiefs of Police (BCACP). The ADPQ stated that Quebec police forces would be unable to accept any files involving the CAF without the approval of the Quebec Minister of Public SecurityEndnote 423. The BCACP recommended to all BC police forces that no files be accepted from the CAF “until the related legal and procedural issues have been reconciledEndnote 424.”
On 19 January 2022, the BC Urban Mayors’ Caucus became involved, writing to the Prime Minister and MND. They noted that the “civilian justice system is currently stretched beyond capacity from being on the front lines of combating the COVID-19 pandemic” and that “[m]any of our local RCMP detachments and municipal police departments already have an unmanageable caseload per office.” Their proposed solution was the creation of a national independent investigative body, at arms-length from the CAF and the DNDEndnote 425. Meanwhile, the Commander of the Air Force Military Police Group met with the Manitoba Ministry of Justice, Public Safety branch on 12 January 2022Endnote 426.
On 18 January 2022, the Ontario Association of Chiefs of Police (OACP) wrote to the Solicitor General of OntarioEndnote 427. The letter set out a list of concerns about the proposed transfers. Concerns about resources, especially for smaller police forces, and potential floodgates of historical claims, featured prominently. In addition, the OACP identified a need for training investigators in the military context, jurisdictional concerns where people may be in different parts of the country, and issues around access to military documents. The letter recommended the creation of a multi-service task force, in addition to a memorandum of understanding.
On 27 January 2022, the Minister wrote to the provincial justice and public safety ministers to propose meetings to discuss the implementation of the interim recommendation. On 21 April 2022, the OACP wrote directly to the Minister, reiterating its list of concerns and called for the establishment of a national task forceEndnote 428.
Not all police jurisdictions refused to take on CAF cases. Notably, the RCMP began accepting transfers of new files from the CAF as of 31 January 2022Endnote 429. Several municipal and local forces also accepted transfers on an ad hoc basis, such as the Winnipeg and Thunder Bay police services and the Nottawasaga OPP. In mid-February, Quebec’s Ministry of Public Security wrote to the Quebec police force advising them to accept new files and transfers based on their capacity and that a detailed protocol was in processEndnote 430. I understand the same discussions were also happening with the OPP. At the time of writing, it seems the matter is awaiting the conclusion of detailed memoranda of understanding, protocols, and federal-provincial agreementsEndnote 431.
I wish to stress that under the law as it stands, civilian police forces and prosecution authorities already have full jurisdiction to investigate sexual offences involving CAF members including those occurring on defence property. In fact, I have not seen anyone rely on the position that they do not have jurisdiction. I note that the Acting JAG has recently confirmed that position to ParliamentEndnote 432. As mentioned above, civilian authorities already handle impaired driving and domestic violence cases coming from the military, as well as sexual assaults off-base. To my knowledge, none of that has been the basis of protracted negotiations and extensive memoranda of understanding. The number of cases, spread across the country, with slightly higher volume around CAF bases and wings, and virtually none elsewhere, hardly justifies this refusal to enforce the law. The targeted need for additional resources, if any, can easily be identified and accommodated.
That said, the difficulties encountered in implementing my interim recommendation illustrate a key problem in maintaining concurrent jurisdiction between the CAF and civilian authorities. Prolonging concurrent jurisdiction will, it seems, only lead to interminable discussions about setting up detailed and complicated intergovernmental protocols, as well as similar machinery between the CAF and local and regional police forces. Since, in my view, the civilian system is the preferable one, the best way forward is to provide for the exclusive jurisdiction of civilian courts in all matters of sexual misconduct falling under the Criminal Code.
Approaches in other countries
Several allied militaries have recently had to grapple with issues similar to those facing the CAF. It is, therefore, worth considering how they approach military jurisdiction over sexual offences. I received a brief on the approaches of the other members of the Five Eyes (the United States, the United Kingdom, Australia, and New Zealand) as well as IsraelEndnote 433. I also conducted independent research into the military and legislative context of these and other allied countries.
In the United Kingdom, the offence of rape followed a similar progression to the grant of jurisdiction over sexual assault in Canada. Before 2006, rape was within the exclusive jurisdiction of the civilian justice system, along with murder and manslaughter. Since then, the military service justice system in the United Kingdom (the Service Justice System) has had concurrent jurisdiction alongside civilian courts. Decisions as to where cases are heard are on a case-by-case basisEndnote 434. However, review of the service justice system review carried out by His Honour Shaun Lyons CBE in 2018 and 2019 recommended that rape and sexual assault with penetration, if committed in the UK, should be removed from the service justice system, except with the consent of the United Kingdom Attorney GeneralEndnote 435.
His Honour concluded:
[…] the trying of these cases in the SJS cannot be said to be for the protection of the individual nor yet for operational effectiveness. Service personnel remain citizens and in these serious cases when the civil courts are available to them they should be tried in that forum. It is clear that the Select Committee had concerns over public confidence. These concerns are shared. Trying these high-profile matters under Service Law has not been helpful to the Services and has led to criticism of the SJSEndnote 436.
These conclusions match, by and large, the Canadian experience. Granting the CAF concurrent jurisdiction over sexual offences has had the opposite effect to that intended; it has not increased discipline, efficiency or morale, and it has not generated the confidence it would need, particularly to handle high profile cases involving senior CAF members. Rather, it has contributed to an erosion of public and CAF member confidence.
Australia and New Zealand have concurrent jurisdiction with conditions. In Australia, the Director of Military Prosecutions must obtain the consent of the Director of Public Prosecutions before prosecuting aggravated sexual assault or murder committed in Australia. In New Zealand, a sexual violation committed in the country requires the consent of the Attorney-General before being tried at a court martialEndnote 437. This indicates that even in instances where the jurisdiction is concurrent, primacy remains in the civilian system.
In the United States, military justice remains heavily dependent on the chain of command. It bears less resemblance to the Canadian and commonwealth systems. However, I note recent amendments to the law compelling commanders who receive sexual assault or harassment reports to disclose them to an independent investigator and make sexual harassment a service offenceEndnote 438.
I also found instructive the reference made by Justice Fish to United Nations guidance:
- In 2006, the Special Rapporteur of the United Nations Sub-Commission on the Promotion and Protection of Human Rights, supported by the Office of the High Commissioner for Human Rights and the International Commission of Jurists, issued Draft Principles Governing the Administration of Justice through Military Tribunals […]. Principle No. 8 provides that “[t]he jurisdiction of military courts should be limited to offences of a strictly military nature committed by military personnel. Military courts may try persons treated as military personnel for infractions strictly related to their military status.” The intention of the Special Rapporteur was that civil offences committed by military personnel should be excluded from the jurisdiction of military courts. An analogous view was reiterated by the Special Rapporteur on the Independence of Judges and Lawyers in a report submitted to the United Nations General Assembly in 2013: Report of the Special Rapporteur on the Independence of Judges and Lawyers […]. In her report, the Special Rapporteur suggested that “[o]rdinary criminal offences committed by military personnel should be tried in ordinary courts unless regular courts are unable to exercise jurisdiction owing to the particular circumstances in which the crime was committed (i.e. exclusively in cases of crimes committed outside the territory of the stateEndnote 439.”
Justice Fish also noted, “[s]everal European and Scandinavian states, including important NATO allies of Canada, try all civil offences committed by their military personnel in peacetime in their civilian justice system, with or without particular rules or procedures to account for the accused’s military statusEndnote 440.”
Justice Fish ultimately concluded against removing military jurisdiction over all civil offences in Canada. I do not express any view on this conclusion. The focus of my Review is exclusively on sexual misconduct. In that respect, the discussion around the actions taken by Canada’s allies to address sexual offences shows that military jurisdiction over these offences is neither necessary nor demonstrably preferable.
The need for exclusive civilian jurisdiction
I cannot but echo the findings of Justice Deschamps. In regards to the promise that concurrent jurisdiction would bring swift, efficient discipline and justice, she concluded:
- Unfortunately, victims of sexual assault have not reaped the benefits hoped for under the new jurisdiction. Victims criticize the lack of training of the MP, poor support by the chain of command, and inconsistency with which charges of sexual assault are ultimately sanctioned. While civilian law enforcement, prosecutorial authorities, and courts have also been criticized for their conduct of sexual assault cases, there is a strong perception among members of the CAF that the way in which the military handles such cases is the cause of added prejudice to the victimEndnote 441.
Seven years later, I see no meaningful improvement in the investigation and prosecution of sexual crimes by the military justice system. The 1998 grant of jurisdiction has not improved the CAF’s “ability to do prompt justice and maintain disciplineEndnote 442.” This view is supported by the Declaration of Victim’s Rights Consultation results, which found that:
- Of the respondents who indicated that they had experienced a service offence, the vast majority experienced barriers to reporting and only a minority had a positive experience with the MJS (…) Views of the MJS were generally negative. Respondents indicated there were many areas that could improve protection for the victims, such as ensuring privacy, separating the accused and the victim, and providing the victims with timely resolutionsEndnote 443.
In addition, 55% to 65% of those surveyed disagreed that military justice actors took positive steps for the victim’s benefit, as set out in Figure 3 below:
Figure 3. Agreement with positive steps taken throughout the MJS.
Source: Declaration of Victim’s Rights Consultation – Results of the Internal and External Consultations, p. 13
Long description of figure 3
- Agree Neutral Disagree Initial Reporting 18.9% 16.1% 65.1% Investigation 20.9% 21.9% 57.2% Pre-trial 18.5% 25.9% 55.6% Court Martial 24% 12% 64%
Common themes in the response to the consultation included “fear of reprisal and retaliation, lack of support, shame and embarrassment, issues with the system, the accused being protected, and the individual responsible for handling complaints being the perpetratorEndnote 444.” There was also a widely held perception, both among those who identified as victims of a service offence and those who did not, that the military justice system fails to treat victims with dignity and respect:
Figure 4. Rates of agreement that the MJS treats victims with dignity and respect.
Long description of figure 4
- Agree Neutral Disagree No Service Office 32.1% 27.1% 40.8% Service Offence 12% 21.1% 66.8%
Source: Declaration of Victim’s Rights Consultation – Results of the Internal and External Consultations, p. 20.
The findings of the Declaration of Victims Rights Consultation serve as further confirmation of what I heard and observed during the course of my review; there is a widespread loss of confidence in all stages of the military justice system as regards sexual offences.
In light of the above analysis, I recommend that civilian authorities have exclusive jurisdiction over Criminal Code sexual offences alleged against CAF members. The concurrent jurisdiction that was conferred upon the military justice system in 1998 should be revoked.
I am not persuaded that the pre-1998 exception for offences committed abroad (Outside of Canada (OUTCAN) Programme)Endnote 445 should be maintained. From the data given to me, I was only able to identify 41 OUTCAN incidents involving sexual misconduct that were prosecuted through a court martial between 1999 and 2021 (or just under 2 cases per year on average)Endnote 446. According to Justice Fish, not a single court martial has been held in a theatre of operations since 1998. And the last court martial held outside Canada was in 2012Endnote 447. Justice Fish also noted anecdotal evidence that some commanding officers were unwilling to hold courts martial in theatre. This reflects what I heard from stakeholders. There might have been summary trials held in theatre, but, since those are being abolished by Bill C-77, there is no need to consider this matter further.
Section 273 of the NDA already provides for the jurisdiction of the civil courts in such cases. This was recognized by the then-JAG in 1998Endnote 448. Although it may be convenient for the MP to conduct early parts of investigations abroad, they should seek assistance from civilian law enforcement, like the RCMP, who have more expertise in the matter, at the earliest opportunity. And since today there are virtually no courts martial held in theatre, the offences should be tried in Canada before civilian courts.
With respect to which specific offences should be excluded from the CAF’s jurisdiction, I note that the criminal law regarding sexual offences has evolved since 1998. The Criminal Code includes a number of new offences, such as human trafficking and exploitation. The list of sexual offences against children has also expanded. I propose that the civilian authorities have exclusive jurisdiction over all these offences. This is not limited to those offences requiring registration as a sex offender. With respect to offences involving children, the CAF does not currently investigate or prosecute these types of offences; there is no reason for them to retain jurisdiction over child sex offencesEndnote 449. Other offences, such as voyeurism or sexual exploitation, subject a victim – whether a CAF member or in a military environment – to the same issues discussed above.
Therefore, it would defeat the purpose of my recommendation to restrict it to only sexual assault. For these reasons, the list of sexual offences over which the civilian authorities will exercise exclusive jurisdiction must be expansive.
Criminal Code sexual offences should be removed from the jurisdiction of the CAF. 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. This should include:
- Sexual offences found in Part V of the Criminal Code;
- Sexual offences found in Part VII of the Criminal Code, including but not limited to sexual assaults; and
- Any “designated offence” as defined in subsections 490.011(1)(a), (c), (c.1), (d), (d.1) or (e) of the Criminal Code, to the extent not already captured above.
In making this recommendation, I reiterate that I do not envisage a type of permanent transfer process by which a victim would report a crime to the MP, who would then transfer the case to a civilian police service. The experience of the interim recommendation has shown that to be unworkable. I expect victims to be told to contact civilian authorities directly, and such contact to be facilitated by the MP and the CAF so far as possible.
I also recognize that removing concurrent jurisdiction will require amendments to the NDA. As previous experience with changes to the military justice system have shown, this will take several years to implement. In the meantime, I expect the CAF and civilian authorities to continue to abide by my interim recommendation. The CAF should cease to investigate and prosecute sexual offences over which it presently has concurrent jurisdiction. Civilian authorities should investigate and prosecute those cases in accordance with their existing concurrent jurisdiction. This includes any new reports of historic cases relating to alleged offences that took place between 1998 and the present.
It will also be important for CAF leadership to maintain visibility over criminal processes involving CAF members and interim measures, disposition or punishment that may follow. This may then feed into any disciplinary or administrative review process that may take place. COs are required by sections 19.57 to 19.62 of the Queen’s Regulations and Orders (QR&Os) to track criminal proceedings involving a CAF member under their command and forward any conviction and conduct sheet to NDHQ. I understand that in practice, the MP create a “shadow file” in such cases and act as the liaison between the civilian police agency and the COEndnote 450. This practice should continue. I have no doubt that the CAF will continue to build strong relationships with local civilian police forces and prosecutors as circumstances evolve.
Rights of the accused
In his report, Justice Fish said he “fundamentally disagree[d]” with the idea that CAF members accused of a crime should lose their right to free legal counsel. As he put it:
- Access to free legal counsel, regardless of income, is a benefit extended to the members of the CAF as a counterpart to the extraordinary duties that are imposed on them. Those extraordinary duties include the “unlimited liability” of CAF members, by which they may at any time be ordered into harm’s way, potentially risking their lives.
- The fact that military defence counsel can do the utmost to defend their clients without being required to consider “fiscal responsibility” as part of their decisions is part and parcel of the special benefit which Canada decided to grant to members of the CAF. I would only very reluctantly interfere with this fundamental quid pro quo. No satisfactory basis for a recommendation of this sort has been provided to meEndnote 451.
Justice Fish’s comments were directed at proposed reforms to defence counsel services within the CAF. Insofar as they will continue to apply to any non-sexual criminal offences or disciplinary offences that are tried within the military justice system, I agree. However, I am conscious that such services would not be available to CAF members charged in civilian courts.
Currently, when they are prosecuted in the civilian system, they do not receive any special funding from the CAF for their defence and must pay for their own lawyer, or avail themselves of local legal aid funding. Most jurisdictions in Canada offer free or reduced-cost legal representation to residents accused of a crime. Having reviewed the basic eligibility requirements across Canada (as of 9 March 2022) and CAF salary scales, I believe that most CAF members, even in very junior ranks, would not be eligible for provincial legal aid in many provinces.
There are obviously existing inequities in the positions in which CAF members charged with criminal offences find themselves. For example, if charged with murder, they get no free CAF legal assistance. Nor if they are charged with impaired driving, domestic violence, or a sexual assault off-base and are prosecuted in a civilian criminal court.
And of course, until now, victims have received no financial support whatsoever from the CAF to obtain legal assistance in navigating the criminal process, whether military or civil. I have recommended elsewhere in this Report that victims be assisted in that regard. The CAF may want to examine whether it wishes to provide financial assistance for all its members facing charges outside the military system, not just those who will now be tried in civilian courts for sexual offences. In light of the rationale advanced by Justice Fish for the existence of free legal assistance internally, there are sound arguments for doing so. This could be done through arrangements with the provincial legal aid systems. For example, CAF members could be made automatically eligible for such assistance, with the CAF reimbursing the expenses incurred by the provincial systems. I make no recommendation to that effect, leaving this policy decision up to the relevant authorities.
Disciplinary jurisdiction over sexual misconduct
The question remains: how should sexual misconduct be handled by military authorities, regardless of whether or not civilian criminal courts have addressed the matter? As in other professions, disciplinary and administrative measures may be taken against a member who faces criminal charges, regardless of the outcome of the criminal process. And of course, some conduct is not criminal but still prohibited under professional rules. This is certainly the case in the profession of arms, and the chain of command has an interest in maintaining discipline and managing human resources through administrative measures. For example, if a CAF member were charged with murder, whether acquitted or convicted, the CAF would want to deal with the individual’s conduct through its own process. The same is true with sexual offences tried in civilian courts or if civilian authorities decline to prosecute. Whether to proceed sequentially, or in parallel with the criminal justice system, would depend on the circumstances – including whether interim measures have been put in place by the civilian court. In some cases, disciplinary measures would be unnecessary and largely duplicative of the criminal process. The CAF would probably revert to administrative measures, such as those leading to release from the Forces.
The CAF’s foundational doctrine refers to the “Profession of ArmsEndnote 452.” It is a common feature of other regulated professions, such as law and medicine, that their members are subject to disciplinary proceedings by their governing bodies, in addition to general criminal and civil liabilityEndnote 453. These proceedings may sometimes run concurrently or subsequently criminal proceedings arising from the same facts or conduct. This is not inherently problematic if the process avoids undesirable outcomes, such as conflicting factual findings.
I see no reason to treat the CAF any differently in this respect. Sexual misconduct in the broad sense may lead to different processes. It may lead to a workplace investigation that results in remedial administrative action. It may also lead to criminal proceedings. And in-between, it may lead to disciplinary proceedings.
Adequate protection against double jeopardy is already provided in section 66 of the NDA:
- (1) A person may not be tried or tried again in respect of an offence or any other substantially similar offence arising out of the facts that gave rise to the offence if, while subject to the Code of Service Discipline in respect of that offence, or if, while liable to be charged, dealt with and tried under the Code in respect of that offence, the person
- (a) has been found not guilty by a service tribunal, civil court or court of a foreign state on a charge of having committed that offence; or
- (b) has been found guilty by a service tribunal, civil court or court of a foreign state on a charge of having committed that offence and has been either punished in accordance with the sentence or discharged absolutely or on conditions.
In many cases, the offence tried in the civil system under the Criminal Code may not be “substantially similar.” However, in other cases, it will be.
Summary trials under the current system
Currently, pending the implementation of Bill C-77, service offences may be dealt with at the unit level by way of summary trial. Justice Fish has addressed the issues with the current system in detail.
As it pertains to my mandate, I asked the CAF to provide me with data on the prosecution of sexual misconduct through the summary trials process. In response, I was provided with data on summary trials related to “sexual misconduct” by the OJAG from 1999 to 2021,Endnote 454 as well as an explanation of the service offences under the NDA which are most commonly used to deal with sexual misconduct. As noted above, there are five principal offences that are used: scandalous conduct by officers; cruel or disgraceful conduct; abuse of subordinates; drunkenness; and conduct to the prejudice of good order and disciplineEndnote 455.
For the period 2015 to 2021, according to OJAG data, there were 127 summary trials of which 124 resulted in a finding of guilty on at least one charge. Breaking this down by the type of chargeEndnote 456, approximately 121 summary trials resulted in a guilty finding for conduct to the prejudice of good order and discipline; 7 for abuse of subordinates; and 18 for drunkenness. Interestingly, a number of other charges were also used beyond the list given to me by the OJAG. These included disobedience of a lawful command, quarrels and disturbances, and insubordinate behaviorEndnote 457.
What is clear from these numbers is that many cases involving sexual misconduct are dealt with as disciplinary matters and disposed of at the summary trial level. Many cases in the dataset involve low-level conduct that does not amount to a Criminal Code offence, such as sexual comments or jokes, which may be appropriate to deal with in this way. However, some cases do involve more serious conduct, such as allegations of sexual touching and kissing without consent, both of which amount to sexual assault under the Criminal Code. And yet only 39 cases resulted in confinement to barracks or detention; most cases resulted in a reprimand, fine, reduction in rank or more minor penalty. One of Professor Craig’s criticisms in respect of courts martial seems to apply hereEndnote 458; serious conduct is at times dealt with through minor charges (especially conduct to the prejudice of good order and discipline under section 129 of the NDA), and less severe penalties.
However, given my recommendation above that Criminal Code sexual offences become the exclusive responsibility of the civilian criminal justice system, this more serious conduct which is a cause for concern should now cease to be the subject of summary trials. For the more low-level conduct, or in cases where the civilian prosecutors do not proceed, it will remain possible for the CAF to lay disciplinary charges under the current system if it considers it appropriate.
Bill C-77 and the new system of service infractions
As noted above, the military justice system is currently in flux due to Bill C-77. Throughout my review, I sought information about the status of Bill C-77’s implementation. But I was told repeatedly that no information could be provided as the matter was at the Cabinet level and subject to Cabinet confidence. It was only after the submission of my draft report that some progress was finally made, which enabled some information to be released.
However, I note that Bill C-77 received royal assent on 21 June 2019. It will finally come into force on 20 June 2022, some three years later. One of Bill C-77’s main purposes is the introduction of the DVR into the military justice system. By contrast, the corresponding legislation in the civilian justice system largely entered into force merely three months after receiving royal assentEndnote 459. The delay in implementing Bill C-77 is, regrettably, consistent with prior attempts at revising the NDA, including Bill C-15, discussed above. I was provided with a table by the OJAG showing various regulatory projects and the time between passage of the legislation and of the enabling regulations. With two notable exceptions, this took between one and two years for regulatory projects not involving the NDAEndnote 460. In my view, there needs to be a greater assertion of responsibility at the political level to insist upon the implementation of necessary reforms.
As it stands, the text of Bill C-77 replaces the current system of summary trials with “summary hearings”. The current list of service offences under the NDA will be re-classified into service “offences” (triable by courts martial and attracting more severe penalties) and service “infractions” (determined at a summary hearing and attracting minor penalties).
The OJAG provided me with the following summary of the differences between the old system and what is proposed under Bill C-77Endnote 461:
Table 4. Differences between the current system of summary trials and the proposed system of summary hearings.
|Summary Trial||Summary Hearing|
Penal / Criminal Tribunal
|Service Offences, including Criminal Code offencesEndnote 462||Service Infractions to be created by regulations made by the Governor in CouncilEndnote 463|
Criminal record possible
No criminal record
After the submission of my draft Report, an order-in-council was passed fixing 20 June 2022 as the date of Bill C-77’s entry into force. I was also provided with the draft amendments to the QR&Os by the OJAG.
Based on these materials, the service offences currently listed in the NDA remain intact, and will become triable only by court martial. The right of election is repealed. Meanwhile, the draft regulations create three broad categories of service infractions: infractions relating to property and information; infractions in relation to military service; and infractions in relation to drugs and alcoholEndnote 466.
No specific infractions relating to sexual harassment or misconduct are proposed. However, I note the following catch-all infraction to be added at section 120.03(i) of the QR&Os:
- A person commits a service infraction who
- otherwise behaves in a manner that adversely affects the discipline, efficiency or morale of the Canadian ForcesEndnote 467.
I heard conflicting views from the OJAG about whether this provision could be used for sexual misconduct. In early March, I was told that the CAF was contemplating an infraction along these lines, and that it could capture “[l]ower levels of sexual misconductEndnote 468.” This was repeated to me verbally in early April 2022Endnote 469. The same week, however, I was told that this provision could not be used to address sexual harassment or misconduct since the purpose of creating the service infraction regime was to address conduct that did not involve specific victims, such that the DVR would not need to applyEndnote 470.
Needless to say, I am puzzled by this lack of clarity about the handling of sexual harassment and misconduct under the new system.
Moreover, I have several concerns about this new catch-all infraction. First, in common with section 129 of the NDA, its language is extremely vague. Like the definition of adverse personal relationship, it offends the principle of legality in that it lacks the requisite clarity and certainty in the articulation of prohibited conduct.
Second, whatever the original rationale for summary infractions, it seems likely that this provision will indeed be used to address sexual harassment and misconduct that falls short of a criminal offence. This in turn may lead to more serious sexual misconduct being characterized as minor and charged under this provision. As discussed above, this already happens in respect of section 129 of the NDA at both the court martial and summary trial levels. The problem with this use of residual or catch-all provisions is that it grants investigative and prosecutorial authorities a large amount of leeway which may result in the old issues being repeated. It will be important that the use of such powers is properly monitored and reported on following publication of this report, including in the next statutory review of military justice.
Third, if in fact the intent is to elevate all forms of sexual misconduct, as currently defined in the CAF, to the level of court martial proceedings, there will likely be an unfortunate loss of visibility at the unit level. I was told that the purpose of the summary hearing process is that it maintains a local, public, unit-level disciplinary process, which is important for maintaining unit cohesion, morale and discipline. Three years after the coming into force of Bill C-77, it is more than unfortunate that the process for dealing with lower forms of sexual misconduct as a disciplinary matter remains so poorly designed.
In any event, and particularly if no form of sexual misconduct is addressed at the summary hearing unit level, the CAF should ensure the timely circulation of information regarding criminal and court martial proceedings, involving sexual misconduct so as to ensure that the effect of these proceedings on discipline, morale and education, is not lost entirely.
Under the new system, summary hearings will be non-penal and subject to the civil, not criminal, standard of proof. Findings will be determined on the balance of probabilities rather than beyond reasonable doubt. The only penalties that will be available are a reduction in rank, reprimands, stopping of pay for up to 18 days, and “minor sanctionEndnote 471.” Similarly, the DVR will not apply to a service infraction tried by summary hearingEndnote 472.
What is less clear is how the new summary hearing process differs from an administrative review process, discussed in detail below. Administrative review, whether at the unit level or conducted by the DMCA, is also non-penal, subject to the civil standard of proof, and provides for a scale of remedial measures such as a recorded warning, counselling and probation, up to and including release from the CAF. I was told that the CMP is working on how the administrative review process will interact and work alongside the summary hearing process, but I received few specifics.
In principle, there is no conceptual problem with making CAF members subject to the civilian criminal jurisdiction, the military disciplinary jurisdiction, and CAF internal administrative review processes. The same is true for many professionals who are subject to criminal law, regulatory action by their governing body, and administrative actions in their place of work. But these processes must be clear and not needlessly duplicate one another.
My terms of reference require me to assess the adequacy of the policies, procedures, programs, and practices in the DND and the CAF that respond to reports of sexual misconduct.
In addition to the disciplinary processes that can be engaged, as addressed earlier, the CAF may also respond to a report of sexual misconduct through administrative action. Administrative action is primarily remedial rather than punitive. It can include counselling, education or training. Such measures are meant to improve a member’s conduct and performanceEndnote 473. In circumstances where a member’s misconduct militates against continued service, administrative action can also include release from the CAF.
I have repeatedly heard frustration with administrative action responding to sexual misconduct. I have heard from victims that administrative action takes too long, the process is too opaque, and that it is too much at the whim of a CO, often the one commanding the respondent. I have been told that it is often the complainant who is removed from the unit, posted out, or who loses out on career opportunities as a result of a CO’s administrative action in response to a report of sexual misconduct.
I have also heard that COs wait to initiate administrative action in response to sexual misconduct until after a police investigation or even the end of a criminal trial. This lack of action causes victims to question the sincerity of a CO’s desire to impose consequences for sexual misconduct. This erosion of confidence has led victims to release from the CAF, sometimes long before a respondent faces any consequence for his misconduct.
COs play a central role in the response to sexual misconduct. Some told me that they could use more assistance, particularly legal advice, to support them in their role. Many felt that the process for releasing a member from the forces is too centralized, and that their assessment of a member’s conduct should be given more weight in this “Ottawa-centric” release process, which process I describe below.
A robust response to sexual misconduct at all levels of command is essential to the CAF achieving progress in addressing sexually inappropriate behaviour amongst its members. I address below the role that administrative measures play in this response and, ultimately, my concerns about the CAF’s propensity toward unnecessarily duplicative processes.
Sexual misconduct is a conduct deficiency
CAF members are required to maintain professional standards of conduct and performanceEndnote 474.
Their standard of conduct is based on established military standards, ethics and values, as identified in regulations, codes of conduct, policies, orders, instructions and directives, including those expressed in Duty with HonourEndnote 475. A conduct deficiency occurs if a CAF member fails to meet an established military standard. Conduct deficiencies are incompatible with effective military service and military ethosEndnote 476.
The standard of performance is based on established military standards applicable to the CAF member’s current rank, occupation, experience and position. It establishes the level of performance expected of a CAF memberEndnote 477. A performance deficiency occurs if a member fails to meet an established performance standardEndnote 478.
I understand that instances of sexual harassment and sexual misconduct are treated as conduct rather than performance deficienciesEndnote 479.
Administrative action in response to sexual misconduct
The chain of command must take appropriate and immediate action in the face of sexual misconduct whether or not the CAF member has been charged with an offence under the NDA or the Criminal CodeEndnote 480.
Upon receiving a report of sexual misconduct, a CO’s first step is to ensure the safety and well-being of the victimEndnote 481 and then consult with the unit legal advisor on next stepsEndnote 482. Circumstances may warrant immediate action such as separating the member from the unit and ordering no contact with the victimEndnote 483. The CO may also need to take administrative steps before any investigation by the police or the unit, such as relieving the member from the performance of military dutyEndnote 484. CAF policy requires that any response to an alleged incident of sexual misconduct should reflect the victim’s preferences, including a decision to proceed with an administrative processEndnote 485.
COs have a number of administrative tools at their disposal, stemming from their general responsibilities that a CO “is responsible for the whole of the organization and safety of the commanding officer’s base, unit or element, but the detailed distribution of work between the commanding officer and subordinate is left substantially to the commanding officer’s discretionEndnote 486.”
For example, a CO can remove a respondent from a supervisory position, temporarily modify their work location, or order no contact or any form of communication, directly or indirectly, with the victim or witnesses, if both are within the same unit and under the authority of the COEndnote 487.
COs may also remove a member from command in response to an allegation of sexual misconductEndnote 488. The process is not governed by the NDA or QR&OEndnote 489. Typically, the commander with authority to appoint a CO has the same authority to remove that officer from commandEndnote 490. Removal from command is based on a loss of confidence in a member’s ability to effectively exercise commandEndnote 491. The applicable CDS guidelines state: “allegations of personal or professional misconduct…affect how a commander is perceived by subordinates and may necessitate a temporary removal from command, while an issue is being investigatedEndnote 492.”
According to CAF guidelines, removals from command should, except in the most exceptional circumstances, be temporary, with a decision to continue with that removal made after all the information is known and procedural fairness has been accommodatedEndnote 493. Decisions to remove from command can be subject to review; for GOFOs, the decision to remove will usually be made by their appointing authority and any review of that decision will be conducted by the Armed Forces Council (AFC), which advises the CDSEndnote 494.
There are no rules to determine the latitude to give to a subordinate or how tolerant a superior should beEndnote 495. A CO must consider a number of factors prior to removing a member from command, including:
- the seriousness of the allegations;
- the “notoriety” of the issue and the CAF and public perception of it;
- the principles of Canadian Defence Ethics;
- the subject’s ability to effectively carry out the functions of command, including leadership and disciplinary functions, while maintaining public trust and confidence;
- the subject’s ability to exercise command given current and projected circumstances; and
- the best interests of the CAFEndnote 496.
This list of factors – including “public perception” and the need to maintain “public trust”– reflects the difficulty of the decision. COs must receive robust legal advice about what “public interest” means, which takes into account the current cultural landscape. The cultural climate evolves, as does the Canadian public’s perception of the CAF and what amounts to appropriate conduct. COs should be alive to this evolution as they consider public interest.
A CO may also relieve a member from the performance of military duty on an interim basis, where there are reasonable grounds to believe that the member has committed an offence under the NDA or the Criminal Code, has been charged or convicted of such an offence, and/or the CO considers it “necessary” to separate the member from their unitEndnote 497. In these circumstances, the member must have a reasonable opportunity to make representations prior to being relieved, and the CO must consider this response and provide reasons for the decisionEndnote 498. Relief from performance of military duty is a “paid suspensionEndnote 499.”
The following direction applies to the imposition of relief from performance of military duty:
- Action to relieve a member should only be considered after concluding that other administrative means are inadequate in the circumstances. In determining whether to relieve a member, an authority must balance the public interest including the effect on operational effectiveness and morale, with the interests of the member. A commanding officer must monitor each case to ensure that appropriate action is taken if there are changes in the circumstances on which the decision to relieve a member was basedEndnote 500.
I note that the above direction to COs is that relief from military duty should “only be considered after concluding that other administrative means are inadequate.” Similar guidance is provided in respect of removal from commandEndnote 501. I disagree with this policy. Relief from performance of military duty, or removal from command, should be available, on par with other measures, as a means for COs to respond to sexual misconduct on an immediate and interim basis.
Investigation and next steps
When a unit is made aware of allegations that a member has engaged in sexual misconduct, an investigation must be conducted to determine the appropriate action.
Based on the result of any investigation, COs must determine whether there is sufficient evidence to warrant administrative action. Administrative action may be initiated for sexual misconduct when there is clear and convincing evidence that establishes, on the balance of probabilities, that an incident or conduct deficiency has occurredEndnote 502.
In cases where civilian authorities have conducted the investigation, the investigation file will not be available to the CO. However, if a CAF member is found not guilty, a review of the trial transcript, decision of the court or account of the proceedings can assist in determining whether there is sufficient evidence that sexual misconduct took placeEndnote 503. Further, there is no bar to conducting a unit-based investigation to gather information, after a civilian police authority has completed its own.
According to CAF directives, a CO must determine the appropriate administrative action based on a number of factors, including the member’s rank, military occupation, experience and position, previous conduct deficiencies, if any, and leadership roleEndnote 504. For an incident of sexual misconduct, the CO must also consider the degree to which the act was intrusive or violent, the sentence imposed, if any, whether the respondent ignored a request to stop or failed to confirm consent, the victim’s circumstances, including the impact on their health and well-being, and the respondent’s relationship to the victim, including any position of authority or trust, or difference in rankEndnote 505.
Administrative action may include the imposition of remedial measures (such as a recorded warning, described below), occupational transfer, posting, reversion in rank, recommendation for release issued by an initiating authority such as a CO, or release from the ForcesEndnote 506. In serious cases of sexual misconduct, including repeat offences or cumulative misconduct, a recommendation for release may be the only appropriate step to take by a COEndnote 507.
Administrative action in response to an incident of sexual misconduct must be initiated with the advice and guidance of the Director Military Careers Administration 2 (DMCA 2). A COEndnote 508 must contact the DMCA 2 – located at NDHQ – upon determining that there has been sexual misconduct and that an administrative action might be warrantedEndnote 509. However, I understand that this advice is limited to whether an administrative action should be initiated and is not specific advice on the nature of that action. Administrative actions, including remedial measures and any decision to release a member from the Forces, are subject to the grievance processEndnote 510.
Remedial measures available to a CO for any misconduct are, in increasing significance: initial counselling; a recorded warning and counselling and probation.
Remedial measures are meant to make the CAF member aware of their conduct or performance deficiency, assist them in overcoming the deficiency and provide them time to correct their conduct or improve their performance with the support of their chain of commandEndnote 511. In contrast to disciplinary measures, administrative action puts at issue the suitability of a member’s continued career in the CAF. The appropriate administrative action is the one that best reflects the degree of incompatibility between the CAF member’s misconduct and their continued serviceEndnote 512.
It is the CO who selects, initiates and administers a remedial measureEndnote 513. In determining whether such a measure should be implemented, they must consider:
- the potential consequences if a remedial measure is not initiated;
- whether another administrative action is more appropriate;
- whether the deficiency would be more appropriately dealt with through disciplinary action;
- the existence of any relevant medical employment limitation; and
- whether a disclosed disability was a factor in the conduct or performance deficiencyEndnote 514.
Before issuing any remedial measure, a CO is expected to conduct a thorough review of the member’s personnel file, including previous incidents of misconduct. As described below, DMCA policy recommends that a CO conduct a Unit Level Administrative Review (ULAR), particularly when the member’s case is complex, prior to selecting the appropriate administrative actionEndnote 515.
Remedial measures must be administered confidentially. For initial counselling and recorded warnings, notice may be provided verbally. For conditions and probation, I understand that a Notice of Intent to Initiate Counselling and Probation must be issued. For all remedial measures, the member has the opportunity to respondEndnote 516. Only after a member’s response has been considered can a remedial measure be put into placeEndnote 517.
For every remedial measure, a monitoring period is set for the member to overcome the deficiency and for the supervisor to assess their progressEndnote 518. For initial counselling or a recorded warning, the monitoring period is a minimum of three months and a maximum of six months. For conditions and probation, the monitoring period is a minimum of six months and a maximum of 12 monthsEndnote 519. In the case of conditions and probation in place for sexual misconduct, the related forms and an account of every progress briefing session must be forwarded to the DGMCEndnote 520.
Remedial measures are meant to be specific, measurable, attainable, realistic and timelyEndnote 521. COs are directed to hold progress briefing sessions and complete a written account of each session. These reports are retained in the member’s personnel file, along with the remedial measure and the required closure letter. Units must track all remedial measures to ensure that progress sessions occur and that files are administratively closed at the end of the monitoring periodEndnote 522. I understand that there is no centralized tracking system for unit-level remedial measures and monitoring.
Remedial measures can have career consequences. If a CAF member is subject to conditions and probation, they cannot be promoted and may not be eligible for posting for the duration of the probation periodEndnote 523. In addition, a reporting officer may comment on a deficiency in the member’s performance evaluation, which could have consequences for that member’s careerEndnote 524.
Where a CAF member reaches the end of the monitoring period and has overcome the deficiency, a written summary is placed on the member’s personnel record; where the CAF member has not overcome the deficiency, further administrative action will be initiated.
In cases of a conduct deficiency, an administrative review is the process used to determine what administrative action, if any, is the most appropriateEndnote 525. An administrative review is not required prior to initiating such remedial measures as initial counselling, recorded warning, conditions and probation; however, DMCA policy encourages COs to conduct a ULAR in every case, particularly where conditions and probation are being consideredEndnote 526.
A ULAR aims to help organize and summarize the facts and allegations faced by the member, analyze the case in consultation with the applicable sources of support (such as the legal advisor), and provide recommendations for action. ULARs are similar to the administrative reviews conducted by the DMCA, though less formal and are meant to be conducted according to the principles of procedural fairnessEndnote 527.
When the CO has concluded that the appropriate administrative action is to issue a Notice of Intent to Recommend Release, the DMCA conducts an administrative review to determine whether a release is appropriate in the circumstancesEndnote 528. Generally speaking, for sexual misconduct characterized by repeated or egregious behaviour, the decisions regarding the appropriate administrative action are made by this central administrative authority. Victims are not involved in the administrative review process, though they are provided general information about administrative action.
Administrative reviews conducted by the DMCA consist of the individual who performs the review analysis, and the approving authority who initiates the administrative action as a result of that analysisEndnote 529. The level of the analyst and approving authority is dependent on the rank of the member whose conduct is being assessed. For instance, only the CMP can act as the approving authority for administrative action involving a GOFOEndnote 530.
CAF policy requires that administrative reviews be conducted in a procedurally fair manner. CAF members must receive notice and disclosure of the relevant documents and information upon which the approving authority will make its decisionEndnote 531. The CAF member has the opportunity to provide written representations to the approving authority, who must consider these representations in reaching its decisionEndnote 532. The CAF member is supported by an Assisting Officer, who liaises with the analyst. The outcome of the administrative review is provided to the CAF member in writingEndnote 533.
From 2015 to August 2021, the DMCA conducted 290 administrative reviews related to sexual misconduct. None of these reviews related to the conduct of a senior officer in the rank of colonel or captain (Navy). None related to a GOFO. The majority of the administrative reviews conducted were for junior-ranking NCMs:
Table 5. Number of administrative reviews by rank – 2015–16 to 31 August 2021Endnote 534.
|Rank of accused||# ARs|
Of these 290 administrative reviews conducted by the DMCA, 124 resulted in an administrative action other than release from the Forces.
Table 6. Number of administrative actions – 2015–16 to 31 August 2021Endnote 535.
|Counselling and probation||Initial counselling||Recorded warning||Retain without career restrictions|
As demonstrated in the table above, the DMCA may ultimately conclude – despite the CO having recommended release – that retaining the member without career restrictions (including in the form of remedial measures) is appropriate. I understand this may be due, in part, to the DMCA concluding that there is insufficient evidence to substantiate the recommendation for release, or perhaps that other actions (such as alternative dispute resolution (ADR)) are appropriateEndnote 536. I do not want to speculate why approximately 50 of the administrative reviews relating to sexual misconduct resulted in retaining the member without career restrictions. However, for the files for which a CO recommended release and for which the DMCA ultimately found that no administrative action was necessary, the CAF would benefit from an external review similar to the SARP initiated by the CFNISEndnote 537. The intent of this recommendation is to provide for externally-lead quality assessment, providing external input into the administrative review process as it relates to sexual misconduct, to ensure best practices.
The DMCA should engage in an externally-led quality assurance assessment – similar to that conducted by the SARP initiated by the CFNIS – of the administrative reviews conducted from 2015 to date relating to sexual misconduct, which administrative reviews resulted in retaining the member without career restrictions.
In its 2018 Report, the OAG assessed whether the CAF resolved reported cases in a timely and consistent manner. The OAG found that in the majority of the 29 case files of the that it sampled, where members were released or retained without any remedial measures, the decisions were consistent when factors such as rank, incident, and severity were taken into accountEndnote 538. However, the AG went on to note that, once the DMCA decides on a remedial measure, it is the respondent’s CO that has the discretion to decide what type of activities they must do to satisfy the remedial measure: “[…] because of this discretion […] the type of activities the commanding officers implemented, such as written essays and training sessions, varied widelyEndnote 539.”
According to the OAG, the CAF and the SMRC were developing a suggested list of activities to satisfy the remedial measures appropriate for responding to sexual misconduct. The OAG endorsed providing clear guidelines to help COs implement consistent remedial measuresEndnote 540. By way of update on this point, I was informed that the DMCA does not provide direction on the specific action that the CO chooses to put into place during a remedial measure’s monitoring period and that the CPCC and the SMRC did not have anything further to add.
There is merit in unit-level, discretionary action for minor matters. COs must have control over their subordinates and should be able to respond to minor issues of misconduct with flexibility.
While COs should have access to guidance on the appropriate steps to implement a remedial measure for sexual misconduct, this guidance should be focused on ensuring that COs are made aware of the latest considerations and measures that respond appropriately to sexual misconduct, such as restorative engagement or other new initiatives. I encourage the CPCC, working with the SMRC, to ensure that COs have access to up to date guidance in this respect.
Release from the CAF
In deciding the appropriate administrative action, a CO must choose between issuing a remedial measure or a Notice of Intent to Recommend Release. A CO cannot do both. Guidance on this issue states that if release is determined to be the most appropriate course of action, it is “contradictory and inadvisable” and “illogical” to issue the member with a remedial measure for the same incidentEndnote 541.
As I understand it, issuing a Notice of Intent to Recommend Release is an administrative action in and of itself. A CAF member may object and respond to the COEndnote 542. A CO must consider any objections and representations in determining whether or not to proceed with the release recommendationEndnote 543. In the event the CO determines the release recommendation is no longer appropriate, they may initiate a remedial measure (following consultation with the DMCA 2 for instances of sexual misconduct)Endnote 544. If a CO proceeds with the release recommendation, they must forward all relevant documentation, including investigation or medical information to the DMCA 2, including the recommended item under which the member should be releasedEndnote 545.
The administrative review subsequently conducted by the DMCA in relation to the release recommendation follows the steps set out aboveEndnote 546. Possible outcomes include release, a remedial measure (the administration of which is a unit responsibility), and retention in the Forces without remedial measures. This last option may be accompanied by a recommendation for compulsory occupational transfer, or other action, depending on the situationEndnote 547.
I have heard criticisms about the DMCA’s dispositions of recommendations for release issued by COs. The perception is that the DMCA is too lenient and that this undermines the authority of those in the field who should be trusted to make the appropriate decision in light of their proximity to the facts, the people, and the impact on morale. On the other hand, I appreciate the DMCA’s role in ensuring that consistent standards are applied throughout the organization. On balance, I encourage the DMCA to place considerable weight on the CO’s position that their member should not continue in service.
There are five categories of “release items” pursuant to which a member may be released from the CAF:
- Item 1, Misconduct;
- Item 2, Unsatisfactory Service;
- Item 3, MedicalEndnote 548;
- Item 4, Voluntary; and
- Item 5, Service CompletedEndnote 549.
COs can issue a Notice of Intent to Recommend Release relying on items 1, 2 or 5Endnote 550:
Table 7. Categories of release items.
|Release Item||Category||Reasons for Release||Notation on Record of Service|
|Item 1||Misconduct||1(b) Service Misconduct||Released for Misconduct|
|Item 1||Misconduct||1(d) Fraudulent Statement on Enrolment||Released for Misconduct|
|Item2||Unsatisfactory Service||2(a) Unsatisfactory Conduct||Service Terminated|
|Item2||Unsatisfactory Service||2(b) Unsatisfactory performance||Service Terminated|
|Item5||Service Completed||5(d) Not Advantageously Employable||Honourably Released|
|Item5||Service Completed||5(f) Unsuitable for Further Service.||Honourably Released|
Depending on the release item, there can be consequences for future employment with the federal governmentEndnote 551. Notably, assigning a release item must occur after the reason for release has been determined, to ensure the release item is not applied to attach a stigma to a member’s releaseEndnote 552.
Of the 290 administrative reviews conducted by the DMCA for sexual misconduct from 2015 to August 2021, a total of 166 resulted in release. Of the 166, about half were releases that carried with them a negative notation on the member’s service record:
Table 8. Administrative reviews related to sexual misconduct
No. of members released by type of release Endnote 553.
|Misconduct (Sentenced to dismissal)
|Misconduct (Fraudulent Statement on Enrollment)
1(d)Note de fin d'ouvrage *
|Unsatisfactory service (Unsatisfactory Conduct)
|Service Completed (Not Advantageously Employable
|Service Completed (Irregular Enrollment)
5(e)Note de fin d'ouvrage *
|Service Completed (Unfit for Further Service)
Release under item 2(a) tends to result from being convicted of a service offence (or several)Endnote 554; while release under item 5(f) is normally assigned to release for a conduct deficiencyEndnote 555 and is meant to apply to members:
- guilty of unsatisfactory conduct, either socially or on duty, in a way that brings discredit to the CAF;
- guilty of a behaviour pattern that causes excessive administrative burden because of disciplinary problems (e.g., numerous minor charges);
- who refuse to adhere to regulations but whose offences are not serious enough to warrant release under item 2 (which tends to require conviction of a service offence); and
- who are unwilling to improve performance but have the ability to do soEndnote 556.
Release due to harmful and inappropriate sexual behaviour
Members unable to meet the standards of Universality of Service for medical reasons may release under release item 3, “Medical”, only after the DMCA conducts an administrative review evaluating their continued service.
The CDS is the sole authority for release for those members whose medical employment limitations are due to HISB and who have identified themselves to the DMCA as victims of HISB in relation to those employment limitations. The CDS’s approval and direction of the release are required to “ensure that all CAF members affected by HISB are given every opportunity to continue their service and that they are not disadvantaged by their illness or injury while they recoverEndnote 557.” Before approving such a release, the CDS must consider a number of factors, including the member’s need for treatment, whether all investigations or proceedings are complete, and whether the member has been afforded sufficient time for comprehensive medical care and supportEndnote 558.
Concerns about administrative action for sexual misconduct
In the course of my Review, I have repeatedly heard frustration with administrative action for sexual misconduct. I have heard frustration with issues of transparency and timeliness, both contributing to a lack of trust in the process. These concerns are not new.
Transparency of administrative action
In the 2018 OAG Report, the OAG observed weaknesses in how the CAF shared information with victims:
- [D]ue to the obligations of the Privacy Act, in many cases, the chain of command did not tell victims whether administrative actions had been taken and why. In these cases, members may believe that no action was taken. Officials recognized this as an issue and began exploring ways to address it, such as requesting that the perpetrator voluntarily apologize and disclose the result of the administrative review to the victimEndnote 559.
The OAG generally recommended that the CAF introduce comprehensive victim case management services from the time the victim discloses an incident to the conclusion of the case, and ensure that members, service providers, and responsible officials have a clear understanding of what the complaint processes are, how they work, and what the possible outcomes are for both the victim and the alleged perpetratorEndnote 560.
In its May 2019 Report, the Senate Standing Committee on National Security and Defence called for the government to “review the laws, regulations, and policies that result in little or no information being available to current and former CAF members affected by sexual misconduct regarding the outcomes of administrative review processes, following their report of an incident of sexual misconduct and the filing of a complaintEndnote 561.”
In July 2019, a direction was issued that victims of sexual misconduct be informed of administrative actions. This direction responded, at least in part, to the 2018 OAG Report, to ensure that COs could “provide victims with information about the outcomes and conclusions of administrative reviews related to their complaint, as well as administrative actions imposed by the chain of command on the person who caused them harmEndnote 562.” This directive was meant to close the “information gap” highlighted in the 2018 OAG Report. The CAF described this approach as a solution to the competing privacy interests at play, as it “respects due process and fairness to all, and prevents the release of highly sensitive personal information, such as medical or psycho-social assessments or treatmentEndnote 563.”
The above direction has since been superseded by the mandates set out in the DAOD 9005-1, Sexual Misconduct Response, which state that the outcome of an administrative action responding to sexual misconduct can be shared with the victim, and the victim’s CO is responsible for informing the victim of their ability to request this informationEndnote 564. Notably, COs are prohibited from disclosing actions that include highly sensitive personal information, such as medical or psycho-social assessment or treatmentEndnote 565.
Guideline documents that I have reviewed highlight maintaining “regular and open two-way lines of communication” with victims, including during delays and periods of inactionEndnote 566. COs are also encouraged to manage expectations, to be “clear and upfront [with victims] about what kinds of information they may and may not have access to throughout the process,” such as privacy limitations on sharing sensitive personal informationEndnote 567.
I take from the above that COs can inform a victim that an incident of sexual misconduct has been addressed by way of administrative action. However, COs are cautioned against disclosing sensitive personal information. I have no doubt this contributes to a conservative approach to communicating with a victim. It is inevitably easier to err on the side of caution and confidentiality.
I am not of the view that providing more information to the victim than what is prescribed is necessary for administrative processes. The CAF may wish to consider exploring whether it is feasible to impose additional obligations of disclosure on COs (e.g., providing complainants status updates, such as when an investigation has started or is completed, or when an administrative review has been commenced); however, administrative action is a personnel issue and between the CAF and the member. My view here is subject to my comments below, on the dubious need for remedial measures at all, given the upcoming changes to the disciplinary process prompted by Bill C-77.
Timeliness of administrative action
In its 2018 OAG Report, the OAG highlighted that, for cases of inappropriate sexual behaviour, there was no policy requiring the DMCA to complete administrative reviews within a given time frameEndnote 568. According to the OAG, while some delay was out of the DMCA’s control – such as the time to obtain legal transcripts or medical files – it took the DMCA on average one year to reach a decision and take administrative actionEndnote 569. The OAG emphasized that the delay contributed to the victim’s perception that the case was not being taken seriouslyEndnote 570.
More recently, of the reviews conducted by the DMCA for sexual misconduct between 2015 and August 2021, it took an average of 328 days from the time that the DMCA opened the administrative review file to the time the decision was delivered to the member:
Table 9. Time from opening the administrative review file to the decisionEndnote 571.
|Up to 3 months||46|
|3 to 6 months||67|
|6 to 9 months||46|
|9 months to 1 year||37|
|Over 1 year||94|
I understand that there are many reasons that contribute to a lengthy process. Indeed, internal documents acknowledge that administrative reviews “can be lengthy, depending on complexity, ongoing legal processes and the workload within DMCAEndnote 572.” I understand that the DMCA’s review is often dependent on receiving information from third parties, which can add delay to the process. I am not in a position to assess the resources available to the DMCA, although I understand that the caseload within the organization is significant. However, almost a year is a long time to wait – for both the complainant and the respondent – to learn whether an administrative action, including release, will be initiated for sexual misconduct. This passage of time erodes trust in command and may make any administrative action taken largely ineffective. This is exacerbated in an environment where the individuals involved may be posted out of a unit before the conclusion of an administrative review, such that they may never learn of its resolution.
Issues of timeliness may be heightened when there is a charge of sexual misconduct under the NDA or the Criminal Code. I have heard from stakeholders, including COs, that commanders sometimes wait to initiate administrative action until after a police investigation or even a criminal trial is complete. This inertia – perhaps motivated by a cautious approach to understanding and investigating the facts – invariably lengthens the time that it takes to engage in administrative measures.
Yet, according to internal guideline documents, administrative action is meant to be complementary to disciplinary proceedings, and both processes are necessary to assure unit cohesion and disciplineEndnote 573. Provided a CO (or DMCA analyst) is convinced that the member has engaged in sexual misconduct, administrative action can and should be taken without having to wait for the outcome of other proceedingsEndnote 574. Even where a member is acquitted in court or the charges are dropped, administrative action can still be takenEndnote 575.
This policy approach echoes Justice Deschamps’ support of the need for parallel measures: “even where a case of sexual assault is referred to civilian authorities, the CAF should carry out its own parallel assessment as to whether any administrative sanctions should be imposed (for example, suspension, demotion, release from the CAF)Endnote 576.”
It is fundamental that COs respond to sexual misconduct. It is a requirement of command. As such, subject to my comments below addressing my concern as to the overlap in function and unnecessary duplication in process that may result from the summary hearings to be implemented in response to Bill C-77, I encourage the use of administrative action – being the administrative review process conducted in respect of release – in parallel with disciplinary proceedings.
While I have heard concerns that proceeding with administrative action at the same time as a criminal or disciplinary proceeding puts the subject of both proceedings at risk of self incrimination – this concern has been addressed in the many professional environments in which administrative measures have to be activated without having to wait for the outcome of criminal proceedings.
I also encourage the use of administrative action, where appropriate, in parallel with investigations and proceedings by the CHRC and CHRT, respectively, which I address below in the section on Complaints. Here again, with proper legal representation, all concerns can be addressed before the relevant authorities on a case by case basis.
Overlap between summary hearings and administrative actions
The CAF has been revising its summary trial process to respond to the amendments to the NDA arising from Bill C-77. Summary hearings for service infractions will soon replace summary trials for service offencesEndnote 577.
These summary hearings will not be penal. They are meant to respond to minor disciplinary breaches resulting in no criminal record. The standard of proof will be the same as it is for administrative actions – the balance of probabilities.
With the implementation of Bill C-77, the CAF will be introducing a disciplinary process that is similar to the administrative review process. The same standard of proof applies to the conduct deficiency at issue, and both processes are non-criminal in nature and outcome. While both may be engaged for the same conduct, their objectives are said to be different: the disciplinary process is said to be punitive, and the administrative process remedial. And there are differences between the two: summary hearings are public, unlike administrative reviews, and are not subject to the grievance process. Their outcomes are also different, with the sanctions resulting from conviction of a summary infraction ranging from minor sanctions to a reduction in rank, and the administrative actions resulting from an administrative review ranging from initial counselling up to release from the Forces.
As I describe above in the section on Military Justice, I do not yet know what type of sexual misconduct if any, will be considered a summary infraction, making it subject to the new summary hearing process. I have heard different things from the CAF in this respect: that certain types of minor sexual misconduct could be charged as service infractions, subject to the summary hearing process; and the opposite, that the summary hearing process will not be used for sexual misconduct of any type.
Given the current lack of certainty on this issue, I am limited in my ability to vet a fully integrated and conceptually sound restructuring of how the CAF should deal with sexual misconduct.
However, it is clear that with the introduction of summary hearings
in place of summary trials, one aspect of the disciplinary process inches closer to the administrative arena. It is difficult to understand the purpose of imposing on COs and their unit the dual obligation to conduct both a disciplinary proceeding and an administrative one that assess the same facts on the same evidentiary standard.
If some form of sexual misconduct was to be dealt with at the unit level by way of both a summary hearing and administrative action – a matter on which I was given contradictory information – I urge the CAF to consider reconciling summary hearings and administrative reviews into one, with the introduction of remedial and other administrative measures, similar to conditional discharges under the Criminal Code, as a potential outcome in the summary hearing process.
Complaints of sexual misconduct are, generally speaking, handled by the chain of command. However, victims mistrust the chain of command and so do not report. I have heard this mistrust time and time again in the course of my Review.
As a solution, multiple stakeholders internal and external to the Defence Team have recommended that complainants be given alternative reporting options – outside the chain of command. However, I have not received any guidance as to what the governance structure of such an external entity should look like. An external entity cannot exist in the ether.
Consistent with my recommendation that Criminal Code sexual offences be transferred to the civilian criminal justice system, I believe that the avenues for complaints within the CAF, particularly complaints of a serious nature, must be civilianized. As such, I recommend that should a complaint be brought against the CAF to the CHRC, the CAF should allow the CHRC to proceed with such complaint for sexual harassment, or for discrimination on the basis of sex, regardless of whether the complainant has exhausted internal complaint mechanisms. The CHRC is external to the CAF, and has the experience and expertise to assist victims of sexual harassment. Moreover, the CAF should align its harassment policy with Bill C-65 (see below), in a similar fashion as the DND.
My recommendation to remove complaints from the chain of command should not be construed as absolving the chain of command of its responsibilities with respect to sexual misconduct. The call for external reviews and entities must be balanced with the need for the CAF to take responsibility for the management of personnel conflict and human resources issues. Indeed, the chain of command must maintain its responsibility for ensuring a safe and healthy working environment for its members by using all the tools at their disposal, including disciplinary measures, to promptly and efficiently deal with sexual misconduct in the workplace. Nothing precludes the chain of command from taking any other measure deemed necessary to address the sexual misconduct, concurrently with any complaint filed with the CHRC.
Sexual misconduct is sui generis, and should not be conflated with other forms of misconduct. The scale and severity of sexual misconduct in the CAF, as well as the trauma and stigmatization of victims of sexual misconduct, are well documentedEndnote 578. In time, the initiatives that result from my recommendations may be adapted and extended to other forms of misconduct. But for now, the focus should be on resolving the issues with respect to sexual misconduct, the most large-scale and prevalent form of discrimination in the CAF today.
The DAOD 5012-0, Harassment Prevention and Resolution
There are two main complaints processes addressing sexual misconduct in the CAF. In addition to reporting under the DAOD 9005-1, Sexual Misconduct Response, CAF members can also file sexual harassment complaints under the CAF’s general harassment policy, set out in the DAOD 5012-0, Harassment Prevention and Resolution, and the Harassment Prevention and Resolution InstructionsEndnote 579.
Prior to the enactment of an Act to amend the Canada Labour Code (harassment and violence), the Parliamentary Employment and Staff Relations Act and the Budget Implementation ActEndnote 580 (Bill C-65), the DND and the CAF shared the same harassment policy, which flowed “directly from and [is] consistent with the Treasury Board of Canada Secretariat Policy on the Prevention and Resolution of Harassment in the WorkplaceEndnote 581.”
However, effective 1 January 2021, “[t]he DND/CAF implemented a two streamed approachEndnote 582.” Workplace harassment incidents where both parties are DND employees, as well as incidents that involve a DND employee and a CAF member are now addressed under the Workplace Harassment and Violence Prevention Interim PolicyEndnote 583, adopted pursuant to Bill C-65. Incidents involving only CAF members continue to be addressed pursuant to the DAOD 5012-0 and the Harassment Prevention and Resolution InstructionsEndnote 584.
Complaints under the DAOD 5012-0 must be submitted to the Responsible Officer (RO) or to the unit Harassment Advisor (HA). Being an HA, which is a secondary duty, requires a five-day course. Complaints that go first to the HA must be forwarded in any event to the RO without delay. A complaint can also be submitted to the next person in the chain of command, if the RO is the subject of the complaintEndnote 585.
The RO tends to be a CO or his or her designateEndnote 586. After receiving a complaint, the RO must conduct a situational assessment, based only on the information received from the complainant, to determine whether the complaint contains all the elements required to proceed, and whether the allegations as stated, and if founded, meet the definition of HarassmentEndnote 587.”
If the harassment criteria are not met, the RO will inform the parties of its decision. If the harassment criteria are met, the RO will attempt to resolve the complaint using ADR. If ADR is not appropriate or unsuccessful, the RO will ensure that an administrative investigation is undertaken and a decision renderedEndnote 588.
The Harassment Criteria are:
- improper conduct by an individual;
- individual knew or ought reasonably to have known that the conduct would cause offence or harm;
- if the harassment does not relate to a prohibited ground of discrimination under the Canadian Human Rights Act, the conduct must have been directed at the complainant
- the conduct must have been offensive to the complainant;
- the conduct may consist of a series of incidents, or one severe incident which had a lasting impact on that complainant; and
- the conduct must have occurred in the workplaceEndnote 589.
If there is a possibility that the complaint relates to a Criminal Code or a service offence under the Code of Service Discipline, the appropriate authority will be engagedEndnote 590.
If the RO is “completely satisfied that [it] has all the necessary and relevant facts and that the parties have, in accordance with the principles of procedural fairness, been adequately heard”, the RO may decide to make a determination without further investigationEndnote 591.
If further investigation is required, a harassment investigator will be appointed to conduct the investigation. The Harassment Prevention and Resolution Instructions provide that the investigator “must be capable of conducting an independent investigation in a thorough, impartial, unbiased, discreet and sensitive manner” and “should be trained in administrative/harassment investigation techniques”. In addition, “[w]here possible and practical, the [investigator] should be equal, or superior in rank or civilian classification, to both [parties]”. Finally, the Harassment Prevention and Resolution Instructions strongly encourage the appointment of an investigator that is “outside of one’s unit, if feasibleEndnote 592.” I understand that harassment investigations are sometimes conducted by a civilian third party, including investigators from the ICCM.
The investigator must prepare a draft report for submission to the RO, and to both parties for comments. The final report, which must contain a finding as to whether harassment occurred or not, is forwarded to the RO for decisionEndnote 593.
The Responsible Officer’s decision
The RO has the responsibility and authority to make a final determination on whether harassment has occurred. Once satisfied with the completeness of the final report the RO may, in whole or in part, accept, reject or vary the findings as to whether or not harassment has occurred. The RO will decide what action should be taken as a resultEndnote 594.
Aligning the harassment policies of the DND and the CAF
As I noted above, in response to Bill C-65, the DND implemented the Workplace Harassment and Violence Prevention Interim PolicyEndnote 595. As the CAF is not subject to the Canada Labour CodeEndnote 596, the legislative changes enacted through Bill C-65 do not apply to the CAF.
However, in a message to the Defence Team from December 2020, the former DM and the former CDS stated that “the VCDS had been tasked with addressing the potential changes to CAF policies and programs” in order to “modernize and align where possible with the Canada Labour CodeEndnote 597”. According to representatives of the Assistant Deputy Minister (Human Resources-Civilian) (ADM(HR-Civ)), there has been some back and forth as to whether a unified Defence Team approach with respect to the harassment policy is possibleEndnote 598.
I understand that the management of Bill C-65 now falls under the mandate of the CPCC, and that it is the ICCM – now under the CPCC – that is the “lead” on work to modernize and align the CAF’s harassment policies with the Canada Labour CodeEndnote 599. According to the ICCM’s 2021 Annual Report:
- Over the next year, further work will be led by ICCM and a CAF Working Group in order to; enhance the CAF prevention framework, to align, as much as possible, with the intent of the Canada Labour Code; align with other existing frameworks and programs (i.e., sexual misconduct, hateful conduct); enhance awareness and revamp role-based training; and provide an extensive toolkit to the chain of command to assist in the resolution of incidentsEndnote 600.
I requested an update from the CPCC on the status of aligning CAF policies with Bill C-65. I was informed that there was not much information to provide at this time.
The CAF must expedite its work to align the CAF harassment policy with Bill C-65. In line with my recommendations to civilianize these types of processes, I believe the CAF should be subject to the same, or similar, rules on harassment as the rest of the federal public service.
In the event that the CHRC does not accept a complaint, CAF members would then be able to turn to the process currently available to DND employees under Bill C-65, which process has a broader scope to prevent harassment.
The Integrated Conflict and Complaint Management
The ICCM has a role to play in harassment complaints by members of the CAF.
Generally, the mission of ICCM is to “[e]nable the Defence Team to effectively manage their conflicts and complaints early, locally and informally, and guide them through formal mechanisms when appropriateEndnote 601.” Until recently, the ICCM reported to the VCDS. It now reports to the CPCC. It reached full operational capacity on 20 July 2018Endnote 602.
The ICCM is headquartered in Ottawa. However, its Conflict & Complaint Management Services (CCMS) are located at 16 CCMS offices on bases and wings across Canada. These offices are staffed with military and civilian personnel. All CAF members, including COs, can consult a CCMS agent or agent supervisor for information about the harassment complaints process. Responding to such requests is a CCMS agents’ primary duty, for which they receive more training than HAs. CCMS agents are part of the Service Delivery Directorate of ICCM. The service delivery team, in addition to offering expert advice, also delivers ICCM’s ADR mechanism, offering conflict coaching, mediation, facilitation, workplace restoration, and training. This ADR is available to both DND Public Servants and CAF membersEndnote 603.
In addition to advice and ADR by way of its service delivery team, ICCM also retains stewardship of the CAF grievance system, including full oversight and administration of the CAF grievance process, as well as the communication of the CDS’ intent with respect to grievance resolutionEndnote 604.
The ICCM also responds to instances of discrimination by offering human rights complaints analysis, mediation and resolution. It tracks cases outside CAF’s systems, which I understand includes the CHRC and CHRTEndnote 605. Finally, the ICCM provides advice to the chain of command regarding harassment and violence in the workplace, and is mandated with CAF harassment investigative capabilities in select instances of harassment complaintsEndnote 606.
ICCM’s role vis-à-vis sexual harassment
According to the then Minister and CDS:
- ICCM also helps address two recommendations made by former Supreme Court Justice Marie Deschamps in her March 2015 report: the need to simplify the harassment complaint process and the need to establish a better harassment complaint tracking systemEndnote 607.
As mentioned above, CCMS agents (and their supervisors), can assist all members of the CAF, including the chain of command, in understanding the policies and procedures relating to harassment, and advise them on the options available to them. However, CCMS offices are not reporting centres, and complaints are not filed with CCMS agents.
The ICCM does not have any authority in respect of the complaints resolution process. However, it can assist a CAF member to ensure that the complaint process is respected by facilitating communication with the chain of command. I was told that in a good majority of cases, this is effectiveEndnote 608.
With respect to establishing a better harassment complaint tracking system, the ICCM did establish the ICRTS. However, only the complaints that are brought to the attention of a CCMS agent, or to a HA who has received training on how to use the ICRTS, are registered into the ICRTS. Between July 2018 and August 2021, only 29 cases of sexual harassment were registered in the ICRTSEndnote 609, three in 2018 (July to December), 13 in 2019, eight in 2020 and five in 2021 (January to August).
Finally, there is a protocol between the ICCM and the SMRC according to which agents at the ICCM “will provide the SMRC contact information in cases where inappropriate sexual behavior is reported and the member is seeking further support and resourcesEndnote 610”, and counsellors at the SMRC will encourage CAF members who have experienced sexual misconduct to contact the ICCM to obtain assistance in initiating a complaintEndnote 611.
Conflicting roles of the ICCM
Insofar as complaints relate to matters of sexual misconduct, the work of the ICCM seems duplicative of the mandate I recommend for the SMRC, which has the stronger expertise in assisting victims and survivors of sexual misconduct; however, the ICCM has a base/wing presence that the SMRC does not currently have, although it is actively working on establishing regional offices. Further, the ICCM is a CAF operation, which is arguably still too closely related to the chain of command to generate the trust of sexual misconduct complainants.
The ICCM provides services to the chain of command and to CAF members, both complainants and respondents. According to the ICCM’s 2021 Annual Report, inquiries from the chain of command to CCMS offices represented “approximately 50% of all inquiriesEndnote 612.” There is a clear conflict of interest in the ICCM’s multiple functions of advising both the complainant and the respondent, as well as supporting the chain of command. The ICCM cannot assume all roles in conflict management, including with respect to grievances and human rights complaints.
As explained below with respect to the SMRC, the support provided to victims must not blend with support provided to the chain of command and to respondents. This can only dissuade victims from getting help. Indeed, as highlighted above, in the case of ICCM, very few cases of sexual harassment are registered in the ICRTS.
Furthermore, all victim support should be available under the roof of the SMRC, which should be entirely dedicated to victims. The ICCM is not positioned to provide advice to victims of sexual misconduct. Duplicating the support services available to them only serves to confuse victims on where they should go for assistance.
Finally, many ADR solutions are offered by the ICCM. I agree with Justice Deschamps that ADR is “generally inappropriate in addressing sexual harassment complaintsEndnote 613.” As such, ADR should only be used in appropriate cases, as it would be if done under the expertise of the CHRC, described below.
The Canadian Human Rights Commission and Tribunal
There already exists an external structure, independent of the DND and the CAF, which is available to receive, investigate and hear complaints of sexual harassment against the CAF and CAF members: the CHRC and the CHRT.
Application of the Canadian Human Rights Act to the CAF
The CAF is subject to the Canadian Human Rights ActEndnote 614. Section 14(1) of the CHRA provides that it is a discriminatory practice to harass an individual on a prohibited ground of discrimination. Sexual harassment is deemed to be harassment on a prohibited groundEndnote 615.
The DAOD 5516 series addresses human rights in the CAF, and makes it clear that CAF members must comply with the CHRA, and in the event of a discriminatory practice, can file a complaint against the CAF.
The DAOD 5516-0, Human Rights provides:
- 2.4 The DND and the CAF must:
- promote the principles of the CHRA;
- inform DND employees and CAF members of their rights and obligations under the CHRA, and of behaviour that constitutes a discriminatory practice;
- provide leaders, managers and supervisors with guidance and support to enable them to carry out their responsibilities in preventing discriminatory practices and resolving conflicts;
- establish complaint resolution processes; and
- monitor the effectiveness of this DAOD and DAOD 5516-1, Human Rights ComplaintsEndnote 616.
The DAOD 5516-1, Human Rights Complaints, which addresses the complaints process, provides:
- 2.1 Any policy or practice in the DND or the CAF that is a discriminatory practice may result in a complaint under the Canadian Human Rights Act (CHRA).
- 2.3 DND employees and CAF members must not subject any person in the workplace to a discriminatory practice, or interfere or attempt to interfere in the human rights complaint process.
- 4.1 Under the CHRA any person may file a complaint against the DND or the CAF of an alleged discriminatory practice. Complaints are filed with the CHRC.
- 5.1 DND employees and CAF members must comply with this DAOD. Any DND employee or CAF member who subjects another person to a discriminatory practice in the workplace, or interferes or attempts to interfere in the human rights complaint process, may be liable to disciplinary or administrative action, or both. (…)Endnote 617
In addition, the DAOD 5012-0’s definition of harassment provides that “[i]t also includes harassment within the meaning of the Canadian Human Rights Act.” The DAOD 5019-0, Conduct and Performance Deficiencies, provides that CAF members are expected to “respect the dignity and value of all persons by treating them with respect and fairness at all times and in all places in accordance with the Canadian Human Rights ActEndnote 618.”
Complaints process under the CHRC and the CHRT
The CHRC complaints process is straightforward and can be summarized as follows:
1. Filing a complaint
To file a complaint, individuals must complete a complaint form that includes the specific ground of discrimination, a detailed description of what happened, and the negative effects it had on themEndnote 619.
Upon receipt, the CHRC reviews the complaint to determine whether the complaint is admissible, and whether they can accept the complaint or not.
2. Informing the respondent
If the complaint is accepted, the CHRC informs both the complainant and the respondent in writing. The respondent will be asked to fill out a response form, which must be sent to the complainant and the CHRC. The complainant will then have an opportunity to reply to this response.
The CHRC will then determine if mediation should be offered, which it would facilitate.
If mediation is not possible, does not work, or is refused by one of the parties, the file will proceed to assessment.
4. Referral to Human Rights Commissioner
A Human Rights Officer will assess the complaint by considering whether there is sufficient evidence to support the claims made by the complainant. The Human Rights Officer can request information from either party to prepare their report. Both parties will be given a copy of this report, on which they can provide comments.
The report, as well as any comments made by both parties will be provided to a Commissioner, who will review the information and make one of the following decisions:
- dismiss the complaint;
- send the complaint to conciliation;
- defer their decision and request more information and further analysis; or
- refer the complaint to the CHRT.
The decision made by the Commissioner is finalEndnote 620.
5. The CHRT
If the complaint is referred to the CHRT, the tribunal will hear evidence and determine whether the complaint is established. If there is a finding of discrimination, the CHRT will determine an appropriate remedy. The order can include any of the following terms:
- cease the discriminatory practice and take measures to prevent the practice from occurring in the future (section 53(2)(a) of the CHRA);
- make available to the victim the rights, opportunities or privileges that were denied (section 53(2)(b) of the CHRA);
- compensate the victim for any lost wages as a result of the discrimination (see section 53(2)(c) of the CHRA);
- compensate the victim for the additional costs of obtaining alternative goods, services, facilities or accommodation as a result of the discrimination (section 53(2)(d) of the CHRA);
- compensate the victim up to $20,000 for any pain and suffering that the victim experienced as a result of the discrimination (section 53(2)(e) of the CHRA);
- compensate the victim up to $20,000 if the discrimination was wilful or reckless (section 53(3) of the CHRA); and
- award interest on an order to pay financial compensation (section 53(4) of the CHRA)Endnote 621.
From the Deschamps Report to the present
The Deschamps Report states that the CHRC, along with the Ombudsman, provided “little support or assistance to victims of sexual assaultEndnote 622.” She explained:
- A second external resource sometimes cited by the CAF is the Canadian Human Rights Commission. Members are told that they are free to go to the CHRC to seek redress in relation to complaints of sexual harassment. The difficulty with this channel is that the CHRC will only accept a complaint if the member has first exhausted all internal avenues within the CAF. In other words, the complainant will generally have to take the complaint up the chain of command and through the grievance process before the CHRC will accept his or her complaint. In fact, statistics provided to the ERA indicate that no harassment complaint – which would include a complaint of sexual harassment – was referred to the Canadian Human Rights Tribunal between January 1, 2009 and July 18, 2014Endnote 623.
Justice Deschamps’ comments were based on section 41(1)(a) of the CHRA which provides:
- 41 (1) Subject to section 40, the Commission shall deal with any complaint filed with it unless in respect of that complaint it appears to the Commission that,
- the alleged victim of the discriminatory practice to which the complaint relates ought to exhaust grievance or review procedures otherwise reasonably available.
I was told by the CHRC’s Chief Commissioner that in her view, Justice Deschamps’ characterization of the process was not completely accurate. She explained that matters typically do not proceed because the CAF objects, on the basis of section 41(1)(a), and insists that internal procedures first be exhaustedEndnote 624.
Following the release of the Deschamps Report, members of the CHRC met with the Commander of the CSRT-SM to dispel the perception that the CHRC was not a viable option for CAF members and “to offer to work collaboratively to ensure that sexual harassment complaints and other complaints from people in their workplace in vulnerable circumstances are dealt with efficiently and effectivelyEndnote 625.”
In particular, the CHRC asked the CAF to stop raising objections on the basis of section 41(1)(a) of the CHRA, thereby allowing the CHRC to investigate the complaint and issue a report without CAF members having to exhaust internal complaint mechanisms before reporting to the CHRC. However, according to the CHRC, the CAF was not open to this requestEndnote 626.
I understand that the CAF has often taken a tough stance in litigation. This is consistent with what I have heard about the CAF being resistant to scrutiny. Unfortunately, this acts as an additional barrier to complainants who should not have to face such an adversarial stanceEndnote 627.
Since the release of the Deschamps Report, only 42 complaints against the CAF have been filed with the CHRC, claiming discrimination on the basis of sex:
Table 10. Complaints against the Canadian Armed Forces by Ground of Discrimination – 2015 to 2021.
|Grounds of Discrimination||Number of Complaints|
|Other Grounds (Marital Status, Sexual Orientation, Gender Identity,
Note: Due to complaints citing multiple grounds of discrimination, the total number of grounds will differ from the total number of complaints.
Source – Data provided by the CHRC
These complaints may not all be related to sexual misconduct. Therefore, we can infer that very few complaints have been made to the CHRC against the CAF for sexual harassment between 2015 and 2021. It is not possible to determine the number of complaints per discriminatory practice that might have contained elements of sexual misconduct.
Table 11. Complaints against the Canadian Armed Forces by Discriminatory Practice – 2015 to 2021.
|Discriminatory Practice||Number of Complaints|
|Denial of Service||10|
|Discriminatory Policy or Practice||74|
Note: Due to complaints citing multiple discriminatory practices, the total number of discriminatory practices will differ from the total number of complaints.
Source – Data provided by the CHRC
The CHRC told me that their biggest concern relates to the CAF members who do not go to them. They added that the fear of reprisal or retaliation is very real to victims who do file a complaintEndnote 628. However, I note that the CHRA protects complainants from retaliation by making it “a discriminatory practice for a person against whom a complaint has been filed under Part III, or any person acting on their behalf, to retaliate or threaten retaliation against the individual who filed the complaint or the alleged victimEndnote 629.”
The CHRC is also competent to deal with complaints that occurred outside Canada if the “victim of the practice was at the time of the act or omission a Canadian citizen or an individual lawfully admitted to Canada for permanent residenceEndnote 630.” This would cover most CAF membersEndnote 631.
The CHRC reiterated their interest in being part of the solution. They mentioned that the CPCC had reached out to them seeking input in the fall of 2021, but they had not heard from them sinceEndnote 632.
The CHRC insisted that they are an option for CAF members who experience sexual harassment and discrimination on the basis of sex. In support of this assertion, they assured me that since the Deschamps Report they had simplified their complaints process. In addition, they explained that they had tools at their disposal to shorten delays. Currently, complaints made against the DND and the CAF are given priority. Files are also prioritized based on the vulnerability of the complainant.
The CHRC also assured me that, if they were provided with adequate resources, they could deal with an influx of cases from the CAF. They added that the CHRT would also require resources to ensure that all matters are dealt with expeditiously there as well.
In light of the above, and consistent with my recommendation to send all Criminal Code sexual offences to the civilian criminal justice system, I recommend that the CAF allow the CHRC to assess any complaint for sexual harassment, or for discrimination on the basis of sex, regardless of whether the complainant has exhausted internal complaint mechanisms.
In my section on Definitions of Sexual Misconduct and Sexual Harassment within the CAF, I recommend that the CAF adopt the Canada Labour Code’s definition of harassment. I understand that this definition is broader in scope than the definition of harassment adopted by the CHRC and the CHRT. However, I leave it to the CHRC to interpret these definitions contextually, to capture the unique features of sexual harassment in a military environment such as the CAF.
The CAF should not file any objections based on section 41(1)(a) of the CHRA, and should allow the CHRC to assess any complaint for sexual harassment, or for discrimination on the basis of sex, regardless of whether the complainant has exhausted internal complaint mechanisms.
The Minister should seek assistance from her colleagues to ensure that the CHRC and the CHRT are adequately resourced to assess complaints against the CAF and hear them in a timely manner.
Legal costs and damages
In addition to the procedural barrier identified above, I have identified two other significant barriers for complainants who wish to assert their rights under the CHRA:
- the CHRT’s lack of authority to award legal costs; and
- the capping of damages at $20,000 for general damages, and $20,000 for willful or reckless conduct.
Currently, the CHRT does not have the authority to award legal costs. This question was settled by the Supreme Court of Canada in its 2011 Mowat decisionEndnote 633. Therefore, even if a complaint is substantiated, the complainant is responsible for the entirety of legal costs. Such costs can represent thousands of dollars for complainants, depending on the complexity and the length of the file. By way of example, the complainant in Mowat indicated that her legal costs totalled more than $196,000Endnote 634.
In addition, the CHRA limits the award of general damages to $20,000 “for any pain and suffering that the victim experienced as a result of the discriminatory practiceEndnote 635.” An additional maximum of $20,000 can be awarded by the CHRT where the respondent engaged in the discriminatory practice “wilfully or recklesslyEndnote 636.” The cap on damages under the CHRA has not changed since 1998.
Moreover, other than Saskatchewan and Manitoba, Canada is the only jurisdiction that imposes a cap on general damages. In contrast with the meager amount of $20,000 in general damages available to complainants before the CHRT, tribunals in some provincial jurisdictions have awarded general damages in amounts of over $170,000, namely in cases of sexual misconductEndnote 637.
These create additional deterrence for complainants to seek legal representation, or even file a complaint with the CHRC. The cost of having a lawyer or the pressure of proceeding without counsel are both additional burdens a complainant may not wish to take on. In my view, the barriers described above are inconsistent with the objective of the human rights regime.
With this, I believe allowing the CHRT to award legal costs and removing the cap on damages would go a long way in increasing access to justice for complainants, including CAF members who do not have adequate alternatives.
he CHRA should be revised to permit the award of legal costs and to increase the amount in damages that can be awarded to successful complainants. To assist in the implementation of this recommendation, the DM should bring this matter to the attention of the appropriate authority on an immediate basis.
The ICCM’s role regarding human rights complaintsEndnote 638
I noted above that the ICCM plays a role in human rights complaints. Specifically, the ICCM Director, External Review is responsible for managing all files going to the CHRC; preparing responses to human rights complaints against the CAF; and providing advice to senior military and civilian personnel on human rights issues and complaints.
In addition, the ICCM’s Director, Service Delivery – responsible for the CCMS agents – provides information and advice to CAF members on harassment policies within the CAF. Both Directors report to the same Director General.
These opposing responsibilities create a real conflict of interest for the ICCM, especially in light of my recommendation that sexual harassment complaints be referred to the CHRC. The ICCM cannot on one hand provide advice to a complainant regarding a sexual harassment complaint, and also be tasked with responding on the CAF’s behalf to a sexual harassment complaint filed with the CHRC against the CAF. Therefore, in my view, the responsibilities of the Director, External Review should be reassessed in this light.
Complaint process review by the CPCC and McKinsey
There are multiple complaints processes available to Defence Team members. They may report, disclose or otherwise file a complaint relating to sexual harassment and sexual misconduct, including reprisal conduct, to:
- The chain of command, under 9005-1, Sexual Misconduct Response;
- Police, either civilian or military, in cases of criminal sexual misconduct;
- For CAF members, a HA or RO, under the DAOD 5012-0, Harassment Prevention and Resolution;
- For DND employees and Staff of the Non-Public Funds, to their supervisor/manager or to the designated recipient, under the Workplace Harassment and Violence Prevention Interim Policy;
- For public sector union members (which include employees of DND and Staff of the Non-Public Funds), the appropriate union representative;
- For CAF members, the Initial Authority (IA) under the military grievance process may also address issues relating to sexual misconduct and harassment; and
- For members of the Defence Team, the Ombudsman and the ADM(RS) may also address issues relating to sexual misconduct and harassment, but not in a “first responder” way.
I understand that the CPCC has retained the third party consultant McKinsey & Company to complete a review of these multiple complaints processes for the DND and the CAF. As I understand it, McKinsey has proposed a possible new complaints mechanism to provide a unified approach to complaints. This new complaints mechanism includes a “single disclosure team” for receipt of disclosure and reports of misconduct. This point of disclosure is meant to apply to sexual misconduct, sexual harassment, hateful conduct and grievances.
To the extent that it applies to sexual misconduct, I have several concerns with respect to the process that I understand is being developed. First, and as I have expressed elsewhere, sexual misconduct is sui generis. It should not be conflated with or treated in the same manner as other forms of workplace related complaints.
Second, as per my recommendations, Criminal Code sexual offences must go to the civilian criminal justice system and victims of sexual harassment and of discrimination on the basis of sex should be given the option to go the CHRC. What is left of sexual misconduct must be addressed by the chain of command, which must maintain responsibility for ensuring discipline. In light of this, and the SMRC’s revised mandate, the system proposed by McKinsey is of little use with respect to sexual harassment and misconduct.
Third, as I understand it, the single disclosure team, for the purpose of receiving complaints, would be a hybrid between the SMRC and the ICCM. Again, this is a non-starter. Bringing the SMRC inside the CAF is out of the question.
Fourth, the system proposed by McKinsey would create the same conflict of interest that currently exists within the ICCM and the SMRC, resulting from their mandate of providing services to both the chain of command and CAF members.
Finally, there would be many similarities between the services offered by the single disclosure team and the SMRC. However, it is not apparent to me that thought has yet been given to what would happen with the SRMC when the single disclosure team is put in place. In my view, there would likely be too many similarities between the two outfits to justify the existence of both.
A summary review of the solutions proposed is sufficient for me to conclude that their focus is on structure over substance, that there will be important barriers to their implementation, and that they are not appropriate, as presently conceived, to deal with any matter related to sexual misconduct.
Military Grievance System
The military grievance system is one avenue available to CAF members to seek a remedy for failures of the CAF in regard to sexual harassment, sexual misconduct or discrimination on the basis of sex. Specifically, it provides an avenue for members to seek redress if they have been aggrieved by any decision, act or omission in the administration of the affairs of the CAF, that is, if no other process for redress is provided under the NDAEndnote 639. This right to grieve is subject to limited exceptions for decisions made under the Code of Service Discipline and relating to courts martial.
Grievances related to sexual misconduct, sexual harassment and discrimination on the basis of sex
Grievances can relate to sexual misconduct, sexual harassment and discrimination on the basis of sex in a number of ways.
For instance, CAF members can seek relief through the grievance system, because of career implications or other repercussions suffered due to disclosing or making a complaint related to sexual misconduct or sexual harassment. A member could contend that non-selection for certain postings, positions, or career courses is a reprisal for having submitted a complaint of sexual assault or harassment. A member could also seek redress for discriminatory treatment received from course staff while attending military training, particularly if the treatment appears to be related to the member identifying or complaining of sexual harassment or misconduct by a peerEndnote 640.
If a member suffers harassment, including sexual harassment, they have the option to file a harassment complaint, which is dealt with in a process that is distinct from the military grievance system, as outlined above. However, members can grieve failures in that harassment complaint process, or the outcome of their harassment complaint. For example, if despite evidence of unacceptable behaviour, no investigation is conducted or no appropriate actions are taken to remedy the harassment, a member could grieve those decisions on the basis that leadership did not take suitable measures to deal with the harassment complaintEndnote 641.
Members accused of sexual misconduct may also seek redress from leadership decisions that have had career implications for them, as well as the appropriateness of any corrective measures imposed. For instance, a member could be subject to an administrative review related to their sexual misconduct, and the CAF could decide to release the member under item 2(a) “Unsatisfactory Conduct.” The member could then grieve the decision to release them, as well as the release item selected. In a situation where a member is charged criminally due to an allegation of sexual misconduct, and the member is subject to an administrative review prior to or after the determination of guilt, the member could grieve a lack of procedural fairness in their treatment. A member could also grieve the appropriateness of remedial measures rendered for sexual misconduct, such as a recorded warningEndnote 642.
Members can also grieve decisions or policies that are discriminatory based on gender, such as being denied a specific posting or a full-time Class “B” reserve service position because of their gender, or pregnancyEndnote 643.
The grievance process
The NDA provides the statutory basis for the military grievance system and the role of the MGERCEndnote 644. Section 29(1) of the NDA provides CAF members the right to grieve. QR&O, Chapter 7 Grievances, frames the processes for submitting and adjudicating military grievances.
The Canadian Forces Grievance Authority (CFGA) is now part of the ICCM programEndnote 645. The ICCM, though the CFGA, has stewardship of the grievance system, including oversight and administration of the CAF grievance process, and communicating the CDS’ intent with respect to grievance resolution. The DAOD 2017-1, Military Grievance Process outlines in further detail the military grievance process, and the responsibilities of the CFGAEndnote 646.
The CFGA is responsible for managing and periodically reviewing the grievance process, on behalf of the VCDS, includingEndnote 647:
- managing the National Grievance Registry, including registering, routing and tracking grievances, and generating associated reports;
- providing assistance to grievors and the chain of command; and
- managing training for grievance analysts and assisting members.
The DAOD 2017-1 also indicates that the Director General CFGA is responsible for considering and determining grievances as one of several Final Authority (FA) delegates of the CDSEndnote 648. In addition, the Director General CFGA is responsible for preparing grievance files for the CDS to consider and determine when the CDS is acting as the Initial Authority (IA)Endnote 649. With respect to FA decisions, I understand that, in practice, CFGA analysts conduct the final analysis and produce draft decision letters for all FA decisions. Draft decision letters are reviewed by one of the FA grievance Team Leads and by a legal advisor as required, and are provided to the Director General CFGA for final approval and signature (for those grievances that fall within the Director General CFGA’s authority), or simply for approval prior to signature by another FA – being another delegate of the CDS or the CDS himselfEndnote 650. As mentioned above, with respect to harassment complaints, I see a real conflict of interest within the ICCM, as it also provides information and guidance to the grievor.
Grievances are first considered and decided upon by the IA. The IA for many grievances is the CO of the grievor’s unit. A CO may act as the IA if they have the authority to grant the redress sought. If the grievance relates to a decision, act or omission of the CO, or if the CO does not have the authority to grant the redress sought by the grievor, then the CO must refer the grievance to the next superior officer. In this event, the COs can seek guidance from the CFGA to identify the appropriate IA. There is a four-month time limit for the IA to provide a decision to the grievorEndnote 651.
If a grievance is not resolved in the grievor’s favour at the IA level, the grievor can elect to send their grievance to the FA for further consideration.
At the FA level, some grievance files are mandatorily referred to the MGERC by operation of QR&O paragraph 7.21Endnote 652, and others may be referred to the MGERC at the discretion of the FA. The factors assessed by the FA when referring a grievance to the MGERC include the benefit of having the grievance reviewed externally, and the capacity of the MGERC to investigate independently and make findings.
In accordance with QR&O paragraph 7.21, grievances mandatorily referred to the MGERC include those related to pay and allowances, reversion to a lower rank, release, freedom of expression, harassment, medical or dental care, and decisions of the CDS. There is no express mention in QR&O Chapter 7 of whether grievances related to sexual misconduct or discrimination on the basis of sex should be referred to the MGERC. However, grievances related to sexual misconduct arguably fall under the umbrella of “harassment” and may be referred to the MGERC in practice. Grievances related to reprisals for reporting or otherwise disclosing sexual misconduct are also not clearly captured by the description of the types of grievances listed in QR&O paragraph 7.21, but are the type of grievance that would benefit from review by the MGERCEndnote 653.
At the FA level, the MGERC investigates and considers the appropriate information and produces its Findings and Recommendations to the CDS. The CDS or his delegate would then consider the matter and the MGERC’s decision, before finally deciding the outcome of the grievance. If the FA disagrees with the MGERC’s decision, it must provide reasons in the decision letter for not acting upon a finding or recommendation of the MGERC.
These stages of investigation and consideration, all done in series, can take many months, if not years, in difficult cases.
Current delays in processing grievances
The Fish Report, at Chapter 4, provides a clear overview of the military grievance system and highlights many of its long-standing problems. I do not intend to revisit in detail the shortcomings of the grievance system, outlined in the Fish Report, but I note that these issues have also been raised by stakeholders during the course of this review. The military grievance system continues to suffer from inordinate delays, particularly for the more complex grievances.
Considerable efforts have been made recently by the CAF to reduce the backlog of grievances at the IA and FA levels, as well as by the MGERC to expedite the committee’s review and production of their Findings and Recommendations. For instance, on 1 June 2014, Operation RESOLUTION was launched “to eliminate the backlog of grievances at the IA level and reminded IAs of their duty to resolve grievances within a four–month timeframeEndnote 654.” More recently, as highlighted in the Fish ReportEndnote 655, the CDS issued a Directive on 3 March 2021, recognizing the unacceptable delays in the grievance process and proposing an action plan to remedy the problem. The CAF has made a sustained effort over the past 17 months to address long-standing deficiencies with the process, considerably reducing backlogs and legacy grievances, and implementing a shorter version of the reporting letter for some grievances. There were 232 “legacy files” at the FA level in February 2021. As of December 2021, the CFGA had 201 “legacy files” remaining. Of these, 187 files were older than two years and 14 files older than five yearsEndnote 656.
In general, the timeline data for the resolution of grievances remains alarming, as evidenced by the following (being the average number of days from filing the grievance to its final resolution)Endnote 657:
■ All grievances resolved at the IA level (i.e., resolved in the grievor’s favour or where the grievor did not forward their grievance to the FA):
• 2021 (618 files) = 282 days
• 2020 (561 files) = 276 days
• 2019 (594 files) = 260 days
■ All grievances resolved at the FA level without a Findings and Recommendations from the MGERC:
• 2021 (52 files) = 761 days
• 2020 (64 files) = 796 days
• 2019 (50 files) = 869 days
■ All grievances resolved at the FA level following a Findings and Recommendations from the MGERC:
• 2021 (263 files) = 967 days (includes average of 332 days at MGERC // 635 at FA)
• 2020 (175 files) = 945 days (includes average of 258 days at MGERC // 687 at FA)
• 2019 (93 files) = 916 days (MGERC data for this timeframe was not tracked in ICRTS)
These delays and deficiencies are attributable, in part, to “file complexity, CAF antiquated policies, the significant increase in file intake, the critical staffing shortage faced across the CAF, and the requirement to modernize concurrent to grievance production with no increase in CFGA resourcingEndnote 658.”
Exhausting remedies under the grievance system
As the system currently operates, the CHRC and the courts have the discretion to require that CAF members exhaust their remedies under the military grievance process before they can pursue a complaint to the CHRC or an application to the Federal Court. The Ombudsman is also a last resort entity, requiring prior access to the grievance system or another complaint process. This prohibition is intended to preclude a multiplicity of parallel proceedings and processes, and reflects an assumption that the CAF is in the best position to remedy its employment-related grievances.
This prohibition rests on administrative law principles developed by the courtsEndnote 659. One of the discretionary grounds for refusing to undertake judicial review is that there is an adequate alternative remedy, which need not be identical to the remedy available on judicial review or the remedy preferred by the claimantEndnote 660. The Supreme Court of Canada has stated that “while courts have the discretion to hear an application for judicial review prior to the completion of the administrative process and the exhaustion of appeal mechanisms, they should exercise restraint before doing soEndnote 661.” This has been interpreted by the Federal Court as requiring CAF members to exhaust the internal grievance process prior to seeking a remedy in the Federal CourtEndnote 662. The Federal Court of Appeal will be further addressing this issue in the spring of 2022 in the Fortin v. Canada (Attorney General) case.
Concerns with the military grievance system
The Fish Report identifies some significant issues with the current military grievance system. Many of the same issues were raised in the Lamer Report in 2003, and again in the LeSage Report in 2011. The same major problems were raised yet again by many stakeholders during this Review. It is evident that these problems continue to negatively affect the morale of CAF members and cause distrust in the grievance system, as well as cynicism about the chain of command’s ability to effectively provide redress to aggrieved members.
The current military grievance system is facing the following challenges:
- Undue delay to adjudicate many grievances. The time it takes for many grievances to be determined by the FA, namely the CDS or their delegate, is unacceptable in many cases. By the time a determination is eventually made, the grievor’s career may have been irreparably harmed. This is particularly egregious as this process essentially blocks access to external authorities, such as the courts or the CHRC;
- The NDA does not provide the FA with adequate remedial powers. The FA is not provided with the power to grant financial relief as a remedy to a grievance. As a result, many grievances, though allowed, cannot be remedied, and grievors consequently obtain only a hollow victory. This problem was identified also by Chief Justice Lamer, Chief Justice LeSage and Justice Fish in their independent reviewsEndnote 663. The CDS now has some limited ability to award ex gratia payments to members, but cannot fully financially compensate a successful grievorEndnote 664; and
- The independent body put in place to review military grievances, namely the MGERCEndnote 665, is not in fact independent or external to the CAF, because the final decision on grievances is made by the CDS or their delegate. The MGERC does not have any power to order a remedy. It only provides a document outlining its Findings and Recommendations to the FA who is free to accept or ignore the MGERC’s recommendationsEndnote 666.
I concur with the conclusions of the Fish Report as they relate to the military grievance system, and I add my concern, expressed above, about the conflict of interest within the ICCM as it provides information and guidance to both the decision-making authorities and the grievor.
Grievances related to a complaint or situation of sexual misconduct, harassment or discrimination
Placing grievances related to sexual misconduct in the same category as other employment-related grievances is not reasonable. It belies the importance and continued urgency of responding appropriately to sexual misconduct.
In many cases, victims of sexual misconduct suffer additional harm from having to remain in status quo situations, including having to continue working for, or with, the offending member. Others may suffer the embarrassment and trouble of being “removed” from the situation, which in turn can negatively affect the victim’s career progression. In addition, having to report sexual misconduct, or grieve decisions made by the CAF related to those incidents, directly to the chain of command is a barrier to reporting. I have also heard stakeholders highlight inconsistencies in how allegations of sexual misconduct are treated, depending on the unit that is involved.
I recommend that all grievances that fall under the jurisdiction of the CHRC be directed there, should the complainant so choose. In tandem with this recommendation, it is vital that the CAF not object to this jurisdiction on the basis that internal remedies have not been exhausted by the complainant.
Delegating to the CHRC matters related to sexual harassment, discrimination on the basis of sex, and related retaliation, not only provides an adequate forum of redress for complainants, but also frees up the CAF grievance process to better address its remaining workload.
Allowing CAF members to access a likely faster independent remedial process through the CHRC, especially in urgent or extreme cases, would also assist victims in feeling less powerless. Victims of sexual harassment and discrimination on the basis of sex, and those suffering retaliation for having come forward with such complaints, should not be treated the same way as members who have a grievance related to something such as an entitlement to an allowance. Providing these victims access to a judicial process and remedy outside their chain of command may empower more victims to come forward.
Further, allowing access to an impartial tribunal outside the chain of command will also assist with the credibility of the response in the eyes of the complainant, in cases where complaints are deemed to be unfounded.
Allowing timely access to external specialized tribunals or the courts may ultimately increase the CAF’s accountability for responding to allegations of sexual misconduct appropriately, and more in keeping with the expectations of Canadians.
Any complaint related to sexual harassment or discrimination on the basis of sex or involving an allegation of retaliation for reporting sexual harassment or discrimination on the basis of sex should be first directed to the CHRC, should the complainant so choose. The CAF should no longer object to the jurisdiction of the CHRC on the basis that internal remedies, including its grievance process, have not been exhausted.
I note that not all grievances relating to sexual misconduct fall under the jurisdiction of the CHRC. For example, grievances relating to reprisals or retaliation for reporting any Criminal Code offence (such as sexual assault) may not. Therefore, and with respect to grievances that would remain in the CAF internal system, a new procedure must be developed to increase accountability for ensuring their timely and consistent resolution. These grievances should be given priority, and treated more efficiently at both the IA and FA level, so as to prevent further harm to the grievor.
In the interim, or if the CAF is ultimately unwilling to provide the CHRC with primacy in these important matters, the new procedure should also apply to all grievances related to sexual misconduct. These types of grievances are unique, and addressing them promptly will go a long way to repairing or at least avoiding the harmful repercussions that flow from incidents of sexual misconduct.
As such, a new procedure for grievances related to sexual misconduct should be implemented, at least until the deficiencies identified in the Fish Report are remedied. As part of the VCDS’ mandate to manage the military grievance process, the VCDS should have visibility into all grievances related to sexual misconduct, including those related to reprisals, from the time they are filed until the time that they are finally determined. Specifically, the VCDS should be responsible for ensuring the quality and timeliness of the process, ensuring that these types of grievance files are staffed swiftly and with appropriate expertise.
Further, such grievances should bypass the grievor’s chain of command completely, due to the ongoing trust deficit related to these matters. As with other types of specialty grievances, CFGA should designate an appropriate, specialty IA, for all grievances related to sexual misconduct (by virtue of QR&O Chapter 7, paragraph 7.14(b)Endnote 667 or otherwise). If unresolved at the IA level, grievances relating to sexual misconduct must be referred to the MGERC, who is equipped to investigate, and who should be required to do so on an expedited, priority basis. The FA should then have no more than three months to issue a decision letter on such grievances.
The intent of my recommended approach to grievances related to sexual misconduct is driven by the following considerations: to ensure that such grievances are dealt with efficiently and effectively at both the IA and the FA levels; to ensure that such grievances are addressed by subject matter experts who are outside the grievor’s direct chain of command in order to improve consistency and remove a possible barrier to filing such grievances; and to increase visibility into such grievances within the organization as a whole and particularly among senior leaders.
Finally, the CAF should consider whether the process described above and below for sexual misconduct-related grievances could be appropriately expanded to grievances related to other types of harmful conduct.
Grievances related to sexual misconduct should be identified, prioritized and fast-tracked through the grievance system at both the IA and FA levels.
The VCDS or their specific delegate should manage the process for all grievances related to sexual misconduct, sexual harassment or sexual discrimination or involving an allegation of reprisal for reporting, or otherwise disclosing sexual misconduct, sexual harassment or sexual discrimination. For such grievances, the CFGA should designate an IA with subject matter expertise, and who is outside the grievor’s chain of command.
QR&O 7.21 should be amended to make it clear that grievances related to sexual misconduct, sexual harassment and sexual discrimination should be mandatorily referred to the MGERC.
The CDS should remain the FA and be required to dispose of the matter within three months.
Focus on the victim
Duty to Report and Barriers to Reporting
The duty of all CAF members to report sexual misconduct has been the subject of much discussion in independent reviews and academic worksEndnote 668. The issue is important, and in my view, so is the way it reveals how the CAF approaches many issues–in a top-down, often rigid doctrinal way, somewhat oblivious to the consequences of what it sees as the obvious thing to do.
Duty to report in general
In accordance with the QR&O, all CAF members must “report to the proper authority any infringement of the pertinent statutes, regulations, rules, orders and instructions governing the conduct of any person subject to the Code of Service DisciplineEndnote 669.” In the case of officers, this duty only applies when the officer cannot deal adequately with the matterEndnote 670. The duty to report is not specific to sexual misconduct and, according to the CAF, has existed in some form since the 1930sEndnote 671.
Duty to report as it relates to sexual misconduct
In August 2015, in response to concerns raised in the Deschamps Report about under-reporting by victims due to fear of reprisal and mistrust in investigationsEndnote 672, the CDS’s original Operation HONOUR order re-emphasized and reminded CAF members of their existing regulatory obligations to reportEndnote 673.
In the 2018 OAG Report on inappropriate sexual behaviour, the AG noted that the duty to report could cause further harm to victims and discourage reporting. The AG observed that the broad definition of inappropriate sexual behaviour meant that “members felt responsible for reporting all types of incidents, which placed a heavy administrative burden on the chain of command to manage the complaints.” He also noted that the duty to report “‘to the proper authority’ was not clearly defined.” Some members, including the chain of command, reported incidents, such as inappropriate jokes, to the MP rather than reporting into the chain of command, or resolving incidents at the lowest level. In light of this, the AG recommended that the CAF “establish clear guidance for members on the regulation to ‘report to the proper authority’, in the context of inappropriate sexual behaviour.” He further recommended that the “guidance should clarify who is considered the ‘proper authority’ under which circumstances” and that the “goal should be to balance the need to protect the organization’s safety with the need to support victims by allowing them to disclose and seek support without the obligation to trigger a formal report and complaint processEndnote 674.”
Similarly, in its May 2019 report, the Standing Senate Committee on National Security and Defence pointed to the concern that “[f]iling an official complaint automatically triggers an investigation, regardless of whether the victim wants one” and stressed that definitions, such as the duty to report, should be clarifiedEndnote 675.
In 2019, the CAF convened a working group to develop what became the DAOD 9005-1, Sexual Misconduct Response. A sub-group worked on the AG’s recommendation on the duty to reportEndnote 676.
Before issuing the DAOD 9005-1, the Operation HONOUR Manual, released in July 2019, attempted to provide guidance on the duty to report. It advised CAF members who were uncertain of whether an incident constituted sexual misconduct to contact a counsellor at the SMRC for confidential advice. A CAF member could also contact their unit workplace relations advisor or local CCMS office “for information on what [constituted] sexual harassment, guidance on available options, assistance interpreting harassment policies and how to proceed with a complaintEndnote 677.” The Manual also dealt with the responsibility of the chain of command to take appropriate action when a report was brought to their attention.
The work of the Duty to Report Working Group led to the language in section 5 of the DAOD 9005-1 (published on 18 November 2020), which states:
- 5.1 In accordance with QR&O article 4.02, General Responsibilities of Officers, and QR&O article 5.01, General Responsibilities of Non-Commissioned Members, all CAF members have a duty to report to the proper authority any infringement of the pertinent statutes, regulations, rules, orders and instructions governing the conduct of any person subject to the Code of Service Discipline.
- 5.2 It is expected that all CAF members will report to the proper authority any sexual misconduct committed by any person in the workplace or on a defence establishment.
- Reporting of Sexual Misconduct – Exceptions
- 5.3 DND employees and other civilians are not generally required to report sexual misconduct incidents. This includes civilians who work for DND, such as those at the SMRC, CCMS and CF Health Services.
- Note – Some professionals have an obligation, in certain circumstances, to report in accordance with their professional code of conduct and certain provincial legislation, for example, if there is an imminent risk of harm or risk to children.
- 5.4 Officers who can deal adequately with a sexual misconduct incident are not required to reportEndnote 678.
The results achieved by the working group in addressing the difficulties with the duty to report, which by then were well documented, appear modest. The DAOD reiterates the existing regulatory obligations to report. That is, all CAF members are expected to report any sexual misconduct committed by any person in the workplace or in a defence establishment to the proper authority. In other words, this broad duty to report is imposed on all CAF members, whether they are the victim, the perpetrator, a bystander or even a person who at some point is made aware of the infringement of any rule – in this context, the rules on sexual misconduct. The only exception, as far as CAF members are concerned, is that officers “who can deal adequately with a sexual misconduct incidentEndnote 679” are not required to report it further. The DAOD gives guidance to officers on factors they should consider in making such a decision.
Further, “proper authority” includes the MP, CFNIS or civilian police; a CAF director general or higher at NDHQ; a CAF superior of a director general at NDHQ–in the case of a report of sexual misconduct involving a director general or superior of a director general; a commander of a command or formation; a CAF chief of staff or equivalent officer at a command or formation if designated by the applicable commander; a CO of a formation headquarters; any other CO; or any other officer who can deal adequately with the matterEndnote 680.
In short, in an attempt to resolve the problem of under-reporting sexual misconduct in the CAF, the leadership decided to reinforce, by order, the duty to report. Yet, that duty was always there. Failing to report sexual misconduct did not come from any notion that reporting was optional – quite the opposite. The factors causing under-reporting were well-documented. Even worse, it rapidly became apparent that this new order not only did nothing to fix the problem of under-reporting, it instead created its own set of problems.
Impact of the duty to report
Effectively no prosecution or discipline for failure to report
As the duty exists, failure to report is punishable as a service offence. That is undoubtedly a widespread assumption among CAF members. Yet, it is unclear how failure to report sexual misconduct would be charged as a service offence. Presumably, it would be charged under s. 129 of the NDA as “conduct to the prejudice of good order and disciplineEndnote 681,” which is a very common charging section; or possibly under section 92 (scandalous conduct by officers), section 93 (cruel or disgraceful conduct) or section 95 (abuse of subordinates). This is, however, speculative, as charging varies greatly depending on the circumstances of the offence.
However, there are virtually no precedents I could uncover for such charges. Indeed, it is remarkable that the duty to report could have become such a prominent issue considering that it is almost never enforced. This shows the confusion between orders and culture, law and reality, and rhetoric and practice, also observable elsewhere in the CAF.
This general duty to report should not be confused with specific obligations imposed on CAF members to inform their superiors about matters that involve them, such as being engaged in an “adverse personal relationshipEndnote 682” or that they have been arrested by civilian authorities and/or are subject to conditions imposed on them by civilian courts. Failure to comply with these obligations is punishable as a service offence.
When I asked the CAF to provide me with the number and details of disciplinary cases for failure to report sexual misconduct and sexual harassment from 1999 to the present, I was provided with 37 cases: four court martial and 33 summary trial cases.
Of the 37 “duty to report” cases provided, three court martial cases and 11 summary trial cases related to the non-disclosure of a personal relationship or a material change in circumstances in a personal relationship. These cases are not on point. The substantive offence charged is of “failing to report a relationship” (or failing to report a material change to the relationship that would result in a change in benefits), not failing to report an offence.
Of the 23 remaining cases, 19 appear to primarily relate to failure to report an arrest by civilian authorities which again is a specific disciplinary breach–“failing to report an arrest” is the offence, not “failing to report an offence.”
Charges seemingly related to failing to report sexual misconduct were laid in four summary trial cases (charged under section 129 of the NDA). In two of these four summary trial cases, the charge was an alternative charge against the alleged perpetrator of the underlying sexual misconduct. For the other two cases, it appears the members were charged with failing to take appropriate action after witnessing an assault. In three of the four cases, the members were found guilty of the charges.
I consider the low number of cases surprising considering that during the investigation of any offence, including historical sexual offences, investigators likely would discover that many people knew about the offence, but failed to report it to the appropriate authorities.
The CFPM told me that the lack of data on charges laid or on disciplinary measures enforced regarding the duty to report may be because some other related charge subsumes such conduct under the NDA, such as neglect of dutyEndnote 683. Be that as it may, no one pointed me to any such charge, even anecdotally.
This is not insignificant. When laws are not enforced and regularly breached – as is obviously the case here since sexual misconduct is so severely underreported despite the legal duty to report – it undermines, rather than reinforces, the rule of law. Compliance is seen as optional and enforcement as discretionary. This is not the kind of message that a disciplinarian system should send; yet, serious enforcement has obviously never been seen as an option or it would have been used.
Barriers to reporting
In 2015, Justice Deschamps reported that up until then, the CAF had “failed to acknowledge the extent and pervasiveness of the problem of inappropriate sexual conduct,” and she cited “the very low number of complaints that are reported every year” as a possible reason for this failure of recognition. During her review, she heard that “cultural norms” as well as “concerns about negative consequences for the complainant’s career, loss of privacy and confidentiality, fear of collateral charges, and a deep scepticism that the chain of command would respond sensitively and appropriately to the complaint” were some of the reasons for the “very serious problem of under-reportingEndnote 684.”
The CAF’s response, re-emphasizing the duty to report sexual misconduct, seems predicated on the idea that the prevalence of the conduct is caused mainly by the authorities’ ignorance about the phenomenon, hence their impotence to deal with it appropriately. The remedy has been to put the burden on CAF members to alert the authorities so they could deal with the problem.
This misses the point entirely. It is abundantly clear that under-reporting cannot be cured by reiterating an existing coercive duty to report. The duty to report, as a tool to inform the chain of command, has been completely ineffective. The causes for under-reporting are mainly due to the anticipation of the many negative consequences of reporting. Making it a formal duty does not alleviate these negative consequences; it merely adds another one: the fear of punishment for not reporting.
In my view, the QR&O also miss the mark in addressing the fear of retaliation from reporting. Section 19.15 prohibits any member of the CAF from taking or threatening to take administrative or disciplinary action “against any person who has, in good faith, reported to a proper authority any infringement of the pertinent statutes, regulations, rules, orders and instructions governing the conduct of any person subject to the Code of Service Discipline, made a disclosure of wrongdoing or cooperated in an investigation carried out in respect of such a report or disclosureEndnote 685.”
If administrative or disciplinary action were launched against someone who reported an offence in good faith that action would most likely fail. The real consequences of reporting are retaliation by denial of opportunities, ostracization and various informal punishments inflicted by peers on the person perceived as a “snitch.”
Denouncing friends, colleagues, peers, or superiors in any environment is fraught with difficulties. In the CAF, the feared consequences are well documented and were repeated to me by many during this review. The following excerpt from a July 2021 Maclean’s article captures the harsh reality of the organization’s overall culture quite well:
- About a decade ago, Colten Skibinsky was out on a training course with 50 or 60 soldiers. Their instructor had them sit in a circle and close their eyes, according to Skibinsky’s account. Then he told a story.
- It was about a sniper cell in Afghanistan that hunted down al-Qaeda fighters with American troops. In 2002, one of the Canadians had broken an all-time combat record, killing a man from 2,430 metres away. But that glory was shattered by allegations that two snipers cut a finger off an enemy’s corpse. No charges were ultimately laid.
- The instructor asked the troops to raise their hands if they thought the soldier who reported the alleged incident had done the right thing, Skibinsky says. When he opened his eyes, Skibinsky says he realized he was one of four or five people with their hands up. He alleges the instructor kicked him in the ribs from behind, then announced: “Take a good look around. These are the rats on your course, and they won’t be here after week fiveEndnote 686.”
In other words, you will be ostracized and punished if you speak out against the culture of silence. Even more so if you are seen to betray a “brother,” to break the expected “solidarity at all costs”, or to fail to “have each other’s back.” Conversely, I am not aware of any medal, reward or other form of honour celebrating courage in reporting. This culture does not seem to be any different in higher ranks. A March 2021 Globe & Mail article reported on a senior member of the CAF who said he was berated for reporting a sexual misconduct complaint against another senior officerEndnote 687.
This illustrates the striking contrast between the express duty to report and the perceived moral desirability of that provision; merely reiterating the formal duty to report is unlikely to increase reporting, if the culture against denouncing is more strongly enforced than the legal rule. Rather than reinforce discipline, it further erodes it.
In the end, while designed to help victims, it only adds to their hardship. In fact, I was told that the duty to report, “when dutifully followed, marks the second time a victim’s consent is deniedEndnote 688.”
In my many conversations with CAF members, virtually all said that they would not report a matter regardless of the circumstances, despite their obligation to do so. Not surprisingly, many said they would not report sexual misconduct, especially of a less serious nature, against the victim’s wishes. All seemed confident that they could exercise their best judgment in ensuring that their disclosure did not end up causing more harm than good. In short, despite being aware of their legal obligation, they viewed the issue as essentially one of conscience. I recall only one saying that they would always report any matter, any time, as required.
The 2018 Statistics Canada Report on Sexual Misconduct in the CAF reported that 57% of Reg F members who were sexually assaulted in the workplace did not report it to anyone in authority. The report highlighted reasons for not reporting, such as “the behaviour was not serious enough (56% of men and 48% of women) or that they resolved it on their own (35% of men and 52% of women).” Moreover, members said that the “fear of negative consequences (27% [of women and 10% of men]), a belief that reporting would not make a difference (38% [of women and 15% of men]), or concerns about the formal complaint process (15% [of women and 6% of men])” were also reasons. The Report also notes that “one in ten (10%) women stated that they did not report the behaviour because they changed jobs, about five times the proportion of men who provided this reason (2%)Endnote 689.”
The participants in a 2020 SMRC roundtable convened to work on this issue “hypothesized that the survivor or potential complainant may not report because they fear disproportionate disciplinary consequences for the perpetrator, and the potential impacts on their own careers and workplace relationships from being perceived as ‘to-blame’ for the punishment the perpetrator receivedEndnote 690.”
They also reported that CAF members, and survivors, in particular, do not receive all the information they need about what options for reporting are available to them following a sexual misconduct incident. According to one of the external experts engaged to contribute to the report, there are four categories of barriers to reporting, which are interconnected:
- Structural barriers refer to the “toxic masculinity”, in which dominance and the sexual conquest of women are valued, which continues to exist within the CAF;
- Social barriers include microaggressions that become accepted and build toxicity in the work environment, which can gradually increase to worse behaviour;
- Situational barriers are the factors that can influence reporting, such as whether victimization is an isolated incident, or if a victim is repeatedly targeted by the same offender, or whether there are witnesses. The reporting process itself can be a situational barrier, with concerns about the complaints process or that the CAF is too focused on the disciplinary process; and
- Individual barriers include lack of knowledge about services, such as the SMRC, suggesting that victims might not fully understand where they can go for information and support or appreciate the types of services available to themEndnote 691.
The report recognizes that “while some barriers clearly fall outside of the control of the CAF, it is important to recognize those barriers [that] the CAF can changeEndnote 692.”
The FEWO also studied sexual misconduct within the CAF with a view to eliminating it. It identified several factors that might influence a CAF member’s decision not to report sexual misconduct. In particular the “fear [of] reprisals … [and] the fear that their career will suffer consequences from their reporting the incident” and the challenge that “the duty to report removes survivors’ ability to choose the option they are most comfortable with to address sexual misconduct incidentsEndnote 693.” As a result, the FEWO amplified the observations made in the Fish Report, and reiterated his recommendation, as it relates to the duty to report, be implemented by the Government of CanadaEndnote 694.
During my interviews with naval/officer cadets, I heard a few different perspectives. Overall, they told me that they understood the importance of the duty to report but they felt that the process is very long and tedious and that even when the reporting goes well, it takes an emotional toll. In fact, some felt that the reporting process was more difficult than the incident itself. They indicated that it was easy to report as a bystander; however, impacting personal relationships when you know the people involved was a lot more difficult. As one put it, there is a difference between reporting someone who smokes a joint and reporting a sexual assault. However, reporting the latter is seen as important as it affects another cadet’s life – if the action hurts someone physically or mentally, then it should be reported. One took a less nuanced approach, stating that if you see something wrong, you should report it; you should not cover for a buddy if this goes against your moral compass.
I also heard that some cadets are hesitant to report out of fear of being “skewered” by the people they confide in or being perceived as a “snitch”. As a result, they do not feel comfortable coming forward and even when they do, they often do not know how to execute their duty to report, including how to write statements.
I was referred to an incident in which a victim was called out publicly for reporting, even though she was not the one who made the report. Another said she was accused of having made things up. None of the young women I spoke to expressed any confidence in reporting, whether they had direct experience with it or not.
Finally, academics recommend abolishing the duty altogether in favour of a truly victim-centered approachEndnote 695. One academic’s research on the effects of disclosing sexual violence “reveals that any automatic triggers following incidents or disclosures can have a chilling effect on victims and survivors’ willingness to report and can also deter individuals who might have otherwise come forward with a disclosure.” Consequently, “victims and survivors need to have ownership over whether and how they report, and the subsequent actions taken.”
This academic also remarks that “mechanisms such as duty to report, and a privileging of chain of command style reporting have led to victims and survivors feeling like they have few choices.” As has been expressed by others, she suggests that “providing alternatives, as well as information on how those alternative processes might play out, is key to restoring agency to victims and survivors of sexual violenceEndnote 696.”
My observations are consistent with other reports across allies who have investigated the issue around reportingEndnote 697.
Uncertainty around who must report
Paradoxically, the increased pressure to comply with the duty to report sexual misconduct may have led to less reporting. Although they currently have a duty to report themselves, victims of sexual misconduct, who may not wish to do so, are uncertain about whom they can confide in without triggering that person’s duty to report. They may simply remain silent and decline to seek help.
This is aggravated by the widespread confusion about whether confidentiality is protected in disclosures to chaplains and health-care providers. For example, as pointed out in the August 2021 Review of the Royal Canadian Chaplain Service by the ADM(RS): “Although policies on confidentiality [versus] the duty to report are clear, especially as outlined in the [Chaplain General] Directive on Operation HONOUR, the different messages contained in various policies within the department can be inconsistent and cause confusion amongst chaplains.Endnote 698” As a result, “conflicts between confidentiality and duty to report may result in the perception of the loss of a ‘safe place’ and misunderstandings of chaplain responsibilitiesEndnote 699.” The ADM(RS) recommended that the DND and the CAF “reconcile the apparent conflict between the need for chaplain confidentiality and the CAF duty to reportEndnote 700.”
The same confusion arises among health-care workers. There is no general exception relieving CAF health-care workers of their duty to report. There is a narrow one: “Actions or measures that include highly sensitive personal information such as medical or psycho-social assessments or treatment must not be disclosedEndnote 701.”
I heard from a health professional that some “offer medical treatment” in order not to have to report, although “other people don’t take the same path.” This illustrates both the desire for confidentiality and the confusion around guaranteeing it.
Given the confusion among chaplains and health-care providers, it is not surprising that victims are uncertain about whether they can seek confidential assistance. They may be even more hesitant to confide in friends and peers, knowing that these individuals must report the incident once they have been made aware of it, which means they cannot trust them to remain silent.
The Duty to Report Working Group is currently considering allowing exemptions to the duty to report, including for:
- provincially-regulated health-services professionals, in the context of the provision of care;
- chaplains, in the context of pastoral care;
- victims of interpersonal misconduct; and
- personnel in other assistance, care, or support programs that currently exist, or new future programs (likely a general category, to be elaborated in policy, rather than listing specific programs in the regulations)Endnote 702.
This approach does nothing to increase awareness by the chain of command of incidents of sexual misconduct, since most of the people likely to know about incidents are excluded from the obligation. It leaves the victim exposed to the forced and unwilling disclosure by a witness or colleague, which comes with all the adverse consequences the individual fears. The Duty to Report Working Group recognized this problem and is “analyzing the possibility of providing guidance on the exercise of discretion in [duty to report], particularly for Chains of Command, witnesses [and] confidantsEndnote 703.”
Numerous calls for change
Despite the guidance, directives and efforts deployed, there remains a broad consensus that the duty to report adversely affects victims of sexual offences who are not ready or willing to proceed. Considering the flaws associated with the duty to report, several recommendations have arisen over the years:
In the Winter 2019 Your Say Survey on the SMRC, respondents mentioned:
There should be zero duty to report by uniformed members who are bystanders or Third Party to disclose/report victim information to the Chain of Command when the victim expressly asks the person to hold the information so they can deal with the experience on their own terms. … The trusted member should approach the padre, help lines, SMRC if needed in place of the CoC as required. Duty to report can further harm the victim who then feels betrayed. Not every victim has been treated well in the past by the CoC. This whole process should be victim-led and our members should be trained to assist in this wayEndnote 704.
In its brief to the FEWO, the Survivor Perspectives Consulting Group indicated that:
On the point of support to Survivors, we can confirm that there is currently an inconsistent application of Survivor-led support in the aftermath of sexual harassment and sexual assault incidents. Though it has not happened in every case, it has severely traumatized many Survivors when the persons they report to, or persons who learn about incidents, do not consider the Survivor’s wants and needs as a priority. The Canadian Armed Forces have begun to explore this issue by revisiting the Duty to Report by considering a change to Duty to Respond, but we at SPCG feel that we must insist that every Survivor’s wants and needs must be respected in every case regardless of what the chain of command and/or medical professionals may think is best. Only the Survivor knows what is best for them, and that must be respected; the needs of the Survivor must be prioritized above those of the Canadian Armed ForcesEndnote 705.
In his report Justice Fish stated: “The duty imposed on CAF members to report all incidents of sexual misconduct was identified as one of the critical areas for reform by most experts, public servants, victims and CAF members consulted during my reviewEndnote 706.” He therefore recommended that a provision should be made exempting “victims, their confidants and the health and support professionals consulted by them” from the duty to report incidents of sexual misconductEndnote 707.
He further recommended that the duty should be maintained “where a failure to report would pose a clear and serious risk to an overriding interest, which may include ongoing or imminent harm, harm to children and national security concernsEndnote 708.” The Fish Report also recommended establishing a working group to properly identify these exceptional cases: “The working group should include an independent authority and representatives of the [SMRC], military victims’ organizations and the military justice systemEndnote 709.” As mentioned earlier, a working group was put in place to develop the DAOD 9005-1.
In June 2021, Liberal committee members of the Standing Committee on National Defence (NDDN) indicated that the Committee had reached an impasse and shared 24 recommendations to address sexual misconduct in the CAF with me. One of these recommendations was:
- the elimination of the current ‘Duty to Report’ requirement. Instead, to create a survivor-centric reporting process that encourages survivor agency, the CAF should:
- Consider ‘Duty to Respond’ as a possible replacement for ‘Duty to Report’;
- Investigate the possibility of anonymous reporting of events/locations and perpetrators to identify problematic concentrations or trendsEndnote 710.
In October 2021, the Survivor Support Consultation Group (SSCG), mandated by the Final Settlement Agreement of the Heyder and Beattie class actions, further amplified the previous external reports and found that the duty to report was a “recurring topic of concernEndnote 711.” Similar to the Fish Report, it made the following recommendation: “Establish an explicit exemption for victims/survivors, as well as designated health and support professionals who provide support to victims/survivors, from prosecution for failing to report sexual misconduct, with limitations for such cases as risk of imminent harm, harm to children, national security, etcEndnote 712.” Moreover, the SSCG recommends the need to “Enhance supports to survivors of sexual misconduct in Canada’s military justice system by providing access to alternative reporting options external to the chain of command.Endnote 713” This is critical, according to the SSCG, due to the fact that “survivors of sexual misconduct have limited autonomy over how and to whom they can report, and which authority will oversee the conduct of the investigationEndnote 714.”
In its 2020-21 Annual Report, the SMRC announced that it “will begin work on the development of Responsive Legal Options for Victims/Survivors of Sexual Violence in the CAF and a regional expansion of the SMRC support servicesEndnote 715.” This program will “examine alternative reporting optionsEndnote 716” outside of the “Chain of Command or military justice systemEndnote 717.” The intent will be to allow CAF members to report sexual misconduct in a way that discharges the regulatory duty to report while ensuring an ability to receive support, without triggering an investigation that may cause further harmEndnote 718.
Despite all these calls for action, only one concrete initiative has so far been taken. The matter became very pressing when senior CAF members became engaged in the Restorative Engagement program, developed after the Final Settlement Agreement. Schedule K of the Final Settlement Agreement provided that the Restorative Engagement program would be confidential but within legal limitations. The duty to report was identified as one such limit.
I understand that class members expressed concerns that an unchecked application of the duty to report would undermine the integrity of the Restorative Engagement process and deny some participating class members its full benefits. Class members were concerned that sharing their experiences with these senior officers would trigger these officer’s duty to report further. As the QR&O contain no exemption to the duty to report, a temporary process, approved by the CDS in January 2022, was required to ensure a controlled application of the duty in the context of the Restorative Engagement process.
While this demonstrates the ability of the CAF to rectify a problem quickly, stakeholders have told me that the solutions put in place are not sufficient to deal with their concerns. I agree with them. Despite reducing the number of CAF officers to whom a matter will have to be reported, it is difficult to imagine how these selected GOFOs will be satisfied that they “can adequately deal” with the matter. Not only does it leave the participating class members exposed to the exercise of discretion by a GOFO, but it puts these GOFOs in a very difficult ethical position.
In my view, this is an application of the tunnel vision with which the CAF has addressed the problem so far. The duty to report is a problem. In the context of the Restorative Engagement program, it largely defeats the purpose of empowering survivors, who at this point may not wish any further action to be taken, in favour of enlightening the CAF leadership about what has happened under its watch.
The simple solution would have been to amend the QR&O to provide for an exemption to the duty to report. I recognize that this process requires some time and could not have been completed by January 2022 in time for the beginning of the Restorative Engagement program. However, had the CAF begun the QR&O amendment process in 2019 when the settlement was approved, it would have had sufficient time to provide for such an exemption. Better yet, the whole matter should be resolved once and for all.
Duty to report should be abolished
In Canadian civilian life, there is no general obligation to report a crime. People are encouraged to alert the authorities, and they usually comply if they feel they can do so safely, without having to suffer adverse consequences. Similarly, management in civilian workplaces have the same obligations as the CAF chain of command to maintain a healthy and safe work environment, and have found ways to meet these obligations without imposing a duty to report on their staff. Sexual assault survivors weigh their options. If they choose to remain silent, they do not have to fear further punishment or face unwelcome exposure if others inform on their predicament against their wishes.
Despite the acknowledged difficulty created by the existence of that provision in the area of sexual misconduct in the CAF, not much has been said to justify the existence of the duty to report. I have been told that it is critical to impose that duty on CAF members to ensure that serious misbehaviour is properly brought to the attention of the relevant authorities so that appropriate action may be taken. This duty is particularly relevant in the context of preventing harm to national security and to children, for example. I agree, of course, that the CAF leadership needs to be made aware of imminent threats of serious harm. Indeed, the CAF leadership should be fully cognizant of the extent of widespread misconduct in its rank– be it sexual misconduct, corruption or any other such matter. However, I have seen no evidence that the likelihood of these matters being brought to the attention of the chain of command is dependent on, or even enhanced by, the existence of a formal obligation to denounce.
It is beyond the scope of my mandate to deal with the duty to report at large, but I see no convincing argument to maintain it – at least in the area of sexual misconduct. The existence of that provision, even though it seems never to be enforced, creates considerable fear and anguish, and has obviously never achieved its intended purpose of ensuring an appropriate response to sexual misconduct by the chain of command.
As in the civilian system, reporting should be left to conscience and trust, as it largely is today. The uncertainty created by a legal duty that is not enforced is harmful. It invites speculation about the risk of non-compliance and sends an ambiguous message about the virtue of compliance.
Serious sexual misconduct amounting to crime should be handled in the civilian criminal system. As such, the same rules should apply in the military context when it comes to reporting and proceeding with charges and prosecutions. To the extent that sexual misconduct also amounts to a breach of the Code of Service Discipline, experience has shown that the duty to report has not achieved its intended purpose and, worse, has served only to terrorize and re-victimize those it was meant to protect. It should, therefore, be abolished.
Over time, when sexual misconduct is dealt with more appropriately in the CAF, impediments to reporting will be reduced, and victims will be more willing to come forward. That will be the best way to ensure that the authorities, including the chain of command, are aware and equipped to deal with the issue going forward. As in the civilian life, military authorities will continue to be made aware of incidents from a variety of sources; from victims, by-standers, even the media. Needless to say, they will be expected to respond appropriately, respectful of the needs and wishes of the victims, and of course of the public interest. Today, victims and survivors who overwhelmingly seek confidentiality and support are left with a system and a culture that still makes it harder to speak up than to keep silent. This is what must change. It will take time. But it would be an illusion to assume that it can be changed by mere decree.
As the law currently stands, the duty to report appears to be an impediment rather than an incentive to report sexual misconduct in the CAF. On 23 March 2021, four months after the publication of the DAOD 9005-1, and weeks into becoming the Acting CDS, then Lieutenant-General Eyre unveiled a new concept called the “duty to respond” when he was a witness before the FEWO. During his testimony, he said:
- One of the challenges, and I haven’t mentioned this before, is the duty to report. That is part of the law we must follow, but at times it may prove to be an impediment for somebody coming forward. We have to take a close look at how we could change that, from perhaps a duty to report to a duty to respond, fully taking the victim’s wishes into consideration. We haven’t cracked the nut on that one yet. We haven’t cracked the code, but I think we need to take a very close look at that one going forwardEndnote 719.
This points to a shift in focus from the institution’s needs to the victim and survivors’ wishes. However, aside from mentioning the concept at this hearing, I have no additional information on whether and how the “duty to respond” will be formalized and implemented. This recent interest in the concept of a duty to respond should be pursued. Many victims believe that reporting is useless as nothing will be done about it. The more that is done – and done well – when victims choose to report, the more others will come forward. This is how culture changes, incrementally, and in the right direction.
Article 5 of the DAOD 9005-1 should be removed and QR&O 4.02 (for Officers) and 5.01 (for NCMs) should be amended to exempt sexual misconduct from its application. Consideration should be given to abolishing the duty to report for all infractions under the Code of Service Discipline.
Victim Support and the SMRC
My terms of reference require that I assess “the SMRC’s mandate and activities, including its independence and reporting structure,” and make recommendations for improvement. This will also address the DND and the CAF’s process in addressing one of Justice Deschamps’ central recommendationsEndnote 720.
History of the SMRC
The creation of the SMRC and the evolution of its mandate
The SMRC was established in 2015, in response to Justice Deschamps’ central recommendation that the CAF “[c]reate an independent center for accountability for sexual assault and harassment outside of the CAF with the responsibility for receiving reports of inappropriate sexual conduct, as well as prevention, coordination and monitoring of training, victim support, monitoring of accountability, and research, and to act as a central authority for the collection of data.”Endnote 721 The centre was to fulfill all seven functions.
The SMRC was set up rapidly following the publication of the Deschamps Report. However, its original mandate was very different from the mandate recommended in the Deschamps Report. In fact, in 2018, Justice Deschamps observed that,
- The centre that has been created is not even a shadow of the centre I outlined in my report.Endnote 722
Both the governance and the mandate of the SMRC have been subject to discussion and revision since its inception in 2015, as set out below.
1. Interim mandate of the SMRC – September 2015
The SMRC was established under the authority of the DM, outside of the chain of command. At its inception, the SMRC’s mandate was exclusively focused on victim support services. Counselling services were provided by phone to CAF members during business hours. Advice and guidance were also made available to the chain of command and bystanders on how to deal with sexual misconduct. There was, however, limited outreach to CAF members.Endnote 723
2. Review of the SMRC by ADM(RS) – September 2017
In 2017, the ADM(RS) assessed whether effective governance structures and processes were in place to establish the SMRC, and considered the independence of the SMRC in relation to its mandate. The review found that, of the seven activities identified in the Deschamps Report, the SMRC was, on an interim basis, mandated to focus solely on confidential victim support.Endnote 724
The ADM(RS) observed that it was critical for the SMRC to be responsive to the needs of the CAF, but also essential that the SMRC be independent and seen to be so by victims and stakeholders. In its view, there was a risk that CAF members could perceive the collaboration between the SMRC and the CAF as limiting its independence. However, it did not make any recommendations on improving the independence of the SMRC; rather, it recommended that the SMRC finalize its foundational documents and the establishment of the EAC.Endnote 725
3. The SMRC Charter – October 2017
On 20 October 2017, the SMRC Charter was signed by the DM. While the final approval of Charter remained under the authority of the DM, the CSRT-SM reviewed the Charter and “requested changes and additional content such as service agreement elements.”Endnote 726
The SMRC’s mandate at the time was focused exclusively on victim support services; the services were expanded to include 24/7 access and the integration of a military liaison team into the service delivery model to facilitate reporting.Endnote 727
4. The 2018 OAG Report
In its 2018 Report, the OAG made several recommendations to align the SMRC’s mandate with Justice Deschamps’ initial recommendation. The OAG observed:
- Rather than giving the SMRC all the responsibilities that Justice Deschamps recommended, the Forces gave it responsibility only to provide initial victim support by phone or email, and to give referrals. Most of the remaining responsibilities were given to the CSRT-SMEndnote 728; and
- The Charter that replaced the SMRC’s interim mandate did not resolve members’ confusion about the SMRC and the CSRT-SM, despite its intention to clarify the roles and responsibilities of the SMRC.Endnote 729
The OAG recommended that the CAF work with the DND “to review the balance, and clearly define the roles and responsibilities, of the [CSRT-SM] and the [SMRC] to improve efficiency and avoid duplication of effort.”Endnote 730 The DND agreed and said the SMRC would “become the ‘authoritative voice’ on all aspects of victim support and advocacy from the time incidents take place until victim needs have been fully supported and addressed.”Endnote 731
The OAG also recommended that the CAF should “establish an integrated, national approach to victim support to ensure that it fully addresses the needs of any member who is affected by inappropriate sexual behaviour.”Endnote 732 The DND responded that the VCDS “[would] also lead the development and implementation of comprehensive and integrated victim case management services as a priority” and that the SMRC would “play a leading role in this effort to ensure that the plan is informed by the [SMRC]’s case management experience and analysis of victim requirements.”Endnote 733
The OAG also recommended that the CAF should make victim support a top priority by:
- introducing comprehensive and integrated victim case management services from the time the victim discloses an incident to the conclusion of the case; and
- ensuring that members, service providers, and responsible officials have a clear understanding of what the complaint processes are, how they work, and what the possible outcomes are for both the victim and the alleged perpetrator.Endnote 734
The DND agreed and noted that the SMRC would play an active role in “the development of a comprehensive Operation HONOUR campaign plan that will designate victim support and the implementation of an integrated, national case management system as the main effort.”Endnote 735
In addition, in response to a recommendation from the OAG that the CAF explore “victim-focused education and training options to ensure all members receive appropriate training that supports the goals of Operation HONOUR”, the DND stated that the “[SMRC]’s charter [would] be reviewed and amended to provide an explicit mandate to monitor Forces training and education. The charter will also recognize the “authoritative voice” of the [SMRC] in terms of training content.”Endnote 736
Finally, the OAG found that the SMRC “was not given responsibility for receiving reports or collecting information. Therefore, the Forces had no source of independent, objective information to know how well Operation HONOUR was working.”Endnote 737 The OAG recommended that the CAF “develop a performance measurement framework to measure, monitor, and report on Operation HONOUR.”Endnote 738 The DND responded that it would develop such a framework and would be supported by the SMRC who would be “providing independent analysis and advice.”Endnote 739
The OAG also recommended that the CAF “expand its use of external subject matter experts, in addition to using internal information sources and evidence, to ensure it has a wider variety of performance information, and to ensure it receives an independent assessment of its response to inappropriate sexual behaviour.”Endnote 740 The DND responded that the SMRC’s charter would be “amended to recognize the [SMRC] as the authoritative external agency with a mandate to ensure that Operation HONOUR is continuously monitored by external subject matter experts,” that the “[EAC would] provide independent information and advice to the Executive Director of the [SMRC] to assist in the delivery of this mandate,” and that the “Executive Director [would] be given a broader mandate to advise [DND] and [CAF] senior leaders and provide independent analysis and advice on Operation HONOUR plans, performance, and related activities.”Endnote 741
As announced by the DND in its response to the AG’s recommendation, a new Mandate was drafted for the SMRC.
5. Recommendations from the EAC – March 2019
The EAC reviewed the draft SMRC Mandate, provided to them on 4 March 2019. The EAC was of the view that “some serious foundational issues ha[d] yet to be addressed.”Endnote 742 They recommended the following:
- As a priority, clarify the respective authorities, responsibilities and accountabilities of the SMRC and CSRT-SM and develop their respective Charter/Terms of Reference accordingly, with input and direction from policy and legal subject matter experts and those with decision making authority.Endnote 743
6. Standing Senate Committee – May 2019
The Standing Senate Committee on National Security and Defence made two recommendations regarding the SMRC’s mandate:
- Recommendation 2 That the mandate and resources of the Sexual Misconduct Response Centre (SMRC) be reviewed to better respond to the needs of individuals seeking support and that an external review mechanism be established to measure the Centre’s effectiveness.
- Recommendation 3 That the Sexual Misconduct Response Centre provide its clientele with as much information as possible about the various complaint mechanisms, as well as the possible advantages and disadvantages of the military justice system and the civil justice system. Complainants in either the military or civil justice system should be provided with legal and therapeutic support through qualified civilian service providers by the SMRC, or the CAF should provide adequate funds to complainants to retain their own legal and therapeutic support for at least one year, with the option of applying for an extension. In all cases, the CAF should provide adequate funding to cover travel and other costs that complainants and their witnesses may incur in relation to the resolution of their complaint.Endnote 744
7. Revised mandates and Operating Agreement – July 2019
An Operating Agreement was entered into between the SMRC and the DPMC-OpH concerning “Expert Advice and Support Services for CAF Response to Sexual Misconduct,” effective 30 July 2019. The Operating Agreement formalized the working relationship between the SMRC and DPMC-OpH, and outlined the division of responsibilities between the SMRC and the DPMC-OpH. It remains operative, despite the recent expansion of the SMRC’s mandate.
A new mandate was also drawn up following the AG and EAC’s recommendations, summarized as follows:
- providing support to CAF members who are affected by sexual misconduct;
- providing expert guidance and advice to the CAF on all aspects of sexual misconduct; and
- monitoring the CAF’s progress on addressing sexual misconduct.Endnote 745
Recent recommendations regarding the SMRC’s mandate
There is continued criticism of the SMRC’s mandate and structure, despite the efforts made by the DND/CAF, described above.
1. The Fish Report – June 2021
The Fish Report contained four main recommendations relating to the SMRC’s mandate and its governance:
- Recommendation #71. The relationship between the [SMRC], on one hand, and the [CAF] and [DND] on the other, should be reviewed to ensure that the [SMRC] is afforded an appropriate level of independence from both. The review should be conducted by an independent authority.
- Recommendation #72. The [SMRC] should be tasked with implementing a program that provides free independent legal advice to victims of sexual misconduct, including advice on whether, how and where to report, and guidance throughout judicial processes. […]
- Recommendation #73. The [SMRC] should be given the mandate to monitor the adherence of the [CAF] to sexual misconduct policies and to investigate systemic issues that have a negative impact on victims of sexual misconduct, including the [CAF’s] accountability. […]
- Recommendation #74. The [JAG] and the [SMRC] should cooperate to make a joint proposal to the Minister of National Defence in respect of amendments to the National Defence Act which would allow for restorative justice approaches in the military justice system. They should also collaborate to develop a formalized restorative justice model that is adapted to the needs of victims and perpetrators and suited to the reality of the [CAF] and its justice system.Endnote 746
2. ADM(RS) Assessment of the Deschamps Report – November 2021
In a recent review of the status of the implementation of the Deschamps Report and the 2018 OAG Report, the ADM(RS) identified elements that remain to be addressed with respect to the SMRC, including “an opportunity to strengthen the monitoring and collection of data that is part of the recommendation through the centralized authority of the SMRC.”Endnote 747
3. The FEWO – June 2021
The FEWO made recommendations with respect to the SMRC, including that the Government of Canada “fully implement all recommendations of Justice Deschamps’ 2015 report”Endnote 748 and that they offer “support programs and services for survivors of sexual misconduct.”Endnote 749
The SMRC’s current activities and initiatives
Currently, the SMRC’s mandate is to, (i) provide support to CAF members who are affected by sexual misconduct, (ii) provide expert guidance and advice to the CAF on all aspects of sexual misconduct, and (iii) monitor the CAF’s progress on addressing sexual misconduct.Endnote 750
Below is a summary of the services provided by the SMRC today, and the initiatives piloted by them. It is not meant to be an exhaustive list.
1. Support services
24/7 Response and Support Line. At the core of the SMRC support services is the 24/7 Response and Support Line. “All CAF members affected by sexual misconduct can reach an SMRC Counsellor toll-free 24 hours a day, 7 days a week, and receive bilingual and confidential support, information and referrals from public service counsellors experienced in supporting individuals affected by sexual misconduct.”Endnote 751
Response and Support Coordination Program. In August 2019, the SMRC officially launched its Response and Support Coordination Program. This program is available to currently serving CAF members. Participants “will have an assigned Response and Support Coordinator (RSC) to ensure continuity of contact and provide ongoing support, accompaniment, advocacy and personalized case management services to help affected persons navigate systems and processes, as needed.”Endnote 752 Accompaniment is provided for “various appointments/engagements (e.g., CFNIS, medical, military police, legal), as well as court appearances (military and civilian) in order to provide the client with emotional support in cases where this has been identified as a need.”Endnote 753
Military Liaison Team. Another service offered by the SMRC is the Military Liaison Team, which consists of Military Liaison Officers and a Military Police Liaison Officer from the CFNIS. The Military Liaison Team “[provides] strategic advice and [performs] direct military liaison between the SMRC and the CAF.” It also provides information to affected members on CAF policies, processes and procedures, and reporting, investigation and associated military and civilian justice processes.Endnote 754
Restorative Engagement Program. The SMRC, in partnership with the ICCM has also developed the Restorative Engagement Program required by the Heyder and Beattie class actions.Endnote 755
Contribution Program. In 2019, the SMRC launched the Transfer Payment Program (also known as the “Contribution Program” or the “Contributions in Support of Sexual Assault Centres in Canada”) to fund projects from civilian sexual assault centres located near nine of the largest CAF bases. According to the SRMC, “[t]he Program seeks to address gaps in support for the CAF community by enhancing access to survivor support services”Endnote 756 and to “provide opportunities for increased collaboration between community-based civilian service providers and CAF linked service providers.”Endnote 757 As of April 2021, nine contribution agreements have been signed with centres across Canada.Endnote 758 The SMRC plans to expand this program to broaden its organizational and geographic reach, and to better meet the needs of underserved communities. The intention is that funding will be provided in April 2022.Endnote 759
2. Training and education
In 2019-2020, the SMRC created a new “Training and Education Team” as a result of its expanded mandate. “This team provides advice on education and training related to sexual misconduct in the CAF and develops content to target specific issues or audiences. They are also responsible for the ongoing delivery, maintenance and oversight of the [RitCAF] Workshop and mobile app.”Endnote 760
The SMRC also collaborated with the RMC Kingston to pilot a prevention program for cadets: “Building our Future.”Endnote 761
3. Policy advice and research
As the centre of expertise on sexual misconduct, the SMRC provides expert policy advice to the CAF. Specifically, the SMRC advised the OJAG on the drafting of the regulations and policies and the training requirements related to the implementation of the DVR. The SMRC also conducted the Survivor Support Consultations and developed the SMRC Prevention Strategy, which will inform future research and product development.Endnote 762
4. The expansion of the SMRC
Budget 2021 outlined a significant investment of $59.7 million over five years to expand the SMRC’s support services by:
- Expanding access to the SMRC’s services to DND public service employees as of August 2021, and to former CAF members as of November 2021;
- Expanding the SMRC’s offices to Quebec and the Pacific by March 2022. An expansion to three additional regions will follow for a total of five regions in 2022-23;
- Establishing a joint Veterans Affairs Canada/DND peer support program for current and former CAF members that is targeted to launch in June 2022;
- Developing research capability on prevention of sexual misconduct; and
- Implementing a program to provide independent legal advice by April 2022 – as detailed in the section on Military Justice.Endnote 763
Going forward – the SMRC’s name and mandate
Once again, the future of the SMRC needs to be examined. To define its future, we must examine what it has evolved into, rather than what it was conceived to be. We must also take into consideration how the SMRC fits into the Defence Team organizational structure, more specifically in relation to the CPCC.
In my view, the SMRC’s name and function should be reconsidered. The current name of Sexual Misconduct Response Centre is misleading. It has contributed to the widespread perception that it is a reporting centre for sexual misconduct.
Terminology matters. There is a difference between “reporting” and “disclosing”. Reporting a crime or a disciplinary offence triggers consequences. Reporting refers to an intent or desire to initiate a formal process or specific response. For example, when an individual reports a sexual assault to the police, there is an expectation that the assault will be formally investigated. Should a victim of sexual misconduct choose to report it, that report should be made to the authorities competent to respond to that report.
Disclosure, on the other hand, refers to sharing information about an incident without the expectation relating to reporting. Disclosure can be made to a friend, a colleague, a health-care professional, or a service provider such as the SMRC, without necessarily an intent to initiate any legal or disciplinary process.
Currently, the SMRC is not a reporting centre. The Operating Agreement between the SMRC and the DPMC-OpH refers specifically to disclosure, as it stands in contrast to reporting:
- 4.1 SMRC – receives disclosures of sexual misconduct directly from affected persons, independent of the chain of command, and facilitates reporting with the consent of the affected person.Endnote 764
Furthermore, disclosing to the SMRC would not meet the duty to report requirements of the DAOD 9005-1, Sexual Misconduct Response. That duty is to report to the chain of command, which is precisely what the SMRC is not. I have dealt elsewhere with the problems with the duty to report, but even if victims were exempted from that duty, it remains that the SMRC is not, cannot, and should not become a “reporting” centre. The SMRC is and should be reinforced, as primarily a service delivery body and a resource centre.
Its primary function should be to provide a wide range of support to victims of sexual misconduct. That may include being the first instance of disclosure. It should become known as a trustworthy and competent centre for advice, support, resources, direction and follow-up for victims seeking legal, medical, social and administrative assistance. I believe it should, above all, empower victims by providing them with options so that they can choose which course of action best suits their needs.
The SMRC’s name
The SMRC’s name has been a source of confusion since its creation:
- The [AG] noted in its 2018 report that there was confusion within the CAF between the SMRC and the then [CSRT-SM, now the DPMC-OpH]. While this confusion in name has been resolved, there still exists confusion in function and governance about SMRC and [DPMC-OpH], with the persistent belief that SMRC is a CAF entity. There is currently a belief that SMRC is or will become part of CPCC. […] The current name does not describe what the [SMRC] actually does, and lends credence to the idea that the [SMRC] is “responding” to sexual misconduct in the CAF – as opposed to providing support or expertise in prevention. This perpetuates the mistaken belief that it is a CAF entity tasked with responding to sexual misconduct, which masks the need for the CAF itself to respond to it.Endnote 765
The same is true of the French name, “Centre d’intervention sur l’inconduite sexuelle,” which also implies positive action to “intervene” in a situation of sexual misconduct.
The name should clearly state and evoke its purpose. The name Sexual Misconduct Resource Centre – as opposed to Response Centre – achieves this objective.
The SMRC’s name should be changed to Sexual Misconduct Resource Centre.
The SMRC’s beneficiaries
The SMRC should provide resources and support services only to victims of sexual misconduct.
1. The chain of command and alleged perpetrators
Currently, the SMRC provides services to the chain of command and those accused of sexual misconduct. For the fiscal year 2020-2021, 155 of the 654 new cases on the 24/7 telephone line, or 23.7%, were from the chain of command. A much smaller proportion of new cases, 12 in total (or 1.8%) were from alleged perpetrators for that same year.Endnote 766
I have heard from members of the chain of command that having access to the SMRC for guidance on effective response and support to victims is useful. Indeed, with its expertise, the SMRC is well positioned to assist commanders in how to respond to a disclosure or report of sexual misconduct. In addition, the DAOD 9005-1 encourages the chain of command to “consider consulting with the SMRC for guidance on effective response and support to victims.”Endnote 767
However, I have also heard that the SMRC’s role in providing guidance to the chain of command increases the perception amongst victims that the SMRC serves the CAF –
On this question, the SMRC submitted:
- … as a centre of expertise on sexual misconduct, we have advocated for the need for response, support and remediation/intervention services for those who have committed sexual misconduct as critical to effectively addressing this within CAF. Some stakeholders, particularly those with lived experiences, perceive this to be a conflict of interest or as diverting resources intended for survivors to respondents or perpetrators. They believe that the SMRC should be solely focused on survivors and that the chain of command and those accused of sexual misconduct should have a different source of advice or support. The SMRC has the expertise to assist all three groups, without a real conflict of interest, it is consistent with our mandate as a centre of expertise, and it allows for a comprehensive response, but this does remain a concern worth raising here.Endnote 768
I believe there is a problem with the SMRC providing services to the chain of command, in the same way there is a problem with the ICCM supporting complainants, respondents and the CAF. The conflict of interest could materialize, should the chain of command solicit advice about a case in which the victim has consulted the SMRC. To prevent this, the current function of giving advice to the chain of command on the handling of complaints of sexual misconduct should be removed.
That advice should remain internal to the CAF, which should be entirely responsible for the performance of the chain of command in that respect. Commanders should be directed either to the CPCC, or to the OJAG who should increase, if necessary, its competencies in administrative law. To assist, the SMRC should share the expertise it has acquired on these matters with the CPCC and the OJAG, so they are equipped to take over this function.
With respect to providing services to alleged perpetrators, I do believe there is a perceived conflict of interest. In addition, the needs of alleged perpetrators are different from those of victims and survivors, and so is the professional expertise required to address their needs. Therefore, support to alleged perpetrators should not be provided by the SMRC, but rather by a CAF entity, either through the CPCC and/or the OJAG, which already offers legal advice and representation to perpetrators.
2. DND employees and former CAF members
I highlighted above that the SMRC recently extended access to its services to DND employees as well as former CAF members. These groups of individuals should have access to the same services offered to CAF members by the SMRC, where applicable.
3. Focus on sexual misconduct
With regard to expanding the SMRC’s mandate to include additional forms of harm, the SMRC submitted that “[t]here is a need for support services for those who experience other types of harm. Further, making a distinction in responding to different forms of misconduct masks the reality of the intersectionality of many forms of misconduct, and the need to consider these intersections in response and support.”Endnote 769
In time, the SMRC’s mandate could be broadened to include victims of other forms of harm but for now, I believe it is preferable to keep the focus on this issue so as not to dissipate its visibility and expertise. However, the SMRC should be equipped to deal with issues arising from intersectionality so that, when necessary, it can assist victims and survivors accordingly.
The SMRC should be reinforced as primarily a resource centre, with adequate expertise and capacity, solely for complainants, victims and survivors of sexual misconduct.
The SMRC’s function
In my consultations with members of the Defence Team, past and present, it became apparent that survivors of sexual misconduct need support beyond that currently provided by the SMRC. The uncertainty around what support is available and where to find it, and the complexity around what recourses are available and which one to choose, can have a chilling effect on victims.
In that light, the SMRC should become the “front door” for all victim support. In addition to the counselling and response support already provided, the SMRC should be adequately equipped to ensure that victims receive advice, support and services from a legal, medical and career perspective. The SMRC would act not necessarily as the direct service provider but as an intermediary to ensure that victims and survivors get access to the right services for their needs.
This is consistent with the Standing Senate Committee on National Security and Defence’s Recommendation no. 3.
The SMRC is already consulting with the Department of Justice to establish a mechanism to provide independent legal advice to victims of sexual misconduct. I understand that the SMRC has been evaluating different options relating to the scope of such a program, including evaluating the “areas of law on which victims may receive legal advice, the type of legal support to be provided, the eligibility criteria to access the program”Endnote 770. In addition, different options are being considered as to how the SMRC can source and provide payment to legal resources. As of October 2021, I understand these options included:
- Contracting directly with civilian lawyers and law firms, providing independence from the chain of command, and affording SMRC “full control over program administration and scalability”;
- Utilizing Res F legal officers;
- Creating an independent unit within the OJAG, similar to the DDCS or US Department of Defence Special Victims Counsel;
- Creating a transfer payment program to existing provincial/territorial independent legal advice programs funded by the Department of Justice;
- Creating a claim mechanism that allows victims to retain a lawyer of choice and receive reimbursement for expenses; and
- Contracting a national organization to administer the program.
According to the CPCC, the independent legal advice program for victims of sexual misconduct was set to be completed by April 2022Endnote 771. I have not received further information on the status of this program.
It is critical that victims of sexual misconduct speak to a lawyer at the first opportunity, whether they have made a decision, or are uncertain, about wishing to proceed with charges, as they need to understand what to expect, whatever they decide. They should also be made aware of other options, such as civil actions in damages, and empowered to make informed choices. Ultimately, the provision of this legal advice will assist a victim to determine how to best proceed in the circumstances – a fundamentally individual choice – and how to best navigate the various processes that may be triggered as a result of a disclosure.
Access to free legal advice should be offered to victims immediately upon contacting the SMRC. The existence of this service should be widely publicized within the Defence Team.
While some victims of sexual misconduct may have access to independent legal advice provided by provincial authorities, the SMRC should ensure that it can offer access to legal assistance broadly and independently, across the country and on the full range of issues related to sexual misconduct, including not only Criminal Code offences, but also sexual harassment and discrimination on the basis of sex. Such legal advice should not be housed in the OJAG. Rather, the SMRC should compile a roster of civilian lawyers across the country able to provide such services and ensure that they are properly trained, in respect of the military landscape in particular, to do so. The SMRC should also prepare a schedule of fees for such services, and provide for direct payment to the lawyers so that victims not be out of pocket at the outset of the consultations. While there cannot be an expectation that civil lawsuits would be fully funded under this scheme, adequate legal representation for victims in the criminal justice system should covered.
The SMRC should ensure that it can facilitate immediate access to legal assistance to victims of sexual misconduct. Such legal assistance must be available across the country and on the full range of issues related to sexual misconduct in the CAF, including in respect of the various processes triggered by disclosure. To do so, the SMRC should compile a roster of civilian lawyers able to provide such services and ensure that they are properly trained to do so. The SMRC should also prepare a schedule of fees for such services, and provide for direct payment to the lawyers.
To fulfill its mandate, the SMRC has developed a substantial network within the CAF to refer members to the services available to them. They have the knowledge necessary to help CAF members access the right services and to help them understand the impact that accessing those services can have on their career progression, their ability to deploy, and the universality of service. This is essential. As much as the SMRC needs to be independent of the CAF and its chain of command, it is equally important that it be knowledgeable about the CAF’s procedures to guide members appropriately. The expertise and relationships are there and would be virtually impossible to replicate in an organization completely outside the Defence Team.
The unique nature of the CAF as a total institution means that sexual misconduct, particularly when perpetrated by a CAF member on another, can significantly impact the victim’s career, including posting.
A CAF member who has recently experienced sexual misconduct, or who is in the process of reporting an incident, may have specific needs relating to their career and/or posting. Members are often left on their own to navigate the system and determine who can assist them with these issues. This places additional pressure on victims and survivors, who are often already expending much energy on more urgent needs, such as medical and legal support.
I heard from many CAF members who struggled with these issues, and in some cases suffered real consequences.
As an example, one stakeholder stated that she had been sexually assaulted as an officer cadet. She reported the assault, and the case eventually went to trial – during her exams. She received no support to mitigate the consequences of the assault and prosecution process on her studies and career. The result was that she failed her semester.
I understand that the SMRC provides support and representation services to help victims and survivors navigate internal policies or processes, and mitigate any additional adverse consequences that they might be exposed to (by way of its Response and Support Coordination Program). I encourage the SMRC to continue providing and expanding on these victim supports and services.
To increase and diversify the services available to victims and survivors, the SMRC should invest in developing a solid network of civilian associations, including rape crisis centres and other civilian support centres for victims of sexual violence and domestic violence. The SMRC has already taken steps in this direction by funding projects from civilian sexual assault centres located near large CAF bases through the Contribution Program referenced above, which program I understand is to be expanded.
That said, I have heard some criticism from a victim support advocate about the Contribution Program and the usefulness of external civilian support services. She claimed that funded centres have little knowledge of the specific needs of individuals in uniform, have little interest in representing them, and are often unilingual. In addition, based on an informal survey conducted with members of a victim support group, she submitted that most victims would not go to external support groups, namely because of the lack of understanding and appreciation for the military culture and environment.
I have also heard that some victims do not feel safe or comfortable disclosing an incident of sexual misconduct to the SMRC because of the perception that it is not sufficiently independent of the chain of command, and that their disclosure would not be received in confidence. Strengthening the SMRC’s ability to refer victims and survivors to helpful and suitable support services outside of the Defence Team will, over time, lead to more trust towards the centre.
In my view, establishing relationships with civilian associations will allow the SMRC to share its expertise and experience in the uniqueness of military culture and environment. Therefore, victims or survivors who seek support from civilian associations will be better served. In addition, victims and survivors who are not comfortable disclosing an incident to the SMRC or who prefer a service tailored to their specific needs may have access to more options than those currently offered by the SMRC and the CAF.
Developing a strong network of civilian associations will be critical if criminal offences of a sexual nature are transferred to the civilian criminal system, as per my recommendation. Indeed, in this case, it will be essential for the SMRC and civilian centres to cooperate closely and share their respective expertise and experience so that the SMRC can also learn about the civilian process. Collaboration between the SMRC and civilian centres will ensure that both are better equipped to support CAF members.
In addition, this type of collaboration can also enhance the SMRC’s ability to support members of equity seeking communities, such as the LGBTQ2+ community, Indigenous people, and visible minorities. Further, this type of collaboration could assist the SMRC in providing referrals and assistance to victims of intimate partner violence. In this respect, the SMRC is encouraged to collaborate as well with Military Family Services regarding the support provided by this organization to military partners experiencing intimate partner violence.
A broad network will also increase the geographical reach of services recommended by the SMRC so that victims and survivors can have access to in-person services near them.
Finally and overall, this will turn the SMRC outward from the Defence Team, which should also help improve the perception of the SMRC as independent of the CAF.
Centre of expertise
The SMRC’s mandate (2019) identifies the SMRC as “a recognized centre of expertise:”Endnote 772
The SMRC provides guidance and recommendations to the CAF, primarily through the Directorate Professional Military Conduct – Operation HONOUR, that shape the development and implementation of policies and programs to eliminate sexual misconduct in the CAF.Endnote 773
Pursuant to the Operating Agreement between the SMRC and the DPMC-OpH, the SMRC’s responsibilities include:
- 4.3 SMRC – provides expert advice, guidance, research, and recommendations on Operation HONOUR as well as in relation to the strategic direction of the CAF response to sexual misconduct.
- 4.4 SMRC – promotes the development of coherent departmental policies and programs related to sexual misconduct, in conjunction with other stakeholders. This includes developing evidence-based approaches to prevention and the design of mutually reinforcing response and support programs.Endnote 774
Since its inception in 2015, the SMRC has gathered valuable expertise on sexual misconduct in the CAF. It has also developed a relationship with stakeholders within the CAF, which provides them with a good understanding of the policies and programs that relate to sexual misconduct.
In its submissions, the SMRC highlighted the advantages of being the centre of expertise on sexual misconduct:
- The centre of expertise plays a vital role to relay what the support service providers are hearing to CAF for action. The centre of expertise also provides way for the CAF to listen to a trusted internal voice and to consult with those with more expertise than they might have on an important issue. The centre of expertise has been able to significantly enhance CAF awareness in important ways: the need to engage survivors at the outset of initiatives rather than consult them perfunctorily after the fact; attention to trauma-informed language in all communications; the rights and needs of respondents.
However, the SMRC did question whether this role should be played by the SMRC or by the CPCC.Endnote 775 I believe that the SMRC should remain the centre of expertise on sexual misconduct. However, in light of the existence of the CPCC, the scope of SMRC’s mandate in this regard should be reviewed.
The SMRC’s mandate and the Operating Agreement transferred the responsibility for prevention training to the SMRC in 2019. This followed a recommendation made in the 2018 OAG Report. On this responsibility, the SMRC submitted:
- Although we worked closely with CAF to clarify our respective roles related to prevention training, it has been an on-going challenge. It feels as though CAF absolved itself from responsibility for prevention of sexual misconduct through program delivery. As well, it has become apparent that we are in a conflict of interest in being responsible for developing, delivering, and monitoring the program. We believe that CAF should be responsible for program development, delivery, and evaluation, and that SMRC should be responsible for providing expert advice on program content, delivery and evaluation and that we should monitor the integrity of program implementation through a mechanism that is already in place. We raised this early on in the establishment of CPCC and they were in agreement with this proposal, but senior leadership does not want to shift SMRC’s mandate until the recommendations from the Independent External Review are completed.Endnote 776
I agree with the SMRC that it cannot be responsible for developing, delivering and monitoring prevention programs. There is a clear conflict with both providing the service and monitoring the performance and effectiveness of the delivery. I also agree that the CAF and the CPCC should take ownership of prevention of sexual misconduct since the CPCC has been set up as “the centre of expertise and single, functional authority for aligning Defence culture to ensure professional conduct meets the standards expected of the profession of arms and the Defence Team.”Endnote 777
However, in light of its expertise, the SMRC should be consulted on developing program content, delivery, and evaluation methods but should not be engaged in actual program delivery or its monitoring.
The ownership of training and prevention of sexual misconduct should be transferred to the CPCC. The CPCC should continue to consult the SMRC on the development of program content, delivery and methods of evaluation for sexual misconduct, but the SMRC should not be engaged in actual program delivery or monitoring.
Following the AG’s finding that the CAF “did not adequately monitor the effectiveness of Operation HONOUR,”Endnote 778 the DND responded that the SMRC’s charter would be amended to “recognize the Centre as the authoritative external agency with a mandate to ensure that Operation HONOUR is continuously monitored by external subject matter experts.”Endnote 779
The SMRC’s charter was subsequently replaced by a new mandate and the Operating Agreement. The Operating Agreement captured this responsibility as follows:
- 4.7 SMRC – reports on the performance of and services provided by the SMRC.
- 4.8 SMRC – monitors and reports on the adherence of the CAF to sexual misconduct policies, training and education, CAF implementation of advice provided, and systemic issues and trends.Endnote 780
Justice Deschamps recommended that monitoring be one of the functions of her envisioned centre of accountability. More recently, Justice Fish reiterated her recommendation:
- The [SMRC] should be given the mandate to monitor the adherence of the CAF to sexual misconduct policies and to investigate systemic issues that have a negative impact on victims of sexual misconduct, including the [CAF’s] accountability.Endnote 781
However, others have highlighted the challenges or contradiction of giving the SMRC the responsibility to monitor the CAF. For example, the 2020 MINDS report recommended clarifying how the SMRC can hold the CAF accountable:
- The SMRC’s monitoring responsibility vis-à-vis the CAF is not clear to an external observer and rife with challenges. There is also a potential moral hazard problem in the SMRC’s increasing mandate when it comes to accountability.… [T]he CAF might develop a culture of offloading the problem rather than staying committed to Operation HONOUR over the long term. When commissioning research or studies, attention should be paid to examining the governance, decision-making and accountability mechanisms of the SMRC, as well as the broader Operation HONOUR architecture.Endnote 782
Of significance, the SMRC submitted that there is a contradiction between the function of providing support services and the function of monitoring, even with the SMRC being the centre of expertise on sexual misconduct.Endnote 783
The Executive Director, SMRC explained that they have had many challenges with monitoring the CAF’s progress on sexual misconduct. They do not have direct or independent access to data from the CAF; the SMRC cannot discreetly investigate issues they identify through their work with victims. If they receive a call from someone signaling that there were issues in a specific unit or command, the SMRC has no way of investigating without tipping their hand.Endnote 784
Further, without the ability to compel changes and make independent public communications, the CAF can easily ignore monitoring. Moreover, holding the CAF accountable, or ordering the CAF to change, could be met with mistrust or resistance. This approach would likely undermine the SMRC’s ability to collaborate with the CAF.Endnote 785
I agree with the SMRC’s submissions that there is a contradiction between the function of providing support services and monitoring, even with the SMRC being the centre of expertise on sexual misconduct. In line with my recommendation to make victim support the SMRC’s main focus, I recommend that the SMRC’s mandate exclude the function of monitoring CAF’s effectiveness in responding to sexual misconduct.
Further, and with respect to the ADM(RS)’s administrative investigation capacity, I recommend that institutionalized close cooperation be put in place between the ADM(RS) and the SMRC, such that the SMRC can alert the ADM(RS) of systemic or specific case concerns that the ADM(RS) is suitably equipped to investigate. I further recommend that the Executive Director, SMRC be able to independently direct the ADM(RS) to conduct an administrative investigation into matters relevant to the SMRC’s mandate.
- The monitoring of the CAF’s effectiveness in responding to sexual misconduct should be removed from the SMRC’s mandate. Instead, the SMRC should be required to refer concerns in that regard to the ADM(RS). The SMRC should be empowered to direct the ADM(RS) to conduct an administrative investigation into matters relevant to its mandate.
Governance and independence of the SMRC
As explained earlier, the SMRC was established under the authority of the DM as an organization independent of the chain of command
Despite this governance structure, there are still concerns that the SMRC is not sufficiently independent; concerns over the SMRC’s independence have been raised periodically by Parliamentarians, stakeholders, and the media.Endnote 786 According to the Executive Director, SMRC, the SMRC’s independence has been the biggest source of confusion across the organization; there is a perception by some that the SMRC is CAF’s support system, and this contributes to victims not calling them.Endnote 787
The Executive Director, SMRC stated before the NDDN:
We have been set up structurally, in terms of my reporting relationship, consistent with what Madame Deschamps recommended, but we have not been given the entirety of the mandate that Madame Deschamps intended. Therefore, that has undermined our ability to perform some aspects of our mandate as independently as she envisioned.
There is absolutely room to review our governance, whether we continue to report within the department or outside the department. It’s critical to look at mandate when you’re looking at the particular structure or the form it’s going to take. It may be the case that some of the functions SMRC is doing right now should reasonably be maintained within the department because of the need to work very collaboratively with people. However, it may well be that other aspects of our mandate, especially if it becomes more enhanced in the way Madame Deschamps envisioned, might better be performed by a more independent entity.Endnote 788
The issue of independence cannot be resolved without first setting out what is meant by independence – independence from whom and for what purpose. Independence cannot be defined in a vacuum; it must take into consideration the mandate of the SMRC, the services it provides, and who its clients are.Endnote 789
I agree that the SMRC must be entirely independent of, and outside, the chain of command. This will ensure that CAF members can have access to services confidentially, anonymously if they wish, from civilians who are not subject to the duty to report and who themselves don’t report to anyone inside the CAF. It also increases the chances that CAF members will feel comfortable going to the SMRC for support, without the fear of interference by the chain of command. However, this must be reconciled with the fact that CAF members are the SMRC’s primary clients.
Available Governance Options
In light of this, and of my recommendation with respect to the SMRC’s mandate, I considered the following options to determine what the best governance structure for the SMRC might be.
Amalgamation with the CPCC and/or integration within the CPCC
The CPCC was set up to address all forms of misconduct across the Defence Team, including sexual misconduct. Amalgamating the SMRC with the CPCC would centralize the response to all forms of misconduct under one entity and “eliminate the inequities in response and support between those who have experienced sexual misconduct and those who have experienced other forms of harm.”Endnote 790 Moreover, this option would “enable CPCC to leverage the considerable expertise and experience of SMRC towards the entirety of their mandate.”Endnote 791
A variation of this option would be to integrate the SMRC with the ICCM program, which is currently under the CPCC umbrella, and similarly to the SMRC is primarily a service provider. On this option, the SMRC submitted:
- There is considerable overlap between these two organizations and they already work in close partnership, often sharing staff back and forth. Both are staffed by civilians in order to be able to provide services confidentially and anonymously, without the duty to report, all of which engenders trust. This would also be a step towards the Deschamps recommendation where SMRC (or the Centre she envisioned) should deal with sexual assault and harassment and also be a reporting centre. Finally, in considering the lines of effort under CPCC, the Conflict and Complaint Management line is the clear outlier compared to the other three in that it is a service delivery organization, as is SMRC.Endnote 792
However, in the SMRC’s opinion, the CPCC “should not be a service delivery organization; they should be the functional authority to set, monitor and enforce national policies, programs, and standards related to conduct and culture.”Endnote 793
I express no opinion on whether or not the CPCC should have a service delivery function. However, it is abundantly clear that the SMRC cannot be integrated into the CAF, in any form whatsoever, without losing all credibility and effectiveness. Therefore, this option must be rejected.
Move the SMRC, in whole or in part, to an external agency
Many stakeholders have advocated for the SMRC to be outside of the CAF and the DND. In their view, this is the only way the SMRC can be truly independent from the chain of command.
With respect to this option, the SMRC submitted that there would be many benefits from having an external “truly” independent agency:
- If the SMRC were to shift to be an external agency, reporting to Parliament for example, survivors and those with lived experience may feel more comfortable reporting, in particular about senior leaders. There is the potential for more candour in reporting on how the Department and CAF are addressing misconduct in general, and sexual misconduct in particular. As well, survivors and those with lived experiences would likely see the SMRC more as an advocate than as a tool of the Department. This shift would affect all aspects of its communications, including social media, in the media, and at Parliament. As mentioned above, the inability of the SMRC to be publicly critical of the CAF in situations where a coherent departmental approach is required, such as at Parliamentary appearances or in the media in response to major news stories, is problematic at times. If the SMRC is to be truly an advocate for survivors and those with lived experiences, it must be able to perform that critical function in public and drive the public conversation. A truly independent SMRC would be less likely to experience political interference in its operations and services.Endnote 794
However, in the view of the Executive Director, SMRC, which I share, setting up the SMRC as an external agency would likely render it less, rather than more, effective.Endnote 795
Even though it may address the issue of “true” independence, the SMRC would face other challenges. Namely, it would be more difficult for the SMRC to obtain access to information, including data, from the Defence Team. Moreover, without a direct report, it would likely be more challenging to get attention from Defence leadership on crucial matters. Currently, the Executive Director, SMRC can go directly to the DM if certain issues need to be addressed. An external agency would not so easily have access to leadership. Over time, an external agency would lose the intimate knowledge of the complex administrative management of human resources in the CAF and of its evolving culture.
Finally, an external agency must be attached to and report to an existing structure. I don’t believe it is desirable to sever the SMRC from the DND and have it report directly to Parliament. The issues that the SMRC deals with are highly personal and confidential and would not necessarily benefit from being reviewed in a partisan environment.
Moreover, it would be difficult to justify providing direct parliamentary oversight on sexual misconduct to one entity, the CAF or even the entire Defence Team, and not the RCMP, for example, or the entire federal public service.
Maintaining the SMRC within the DND
I have considered the various options available, and in my view, the current structure and governance of the SMRC is the best available option and, with a few changes, provides the best combination of independence and expertise necessary to fulfill its mandate. There is no viable alternative to maintain the efficiency of the SMRC.
The best way for the SMRC to be effective as a service provider is for it to maintain a close enough connection to the CAF without being in any way subjected to the CAF’s direction or control.
This relationship is important in ensuring that the SMRC maintains its expertise in military practices and culture. However, I believe the reputation and perception of the SMRC’s independence would be enhanced if it were staffed exclusively by civilians. However, there may be situation where members releasing from the CAF are interested in working for the SMRC, bringing with them valuable insight and experience. Applications from former CAF members, whether Reg F or P Res, should be closely vetted for suitability to work within the SMRC. In light of my other recommendations, I do not think that the SMRC needs the presence of CAF military justice or police advisors in its organization.
In providing advice and guidance to victims and survivors, the SMRC will often direct them to services provided by the CAF that may be suitable for them, including physical and mental health service, and services offered through the Military Family Resource Centres. The SMRC must be able to assess the quality and availability of these services to discharge its functions properly. This is best done through a close relationship with the CAF. As long as it feels confident that this will not compromise the perception of its independence, the SMRC, as a Defence Team entity, has opportunities for actions that a totally external actor would not have.
Therefore, I recommend that the SMRC remain within the DND, with measures taken to increase its independence, both actual and perceived, including by increasing its external connection.
The SMRC should remain within the DND and continue to report to the DM.
As stated above, many have commented on the SMRC’s governance structure and its related independence. However, very few have offered suggestions on how to increase SMRC’s independence, both its actual structural independence and its perceived independence.
In his report, Justice Fish recommended that “[t]he relationship between the SMRC, on one hand, and the CAF and DND on the other, should be reviewed to ensure that the SMRC is afforded an appropriate level of independence from both. The review should be conducted by an independent authority.”Endnote 796 In support of this recommendation, he noted that the fact that the VCDS can influence the SMRC’s resources means that the SMRC is not completely independent from the chain of command. SMRC’s funding and budget approval process should be reviewed to ensure that the CAF has no say in this regard.
The Executive Director, SMRC has raised similar issues with me, including whether the SMRC should be elevated to an L1 organization and headed by an ADM. Without getting into the details of what that entails, including for financial and staffing considerations, I endorse Justice Fish’s recommendation, above, and suggest that the administrative structure of the SMRC should be reviewed independently with the view to increasing its independence, its effectiveness and its proper place in the Defence Team.
I believe that the proposed mandate for the SMRC, as outlined above, will assist in increasing the SMRC’s independence from the CAF. Going forward, the SMRC’s mandate must be respected, and it should not be assigned new responsibilities that could compromise that.
In particular, the CAF, including through the newly-created CPCC, must remain responsible and accountable for the wellbeing of its members. The existence of the SMRC does not discharge this responsibility. Nor should the SMRC’s independence be compromised by a blurring of functions.
By way of example, the SMRC submitted:
- When the SMRC, through the Operating Agreement with the CAF, assumed responsibility for the support for survivors, the CAF also transferred responsibility for Initiative 19 in Strong, Secure, Engaged: Canada’s Defence Policy (FR). This was not done through a formal process and was not in the Operating Agreement, but through an informal agreement where the implications of the situation were not explored. Initiative 19 is “Provide a full range of victim and survivor support services to Canadian Armed Forces members.” However, the SMRC does not provide a “full range” of survivor support services; the CAF provides the majority of services to CAF survivors of sexual misconduct, including health, mental health, and Chaplaincy services, or other services offered through the Military Family Resource Centres. Nor does SMRC provide support for other forms of harm. Therefore, it makes little sense that this initiative is not the responsibility of the CAF. Further, this initiative was transferred from, first, Military Personnel Command to the Vice-Chief of the Defence Staff (VCDS) organizations when DGPMC transferred from the former to the latter. In order to increase accountability within the Defence Team for implementing the various Strong, Secure, Engaged initiatives, the Defence Team created Functional Authority Delivery Groups (FADGs) with Assistant Deputy Ministers or their military counterparts as the leads. Initiative 19, unfortunately, still remains as a FADG responsibility of the VCDS organization. This has created a situation where the SMRC is responsible to the VCDS/CAF for the implementation of the Initiative 19. Through this one initiative, the SMRC’s independence is called into question. As well, if the CAF is perceived as not doing enough for survivors of sexual misconduct, then it is the SMRC who are potentially “at fault.” Given how many CAF organizations provide services to survivors belong in the Military Personnel Command structure, this Initiative should return to the FADG of the Chief, Military Personnel.Endnote 797
With the creation of the CPCC, I believe it will be less likely that these types of initiatives are given to the SMRC by default.
The administrative structure of the SMRC should be reviewed in order to increase its independence, effectiveness and proper place in the Defence Team.
The External Advisory Council
The EAC was established in 2018. Its role is to “provide empirically, clinically and experientially informed advice and recommendations to the [Executive Director, SMRC] on Operation HONOUR activities, including implementation of [Justice Deschamps’] recommendations.”Endnote 798 It is composed of eight external subject matter experts that are recommended by the Executive Director, SMRC and nominated by the DM for a period of two years, with the possibility of extension.Endnote 799
Pursuant to its terms of reference:
- Council members will serve in an advisory capacity only. The Council has no authority in its own right over the operations of DND or CAF. Council members will be asked to provide independent, impartial, third-party advice, collectively or individually, on issues pertaining to Operation HONOUR activities.Endnote 800
Since its creation, the EAC has provided advice and information on topics such as: the Path to Dignity; DAOD 9005-1; the Operation HONOUR Performance Measurement Framework; Survivor Support Strategy; Bill C-77 implementation; and efforts by Military Family Services to address family violence, to name a few.
The EAC fulfills an important role of providing external expert advice and information on sexual misconduct. Its terms of reference need to be updated and should be focused primarily on supporting the work of the SMRC.
To increase the SMRC’s independence, real and perceived, the EAC should be required to publish an annual report, alongside the SMRC’s, through which it can convey an external perspective on the evolution of the SMRC’s role and performance. Although not formally an oversight body, it can play a role as an external, independent voice on issues where the SMRC could feel more restrained.
Therefore, I recommend that the role of the EAC be reviewed. It should be composed of external experts and advocates for victims and survivors. There should be adequate representation of equity seeking groups and minority groups who are disproportionately affected by sexual misconduct.Endnote 801
The EAC’s role, composition and governance should be reviewed. It should be composed of external experts and advocates for victims and survivors, with adequate representation of equity seeking and minority groups who are disproportionately affected by sexual misconduct. It should publish an annual report to provide an external perspective on the evolution of the SMRC’s role and performance.
Many have criticized the top-down approach employed by the CAF in responding to sexual misconduct, including in the implementation of Operation HONOUR. The main criticism described to me is a disconnect between the NDHQ and the bases/wings. For example, Ottawa policy directed that Operation HONOUR briefings were to be given by COs. However, in many cases, the COs treated the briefings as a “women’s issue” and delegated the task to a woman in their unit. In addition, many of the actions required under Operation HONOUR were reduced to a “check the box” exercise. Unfortunately, this set the tone for the level of seriousness given to the Operation.
As one stakeholder told me:
CAF can make all the policies in the world, [they] will not change the culture. I want to hear what the L2, L3 L4 have to say – they need to feel valued by the chain of command in their unit. If no one reads [the policy], it’s worth nothing.
In contrast, during my consultations, I heard from many Defence Team members who were determined to participate in culture change. They were also eager to share the initiatives they had developed or implemented in their communities. A few examples illustrate this dynamism:
- Following an incident at the CFLRS, the command team completed an evaluation and analysis to identify problems and key vulnerabilities, as well as key knowledge gaps, available tools and potential pitfalls relating to professional conduct and culture at CFLRS. The command team engaged in fireside chats with all members of their unit, staff and recruits, for an open dialogue on culture;Endnote 802
- In June 2021, the Canadian Forces School of Military Engineering stood up a working group called the “CFSME Professional Conduct and Culture OPI Committee”, with a primary focus to develop and implement a sexual misconduct and hateful conduct prevention program within the school. I understand that they have received the support of approximately 20 volunteers of all ranks and genders. They have engaged the local employment equity committees and various external organizations such as the White Ribbon Foundation and Sexual Violence New Brunswick to build a professional development plan for [their] school staff;Endnote 803
- The 2nd Canadian Division developed their own unique human resource specialist team. Unlike other units, this is mostly staffed by civilians reporting to the officer commanding the 2nd Division. This team created, in parallel to the OPTHAS, their own software to track sexual misconduct incidents, which, they have told us, is more user-friendly and useful than the OPHTAS. As an example, their software allows them to better track serial offenders. They also act as a key resource by providing support to units and commands within the division;
- In addition, several senior leaders have engaged in conversations with their units or commands, or with victim support groups, before and outside of the formal restorative engagement process developed as a result of the class action settlement; and
- Finally, several CAF members and victim support groups designed and proposed solutions and tools to help effect culture change within the CAF.
I also refer to important local initiatives such as Athena, Agora, and the new Success Centre in the section on Military Colleges.
The then Acting CDS himself captured the importance of local or “organic” initiatives in a statement on culture change, dated 12 July 2021:
As should be expected, many of you have not waited for direction. Grasping the importance and the context of our challenges, you have implemented local solutions. These may be the most important and long-lasting as they come from the grassroots level and are fed by the need for change there. Examples include: reinforcing or creating local advisor groups and advisors; the creation of culture officers on a number of our Royal Canadian Navy Ships; the trialing and introductions by the Canadian Army of the Sexual Misconduct Workshop Training, developed and delivered by a CAF member and survivor; as well as at the 4th Cdn Div Training Centre Meaford, the recent creation of a new local Defence Women’s Advisory Organization; a focused effort by the RCAF to leverage their quarterly Vector Check program; and Wing-level committees established by junior ranks to solicit grassroots proposals on local culture change initiatives. Additionally, many units and formations have engaged local expertise, including through the Honorary Colonel community, to inform initiatives. The list is longer and CPCC will capture those initiatives which meet with success as best practices, share them across the Defence Team, and provide institutional policy cover where necessary.Endnote 804
These initiatives are good examples of the commitment of Defence Team members to addressing culture at a local level. They should be encouraged. There is unquestionable value in initiatives that originate on the ground, addressing concerns or issues that are specific to a unit or sub-culture. These initiatives also empower members to be part of the change and engage individuals who may otherwise not pay attention to or relate to “Ottawa” initiatives.
However, these initiatives are typically launched without the awareness of any central authorities, experts or stakeholders. This creates a potential for ineffective or even harmful initiatives. Even if they resonate with some individuals,
- [T]hey may end up costing the organization in terms of time or money with little to no appreciable impact. For example, a locally developed or contracted training program may be popular, but participants will not know what is missing in terms of key factors to promote both learning and, more importantly, behavioural change. They also have the potential to be harmful if not done well (e.g., a local initiative to have victims provide testimonials in group settings with no consideration of risks or need for support). In addition, if they are not consistent across the organization, they run the risk of cancelling each other out in aggregate data – an effective initiative may end up masked by ineffective ones.Endnote 805
There is also a risk that the cumulative effect of local and CAF-wide initiatives will have a counter-productive effect by creating fatigue relating to culture discussion and training.
There should be some oversight of these initiatives. However, this oversight must be balanced with the need for Defence Team members to have agency over these initiatives and be encouraged and supported when they innovate.
The SMRC recommended:
- CPCC should be the centralized authority or policy holder and establish mechanisms to ensure it has awareness of all local initiatives at the very least, to ensure organizational awareness and reporting. More importantly, CPCC needs to develop standards for content, components, delivery, and evaluation of all local initiatives to ensure consistency across messages, language, training goals, and to be able to measure impact. CPCC needs to assess and endorse all initiatives, and then be able to track, measure, and report on all culture change initiatives.Endnote 806
According to the Update to Pathways to Progress provided by the CPCC, “[the] CPCC is tracking a number of key programs and grassroots initiatives related to culture change occurring across the Defence Team. This will lead to a better sense of ongoing activity, will create avenues to share best practices across the organization, and support the identification of gaps in programming.”Endnote 807
I agree that the CPCC should give general direction and be aware of local initiatives. But I also encourage the CPCC to provide space and resources to the initiatives that are effective and leverage them across the organization, where appropriate.
While the CPCC should be the centralized authority on these initiatives, it should consult and collaborate with the SMRC for any initiatives relating to sexual misconduct – recognizing that the SMRC is the centre of expertise on the subject.
Defence Advisory Groups
In 1994, the DM and the CDS endorsed the creation of DAGs to “provide insight to the DND/CAF leadership on systemic barriers and issues that could have an impact on designated [employment equity] groups, and to provide advice on the development and implementation of programs and policies that could negatively impact their respective group.”Endnote 808 In addition to the DAGs, there are informal groups representing distinct subsets of the Defence Team known as “Networks”.Endnote 809
The CAF Employment Equity Plan 2021-2026 describes the DAGs as follows:
- The DAG structure is the Defence Team’s approach to the consultation requirements of section 15(1) of the [Employment Equity Act] and represents an essential component of [employment equity] governance. Through a network of local advisory groups located across Canada, and their respective National DAG co-chairs, DAGs are led by volunteers who are currently employed in the Defence Team.
- The DAGs provide advice and insight to DND and CAF leadership on issues relevant to their constituents, and support increased visibility of [employment equity] and related networks across the organization. DAGs make valuable contributions to all levels of decision making for both military and civilian teams, at national and local levels. DAGs also promote the integration of Designated Group Members (DGM).
- Their work raises awareness of systemic barriers to employment equity within DND/CAF and, engages with the two functional authorities (CMP and ADM(HR-Civ)) on ways to resolve them. They also provide advice and recommendations on the development of policies, procedures and mechanisms which are human resources related, supported by evidence-based actions specific to the underrepresented communities in the areas of recruitment, retention, training and development. In recent years, there has been a marked increase in calls for engagement and consultation with the DAGs, which has led to the refreshing of the DAG Terms of Reference and a closer review of DAG structure to ensure all CAF/ DND members are being represented in a full and efficient manner.Endnote 810
There are six DAGs:Endnote 811
- Defence Aboriginal Advisory Group;
- Defence Visible Minorities Advisory Group;
- Defence Women’s Advisory Organization;
- Defence Advisory Group for Persons with Disabilities;
- Defence Team Pride Advisory OrganizationEndnote 812; and
- Defence Team Black Employee Network.
In their final report, the Minister’s Advisory Panel made an important statement about the DAGs:
- The DAGs and Networks all had one thing in common: their recommendations for a more inclusive workplace were powerful, achievable and long overdue for action from the Defence Team leadership. The Advisory Panel concluded that it would not be fair to take these commendable ideas and offer them as its own, since that has been part of the problem in the past. The Advisory Panel has been stood up for one year. The DAGs and Networks are in it for the long run. They need to be heard.
- Insights from the members of the DAGs can lead the way towards a new culture where all Defence Team members can thrive. But for any significant change in the Defence Team culture to happen, the DAGs and the Networks must be elevated. They are the best innovators and catalysts for change. They should be listened to, provided with the resources they need to prosper, and empowered to be guides towards a diverse and inclusive culture. They are experienced and expert voices that have a wealth of information, ideas, recommendations, action plans, and suggestions to identify and tackle the underlying drivers of inequality and systemic barriers in the DND/CAF. They have the lived experiences that must inform efforts to eliminate racism and discrimination and achieve the vision of an inclusive culture. As part of the Defence Team family, DAGs are force multipliers.Endnote 813
I fully agree with these views expressed by the Panel. I believe the DAGs are essential agents of change; their presence on the ground and their regular engagement with their communities give them a unique perspective on issues affecting CAF members and DND employees.
The DAGs should be given the time and resources necessary to do their work. They should also be rewarded and recognized for their contributions to the Defence Team. This could be as simple as leadership scheduling meetings with the DAGs when visiting bases to hear their concerns and suggestions, as has been done during the CPCC consultations, thus sending a strong message to other members that these groups are important and valued.
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