External Review into Sexual Misconduct and Sexual Harassment in the Canadian Armed Forces - Definitions
Marie Deschamps, C.C. Ad.E.
External Review Authority
March 27, 2015
While the ERA found that mere policy change is not, in itself, sufficient to address the problem of inappropriate sexual conduct in the CAF, policies do constitute a key tool upon which CAF leadership can rely to guide the conduct of members.
Definitions are central pillars in any policy. They provide important guidance to members about how to conduct themselves by circumscribing what is permissible, and what is subject to sanction. Yet the ERA found that 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.157 Interviewees also commented that the line between sexual harassment and misconduct is sometimes difficult to draw,158 and that they were unclear about the definition of “personal relationships” and “fraternization”. 159 Members also reported that they found the policies complex160 and ineffective at addressing the systemic nature of sexual harassment.161
In reviewing the CAF policies on harassment and sexual misconduct, several problems readily come to light. First, there is no actual definition of these concepts contained in the policies: while sexual harassment is simply not defined in DAOD 5012-0, sexual misconduct is described in DAOD 5019-5 only by reference to other legal documents, and “adverse personal relationship” is defined in DAOD 5019-1 only by reference to the negative consequences it has on the unit, a post-facto definition which may be difficult for members to interpret on their own. Furthermore, the terminology is often inconsistent with plain language uses of the terms, all of which causes confusion for members. Second, the criteria to determine whether sexual harassment has occurred are complex and unclear, making it difficult for a victim to decide if she should complain, and challenging for a Responsible Officer (RO) to conclude whether or not sexual harassment has occurred. Third, and finally, sexual harassment, sexual misconduct and adverse personal relationship are treated as three distinct issues and addressed in distinct policies; this fails to recognize the clear linkages that often exist between these types of sexually inappropriate conduct.162
DAOD 5012-0 covers incidents of personal harassment, abuse of power, sexual harassment and racism,163 all under the rubric of harassment. The term harassment is defined in that document as:
- any 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 harm.
Although sexual harassment is encompassed by this definition, it is not specifically addressed in the policy.
Under the DAOD definition, five criteria must cumulatively be met before a finding of harassment can be made:
- 1) the conduct must be improper;
2) the conduct must have been directed at another person or persons;
3) the conduct must be offensive to another person or persons;
4) the accused knew or ought reasonably to have known that the conduct would cause offence or harm; and
5) the conduct occurred in the workplace.
In order to make a finding of sexual harassment, a sixth criterion, that the conduct is sexual in nature, must also be met.
Taken together, these six elements narrow the scope of prohibited conduct significantly, making the definition much less inclusive than the definitions of several provincial human rights and labour law statutes.164
In addition, the CAF definition of sexual harassment is narrower and more complex than the definition articulated by the Supreme Court of Canada, which informs the interpretation of Canadian and provincial human rights and labour statutes.165 In Janzen v. Platy Enterprises Ltd., Chief Justice Dickson defined workplace sexual harassment as follows:
- sexual harassment in the workplace may be broadly defined as unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job- related consequences for the victims of the harassment.166
By comparison to the six conditions that must be met in order to demonstrate sexual harassment under DAOD 5012-0, this definition requires that only four criteria be met for a finding of sexual harassment to be made. Specifically, the definition requires that the conduct:
- 1) was sexual in nature;
- 2) was unwelcome;
- 3) caused harm; and
- 4) affected the work environment or led to adverse job-related consequences for the complainant.
Not only does the Janzen definition contain fewer criteria for a finding of sexual harassment, but also the criteria themselves establish a lower threshold. For example, the CAF policy requires that the conduct be found to be improper and offensive, in order to constitute sexual harassment, whereas the Janzen criteria only require that the conduct be unwelcome. The Janzen criteria therefore encompass a much wider scope of inappropriate sexual conduct.
Furthermore, under the Janzen definition the fourth condition—whether the conduct has affected the work environment or led to adverse job-related consequences—is broadly interpreted to include consideration of whether the conduct interfered with an individual’s work or performance, or had the effect of creating an intimidating, hostile, or offensive environment. The complainant is not required to demonstrate that the conduct resulted in concrete harm in order for sexual harassment to be made out.
In a context where sexual language is endemic to the organizational culture, in particular where the sexual nature of some comments or expressions may no longer even be apparent to some individuals but continue to cause offence and discomfort to others, many of the conditions built in to the DAOD definition of sexual harassment are ineffective at capturing the offensive conduct. For example, the requirement that the conduct be directed at an individual limits sexual harassment only to conduct that was directly aimed at a specific person. This is made evident by instructions on the interpretation of the criterion:
- For improper conduct to be considered directed at another person, that person must both be the subject of the conduct and personally experience the conduct and/or the repercussions of it. 167
As noted, the generalized use of inappropriate sexual language in the lower ranks is endemic in the CAF. Yet, the requirement that the conduct be directed at another member fails to capture sexually harassing comments made at large, for example, in a group or social setting. These are precisely the kinds of circumstances that contribute to an environment that is hostile to women and LGTBQ individuals, and which the CAF needs to tackle. While the definition of sexual harassment must be able to capture instances of quid pro quo harassment, the policy will be generally ineffective unless it can also address the use of sexualized and demeaning language.
Similarly, the requirement in the DAOD definition that the accused ought reasonably to have known that the conduct would be offensive functions to exclude conduct that is commonplace in the CAF, but that may nevertheless be unwelcome to some. For example, in an environment in which highly demeaning sexualized terms are commonplace, it may be difficult for ROs to conclude that the speaker ought reasonably to have known that the use of such language in a particular instance would cause offence, since the perpetrator can justify the use of such language on the basis that it is the norm within the organization.
As currently delineated, the term sexual harassment therefore fails to capture a range of inappropriate conduct, and has been ineffective at driving necessary organizational reform. Not surprisingly, this overly-narrow definition feeds the belief among members that the directed at and offensive to criteria are “easy escapes”168 for the perpetrator of the conduct, and a bar to a complainant offended by the conduct. This perception, along with the overly narrow definition itself, contributes to the extremely low rate of reporting of sexual harassment in the CAF.
Likewise, the requirement that the conduct take place in the workplace is unduly restrictive. Workplace is defined in DAOD 5012-0 as follows:
- Workplace includes the physical work location or the greater work environment such as work-related functions and other activities where work relationships exist.
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”.169 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 military. While the definition of workplace in DAOD 5012-0 specifically alludes to the greater work environment and appears to encompass at least some incidents that occur in a social environment, the reference to conduct occurring “in the workplace” is a source of confusion. In particular, it fails to capture the fact that even if the conduct does not occur in the workplace, the consequences may nevertheless have an impact on the workplace.
By contrast, many other foreign armed forces rely on a broader definition of sexual harassment. For example, neither the United States nor the British Armed Forces limit the scope of their harassment policies to instances of quid pro quo harassment, or to harassment that takes place in the workplace.170 The ADF has also adopted a very broad definition of sexual harassment, which does not tie the definition of harassment to the workplace. As stated in the ADF’s recently introduced policy on Reporting and Management of Sexual Misconduct including Sexual Offences:
- Sexual harassment for the purposes of this Instruction is any unwelcome sexual behaviour that is likely to offend, humiliate or intimidate. The Sex Discrimination Act 1984 contains a detailed definition.171
Similarly, policies on sexual harassment in Canadian workplaces generally recognize that an employer has the authority to sanction any form of sexual harassment that has a nexus to the member’s employment relationship. For example, it is well established in labour law that an employer has the right to discipline an employee, even if the conduct took place outside of the workplace and outside of work hours, if the conduct has a nexus to the employment relationship. Among the factors used to determine whether such a nexus exists are whether the employee’s conduct has:172
- harmed the employer’s reputation;
- rendered the employee unable to perform his duties satisfactorily;
- led to the refusal, reluctance or inability of other employees to work with him; or
- made it difficult for the employer to efficiently operate its workplace and direct its workforce.
The Ontario Court of Appeal has also held that a finding of sexual harassment does not depend on whether the incident took place in the workplace. In the context of allegations of sexual harassment against a senior manager, the Court held that:173
- It would be artificial and contrary to the purpose of controlling sexual harassment in the workplace to say that after-work interaction between a supervisor and other employees cannot constitute the workplace for the purpose of the application of the law regarding employment-related sexual harassment. The determination of whether, in any particular case, activity that occurs after hours or outside the confines of the business establishment can be the subject of complaint will be a question of fact.
Limiting the definition of sexual harassment to conduct that takes place in the workplace is therefore inconsistent with current Canadian norms, as well as with best practices in other allied military organizations.
Further, the ERA observes that DAOD 5012-0 fails to specifically address sexual harassment that may take place through the use of social media, which interviewees identified as an increasingly prevalent occurrence.174
The ERA also heard from contributors that in addition to clarifying the definition of sexual harassment, the policy should include concrete examples of impermissible conduct to better illustrate the concept. Including explanatory examples is a recognized practice in workplace harassment policies175 because they can convey much more effectively the scope of prohibited conduct. The following are examples of conduct that constitute prohibited sexual harassment:
- 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 images.
In addition, sexual harassment may occur in the course of one incident, or in a series of incidents, which in isolation would not necessarily constitute sexual harassment. The victim and the harasser may be of the same or different sexes, and the harasser need not be employed by the victim’s organization; rather the victim can be anyone affected by the conduct.
In sum, the CAF needs more effective tools to be able to address and sanction unwelcome sexual behaviour in order to establish a professional environment for its members. Given the prevalence of a hostile environment of sexual harassment and the lack of clarity members express about what constitutes sexual harassment, 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. Although the ADF definition of sexual harassment cannot be used without modification, the CAF definition should aim at similar simplicity. 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 policy. Further, the definition should be broadened to capture a wider scope of conduct. Concrete examples of prohibited conduct should be included in the policy.
Based on the interviews, there also appears to be uncertainty among CAF members with respect to the line between personal relationship, adverse personal relationship, and sexual misconduct. The expressions fraternization and adverse personal relationship appear to be a particular source of confusion for many members.
DAOD 5019-1 uses the expressions personal relationship, adverse personal relationship, and fraternization. A personal relationship is defined as an “emotional, romantic, sexual or family relationship between two CAF members, a CAF member and a DND employee or contractor, or a CAF member and a member of an allied force.” An adverse personal relationship is described as a personal relationship that has “a negative effect on the security, cohesion, discipline or morale of a unit”. Fraternization, by contrast, does not involve a relationship between two CAF members, but rather “any relationship between a CF member and a person from an enemy or belligerent force,” or “a local inhabitant within a theatre of operations where CF members are deployed.”
Unlike the conduct included in the DAOD 5019-5 policy on sexual misconduct, however, DAOD 5019-1 does not clearly prohibit adverse personal relationships. It is the responsibility of the CO to impose restrictions on a personal relationship. If the relationship contravenes the local policy established by the CO, administrative and disciplinary measures may be imposed.176 Adverse relationships are usually prosecuted under s. 129 of the National Defence Act. 177 Even if the CO is not in a position to impose a disciplinary sanction, he or she can enforce administrative measures, for example by asking for the transfer of one of the individuals in the adverse relationship to another unit.
Despite the definitions set out in the policies, most interviewees who referred to the existence of personal relationships in the CAF mistakenly used the expression fraternization,178 illustrating the degree to which many members are confused about these concepts. Significantly, numerous
interviewees cited examples of personal relationships between members of different rank in which interviewees perceived a clear potential for abuse of power.179 Participants questioned whether such relationships were truly consensual180 and expressed concern about their negative impact on the morale of many members, and on the cohesion of the unit as a whole.181 In particular, interviewees referred to the training context as being a particularly fertile ground for dubious personal relationships, and described what was perceived to be a double standard for officers.182
None of these situations are expressly addressed in the policies. Indeed, when the concept of adverse personal relationship was raised with members involved in the implementation of the policies, many were quick to point out the difficulty of controlling such relationships.183 However, DAOD 5019-1 specifically states that leaders shall engage in “the protection of vulnerable CF members and others” by “[imposing] restrictions on personal relationships if required” and “[ensuring] that CF members and others in the care or protection of the CF are not subjected to coercion or exploitation”. Thus while adverse personal relationships may not always be easy to control, this is nevertheless one of the responsibilities of CAF leaders. The difficulty is that the policies, as currently framed, do not address the ways in which relationships between members of different rank may be inherently coercive or have a negative impact on member morale and the cohesion of a unit.
The ERA appreciates the need to respect the right of members to form personal relationships, as well as the privacy interests of members in their relationships. However, because of the deeply hierarchical nature of the organizational structure in the CAF, and because of the inherent risk for abuse of power, the CAF and should address such relationships at a policy level. With the participation of CASAH, the definition of adverse personal relationship should be clarified to address situations of power imbalance more explicitly, including by creating an administrative presumption that personal relationships between members of different rank are adverse personal relationships unless the relationship has been disclosed to the appropriate authority. The senior-ranking member involved in such relationship should be held responsible if the relationship is not properly disclosed.
The ERA further notes that there may be situations in which a relationship between members in different positions of authority amounts to sexual assault, where the imbalance of power is such that the lower-ranking member has not freely consented to engage in the sexual activity. These circumstances are discussed with respect to the concept of consent, below.
The meaning of the term sexual misconduct is particular to the CAF and distinct from its meaning in everyday use. DAOD 5019-5 defines sexual misconduct as 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 against the Criminal Code or Code of Service Discipline (CSD).
Acts that may constitute a sexual offence under the CSD include: behaviour in a scandalous manner unbecoming of an officer,184 abuse of a subordinate,185 and conduct to the prejudice of good order and discipline.186 Notably, conduct to the prejudice of good order and discipline is the provision under which more than half of all incidents are prosecuted in the military justice system,187 and is also the provision under which adverse personal relationships can be subject to discipline. Sexual misconduct in DAOD 5019-5 therefore includes a wide range of conduct, from consensual sexual activity that may be prosecuted under the CSD, to violent sexual assault as defined by the Criminal Code.
The use of the expression misconduct appears to be a source of confusion for members about what specific conduct is prohibited under this policy. The fact that the plain language meaning of sexual misconduct is much broader than the term as defined in DAOD 5019-5 is a particular source of confusion. This is for several reasons.
First, all forms of sexual harassment fall, in plain language, within the concept sexual misconduct, and would normally be understood to be included within this term. It is therefore confusing for members who have no legal training to distinguish what constitutes sexual harassment from sexual misconduct. This same problem exists with the French language version of the policies. For example, in the French version of DAOD 5019-5, inconduite sexuelle is used to refer to conduct of a sexual nature which would constitute an offence under the Criminal Code, or which is otherwise prohibited by the CSD. In plain language, however, inconduite sexuelle is a much broader term, which encompasses both sexual assault and sexual harassment.
Second, the confusion is compounded by the fact that some forms of sexual harassment are prohibited under the Criminal Code188 and are therefore covered by DAOD 5019-5, making it difficult to distinguish between sexual harassment and sexual misconduct under that policy. The
interpretation is further obscured by the fact that the plain language meaning of misconduct is used in sections 73 and 74 of the CSD.
Perhaps even more importantly, the interviews revealed that the notion of consent is not well understood by a number of members, COs or military police, which compounds the confusion about what constitutes sexual misconduct. In part, this is because there is no discussion of consent in the policies. The failure to address the concept of consent, and to give members clear guidance as to the necessity for consent and how to determine if consent exists, can be very serious. Despite the fact that the law is very clear that non-consensual sexual touching constitutes assault, there remains a perception that victims may have implicitly consented to or invited their own assault. Members suggested that in some circumstances a victim may have “blurred the line” as to whether or not he or she had consented to or caused the offensive activity, and that there may be “grey areas”.189 This aggravates the perception that victims will not be believed by those in a position of authority (for example, members of the chain of command, the military police, or physicians).
The patchwork of prohibitions under numerous CAF policies resembles the miscellany of laws related to sexual assault that existed in Canadian criminal law prior to the comprehensive reform of that section of the Criminal Code in 1983. 190 Following upon recommendations by the Law Reform Commission of Canada, Parliament streamlined the relevant provisions in order to create a more cohesive set of rules. Pursuant to these reforms, the expression assault and more specifically
sexual assault replaced other terminology and is now used to encompass all non-consensual intentional sexual touching. 191 The ERA is of the view that the CAF provisions on prohibited sexual misconduct should be similarly revised.
In particular, in the ERA’s view it is important to provide members with a much clearer understanding about the regulation of sexual conduct. This will be much more achievable if the terminology used to describe prohibited sexual conduct is consistent with expressions members are likely to understand, without having to look up definitions or go through extensive training. In the ERA’s view, therefore, the DAOD would be stronger and more effective if it utilized plain language terminology as much as possible, as well as terminology consistent with the Criminal Code. Thus, for example, intentional non-consensual touching of a sexual nature should be referred to as sexual assault, in order to be consistent with the Criminal Code. The term sexual misconduct should instead be used to encompass all prohibited sexual conduct, including fraternization, adverse personal relationships, sexual harassment, and sexual assault.
There appears to be significant confusion in relation to the concept of consent among members of the CAF. In order for sexual activity to be deemed consensual, what conditions have to exist? What must an individual do to determine if consent exists, and when can consent be implied? Does consent need to be obtained at each new level of the sexual interaction? Does the lack of a “no” constitute consent?
Institutions across Canada and the United States are engaged in active debate about how to combat deep-seated stereotypes about victims of rape, for example that a victim may have implied an invitation to sexual activity, or that she implied consent. These efforts are all varying responses to the recognition that consent is fundamental to healthy sexual interactions, that the concept of consent continues to be poorly understood, and that clear policies are required to make the shift to a positive consent culture.192 Many universities across North America have also adopted student codes of conduct that establish a rigorous standard of consent for sexual activity. California, for example, recently passed legislation mandating that colleges and universities adopt a student conduct policy requiring “affirmative, conscious, and voluntary agreement to engage in sexual activity,” as a condition for state funding.193 The bill defines consent to sexual activity as the presence of a “yes” rather than the absence of a no, although consent does not necessarily need to be verbally expressed.
In Canada, the concept of consent was clearly elucidated more than fifteen years ago in the Supreme Court of Canada’s seminal judgment, R. v. Ewanchuk.194 As the Court made clear, consent is determined by reference to the complainant’s internal state of mind with respect to the sexual touching at the time it occurred.195 There is no requirement on the complainant to verbally communicate her lack of consent to the aggressor; silence cannot be interpreted as consent. More specifically, the Supreme Court rejected the idea of implied consent; if a woman has not consented in her mind to the sexual activity, then it is not open to the accused to argue that she implicitly consented through her conduct. In other words, if the trier of fact finds that the complainant did not subjectively consent to the conduct in her own mind, then it does not matter
what her outward conduct may have been. It is, however, open to the accused to use the complainant’s outward conduct to argue that she actually was consenting in her mind, or that he genuinely had an “honest but mistaken belief” that the complainant had consented.196
Certain conditions are held to automatically vitiate consent, including submission to the sexual activity by reason of fear, or as a result of the exercise of authority.197
Under the standard articulated by Criminal Code and the Supreme Court of Canada, genuine consent may be communicated by word or conduct. However, where either party indicates by any means—verbal or not—that he or she is uncomfortable or reluctant to continue with the sexual activity, an obligation crystallizes on the other party to specifically obtain consent before proceeding any further. While the Court did not explicitly require that this consent be verbal, as a practical matter where there is doubt as to whether or not a party has consented to sexual activity, the only clear way to dispel such doubt will be to verbally seek consent.
In this regard, the ERA notes that there has been some public debate as to whether sexual activity in the absence of express or verbal consent constitutes sexual assault. For example, some universities have written into their student codes of conduct that individuals must obtain express verbal consent before engaging in sexual activity in order to remove any possibility of ambiguity or misunderstanding.198 In the ERA’s view, such a requirement is unrealistic and risks creating more harm than good. It is highly improbable that individuals will seek each other’s verbal and express consent before and during every stage of sexual activity. In many, if not most, consensual interactions, the individuals involved communicate to each other through non- verbal means their willingness to participate in the activity. To create a requirement for express or verbal consent, absent which the activity constitutes assault, risks criminalizing genuinely consensual interactions between autonomous adults. At the same time, such a requirement creates a standard that is hard to implement and therefore may fail to protect individuals against
truly coercive and abusive conduct.
In the ERA’s view, the standard set by the Supreme Court strikes an appropriate balance between recognizing the realities of human intimate relationships, and the need to establish clear consent on the part of all parties to participation in sexual activity. This is not to say that the clear, verbal communication of consent should not be encouraged. Obviously, the more clearly individuals can communicate with each other about their willingness to engage in sexual activity, the less likelihood there will be for misunderstanding or coercive conduct. However, the ERA is concerned that a rule which requires verbal consent in all circumstances is overbroad, unenforceable and therefore of limited utility. Instead, the concept of consent should be clearly stated to members in CAF policies, and explained through mandatory training.
Ultimately, the standard articulated by the Supreme Court shares the same purpose as the affirmative consent standard adopted by many university campuses. As the new California law defines affirmative consent:
- An affirmative consent standard in the determination of whether consent was given by both parties to sexual activity. “Affirmative consent” means affirmative, conscious, and voluntary agreement to engage in sexual activity. It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity. Lack of protest or resistance does not mean consent, nor does silence mean consent. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time. The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent.199
The purpose of the affirmative consent standard is to change the way institutions approach the definition of sexual assault. Instead of asking the victim of an assault: “Did you say no?”, a well- trained investigator should ask: “Did you consent?”
The influence of alcohol or drugs is particularly pernicious in the context of sexual assault. Alcohol and drugs have the power to take away a complainant’s ability to control his or her decision-making, while at the same time masking the sexual activity in the cloak of consent and making the complainant appear to be agreeable to the conduct. As the Quebec Court of Appeal noted in a decision that was ultimately affirmed by the Supreme Court:
An assault which is sexual in nature does not always appear hostile in the way an assault in the ordinary sense of the word does. In the case at bar, the hostility of the assault comes from the lack of consent, as G.B. was under the influence drugs which were taken involuntarily as a result of the actions of [the accused].
R. v. Daigle (1997), 127 C.C.C. (3d) 130 at 138 (Que. C.A.), affirmed  1 S.C.R.
With respect to the consumption of alcohol or drugs, this means that even if a complainant appears to be in agreement with the sexual activity, legally there is no consent if the complainant is so intoxicated that he or she lacked the minimal capacity required to consent or to withhold consent to the sexual activity.200 The question to be asked is whether the complainant was intoxicated “to the point where she could not understand the sexual nature of the act or realize that she could choose to decline to participate”.201
To be clear, Canadian courts have found that simply by consuming alcohol, a complainant does not necessarily become incapacitated and unable to consent to sexual activity. Impairment is not equivalent to incapacity; nor is alcohol-induced imprudent decision-making, memory loss, or loss of inhibition or self-control.202 The ERA notes that, in this respect, Canadian law differs from new codes of conduct being adopted by some American universities, some of which indicate that the mere consumption of alcohol may vitiate consent.203 Whether or not a complainant has reached the legal threshold of being incapable of consenting must be determined on the specific facts of a given case. Canadian courts have held that the absence of consent can be proven by circumstantial evidence, including the number of drinks or the kind of drugs consumed, the slurring of words, loss of physical control (i.e. stumbling, unable to control limbs), a subsequent black-out, the inability to concentrate or to engage in decision-making, reported feelings of drowsiness and of being disassociated from one’s body, and complete loss of inhibition.204
The ERA is of the view that, as with the concept of consent, it would be inappropriate to hold members of the CAF to a different standard than that which governs civilians under the Criminal Code. The same law with respect to whether a victim is incapacitated as a result of the consumption of alcohol or drugs therefore applies to members of the CAF.205 However, given the repeated references during the fact-finding investigation to (often excessive) alcohol consumption in relation to incidents of sexual assault, the CAF should carefully review its policies with respect to the provision and consumption of alcohol in CAF-related activities. In particular, the CAF should reconsider the emphasis on consumption of alcohol at compulsory or semi-compulsory events, which promotes the excessive consumption of alcohol and can lead to overly aggressive conduct in which some military members, particularly women, are vulnerable.
In the course of the Review, the ERA was made aware of changes to be made to policies with respect to sale and consumption of alcohol on CAF property. The ERA can only underscore the importance for the CAF to discourage the excessive consumption of alcohol.
Central to the question of whether an individual has genuinely consented to sexual activity is whether both parties have freely entered into the conduct. Where there is a power imbalance as between the parties involved, determining whether genuine consent existed at the relevant time is particularly complex. As the Ontario Court of Appeal commented in relation to a sexual harassment complaint by various employees against their supervisor:
- Because of the power imbalance in an employee's relationship with a supervisor, and the perceived consequences to objecting to a supervisor's behaviour, particularly when the behaviour is not directed specifically at that employee (for example, making comments to or touching another employee, being nude in front of a group of people), an employee may go along with the conduct. In those circumstances, the employee will be effectively consenting to unwelcome conduct because she feels constrained from objecting.206
This concern is particularly relevant to the context of the CAF where the chain of command, and the organizational structure that supports it, is the basis of most interactions. Power imbalances may also spring from differences in rank, which again affect almost all work and social interactions. The authority structure inherent to a military organization may therefore strongly affect a complainant’s sense of what options are realistically open to her and that when faced with a sexual advance or sexual touching by a senior-ranking officer. In the all-encompassing power structure of the CAF—where a senior-ranking officer may have control over not only a complainant’s employment, but also her career advancement, transfer, or deployment—a complainant may feel even greater pressure to go along with sexual conduct than an employee in a civilian employment context.
The focus on obedience and conformity within the chain of command, and the overall social and organizational hierarchy within the CAF, may therefore lead some junior (more likely female) members to feel that they have little choice to but to go along with the sexual advances of more senior (more likely male) members. Indeed, participants noted that senior officers, even COs, sometimes turn a “blind eye” on highly dubious relationships. 207 It is precisely to address circumstances like these that the Criminal Code provides that there is no consent where the accused abuses his or her position of power or authority over the complainant to engage in sexual activity.208 Whether or not an accused is in a position of authority or power over a complainant will generally be a question of fact to be determined on a case-by-case basis.
As noted, the ERA found that there was considerable confusion among participants resulting from the fact that the policies circumscribing prohibited sexual conduct are covered by a number of different documents. A single, coherent policy which addresses all of the different kinds of prohibited sexual conduct would more effectively describe the rules with respect to sexual conduct, and provide CAF members with better guidance. This would entail describing the rules with respect to fraternization, adverse personal relationships, sexual harassment, and sexual assault in the same instrument. However, since some CAF policies are common to the CAF, the DND and to other federal government departments, the CAF may not be in a position to readily adopt a single policy document covering all prohibited sexual conduct. Nevertheless, the CAF should develop a unified approach to address inappropriate sexual conduct, including by addressing as many aspects of prohibited sexual conduct as possible under a single policy document, so that there are clear linkages between the relevant definitions and procedures, and the information is easily accessible to members.
While all prohibited conduct need not be subject to the same processes for reporting, investigation, adjudication, or sanction, the processes applicable to each type of misconduct needs to be clear and coherent.
Not only would such a change bring greater clarity to the scope of prohibited conduct (and any potential areas of overlap), but it would highlight a critical, but often invisible, common factor underlying adverse personal relationships, sexual harassment, and sexual assault: that inappropriate sexual conduct is frequently motivated by power, rather than sexual attraction. Indeed, although the target of inappropriate sexual conduct is more frequently a woman, the fact that men are also at risk underscores the power dynamics at play.
Too often, this recognition of the underlying power dynamics is missing from discussions of different forms of prohibited sexual conduct, and particularly with respect to sexual harassment. Although there is ongoing debate as to the underlying causes of inappropriate sexual conduct,209 the element of power is an ever-present dimension. Yet, the abuse of power inherent in unwelcome sexual conduct has not, to date, been part of the narrow concept of sexual harassment or adverse personal relationships in the DAOD policies. This lacuna in the policies must be addressed in view of the potentially far-reaching psychological impact for the victim, and liability for the CAF.210 Indeed, the right to the integrity of the person protected under section 7 of the Charter includes protection against psychological harm as much as physical harm. Despite the issue of power being repeatedly raised, directly and indirectly, in the interviews, the ERA was not made aware of any ongoing policy discussion at the higher levels of the CAF about how to effectively address abuse of power and inappropriate sexual conduct.
Addressing all prohibited sexual conduct under the same policy would establish a clear connection between those types of unwelcome conduct and the underlying dynamics of power that often motivates them. This, in turn, would help to highlight the fact that neither sexual harassment nor sexual assault can be reduced to simply a workplace issue,211 and that sexual harassment and sexual assault are not simply a “women’s issue,” but an issue for the CAF as a whole.212
While policy change in and of itself will not reduce the prevalence of inappropriate sexual conduct in the CAF, it is a critical first step. CAF leaders need strong, well-crafted policies to be able to bring about cultural change, sanction prohibited conduct, and deter aggressors. Defining and addressing prohibited sexual conduct clearly in plain language is the foundation upon which the CAF will be able to act to reduce incidents of sexual assault and sexual harassment, and to improve the standards of professionalism within the organization. Since the ERA recommends assigning responsibilities related to the prevention of sexual assault and sexual harassment to CASAH, the center should also be involved in the development of the policies addressing those issues.
Recommendation No. 5
- With the participation of the center for accountability for sexual assault and harassment:
- 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.
- 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 command.
Recommendation No. 6
- With the participation of the center for accountability for sexual assault and harassment, develop a unified policy approach to address inappropriate sexual conduct and include as many aspects as possible of inappropriate sexual conduct in a single policy using plain language.
157 Focus groups: female lower rank, female NCOs; Coordinator interviews; Volunteer interviews
158 Focus groups: female lower rank, male lower rank; Coordinator interviews
159 Focus groups: mixed gender lower rank, NCOs; Coordinator interviews; Volunteer contribution
160 Focus group: male lower rank; female junior officers; Coordinator interviews
161 Coordinator interviews
162 To exemplify the dichotomy between the two concepts, it is interesting to consult the information provided to members in Military Administrative Law, Chap. 23-1 where they are instructed to distinguish between two types of conduct: “It is important to be able to distinguish between sexual misconduct, which has a disciplinary or criminal aspect to it, and sexual harassment which (although equally unacceptable),is dealt with through an administrative process.”
163 Depending on the policy instrument, the fourth type of prohibited conduct is listed as either racism or bullying.
164 The Ontario Human Rights Code, R.S.O. 1990, c. H.19 at 10(1) and the Ontario Occupational Health and Safety Act, R.S.O. 1990, c. O.1, at 1(1), use the expression “unwelcome” and do not require the conduct to be directed at a specific person; similarly, in New Brunswick, the expression “unwelcome” is used in the Human Rights Act, R.S.N.B. 2011, c. 171, at 10(1), as it is in the Nova Scotia Human Rights Act, R.S.N.S. 1989, c. 214, at 3; in the province of Quebec, the expression “unwanted” is used in An Act Respecting Labour Standards, RLRQ, c. N-1.1, at 81.18, whereas the Saskatchewan Employment Act,S.S. 2014, c. S-15.1, at 3-1(1) uses the expression “inappropriate”.
165 J. Bourgault, Le harcèlement psychologique au travail, Montreal: Wilson & Lafleur, 2006, at p. 40; A. P. Aggarwal and M. M. Gupta, Sexual Harassment in the Workplace, 3rd ed., Toronto and Vancouver: Butterworths, 2000, at p. 120
166 Janzen v. Platy Enterprises Ltd.  1 S.C.R. 1252
167 Harassment Advisor Reference Manual, p. 57
168 Focus group: mixed gender NCOs; Coordinator interviews
169 E Goffman, Asylums, New York, Anchor Books, 1961
170 For the United States: AR 600–20, 7-5 and 7-6, 18 March 2008; For UK, reference to the questionnaire provided by the British Armed Forces; see also the Netherlands Armed Forces, as per the information provided in the questionnaire, and Checklist for Campus Sexual Misconduct Policies proposed by the US Task Force to Protect Students from Sexual Assault, 2014;
171 Annex B to D(G) Pers 35-4
172 Millhaven Fibres Ltd. v. Oil, Chemical & Atomic Workers Int’l Union, Local 9-670,  O.L.A.A. No. 4 (Ont. Lab. Arb.)
173 Simpson v. Consumers’ Association of Canada et al, 57 O.R. (3d) 351 (Ont. C.A.) (application for leave to appeal to the SCC dismissed,  SCCA 83)
174 Focus groups: female lower rank, male lower rank, mixed gender junior officers; Coordinator interviews; Volunteer contributions
175 L. Gouliquer, Soldiering in the Canadian Forces: How and Why Gender Counts, Doctoral Thesis, McGill, Dept of Sociology, 2011, p. 282. Of note, they are found in the US policy AR 600–20, 7-5 and 7- 6 and in the Vancouver Police Department’s Respectful Workplace Policy, 4.1.11
176 DAOD 5019-1, Administrative Action
177 In R. v. Paul and Babin, 2014 CM 2013, the CO’s order with respect to what were the prohibited personal relationships was found to be impermissibly vague and the charge under s. 129 NDA dismissed.
178 Focus groups: female NCOs, male NCOs; Coordinator interviews; Volunteer contributions
179 Focus groups: female lower rank, female NCOs; Coordinator interviews
180 Focus groups: female lower rank (several), male lower rank, female NCOs; Coordinator interviews; Volunteer contribution
181 Coordinator interviews
182 Focus group: female NCOs; Coordinator interviews
183 Coordinator interviews
184 Section 92, NDA
185 Section 95, NDA
186 Section 129, NDA
187 Report of the Second Independent Review Authority to the Honourable Peter MacKay, Minister of National Defence, Patrick J. Lesage, p. 19
188 See: Sections 372(1), 372(2), 372(3) and 423 of the Criminal Code
189 Focus group: female lower rank; Coordinator interviews; Volunteer contributions
190 1983 (An Act to amend the Criminal Code in relation to sexual offences and other offences against the person and to amend certain other Acts in relation thereto or in consequence thereof, S.C. 1980-81-82-83, c. 125)
191 Sexual assault may be defined as touching without consent in circumstances of a sexual nature, such that the sexual integrity of the victim is violated. See: R. v. Bernier, 119 C.C.C. (3d) 467, (confirmed by R. v. Bernier,  1 S.C.R. 975), for the definition of assault, and R v. Chase 1987 2 SCR 293 for the definition of sexual assault.
192 In Ontario, for example, Premier Kathleen Wynne recently called for the provincial sex-education curriculum to be revised to include education about "healthy relationships and the topic of consent”: http://www.cbc.ca/news/canada/toronto/new-ontario-sex-ed-curriculum-will-include-consent-awareness- 1.2894623; February 2, 2015
193 Senate Bill No. 967, Ch. 748; An act to add Section 67386 to the Education Code, relating to student safety. Approved by Governor, September 28, 2014.
194 R. v. Ewanchuk,  1 S.C.R. 330
195 R. v. Ewanchuk,  1 S.C.R. 330 at paras. 26 and 29
196 R. v. Ewanchuk,  1 S.C.R. 330 at para. 42
197 Section 265.(3) of the Criminal Code
198 This is sometimes referred to as the “Antioch standard”, based on a set of standards set in 1991 by Antioch University in Ohio, which required verbal consent (excluding “moans”) for “each new level” of sexual activity.
199 Senate Bill No. 967, Ch. 748; An act to add Section 67386 to the Education Code, relating to student safety. Approved by Governor, September 28, 2014.
200 R. v. Jensen (1996), 106 C.C.C. (3d) 430 (Ont. C.A.)
201 R. v. G. (L.) (2007), 228 C.C.C. (3d) 194 (Ont. C.A.)
202 R. v. Jensen; R. v. J.M.W.,  O.J. No. 1295 (Ont. S.C.J.)
203 For example, the University of Notre Dame website states: “Agreement given while under the influence of alcohol or other drugs is not considered consent” and “if you have not consented to sexual intercourse, it is rape.”: http://oade.nd.edu/educate-yourself-alcohol/hookups/sexual-assault/ Accessed on February 11, 2015
204 R. v. R.(J.) (2006), 40 C.R. (6th) 97 (Ont. S.C.J.), affirmed 2008 ONCA 200, 59 C.R. (6th) 158; R. v. G.(L.) (2007), 228 C.C.C. (3d) 194
205 Sections 273.2 and 33.1(2) of the Criminal Code
206 Simpson v. Consumers’ Association of Canada, (2001) 57 O.R. (3d) 351 at para 64
207 Focus group: female lower rank; Volunteer contribution
208 Section 273.(2) of the Criminal Code provides:No consent is obtained, for the purposes of sections 271, 272 and 273, where (c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority;
209 L. M. Cortina and J. L. Bergdahl, Sexual Harassment in Organizations, A decade of Research in Review, in The Sage Handbook on Organizational Behaviour, Chap. 25, p. 474
210 K. S. Zippel, The Politics of Sexual Harassment, 2006, p. 25; Re liability see e.g.: Vancouver (City) v.Ward, 2010 SCC 27,  2 S.C.R. 28
211 K. Zippel, The Politics of Sexual Harassment, 2006, p. 36
212 Focus group: female lower rank; Coordinator interviews
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