External Review into Sexual Misconduct and Sexual Harassment in the Canadian Armed Forces - Processes and Procedures
Marie Deschamps, C.C. Ad.E.
External Review Authority
March 27, 2015
7. Processes and Procedures
Except where sexual harassment rises to the level of criminal conduct, sexual harassment and sexual assault are treated as distinct and unrelated conduct. In the ERA’s view, this strict dichotomy is misplaced and risks allowing some improper sexual conduct to go unpunished, particularly low-level sexual assaults. Moreover, the consultations raised a number of serious concerns with respect to whether the procedures currently in place are appropriate and effective.
The practices and procedures for receiving, investigating and adjudicating a complaint of sexual harassment are set out in a number of different policy documents within the CAF. As noted, DAOD 5012-0 regulates four different types of harassment: personal harassment, abuse of power, sexual harassment, and racism. While the DAOD establishes the broad parameters of the policy—including the delegation of authority to certain individuals to receive, investigate and adjudicate complaints of harassment—more detailed instructions are provided in the Harassment Prevention and Resolution Guidelines (Guidelines). These Guidelines are intended to provide procedural guidance in support of the Harassment Prevention and Resolution Policy.213 They are issued under the authority of the CDS and have the same compulsory force as the DAOD 5012-0.214 Both DAOD 5012-0 and the Guidelines flow “directly from and are consistent with the Treasury Board of Canada Secretariat Policy on the Prevention and Resolution of Harassment in the Workplace”.215
As set out in DAOD 5012-0 and in the Guidelines,216 COs and other more senior officers may be assigned the responsibility to adjudicate harassment complaints and, in such circumstances, are referred to as ROs. ROs have decision-making authority under the DAOD and the Guidelines. They receive specific instructions from the CDS to discharge their duties.217 Guidance is also provided to Harassment Advisors (HAs),218 whose role includes advising ROs with respect to processing a complaint of harassment. HAs are designated by COs and will generally be members of a unit who have either volunteered, or been requested, to serve in this role.
The Harassment Advisor Reference Manual identifies two broad approaches to resolving harassment complaints: (1) alternate dispute resolution (ADR), which is “encouraged”;219 and (2) administrative investigation. Generally speaking, complainants are strongly encouraged to pursue ADR (either through informal ADR techniques used by those in the chain in command, or with the assistance of a third party mediator) before laying a formal complaint and requesting an administrative investigation. In either case, the Harassment Advisor Manual establishes that one of the guiding principles for the RO is to attempt to resolve the problem at the lowest possible level utilizing ADR techniques:
- When harassment has occurred and/or a harassment complaint has been submitted, DND employees and CAF members are encouraged to resolve harassment issues at the most appropriate, lowest possible level, through alternative dispute resolution techniques.220
This focus on low-level resolution and ADR is also reiterated in the RO Guide.221
Given these procedural requirements, before a harassment complaint is fully resolved, a harassment victim may be required to go through three separate stages. The first stage (ADR)222 takes place after the victim reports the improper conduct but before a formal complaint is lodged, the second stage (the Administrative Investigation) 223 is initiated once a complaint is filed, and the third stage (a grievance)224 occurs if a party seeks to challenge the RO’s decision on the complaint.
With respect to the first stage, although it is not mandatory, the CAF strongly encourages its members to start by using so-called “self-help” techniques whereby the concerned individual should first speak directly to the instigator of the unwelcome conduct.225 If this is not possible, the victim can ask for supervisor intervention. If the immediate supervisor cannot help, or if the supervisor is a party to the incident, the victim may turn to a higher-level supervisor to seek his or her intervention. This approach is part of the CAF’s “open door” policy. 226 If recourse to the chain of command does not produce adequate results, or if it is not appropriate, the member may be offered formal ADR with the help of a third party mediator.227
If none of these techniques is successful or appropriate, the victim may lay a formal complaint, which leads to the second stage: an administrative investigation. This is generally initiated by a written complaint and triggers certain procedural obligations, such as that the complainant has the right to receive information about the complaint.228 A workplace relation advisor (WRA) can also be assigned to the complainant.229 The WRA provides information about the investigation process, but cannot provide advice on the merits of the complaint. For moral and additional administrative support, both the complainant and the respondent can also receive the help of an “Assistant”.230 As with Has and WRAs, Assistants are members who have volunteered, or who have been requested, to take on the role.
Once a written complaint is received, a situational assessment is conducted. The Guidelines foresee that the investigation process is seldom terminated at this stage, however:
- There may be exceptional circumstances where the RO is completely satisfied that he/she has all the facts. 231
In such rare circumstances, the RO will decide, based on the situational assessment, whether the criteria provided in DAOD 5012-0 are met or not.232 If he or she is not so satisfied, a harassment investigation will be conducted by a harassment investigator (HI).233 An HI is either a member who has been certified as an investigator through CAF training, or a civilian certified to conduct investigations. Also, if it is found that the facts warrant the continuation of the investigation process, the complainant will again be invited to use ADR.234 If it is determined that an HI must be appointed, terms of reference (TOR) circumscribing the mandate of the HI are drafted, and the file will be assigned to an HI.
After completing the investigation, the HI must first file a draft report, which does not contain any recommendations. The RO reviews the draft report for conformity with the TOR. Once the RO is satisfied that the draft report is consistent with the TOR, the RO forwards it both to the complainant and to the respondent. 235 The RO must ensure that procedural fairness is respected.236 The RO is then in a position to make a decision as to whether or not administrative action will be taken, and of what kind. In the case of a harassment complaint that is found to be substantiated, the RO can impose remedial measures, which range from counselling to a written warning on the perpetrator’s record or, in the most severe cases, counselling and probation and release from the CAF.237
The Guidelines provide that if either party is not satisfied with the decision of the RO, he or she can grieve the decision. 238 Although the grievance process is not used exclusively for harassment complaints, for a harassment complainant, it is the third and final stage. The grievance is submitted to an Initial Authority, who is usually the CO of the complainant. Upon receipt of the grievance, the CO must first determine if he or she is in a position to offer redress. If the CO has this authority and has no conflict of interest, he or she will make the initial decision on the grievance. If he or she is not in a position to adjudicate, the grievance will be forwarded to an officer who has the appropriate authority. Principles of procedural fairness must be followed, including disclosure to the respondent.239 If the grievor or the respondent remains unsatisfied with the decision of the Initial Authority, he or she can ask the Final Authority—the CDS—to review the grievance decision.240 The CDS may ask the Military Grievance External Review Committee (MGERC) to review the matter and present recommendations.241 The MGERC is an independent body, and it does not have authority to issue a final and binding decision, but only to make recommendations to the CDS.
In addition to the multiplicity of policy documents that apply across the CAF, more explicit or specific orders may also be issued by the COs of the Naval, Land and Air Forces, which apply to the members in the unit. Within each formation or unit, additional orders may be made which may reiterate, or in some cases expand upon, the words of the policy. As a consequence, just as a subordinate member must obey the order of his or her superior unless it is manifestly illegal, 242 in practice members must abide by the lowest level instrument, the CO’s standing orders, which he or she is asked to recognize in writing upon joining the unit. For example, unless it is illegal, a seaman must follow the standing orders issued by the vessel’s CO, without questioning whether these are consistent with the upper level policy statements in the DAOD or Guidelines.
The ERA notes that this normative order is significantly different than in the civilian world. In civilian law, there is a clear hierarchy of law, which is vertical and works top down. The most fundamental law, the Constitution, takes precedence over statutes, which take precedence over regulations, which take precedence over policies. Every citizen may question the authority of a government policy, regulation or law if it appears to be contrary to the Constitution. In the military, by contrast, a number of different policy instruments all have the same—horizontal— normative force. This can result in the inconsistent interpretation and application of CAF policies and, in practice, may lead to practices that do not conform to the policies.
Given this difference in the operation of rules, it is all the more important that CAF leadership is appropriately trained in the content and importance of policies on inappropriate sexual conduct, in order to ensure a more consistent implementation of the policies across the organization.
Not surprisingly, given the number of different stages involved in a harassment complaint and the number of steps within each stage, interviewees described the harassment complaint process as confusing and overly complex. 243 In addition, participants raised a number of concerns which highlighted substantive problems with the processes in place to investigate sexual harassment.
The ERA heard numerous serious criticisms about the CAF’s policy of attempting to resolve sexual harassment complaints at the lowest level. The purpose of this policy appears to be to allow for the resolution of minor disputes without unnecessarily escalating a complaint, which can be damaging both for the respondent and for the complainant. While this goal is laudable, the ERA found that in fact the policy acted as a major disincentive for complainants to come forward or pursue a complaint. In particular, the policy fails to recognize the anxiety many complainants may feel about having to face their aggressor, and the fact that the imbalance of power that may have given rise to inappropriate sexual conduct may still be at play in the context of “low-level resolution” or mediation.244 For example, while several resolute female interviewees said that they had been able to speak up about sexually harassing conduct and to confront the perpetrator,245 many more interviewees indicated that ADR techniques were not appropriate for sexual harassment cases because victims were not comfortable taking a confrontational position, particularly when the harasser was of a higher rank.246
Further, the vast majority of interviewees who did take the step of discussing their complaint with supervisors reported that the complaint was not taken seriously.247 Responses from supervisors ranged from warning the complainant about the negative consequences to their careers if they continued with the complaint,248 to openly disbelieving the victim.249 Regardless of the basis upon which the supervisor discouraged the complainant from pursuing a complaint, it is clear that the policy of “lowest-level resolution” is a major impediment to the resolution of sexual harassment complaints and to a change in the overall culture of the CAF.
Furthermore, the ERA heard that the process of attempting to resolve complaints at the lowest level tends to undermine confidentiality—a key concern for most complainants. Lowest-level resolution requires sharing the information with the supervisor, or potentially escalating the complaint through numerous individuals up to the RO. Further, witnesses may need to be interviewed if an investigation is launched. All of which will result in a serious loss of confidentiality as a number of members will necessarily learn both about the details of the incident, and the fact that the victim has made a complaint.250 As a result, interviewees indicated that they preferred not to report out of fear that their reputations would be damaged, and the stigma that would likely attach.251 Many victims were also concerned about being labelled as someone who would complain about a teammate,252 which could result in becoming socially ostracized. 253 Interviewees further reported that harassment incidents are “swept under the carpet” by those higher up in the chain of command.254 The easy answer from supervisors when learning of a complaint seems to be to just “get over it”.255
Ultimately, the ERA found that, despite the good intentions behind the policy, the pressure to settle a complaint at the lowest level functions to stifle complaints at an early stage and to intimidate complainants so that they will not pursue legitimate concerns. As a result, actual or perceived roadblocks prevent victims from obtaining satisfactory resolution where sexual harassment has occurred, and feeds distrust in the system.256
Furthermore, the policy of resolving complaints at the lowest level is inconsistent with the CAF’s zero tolerance policy. This policy is embodied in DAOD 5012-0:
- Harassment in any form constitutes unacceptable conduct and will not be tolerated.
Because the practical effect of the low-level resolution policy is that complainants are strongly discouraged from pursuing their complaints and incidents of sexual harassment are swept under the carpet, this directly undermines the credibility of the CAF’s zero tolerance policy. Most participants viewed the zero tolerance policy as purely rhetorical, with little connection to the reality on the ground.257
At the same time that many interviewees reported facing difficulties resolving complaints at the lowest level, the ERA found that attempts to escalate complaints to a higher level were also largely unsuccessful. Although several COs advised the ERA that the CAF has an open door policy, many interviewees described this as an unrealistic option. Too many NCOs are seen as part of the boys’ club258 and concerned more with protecting the reputation of their unit than supporting a victim.259 Interviewees further reported that, groomed by NCOs, junior officers often turn a blind eye to inappropriate sexual conduct.260 Moreover, not only is it seriously frowned upon to skip a level in the chain of command,261 but there also appears to be only a small number of exceptionally open COs who would be prepared to act on a complaint of sexual harassment in a meaningful way when a complainant skips one or more levels of the chain of command.262
As a result, the practical reality is that when a member attempts to meet with a CO about a sexual harassment complaint, the “open door” is in fact guarded by a number of persons who insist on knowing why the CO is being approached.263 In such circumstances, the possibility of filing a formal complaint with an HA is not a realistic option, nor is the purported right of the complainant to convey his or her concerns directly to the CO or to someone at a higher level.264 Again, this creates serious impediments to reporting and to the effective investigation and resolution of complaints. It only takes one person in the chain of command to make a complaint disappear. Indeed, an individual who can make a complaint disappear is generally seen as a problem-solver and as appropriately protecting his superior.265
The heavy reliance on ADR techniques in the complaint procedures also raises concerns. The RO Guide suggests that ROs should consider ADR at two different points. First, ROs should consider utilizing ADR techniques early in the complaint process, before the administrative investigation is formally set in motion. Second, if this early attempt at resolution is unsuccessful and a formal complaint is filed, ADR should be utilized after the harassment investigation is concluded. 266 While, theoretically, alternative dispute resolution has certain advantages, a number of critics have suggested that this approach is generally not appropriate when addressing incidents of sexual harassment. 267 As one researcher notes, “(p)lacing the responsibility to confront the harasser on the person being harassed does not work well within the rigid power relations and hierarchy of the military.”268 Moreover, as a participant commented, the CAF’s ADR service is designed to help restore harmony to the workplace, not to address the broad cultural aspects of inappropriate sexual conduct.269 This comment was substantiated by many comments the ERA heard from participants in the Review. Indeed, it is not insignificant that although almost 15 years have passed since the adoption of the DAOD 5012-0, the ERA was not provided with any examples in which ADR techniques had been successfully used for sexual harassment cases.
Nonetheless, even if ADR techniques are generally inappropriate in addressing sexual harassment complaints, there may be a limited number of circumstances in which a complainant prefers to address the complaint with the help of a third party mediator. The essence of ADR is to offer an empowering approach to conflict resolution.270 In the context of sexual harassment, this principle is key because of the importance to victims of being able to exercise a degree of autonomy in the complaint process. For this reason, victims need to retain some control over the process and should, without pressure to settle, be offered ADR only as one possible course of action.
Even where sexual harassment complaints were ultimately held to be well-founded and remedial measures were imposed, the sanctions were often perceived by interviewees as a “slap on the wrist”271 and meaningless—for example being required to complete an on-line training course— and inconsistent.272 At the same time, as previously discussed, complainants may experience a number of negative repercussions as the result of pursuing a complaint, including impediments to career progression, stigma, and becoming socially ostracized. The dichotomy of outcomes for the victim and the harasser reinforces the view of many members, discussed above, that the CAF does not take sexual harassment complaints seriously.
The ERA also heard frequently from interviewees that an unintended consequence of the posting system is that harassment complaints are not dealt with in a timely fashion by the departing CO, and are left for the incoming CO to deal with when he or she is new to a unit, and least capable of effectively resolving the matter.273 The fact that the cost of the harassment investigation is borne by the unit also appears to be a disincentive to ordering an investigation.274
Overall, the ERA found that the complexity of policies and procedures related to sexual harassment diminishes the relative value of each one.275 In addition, the policies are, at times, inconsistent and inefficient. Reporting is not encouraged and the higher leadership is protected from information about what is occurring on the ground.276 In fact, the CDS’s instructions to COs indicate that ROs are unlikely to even hear about a harassment incident unless and until a written complaint is filed.277 Ultimately, many of those who used the formal complaint process were left scarred. One interviewee described the experience as “atrocious”,278 and a number stated that they would not do it again.279
Finally, the ERA found that data with respect to harassment complaints, investigations, and outcomes are not recorded in a systematic way. Although several members indicated that it would be possible to simply enter data with respect to sexual harassment complaints in logs already in use, this is not currently taking place. The Harassment Complaint Tracking System appears unreliable for many reasons, including the lack of clear instructions as to how and when to file reports, confusion over coding systems, and the absence of any sanction where members simply fail to use the tracking system.280 The Significant Incident Report (SIR) system appears to be more widely used but, as its name indicates, only tracks the most serious incidents. 281 Further, the ERA was warned about the unreliability of the Canadian Forces Health Information System (CFHIS).282
The end result is a general absence of any means of assessing the frequency of reported incidents or how these incidents were dealt with—including whether investigations were carried out, the length of time between when a complaint was lodged and any resolution achieved, and the nature of the ultimate sanction, if any. This makes it impossible for the CAF to measure the overall accountability of the chain of command in responding to harassment complaints.283 This lack of accountability allows those in command to minimize or ignore complaints if they choose, and those who breach the policies on sexual harassment to do so with impunity.
Overall, the ERA found that the harassment complaint process is overly complex, emphasizes informal resolution to the detriment of victims, and impedes the CAF from fully confronting and resolving incidents of sexual harassment. As such, three important steps should be taken to improve the harassment complaint process.
First, as previously discussed, complainants should be able to report complaints of sexual harassment to CASAH, acting as an independent authority outside of the CAF, and should have control over whether the complaint triggers a formal complaint process, including a possible investigation. If a victim chooses not to initiate an investigation, he or she should still have access to support and advice. If the complainant decides to commence a formal complaint process, the complaint would trigger the administrative investigation process.
Second, the process should be simplified and streamlined. Formal complaints should be channelled directly to a grievance procedure before a CO acting as an adjudicator, rather than emphasizing the use of self-help techniques, or requiring the complaint to pass through numerous members in the chain of command and then through the formal investigation process. This would have the advantage of making sure that incidents of sexual harassment come to the attention of the CO as quickly as possible. The grievor and the respondent would both be offered assistance to advise and support them with respect to the grievance procedures. Similar to the current practice for harassment complaints, the CO could have the option of requesting an HI to conduct a more in-depth investigation. Both parties would also have the right to submit a written statement to the CO. The respondent would be entitled to procedural fairness, including disclosure of the relevant information.
Third, the policy should significantly reduce the emphasis on ADR and low-level resolution of complaints. Requiring the victim to confront his or her harasser, particularly where there is an imbalance of power, will be inappropriate in most instances. While the CO should give the grievor the option of utilizing the most appropriate ADR mechanism, it should be made clear to her that this is only one option, and is entirely voluntary.
The proposed model allows the member to have access to a simplified process—one that is reduced from three stages to just one. In addition, under this model, the CO retains better control of his or her unit and is able to intervene at a much earlier stage.
Recommendation No. 7
Simplify the harassment process by:
- Directing formal complaints to COs acting as adjudicators in a grievance.
- Reducing emphasis on ADR.
As a preliminary matter, the ERA notes that, as part of its mandate, it has been requested to consider and make recommendations concerning the following:
- “the adequacy of the definition of sexual misconduct as provided for in DAOD 5019-5;
- the adequacy of CAF policies, procedures and programs relating to sexual misconduct;
- the training of CAF members in relation to sexual misconduct;
- the resources dedicated to the implementation of the policies, procedures and programs in relation to sexual misconduct;
- the extent to which CAF members report alleged incidents of sexual misconduct or any reasons why reporting may not occur, including the role of military culture and the chain of command; and
- any other matter that the ERA considers relevant in assisting the CAF to strengthen the prevention of incidents of sexual misconduct.”284
As discussed above, sexual assault is included within the definition of misconduct.
Consistent with this mandate, throughout its six-month fact-finding process the ERA conducted interviews with members and civilian employees responsible for the implementation of the CAF policies on sexual misconduct, including members of the JAG office, the CFNIS branch of the military police, the regular military police service, and the military prosecution service. In addition, the CAF shared with the ERA relevant policies, protocols and other documents related to sexual misconduct. With the efficient support of the DMP, representatives of the JAG, and CAF bases and DND coordinators, as much information as possible was gathered in order for the ERA to fulfill the terms of the mandate.
This said, the ERA’s mandate contains an express limitation which requires some comment. The mandate states that the ERA shall not review “any matter related to the Judge Advocate General (JAG) in respect of his or her superintendence of the administration of military justice in the Canadian Forces”. A question arises as to what is captured by the JAG’s “superintendence of the administration of military justice” and therefore falls outside of the scope of this Review. Two interpretations may be offered.
Under a broad interpretation of the limitation, merely discussing sexual misconduct, the investigation of which falls under both military and civilian jurisdiction, would be excluded by this limitation. The consequence would be that most of the references to “sexual misconduct” in the mandate would be moot. Such a broad interpretation of the limitation would therefore result in the exclusion of a large and explicit part of the mandate. Not only is such an interpretation at odds with a plain language reading of the mandate, but it also contradicts the way in which the CAF itself interpreted the mandate during the course of the Review. In fact, most of the interviewees involved in the implementation of the policies, procedures and programs on sexual misconduct would not have been made available to the ERA if their role was not relevant to the gist of its mandate.
A narrower interpretation of the limitation is more respectful of the text of the mandate, the respective responsibilities of the JAG and of the Provost Marshal, and the way in which the CAF interpreted the mandate in the course of the Review.
The JAG is a commissioned officer appointed by the Governor in Council to superintend the administration of military justice.285 To ensure the independence of the military justice system, the JAG reports to the Minister of Defence and not to the CAF. Among the JAG’s responsibilities relevant to this Review in relation to the administration of military justice, the JAG is responsible for court martial and summary trials. The effect of the limitation in the ERA’s mandate is therefore to exclude from review the JAG’s oversight of court martial proceedings and summary trial.
By contrast, responsibility for the military police rests with the Canadian Forces Provost Marshal, who serves as the Commander of the Canadian Forces Military Police Group.286 Whereas the JAG is independent of the CAF, the Provost Marshal reports to the Vice-Chief of Defense Staff.
As such, the ERA’s mandate encompasses a review of the conduct of the military police, including the CFNIS, vis a vis incidents of sexual misconduct. This includes the policies and procedures by which the military police receive complaints of sexual misconduct, communicate with and provide support to victims, and exercise their discretion as to which organization—the MP, the CFNIS, or civilian police—should or will investigate such allegations.
Given that the CDS did in fact direct that the policies, procedures and programs related to sexual misconduct are to be the subject of meaningful review, the narrower interpretation of the limitation must be favoured. As such, the ERA makes no comment with respect to court martials or summary trials. However, the ERA’s mandate clearly encompasses a review of the policies, procedures and programs that have been adopted by the CAF with respect to the investigation of, and laying of charges for, sexual misconduct by the military police.
Until recently, complaints related to CAF members that involved sexual assaults, and which occurred in Canada, were normally investigated by civilian police, and all charges for such allegations were prosecuted before the civilian courts. This changed in 1998,287 however, when Parliament amended the National Defence Act to also allow the military justice system to handle charges of sexual assault. Under the shared jurisdiction, approximately half of the cases288 investigated by CFNIS are referred to the civilian justice system for a number of reasons, such as they involve cadets who are not subject to the CSD, civilian victims, or incidents of family violence, etc.289 As a consequence, even if, as a matter of military police policy, the military justice system takes priority over the civilian system,290 the sharing of jurisdiction is a reality.
Military Police (MP) operate on CAF property and “outside Canada during contingency and expeditionary” circumstances.291 When the MP is informed of an incident involving a sexual assault292 they notify the Canadian Forces National Investigation Service (CFNIS),293 which has jurisdiction over all sexual assaults.294 The CFNIS consists of members of the MP who are organized as an independent unit; it has jurisdiction over serious and sensitive offences, including sexual assault.295 When CFNIS receives a report of a sexual assault, it determines whether it will exercise its investigative mandate, or whether it will refer jurisdiction back to the reporting MP unit.296 In practice, the CFNIS generally turns sexual assault incidents over to the MP where no penetration has occurred.297
If the CFNIS determines that it will turn jurisdiction over to the local MP, the MP can exercise their discretion as to whether or not the case will be pursued,298 following the same procedures as exist for other types of charges. Notably, in determining whether or not charges should proceed, the MP consult with the chain of command.299 By contrast, if CFNIS has carriage over the matter, it may lay charges without having to consult the chain of command.300
According to comments made by Brigadier-General Pitzul several years after the CAF assumed jurisdiction over sexual assaults, the justification for allowing the military to deal with sexual assault is that such offences can have a detrimental impact on cohesion within a unit, and therefore should be treated in a similar manner to other offences that may have the same effect.301 Gen. Pitzul’s comment is consistent with the purpose of creating a separate system of military justice, as described by Justice Lamer in R. v Généreux:
The purpose of a separate system of military tribunals is to allow the Armed Forces to deal with matters that pertain directly to the discipline, efficiency and morale of the military. ... [T]he military must be in a position to enforce internal discipline effectively and efficiently. Breaches of military discipline must be dealt with speedily and, frequently, punished more severely than would be the case if a civilian engaged in such conduct.302
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.303 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 victim.304
Many participants complained about problems in the reporting and investigation process. Criticisms by contributors and interviewees touched on many aspects of the process, starting with failure to call the military police in a timely way when a report of sexual assault was made,305 to not having been offered immediate medical support,306 being made to feel, even before providing a statement, at fault for what had occurred,307 the case held in abeyance because of confusion over jurisdiction,308 failure to follow up with key witnesses,309 and poor training with respect to investigating incidents of sexual assault. 310 Participants criticized delays in the investigation process311 and having to repeatedly provide statements, which required them to relive the events each time.312 The ERA heard many examples of failings in the investigation of sexual assaults,313 including concerns about the contamination of evidence,314 and a frequent perception that the MP lack in their understanding of the legal concept of consent.315 One interviewee, referring to procedural problems in the investigation which could potentially be relied upon to undermine a prosecution and secure an acquittal, commented: “Defence attorneys love [CFNIS investigations] because there are always issues”.316 Such problems have resulted in a serious lack of trust in the ability of the MP to properly handle reports of sexual assault.
These problems are particularly unfortunate, given that MPs are specifically warned about the consequences of sexual assault on victims. For example, MP orders state that:
- Sexual assault is one of the most traumatic types of criminal victimization.317 Further:
- Sexual assault is an act of aggression using power and control to dominate and violate an individual. It is not an act of intimacy.318
The applicable policies therefore make clear that, in the context of the military life, sexual assault requires heightened attention, particularly when the aggressor is a member of the CAF “family”. As the Sexual Assault MP protocol states:
- Sexual assault frequently includes a violation of trust by those who are in a position of perceived or real power or authority.319
If the sentiments behind these statements were put into action and the relevant policies were fully implemented, many of the misgivings of the contributors would be resolved. Indeed, the ERA finds that the problem lies not in the policies themselves, but with inadequate training, poor implementation, and members’ lack of faith in the ability or interest of the military justice system to respond appropriately to instances of sexual assault. While the ERA met with a number of dedicated and knowledgeable members of the MP, it also found that others were confused about the process,320 insensitive to the problem of sexual assault,321 lacking training on the basic elements of the offence,322 and unaware of the available resources.323 One of the problems appears to be that, although policies and protocols are in place, the number of incidents the military system handles is far fewer than those in the civilian justice system.324 The various parties in the system are therefore caught in a deteriorating cycle: the way victims feel about their treatment by the military justice system feeds underreporting, and underreporting leaves the military police unable to develop and maintain appropriate skills to manage these sensitive and important cases.
The ERA is further concerned that less serious incidents of sexual assault are given inadequate attention and consideration. Participants in the Review commented that when victims have reported less severe assaults, including unwelcome touching of breasts, buttocks, etc., they have been told by MPs that these incidents would not be prosecuted in the civilian justice system.325 The clear message is that the matter is not serious enough to be pursued. Whether or not such comments about the likelihood of prosecution before a civilian court are accurate, members of the CAF deserve fuller protection by the military justice system. Unless the incident reported is an isolated and benign one where the principle of proportionality dictates restraint, sexual assaults, even those that leave no physical injury, must be taken seriously. If criminal sanctions are inappropriate, the chain of command can resort to administrative or disciplinary action to send a clear signal that the dignity of all members will be protected. Only strong sanctions, through military justice, disciplinary and administrative action, will deter further assaults. Both individual and general deterrence are important.
The ERA further notes that while not all assaults are of the same gravity, different victims will react differently to an assault, depending on their own particular experiences and psychological make-up. While an incident of unwelcome touching may leave no psychological impact on one person, this same conduct may cause serious psychological injury to another. The thin skull principle326 in Canadian law makes clear that an aggressor does not get to choose his victim; regardless of how severe an assault, the conduct constitutes an offence under the Criminal Code. Discounting incidents of sexual assault where there has been no physical injury is inconsistent with Canadian law, which views psychological harm as seriously as physical harm.327
Overall, the ERA found that the difficulties met by victims of sexual assault have a damaging effect not only on the individual victims—who do not achieve resolution to serious and traumatic incidents—but on the CAF as a whole. When incidents of sexual assault go unresolved, this negatively impacts the CAF both because individual members have been harmed, and because it perpetuates the perception that the CAF does not take such incidents seriously.
As with sexual harassment, there is very poor collection of data regarding incidents of sexual assault in the CAF. Since sexual assaults go widely unreported, the data does not in any way reflect the actual rate of occurrence. Even where complaints are laid, the fact of a sexual assault more pervasive and permanent in its effect than any physical harm. I can see no principle of interpretation nor any policy reason for excluding psychological harm from the scope of s. 264.1(1)(a) of the Code.”
will often be buried in the court record.328 For example, if the accused pleads guilty to an alcohol- related charge, or to conduct to the prejudice of good order and discipline, only a careful review of the sentence will, in some cases, indicate that the conduct or underlying issue involved acts of a sexual nature.
Tracking the occurrence and outcome of incidents of sexual assault is essential to determine if the CAF’s policies are functioning to improve the conduct of its members, both on an individual and systemic basis. Yet in the case of sexual assault in the CAF, the relevant data is missing. While it is true that data on sexual assault is difficult to gather, the CAF needs to understand how incidents are impacting its members, and victims are entitled to make an informed decision about whether or not to disclose a complaint. The ERA heard from participants that a number of data banks are in place in the CAF that could be used to improve data collection. 329 For example, if appropriate coding systems were in place, the CFHIS, which is currently used to report injuries, could be refined to also reflect the causes of the injuries—including sexual assaults. Unfortunately, this is not taking place and the failure to keep data on complaints of sexual assault significantly weakens the accountability of the chain of command and impedes the CAF’s ability to prevent future sexual assaults from occurring.
In the Canadian civilian justice system, sexual assaults rank among the most serious offences and are frequently dealt with through specialized procedures by prosecutorial and court authorities. While the ERA has not conducted Canada-wide research on local procedures for sexual assaults, it is aware that in a number of judicial districts, investigation, prosecution and adjudication is reserved to specialized sexual assault teams, which benefit from additional resources that enable improved support for victims. Such a specialized infrastructure can be put in place, in part, because there is a large volume of cases that come before civilian police and courts. It would be difficult for the CAF to undertake similar support for the benefit of its members. For this reason, there is a perception among some members that there is more expertise in the civilian justice system, if only because of the volume of cases.330 Of course, access to these specialized resources does not mean that in every case victims will fare better, or that they will be able to exert increased autonomy or control over their complaint. However, the perception gives cause to seriously consider offering victims the option of referring their case to the civilian justice system. Further, as previously discussed, there is a strong perception among members that the progress of an investigation may be influenced by the views of those in the chain of command, potentially undermining the integrity and objectivity of an investigation.
Since both civilian and military justice system have jurisdiction over sexual assault, nothing prevents the CAF from adopting a policy or agreeing on the modalities of the shared jurisdiction.
This would allow for a more extensive reliance on the civilian resources already relied upon, such as crisis centers, hospitals, etc.
As mentioned previously, CFNIS already refers to the civilian justice system approximately half of all sexual assault incidents they investigate. Referring cases before the investigation would not make the CAF stand apart. Other military organizations already resort to the civilian justice system for all or most of cases of sexual assault. In Australia, for example, most allegations of sexual offences are referred to the civilian police.331 A memorandum of understanding between the Director of Public Prosecution and the Australian Director of Military Prosecution provides that where the conduct may be characterized both as a criminal offence and as a breach of the service discipline, the consent of the DPP is required to treat the matter under the military justice system.332 Of interest, the MOU makes clear that in determining if consent will be granted, the views of the victim are to be considered. The MOU gives sexual assault as an example of a charge where the public interest may be best served by prosecution of the alleged offender in a civilian criminal court. In France, the process of abolishing military tribunals, initiated in 1953, culminated in 2011 and a specialized chamber within the civilian court system now exists to handle sexual assaults relating to military personnel. In sum, each country has developed its own response as to how best to investigate, prosecute and adjudicate sexual assaults. While several jurisdictions are resorting increasingly to civilian authorities, each country’s practice is guided by its local environment and restrictions.
The ERA recognizes that, in Canada, one of the challenges the CAF faces is the wide diversity of resources available within civilian society, given that some CAF members work in more remote areas of the country and may not have access to the same resources as in the big urban centers. The ERA cannot, therefore, simply recommend that the CAF divest itself of all responsibility for cases of sexual assault, given that not all civilian authorities will themselves have more appropriate resources to tackle such problems than the military. The CAF operates training facilities, offers services for victim support, and has developed a full range of services in its military justice system, complete with disciplinary and administrative measures. The CAF therefore has the human and physical resources which, when properly marshalled, could benefit victims of sexual assault.
Unfortunately, however, as this Report has detailed, these services are generally not currently performing to an appropriate level and do not adequately address the needs of victims.
The ERA is of the view that, outside of deployment, a victim of sexual assault should be able to request to have her complaint transferred to the civilian justice system. In deciding whether or not to request the transfer of jurisdiction, the victim should receive support from CASAH through the help of an advocate. The advocate can advise the victim about different avenues and resources available. In the event the CAF resolves not to follow the victim’s request, information should be provided to the victim explaining the reasons.
Allowing members of CAF to express their preference to resort to the civilian justice system gives victims a voice in the process and serves as a first step in re-establishing trust. Consultation with the victim should be a formal part of the transfer protocol. Over time, it may be that the better the relationship of trust between the CAF and its members, the more likely that victims will opt for the military justice system. Establishing a memorandum of understanding with local civilian authorities in order to be able to ease the transfer of sexual assault cases should be seen as recognition of the heightened attention required by such cases.
In any event, 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, etc.). The ERA was informed that the MP maintains a shadow file for all incidents involving CAF members that are processed by civilian authorities.333 The CAF is therefore in a position to impose administrative measures on a perpetrator. The imposition of administrative sanctions is important in demonstrating to members the seriousness with which the CAF takes such matters, and to deter future offences.
Administrative sanctions are also particularly important in the case of incidents of low-level assault, where the conduct was unwelcome but criminal charges are unlikely to result. While these may be less severe offences, they should nevertheless be addressed through meaningful administrative sanctions, which clearly indicate that such conduct is unacceptable in the armed forces.
To achieve consistency in administrative measures, the CAF should establish guidelines to help guide COs. Factors to be taken into account in determining the appropriate sanction should include not only the personal circumstances of the offender and the nature of the incident, but the organization’s over-arching goal of creating a more inclusive organizational culture that is less hostile to women and LGBTQ members. The guidelines should also include concrete examples to aid COs to understand when a sanction is not only appropriate, but required. It will also be important in addressing instances of “low-level” assault which, while not particularly egregious, nevertheless contribute to a disrespectful, unprofessional and sexualized culture.
Recommendation No. 8
- Allow victims of sexual assault to request, with the support of the center for accountability for sexual assault and harassment, transfer of the complaint to civilian authorities; provide information explaining the reasons when transfer is not effected.
213 Harassment Prevention and Resolution Guidelines, p. 1-1
214 Section 18.2, NDA
215 Harassment Prevention and Resolution Guidelines, p. 1-1
216 Harassment Prevention and Resolution Guidelines, p. 3-1
217 Responsible Officer Guide to Harassment Prevention and Resolution Policy
218 Harassment Advisor Reference Manual
219 Harassment Advisor Reference Manual, p. 5
220 department-of-national-defence-and-canadian-armed-forces-harassment-prevention-and-resolution-policy- armed-forces-harassment-prevention-and-resolution-policy/hnmx1d4u; see also Harassment Advisor Reference Manual, pp. 13 and 62
221 Responsible Officer Guide to Harassment Prevention and Resolution Policy, p. 19
222 Guidelines, Part 5, Complaint Resolution – Alternate Dispute Resolution (ADR), p. 5-1
223 Guidelines, Part 6, Complaint Resolution – Administrative Investigation, p. 6-1
224 Guidelines, Sub-section 6.7 Grieving the decision
225 Guidelines, Sub-section 5.2 Self-Help
226 Guidelines, Sub-section 5.3 Supervisor Intervention
227 Guidelines, Sub-section 5.4 Mediation
228 Guidelines, Sub-section 3.1.2 h.
229 Guidelines, Sub-section 3.1.2 and 3.8 and Harassment Advisor Reference Manual, p. 28-29
230 Guidelines, Sub-section 3.5
231 Guidelines, Sub-section 6.1
232 Guidelines, Sub-section 4.3
233 Guidelines, Sub-section 6.2
234 CDS Responsible Officer Guide to Harassment Prevention and Resolution Policy, p. 19
235 Guidelines, Sub-section 6.4.2
236 Guidelines, Sub-section 4.4
237 Military Administrative Law Manual, 14-3
238 Guidelines, Sub-section 6.7; Section 29, NDA; Military Administrative Law Manual, 34-4
239 Pelletier v. Attorney General of Canada,  F.C.J. No. 1891 (QL) at para. 85, aff’d  F.C.J. No. 6 (QL)
240 Section 29.11, NDA
241 Section 29.12, NDA
242 Section 83, NDA and QR&O19.05, Note B: “Even though (the subordinate) doubts the lawfulness of the command, (he shall) obey unless the command is manifestly unlawful.”
243 Focus group: mixed gender trainees; Coordinator interviews; Volunteer contribution
244 Focus group: female junior officers, reserve; Coordinator interviews
245 Focus groups: female lower rank, female NCOs
246 Focus group: female reserve lower rank; Coordinator interviews; Volunteer contributions
247 Coordinator interviews; Volunteer contributions
248 Focus group: female lower rank; Coordinator interviews; Volunteer contribution
249 Coordinator interviews; Volunteer contribution
250 Focus group: female lower rank; Coordinator interviews
251 Focus group: female lower rank; Coordinator interviews; Volunteer interviews
252 Coordinator interviews; Volunteer contributions;
253 Focus group: female NCOs; Coordinator interviews; Volunteer contribution
254 Coordinator interview; Volunteer contributions
255 Focus group: female NCOs; Coordinator interviews, Volunteer contributions
256 Coordinator interviews
257 Focus groups: female lower rank, female NCOs, male junior officers
258 Focus groups: female lower rank, male lower rank; Coordinator interviews
259 Coordinator interviews
260 Focus group: female lower rank; Coordinator interviews
261 Coordinator interviews
262 Focus groups: female PAT, female reserve; Coordinator interviews; Volunteer contribution
263 Focus group: male trainees; Volunteer contributions
264 Guidelines, Sub-section 4.1.1
265 Coordinator interviews
266 Responsible Officer Guide to Harassment Prevention and Resolution Policy, p. 19
267 S. K. Hippensteele, Revisiting the Promise of Mediation for Employment Discrimination Claims, 9 Pepp Resol. L. J. 211, 2008-2009; S. K. Hippensteele, Mediating Ideology: Navigating the Space from Myth to Reality in Sexual Harassment Dispute Resolution, 15 Journal of Gender, Social Policy & the Law 43 (2006); C. A. Bond, Shattering the Myth: Mediating Sexual Harassment Disputes in the Workplace, 65 Fordham L. Rev 2489, 1996-1997; M. Irvine, Mediation: Is it Appropriate for Sexual Harassment Grievances? 9 Ohio St. J. on Disp. Resolution 27 (1993-1994)
268 L. Gouliquer, Soldiering in the Canadian Forces: How and Why Gender Counts, Doctoral Thesis, McGill, Dept of Sociology, 2011
269 Coordinator interview
270 B. Mayer, The Dynamics of Conflict Resolution: A Practitioner Approach, 2000, p. 240
271 Volunteer contributions
272 Focus groups: female lower ranks, female reserve; Coordinator interviews
273 Coordinator interviews; Volunteer contribution
274 Coordinator interviews
275 Coordinator interviews
276 Coordinators interviews; Volunteer contribution
277 CDS Guidance to COs, 1211.1
278 Volunteer contribution
279 Coordinator interviews; Volunteer contributions
280 Focus group: female NCOs; Coordinator interviews; Volunteer contribution
281 Coordinator interview
282 Coordinator interviews
283 Coordinator interview
284 A more complete version of the mandate is reproduced in Section 2, above.
285 Section 9.2(1), NDA
286 Sections 18.3 and 18.4, NDA
287 S.C. 1998, c. 35 “An act to amend the National Defence Act and to make consequential amendments to other Acts” Bill C-25 section 22 amending section 70
288 Figure provided by the CAF
289 CF MP Order 2-300, Law Enforcement Operations – General, sections 12, 13 and 15
290 CF MP GP Order 2-363, section 10
291 CF MP order 2-300, Law Enforcement Operations – General, section 5
292 For triggers for an investigation, see: A-SJ-100-004/AS-000 Chapter 7 Military Police Policies and Technical Procedures Manual, section 10
293 Canadian Forces National Investigation Service, Standard Operating Procedures, Chptr 2, section 10
294 Military Police Policies and Technical Procedures Manual, Chapter 6, Appendix A, section 8 e., CF MP GP Orders 2-381.1 Benchmarks – Serious and Sensitive Offences, section 2. g.
295 CF MP GP Order 2-381, Canadian Forces National Investigation Service Jurisdiction, sections 6 and 7
296 CF MP GP Orders 2-381, sections 13 and 2-381.3 (6)
297 Coordinator interview
298 CF MP GP 2-363, section 6
299 QR&O 107.02 a); CF MP Order 2-300, Law Enforcement Operations – General, section 8
300 QR&O 107.02 c)
301 Brig-Gen J. S.T. Pitzul, A Perspective on Canada's Code of Service Discipline, (2002) vol. 52 Air Forces Law15
302 R. v Généreux,  1 S.C.R. 259
303 Focus groups: female lower rank, female reserve; Coordinator interviews; Volunteer contributions
304 The ERA here draws an inference from participant comments, previously referred to, concerning the need to create an outside mechanism to receive complaints of sexual harassment and assault.
305 Volunteer contributions
306 Volunteer contributions
307 Focus group: female reserve; Volunteer contribution
308 Coordinator interview; Volunteer contributions
309 Volunteer contribution
310 Coordinator interviews
311 Coordinator interview
312 Focus group: female lower rank; Coordinator interview; Volunteer contributions
313 Coordinator interviews; Volunteer contributions
314 Coordinator interview; Volunteer contribution
315 Volunteer contributions
316 Coordinator interview
317 CF MP GP Order 2-295, section 1
318 A-SJ-100-004/AS-000, Chapter 7, Sexual Assault Protocol – Statement of principle and beliefs
319 A-SJ-100-004/AS-000, Chapter 7, Sexual Assault Protocol – Statement of principle and beliefs
320 Coordinator interview; Volunteer contributions
321 Coordinator interviews
322 Coordinator interviews
323 Coordinator interviews
324 Coordinator interview
325 Coordinator interview; Volunteer contribution
326 R. v. Smithers  1 SCR 506
327 R. v. McCraw  3 S.C.R. 72 at 81: “There can be no doubt that psychological harm may often be
328 Coordinator interview
329 Coordinator interviews
330 Coordinator interviews
331 PERS 35-4, par. 37
332 MOU provided to ERA
333 Coordinator interviews
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