External Review into Sexual Misconduct and Sexual Harassment in the Canadian Armed Forces - Scope and Mandate of the Review

Marie Deschamps, C.C. Ad.E.

External Review Authority

March 27, 2015

2. Scope and Mandate of the Review

In December 2013, the CAF released the results of a survey conducted in 2012, which was designed to “examine how informed [regular] CAF members are about the harassment policy, to obtain a measure of how often harassment occurs in the CAF and to explore the attitudes, perceptions and experiences of [regular] service members in relation to harassment in the CAF.”² Of 1705 survey respondents, only 56 indicated that they had experienced an incident of sexual harassment in the preceding 12 months.³ Around the same time, the Judge Advocate General (JAG) released its Annual Report, which stated that for the year 2011-2012, only nine charges of sexual assault had been brought to court martial.⁴ It is to be noted that charges may also have been laid before civilian courts, but no numbers were provided. Not long after the release of these data, however, French and English Canadian media outlets reported a dramatically higher incidence of sexual misconduct within the CAF. ⁵ As a result of the discrepancies between the CAF data and the allegations contained in these media reports, the CDS requested an external independent review of the CAF’s policies, procedures and programs with respect to sexual harassment and misconduct, as well as of their implementation.⁶ To that end, the CDS asked the ERA to carry out an independent review (the Review) and to prepare this Report.

Given the urgency with which the CDS wanted to confront allegations of sexual misconduct within the organization, the ERA undertook to conduct its fact-finding between July and December 2014, and to file its Report by the spring of 2015. This meant that the ERA could visit only a select number of bases and that research of secondary sources (for example, sociological research, relevant case law, and best practices) was necessarily limited. Nonetheless, the ERA is satisfied that it had the opportunity to meet with an adequate number of members, former members, and outside resources, and to review all relevant policies and a sufficient number of comparative documentation, to formulate its recommendations.

2.1 ERA’s Mandate

The mandate of the ERA is to:⁷

“consider and make recommendations concerning:

• the adequacy of the definition of “sexual misconduct” as provided for in Defence Administrative Order and Directive 5019-5m and “sexual harassment” as provided in Defence Administrative Order and Directive 5012- 0;
• the adequacy of policies, procedures and programs in relation to sexual misconduct and sexual harassment;
• the training CAF members receive in relation to sexual misconduct and sexual harassment;
• the resources dedicated to the implementation of the policies, procedures and programs in relation to sexual misconduct and sexual harassment;
• the extent to which CAF members report alleged incidents of sexual misconduct or sexual harassment and if applicable, any reasons why reporting may not occur, including the role of military culture and the chain of command as it relates to the reporting of incidents; and
• any other matter that the [ERA] considers relevant in assisting the CAF to strengthen the prevention of incidents of sexual misconduct and sexual harassment.”

The mandate contains limitations as to its scope. Specifically, the ERA “shall not review any decision relating to the military or criminal justice system including:

• a decision by a military judge in the performance of his or her judicial duties
• a decision of a court martial or summary trial
• or a decision made in the exercise of discretion to investigate complaints, lay charges, proceed with charges or prosecute charges.”

Additional limitations provide that the ERA “shall not review:

• legal advice received by the Department of National Defence (DND) or the CAF in relation to any matter or any proceedings;
• professional conduct and professional standards under the jurisdiction of the Law Society of a province;
• conduct of military police that may be the subject of a complaint under Part IV of the National Defence Act (the NDA); or
• any matter related to the JAG in respect of his superintendence of the administration of military justice in the CAF.”

2.2 Fact-Finding Process

The ERA was asked by the CDS to meet with reserve and regular members from all ranks and environments (Naval, Land and Air Forces, and training), as well as with individuals responsible for the development and implementation of the CAF’s sexual harassment and misconduct policies. Further, the ERA was asked to be available through e-mail correspondence to members and former members, in addition to conducting a review of relevant CAF policies and related documentation.

The Director General, Military Personnel (DGMP) and a coordinator of the Chief Review Service of the DND (the Coordinator) assisted in selecting sites for base visits; however, the ultimate decision about which sites to visit was made by the ERA. In addition, the Coordinator was assisted by on-site officers to organize visits and access to documents, following protocols established by the ERA.

Between July and December, 2014, the ERA held consultations at various military locations across Canada, including two naval bases, three land bases, two air bases, two training bases, and the two military colleges. The ERA also met with members from nine reserve units. Other in- person consultations involved meetings with a law enforcement agency, a large commercial organization, and an expert specialized in crisis management. In addition, the ERA conducted several days of telephone interviews and received a number of written statements. Excluding senior leaders whose participation was limited to town hall meetings, over 700 individuals—of whom more than 400 participated through focus groups—were consulted throughout the Review. ⁸ The ERA was assisted in all interviews by a senior litigator who conducted the discussions in both French and English,and by counsel with expertise in labour and human rights law in the preparation of this Report.⁹

CAF members (and former members) were informed about the purpose and mandate of the Review on the CAF web-site, and were invited to contact the ERA directly through its dedicated, confidential e-mail address. In addition, before each visit to a base, an email message was sent to all members in that location to announce the dates of the ERA’s visit and to invite interested persons to meet with the ERA, or to contact the ERA via email.¹⁰

On most bases, the ERA began by holding a town hall meeting where it could explain to senior leaders and their invitees the mandate of the Review and its fact-finding process, as well as to answer questions. Also on many bases, the ERA was able to tour the base to assess where members might be at greater risk of experiencing incidents of a sexual nature, such as the barracks, mess hall, etc.

In most cases, focus groups were organized to include only men or women, or only individuals of a particular rank, to enable more candid conversation within the group. Focus group discussions addressed the prevalence of varying types of inappropriate sexual conduct, the members’ awareness and understanding of policies, coping mechanisms for dealing with inappropriate sexual conduct, reporting of incidents, and training. While participation by members in the focus groups was on the whole voluntary, the ERA was informed that in some cases members were “voluntold” to participate if there were insufficient volunteers. The ERA is satisfied that the integrity of the focus groups was not impaired as a result of the fact that a superior may have ordered an individual to participate; on the contrary, it added a layer of objectivity to the process, ensuring that a number of those who participated did not have a vested interest in the subject matter of the Review.

In addition, the Coordinator and the contact person on-base arranged for joint or individual interviews with CAF members and civilians involved in the implementation of the relevant policies, such as Commanding Officers, harassment advisors, workplace relation advisors, military police, investigators from the CAF National Investigation Service, local JAGs, chaplains, physicians, nurses, social workers and representatives of support groups such as the Military Family Resource Center, as well as with a few researchers (together, these are referred to as the “Coordinator interviews”). These interviews tended to be more focused on the particular job- related experiences of the interviewee, but also included, as in the focus groups, the personal experiences of the individuals. Since these individuals came from a variety of ranks and diversified backgrounds, both military and civilian, and were often long-time members or employees of the CAF, their input proved invaluable.

During each visit, the ERA also made itself available for private interviews with interested individuals through walk-in sessions, pre-scheduled appointments and, in many instances, off- base meetings with individuals who could not or would not visit a base.

Consultations were not designed to specifically reflect the demographics of the CAF (for example, percentage of men versus women, or lower rank versus officer). Nor did the ERA ask the interviewees to limit their comments to a specific time period. As a consequence, except for the discussions with lower rank members and trainees, some of the contributors addressed historic incidents and how these were dealt with by the organization at the time, as well as more current concerns.

2.3 Confidentiality in the Consultation Process

On each visit, the ERA put in place a protocol aimed at fostering open and unhindered communication. Except for interviews with Generals, all interviews and focus groups were confidential and were audio-recorded on an anonymous basis. Participants were asked to identify themselves only by pseudonyms, which were also used in any follow-up communication. Where personal information was included in a written contribution, this information was deleted. The ERA undertook not to use personal information in its Report or communications with the CAF, or any information that could lead to the identification of the contributor.

In most instances, the officers involved in the organization of the interviews and focus groups appeared genuinely invested in the success of the Review. However, a few members informed the ERA that they had been warned not to raise any “issues” and the ERA noted that some members appeared to feel that they were not free to speak openly. In several instances, the ERA was informed that the Review was not being taken seriously. Despite these challenges, the ERA is of the view that, given the guarantees of anonymity, most interviewees ultimately voiced their honest opinions. In particular, focus groups with lower rank members proved very informative. In almost all of these groups, at least one member would rise to the challenge of expressing him or herself freely, opening up discussion and encouraging other participants to express their own views.

2.4 Documentary Review

The ERA received, with the assistance of the Coordinator, the DGMP, and two senior officers of the JAG, documentation consisting not only of the policies of the CAF and other military organizations, but also relevant research papers conducted by the CAF and external organizations. The ERA also reviewed sociological research about, and external reviews of, the treatment of sexual harassment and assault by other law enforcement and civilian organizations, and relevant legal cases, mostly by Canadian labour arbitrators and courts.

2 J. Coulthard, 2012 Canadian Forces Workplace Harassment Survey, 2013, p. 9

3 Canadian Forces Workplace Harassment Survey, p. 15

4 JAG 2012-2013 Annual Report, p. 32

5 N. Mercier and A. Castonguay, “Crimes sexuels: le cancer qui ronge l’armée canadienne”, L’Actualité, April 22, 2014; N. Mercier and A. Castonguay, “Our Military’s Disgrace”, Maclean’s, May 5, 2014

6 CDS Announcement, July 9, 2013

7 Contract No 8404-15008/001/7G

8 Throughout the Report, references to discussions with contributors are identified according to whether the contribution came from a focus group, an interview organized by the Coordinator, or a volunteer contribution. Where sufficiently homogeneous, the gender and rank of the participants in the focus groups are indicated. Reserve units are also explicitly identified. “Coordinator interviews” include interviews with CAF members or civilians involved in the application of the relevant policies, or in supporting the victims, such as harassment advisors, harassment investigators, social workers, nurses, physicians, etc. However, to protect confidentiality, the profession of the interviewee is not identified. “Volunteer contributions” include face-to-face interviews conducted during walk-in sessions on-base, in private meetings off-base, and through telephone calls, as well as through written statements submitted to the ERA by email.

9 Pierre Fournier acted as senior counsel throughout all of the interviews and assisted in the revision of the Report. Emma Phillips was counsel to the ERA and assisted in the preparation of the Report. The ERA was also assisted with legal research by Camille de Vasconcelos Taillefer and Gabrielle Perrault.

10 An example of a message sent to members before a visit to a base is included as Appendix ‘A’.