Message from the DM and CDS about duty to report exception for Restorative Engagement program participants

May 26, 2022 - Defence Stories

Team,

Today, the Department of National Defence (DND) and the Canadian Armed Forces (CAF) announced that Minister Anand has amended the Queen’s Regulations and Orders (QR&O) for the Canadian Forces to create an exception to the duty to report regulations in the context of a restorative engagement program. We are writing to you today to explain the circumstances and complexities around this significant decision.

Context: What is Duty to Report?

In accordance with QR&O article 4.02, General Responsibilities of Officers, and QR&O article 5.01, General Responsibilities of Non-Commissioned Members, all CAF members have a duty to report to the proper authority any infringement of the pertinent statutes, regulations, rules, orders, and instructions governing the conduct of any person subject to the Code of Service Discipline.

While the Duty to Report serves an important function within the CAF, it poses significant challenges in the context of sexual misconduct offences, particularly when the affected person is not ready or does not wish to report.

Context: What is the Restorative Engagement Program?

The Restorative Engagement program launched on November 15, 2021, and was mandated through the Canadian Armed Forces (CAF)-Department of National Defence (DND) Sexual Misconduct Class Action Final Settlement. The program’s purpose is to enable class members to share their experiences, knowledge and/or understanding of sexual misconduct with DND and CAF representatives who listen and acknowledge them. This shared understanding will help the Defence Team to build a more inclusive and respectful institutional culture.

Why was an exception to Duty to Report sought?

The Restorative Engagement program was not intended, nor designed, to address individual accountability, which is one of the purposes of the Duty to Report. The intent and spirit of the program is to enable class members to share their experiences and insights with Defence Team leadership representatives in a safe, supportive, and confidential environment. As such, this amendment will allow the program to be delivered as per its intended design.

What the amendment does and does not do

Notably, the amendment will not limit a class member’s ability to report; it is aimed at ensuring that CAF members will not report on their behalf or without their consent, except as required or authorized by law. It should also be noted that this exception to the Duty to Report applies to communication received in the context of a restorative engagement program organized by the Department, the Canadian Armed Forces, or on behalf of either of them. As such, currently, this exception only applies to the Restorative Engagement program for the CAF-DND Sexual Misconduct Class Action Final Settlement Agreement.

What about workplace safety issues?

There may be some circumstances where the information shared by class members requires action to ensure the safety of those involved or our workplace. The team delivering the Restorative Engagement Program will work closely with class members and Defence representatives to ensure they are fully informed of the limits of confidentiality.

We hope this amendment demonstrates our commitment to the process, ensuring an emotionally safe space, and building trusting relationships between class members and Defence representatives, which is fundamental to the restorative process.

The larger questions and challenges around Duty to Report

We acknowledge that this amendment does not address concerns about the Duty to Report with respect to sexual misconduct incidents in a wider workplace context, which has been a recurring topic of concern for affected persons, stakeholders, and advocate groups, and addressed in a number of key reports and recommendations on sexual misconduct in the CAF.

Over the past few years, we have taken some positive steps to improve the situation and ensure that affected persons could seek support without triggering the Duty to Report. Nevertheless, we know that more must be done. As recommended by the Third Independent Review of the National Defence Act, a DND/CAF working group is currently analyzing issues in the application of the duty to report for incidents of sexual misconduct.

We truly appreciate class members’ willingness to share their experiences, knowledge, and/or understanding of sexual misconduct with us and we want to do everything we can to ensure that we provide a safe space for them to do so. Acknowledging and understanding the experiences of those affected by sexual misconduct in the Defence Team workplace is fundamental to our institutional culture change efforts.

For those who have submitted a claim as part of the CAF-DND Sexual Misconduct Class Action Final Settlement and have not yet expressed interest in the Restorative Engagement program, we invite you to contact the claims administrator as soon as possible. Claimants who have already received an initial decision letter have until May 31, 2022 to indicate their interest to participate in the Restorative Engagement program. Claimants who have not yet received an initial decision letter will have 30 days from the date of that letter to indicate their interest to participate.

Bill Matthews
Deputy Minister of National Defence

General Wayne Eyre
Chief of the Defence Staff