Chapter 3 - Guidance for Responding to Incidents or Allegations

This chapter provides an overview and guidance for responding to instances or allegations of sexual misconduct.

RESPONDING TO SEXUAL MISCONDUCT – ALL CAF MEMBERS

HOW TO RESPOND TO ALL FORMS OF SEXUAL MISCONDUCT

• 3.0. Seek advice from the SMRC. The SMRC offers confidential and bilingual assistance, and can provide information about options and resources, as well as reassurance, support, and referrals to the various services offered to CAF members.
• 3.1. Inform the chain of command as soon as you are ready. The chain of command is responsible for ensuring the wellbeing of subordinates, and for responding promptly and decisively to all incidents of sexual misconduct. Leaders can provide support and guidance on how to proceed.
• 3.2. If there are concerns about the chain of command bring them to someone you trust further up the chain of command or seek assistance from another person including a peer, doctor, nurse, social worker, or chaplain.
• 3.3. For advice about investigative processes, the Military Police Liaison Officer (MPLO) can be contacted through the SMRC.
• 3.4. Seek assistance regarding harassment, grievance, and alternate dispute resolution systems from your Workplace Relations Advisor (WRA) / Harassment Advisor (HA), or Conflict and Complaint Management Services (CCMS) office.
• 3.5. CAF members who wish to proceed with a formal criminal complaint have the option of reporting to their local Military Police unit, civilian police services or directly to the Canadian Forces National Investigative Service. The CFNIS have specially trained teams who deal exclusively with offences of a sexual or sensitive nature.
• 3.6. Civilian Defence Team members are encouraged to report inappropriate behaviour to their superiors, or contact their union representatives.

REPORTING

DUTY TO REPORT

• 3.7. As part of the maintenance of discipline, all officers, and non-commissioned members (NCMs) have a duty to report to the proper authority any infringements of the pertinent statutes, regulations, rules, orders, and instructions governing the conduct of persons subject to the Code of Service Discipline (CSD). As such, all CAF members are required to report to the proper authority:
1. any incidents of sexual misconduct by a member of the Canadian Armed Forces, in accordance with QR&O subparagraph 4.02 (1)(e), General Responsibilities of Officers, or QR&O paragraph 5.01(e), General Responsibilities of Non-Commissioned Members, as applicable; and
2. if they have been arrested by civil authority, in accordance with QR&O article 19.56, Report of Arrest by Civil Authority.
• 3.8. Further amplification can be found at DAOD 9005-1 Sexual Misconduct Response (to be promulgated)

HOW TO REPORT SEXUAL MISCONDUCT

SEEK ADVICE IF YOU ARE UNSURE

• 3.9. If you are uncertain if the incident constitutes sexual misconduct, contact the Sexual Misconduct Response Centre (SMRC) for a confidential discussion with a counsellor. As well, there is a Military Police Liaison Officer (MPLO) located at the SMRC who can provide confidential and anonymous advice on what to expect if a formal report is filed with the police. Further details regarding support tools and options are available on the Operation HONOUR website, in the Respect in the CAF mobile app, and from the
• 3.10. Contact your Unit WRA or local CCMS office for information on what constitutes sexual harassment, guidance on available options, assistance interpreting harassment policies and how to proceed with a complaint

INFORM THE CHAIN OF COMMAND

• 3.11. It is recommended that leaders in the chain of command be informed as they are mandated by the CDS to take prompt decisive action to ensure the safety and wellbeing of affected person(s) immediately upon notification of an incident of sexual misconduct.
• 3.12. If there are concerns about the chain of command’s response, or lack thereof, bring it to the attention of someone you trust further up the chain of command or seek advice from another person including peers, doctor, nurse, social worker, or chaplain.
• 3.13. In any circumstance, support can be obtained through the SMRC.

CONTACT THE POLICE

• 3.14. CAF members who wish to proceed with a formal criminal complaint have the option of reporting to their local Military Police unit, civilian police services or directly to the Canadian National Investigative Service (CFNIS). The CFNIS have specially trained teams who deal exclusively with offences of a sexual or sensitive nature.
• 3.15. CAF Members who wish to obtain more information about the process of reporting to the police can call the SMRC If they wish, members may speak with the MPLO anonymously.

Website: https://www.canada.ca/en/department-national-defence/services/contact-us/canadian-forces-millitary-police-group.html

FILE A HARASSMENT COMPLAINT WITH CONFLICT AND COMPLAINT MANAGEMENT SERVICES (CCMS)

• 3.16. Sexual misconduct can be reported through the complaint management system, which combines harassment, grievance, and alternate dispute resolution systems in a streamlined fashion, and is accessible online or at local offices at select CAF bases.
• 3.17. A Harassment Investigation will be conducted when the misconduct meets the criteria outlined in DAOD 5012-0. Consult with your Harassment Advisor (HA) and your local Conflict and Complaint Management Services (CCMS) centre to determine the need.

Website: https://www.canada.ca/en/department-national-defence/services/benefits-military/conflict-misconduct/integrated-conflict-complaint-management.html

PROHIBITION ON REPRISALS

• 3.18. QR&O 19.15 Prohibition of Reprisals, prohibits any member of the CAF from taking administrative or disciplinary action, or threatening to take such action against a member who has in good faith reported a wrongdoing.^[1] No CAF member will obstruct or attempt to obstruct an investigation into an allegation of sexual misconduct, or threaten, intimidate, ostracize or discriminate against a member who has in good faith made an allegation or report of sexual misconduct. Any such behaviour is considered misconduct. Any CAF member participating in such behaviour will be subject to administrative or disciplinary action or both. The CO must investigate any reports of threatening, intimidating or discriminatory behaviour taken in response to a report of sexual misconduct.[2]

FALSE ACCUSATIONS

• 3.19. According to Canadian studies, only 2 - 4% of all sexual assaults reported are false reports.[3]
• 3.20. Section 96 of the National Defence Act[4], Making false accusations or statements or suppressing facts, states that a member who “makes a false accusation against an officer or non-commissioned member, knowing the accusation to be false” is guilty of an offence. No CAF member shall knowingly falsely accuse a CAF member of sexual misconduct. Any CAF member participating in such behaviour will be subject to administrative and/or disciplinary actions.

CIVILIAN DEFENCE TEAM MEMBERS

• 3.21. Civilian Defence Team members are encouraged to report inappropriate behaviour to their superiors, or contact their union representatives. Sexual offenses should be reported to civilian police.

GUIDANCE FOR COMMANDING OFFICERS AND LEADERSHIP TEAMS

• 3.22. COs and their leadership teams play a critical role in the care of our personnel and their families, in understanding and responding to subordinates’ circumstances, needs, concerns and expectations, including the effective supervision and administration of complaint and grievance processes. They should establish clear expectations and boundaries, leading by example and creating and maintaining a safe, respectful and professional work environment that recognizes and respects the important contributions made by every member of the Defence Team[5]
• 3.23. COs must deal with disciplinary and administrative issues in a firm, fair, consistent, and transparent manner with particular emphasis on exercising personal empathy, discretion and a genuine commitment to promoting the welfare of personnel and their families.[6]
• 3.24. The following best practices apply when responding to a sexual misconduct incident:
1. Transparency (explain procedures, rights and responsibilities of parties, etc.);
2. The need to deal with both the victim and the alleged perpetrator fairly, which will often include taking immediate action upon notification of an incident (i.e. removal from course, supervisory position, attach posting, etc.);
3. Importance of providing all parties with support and information resources available to them; and
4. A thorough and well documented investigation by the chain of command or appropriate authorities.
• 3.25. The DMCA website has a set of scenarios and recommended appropriate administrative actions to be taken by the chain-of-command. [7]

When considering options for disciplinary and/or administrative action for incidents of sexual misconduct, the chain of command should consult Chapter 6, Article 6.44, their unit legal advisor, and DMCA 2.

DMCA 2 can be reached via the positional mailbox at
++DMCA 2 - 2 DACM@CMP DMCA@Ottawa-Hull or
by phone at 613-901-8292 / CSN: 225-8292

DISCIPLINARY ACTION

• 3.26. When a CO learns of an alleged or suspected incident of Sexual Misconduct, legal advice should be sought from the Unit Legal Advisor in order to determine if the CAF or a civilian authority has jurisdiction in respect of the incident.
• 3.27. In some circumstances, inappropriate behaviour will constitute a service offence and/or a criminal offence, which in turn may be dealt with through either the military justice system or the civilian justice system.
• 3.28. Although military tribunals are uniquely positioned to ensure that justice is properly administered in accordance with the particular needs of the CAF, there are times when it may be appropriate for charges against a CAF member to proceed in a civilian criminal court. This transfer of legal jurisdiction does not exempt the CAF from its duty to support affected persons and perpetrators throughout the process.
• 3.29. When determining which system will exercise jurisdiction, investigators and military prosecutors consider a number of factors including the degree of military interest in the case, the degree of civilian community interest, whether the accused, the affected person, or both are members of the CAF, and the views of the affected person.[8] It should also be noted that the Military Justice System has more options in the type of charges that can be laid with respect to sexual misconduct. In addition to certain offences under the Criminal Code the military justice system can also deal with charges of disgraceful conduct, abuse of a subordinate, and conduct to the prejudice of good order and discipline (including sexual harassment).
• 3.30. Note: Discrimination and/or harassment based on sex, sexual orientation, gender identity and gender expression may not be obviously “sexual in nature”, however; these behaviours are captured by the sexual misconduct definition as they ‘perpetuate stereotypes and modes of thinking that devalue members on the basis of their sex, sexuality, or sexual orientation’ and may constitute an offence under the CSD.
• 3.31. Note: Any use of DND and CAF electronic networks or computers, to access or distribute any material whose focus is pornography, nudity or sexual acts involving adults over age 18, that is prohibited under DAOD 6002-2 Acceptable Use of the Internet, Defence Intranet and Other Electronic Networks, and Computers is captured by the sexual misconduct definition under ‘accessing, distributing, or publishing in the workplace material of a sexual nature’. This unauthorized and prohibited use of DND and CAF electronic networks or computers may constitute an offence under the CSD. As such, these behaviours are included and will be subject to the same administrative and/or disciplinary considerations as other sexual misconduct.

ADMINISTRATIVE ACTION

• 3.32. If sexual misconduct occurs, the chain of command has a wide range of administrative action options available to address the behaviour while ensuring that all affected CAF members receive the necessary support.
• 3.33. Administrative actions for incidents of sexual misconduct could include, but are not limited to:
1. Posting, Attach Posting, or removal from command, supervisory, training duties, etc.;
2. Remedial measures, in increasing significance: [9]
• Initial Counselling;
• Recorded Warning; and
• Counselling and Probation;
3. Notice of Intent to Recommend Release; and
• Release.
• 3.34. The chain of command is responsible for a fair and neutral approach to the respondent in order to prevent backlash from peers and other parties. It is important to remember that the respondent has a right to due process and procedural fairness, and, as a CAF member, to the full range of services available to any other CAF member.
• 3.35. The scope of procedural fairness for administrative decisions varies based upon the nature of the decision, the context in which it is made, and the impact of the decision on the affected person(s).[10] In general, it includes the following four principles:
1. Notice (of the issue or issues involved),
2. Disclosure (of the relevant information),
3. Opportunity to make representations (to an unbiased decision-maker), and
4. Reasons for the decision.[11]
• 3.36. The CO shall act in good faith in addressing any report of sexual misconduct. A failure to act on a report by not initiating a thorough investigation or by failing to properly report the incident up the chain of command is a breach of conduct. Administrative actions for a CO failing to take appropriate action could include removal from the Command position. Additional administrative and/or disciplinary action will be similar to that taken for sexual misconduct in that a conviction for failing to act may result in a NOI to recommend release.

CONFIDENTIALITY OF INFORMATION

• 3.37. To the extent practicable, strictly limit knowledge of the facts or details regarding the incident to only those personnel who have a legitimate need-to-know.

PROTECTION AND FAIR TREATMENT

• 3.38. In order to protect CAF members in vulnerable situations and to ensure fair treatment, restrictions may be imposed on the duty or posting of CAF members involved in a personal relationship, if the circumstances could result in:

1. An instructor/student relationship that would have an effect on the security, morale, cohesion and discipline of a unit; or
2. A senior/subordinate or inter-rank personal relationship in the same direct chain of command if there is a difference in rank or authority.[12]

ADVERSE PERSONAL RELATIONSHIPS

• 3.39. An ‘adverse personal relationship’ is one that has a negative effect on the security, cohesion, discipline or morale of a unit. This is most often seen between two members within the same chain-of-command (where one is superior to another by virtue of rank or appointment) or between an instructor and student, which is considered inappropriate because of the power dynamic. The power dynamic can call into question the ‘consensual’ nature of the relationship (pressure – perceived or real) or can be seen as garnering favour.
• 3.40. If an adverse personal relationship cannot be changed within the applicable unit/sub-unit, for the CAF members in a supervisor/subordinate relationship, the CAF members shall be separated by attached posting, posting, change in work assignments, or other. This form of separation is not intended to be punitive in nature and is not to result in negative stigma or career implication towards the CAF members.[13]
• 3.41. Further to DAOD 5019-1 Personal Relationships and Fraternization, a personal relationship between CAF members will be considered sexual misconduct if a difference in rank and/or authority was used to coerce participation. Regardless of whether consent was coerced or not, differences in rank, authority, and power can call into question the ‘consensual’ nature of a relationship (e.g. a student and instructor, supervisor and subordinate).[14]

INITIATION RITES

• 3.42. To prevent initiation rites from developing into conduct constituting sexual harassment, the following practices are prohibited:
1. competitions involving drinking of alcoholic beverages; and
2. all initiation rites, unless authorized by a CO (as per Annex C of Harassment Prevention and Resolution Instructions, dated 27 Jan 2017).
• 3.43. Unauthorized initiation rites or activities are forbidden. A CO may pre-approve, in writing, activities that will not harm or humiliate participants. A CO who authorizes an initiation rite shall ensure that:
1. he/she has signed the form at Annex C of Harassment Prevention and Resolution Instructions, dated 27 Jan 2017 acknowledging and sanctioning the activity. The original signed form is be forwarded to DHRD prior to the activity taking place to ensure appropriate safeguards are put in place;
2. the activity will be both conducted and supervised by senior personnel;
3. no person is, or will be, coerced, either expressly or implicitly, into participation in the activity;
4. the activity does not include acts of violence, however minor, nudity, or competitions involving the drinking of alcoholic beverages; and
5. all activities conducted are consistent with the promotion of morale and esprit de corps and are conducted with respect for the dignity of all participants.

[1] QR&O 19.15 - Prohibition of Reprisals.

[2] DAOD 9005-1 Sexual Misconduct Response (to be promulgated)

[3]https://www.sexassault.ca/statistics.htm

[4]http://laws-lois.justice.gc.ca/eng/acts/n-5/page-11.html

[5] CDS Guidance to Commanding Officers and their Leadership Teams, 17 Nov 17

[6] DAOD 9005-1 Sexual Misconduct Response (to be promulgated)

[7]http://cmp-cpm.mil.ca/en/recruitment-careers/administrative-review/misconduct.page

[8] DMP Policy Directive 002/99 at paragraph 17; DMP Policy Directive 003/00 at paragraph 15; and DMP Policy Directive 004/00 at paragraph 13. 2120-0 (Policy Coord) CF MP Gp HQ - DPM Police Policy Advisory 11 /2015 dated 20 July 2015-lnvestigation of Criminal Sexual Offences .

[9] DAOD 5019-4 Remedial Measures, http://intranet.mil.ca/en/defence-admin-orders-directives/5000/5019-4.page.

[10] DAOD 2017-1 Military Grievances, http://intranet.mil.ca/en/defence-admin-orders-directives/2000/2017-1.page.

[11] Ibid.

[12] DAOD 5019-1 Personal Relationships and Fraternization at 4.4, https://www.canada.ca/en/department-national-defence/corporate/policies-standards/defence-administrative-orders-directives/5000-series/5019/5019-1-personal-relationships-and-fraternization.html

[13] Idem, 5.3.

[14] DAOD 9005-1 Sexual Misconduct Response (to be promulgated)