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Sexual Misconduct in the Military, Part III – The New Battle Plan

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When organizations retain a workplace assessor to help reveal employee experiences of workplace harassment and sexual harassment, they usually ask the assessor to make recommendations as to what the organization should do next.

The Canadian Armed Forces (“CAF”) has done exactly that (several times). Detailed recommendations as to how the CAF should go about combatting sexual misconduct (which term the CAF uses to capture everything from inappropriate jokes to sexual assault) were most recently made in May 2022, by independent assessor Justice Louise Arbour. By the time Justice Arbour published her report, Defence Minister Anita Anand had already committed to implementing (on a trial basis) one of Justice Arbour’s recommendations: to transfer the investigation and prosecution of sexual misconduct cases within the Forces to the civilian justice system.

As described in my first post in this series, the CAF had previously received, in 2015, detailed recommendations from independent assessor Justice Marie Deschamps. In my second post, you can read about what Justice Arbour’s 2022 assessment report revealed about how far the CAF moved toward meaningful fulfilment of the Deschamps’ recommendations. You can also review some takeaways that can help your organization avoid some of the CAF’s missteps.

After you read this final post, you’ll have a better understanding of the recommendations made to the CAF by Justice Arbour, beyond the few that are typically described in the news. The recommendations are valuable, not only for those who follow the CAF’s progress in its battle against sexual misconduct, but for anyone learning about what organizational “culture change” requires.

The challenge of culture change

In her 2015 workplace assessment report, Justice Deschamps’ first two recommendations to the CAF were to accept that sexual misconduct within the CAF is a serious problem, the solution to which would require an encompassing change of CAF culture, backed by sincere commitment from the top-ranking leaders. She wrote in her report:

Whereas the remainder of this Report will address how CAF policies and procedures on sexual harassment and assault should be improved, the [workplace assessor] cannot emphasize strongly enough that revising policies without addressing the underlying cultural conditions would be an exercise in futility. Because of the nature and pervasiveness of the problems of sexual harassment and sexual assault, leaders need to realize that these are institutional issues, not just individual issues, and certainly not just a woman’s issue. Inappropriate sexual conduct does not occur in a cultural vacuum, but in many cases is a manifestation of, or response to, underlying systemic conditions.1

When Justice Arbour conducted her assessment in 2021/22, she found that in the seven years since the Deschamps report, and despite the many anti-harassment initiatives the CAF introduced during that time, the rate of sexual harassment and assault among CAF members had not significantly decreased. Ultimately, Justice Arbour concluded that, in attempting to change its own culture, the CAF failed to recognize that it does not have sufficient internal expertise required to get the job done. She wrote:

Subject to civilian control, but extraordinarily self-regulated, the CAF has been unwilling or unable to embrace the intent and vision that came from external sources, choosing the letter over the spirit, often the appearance of implementation over its substance, thereby entrenching their ways of operating. I believe this is a consequence of the insularity within which the CAF has traditionally operated, and its determination to perpetuate its old ways of doing business.

As I conducted this independent external comprehensive review…, it became apparent that if I were to support the impulse for culture change that the CAF and many of its members have committed to, my overarching recommendation to its leadership has to be clear – they need to change how they do many things – and profoundly so.2

Justice Arbour’s 48 recommendations focus on how the CAF should “change how they do many things” – everything from data collection, to handling complaints, to recruiting, training, and promoting members. And weaving through all her recommendations is a push for greater oversight that is both external to, and independent of, the CAF, such as:

    • External input to the CAF on strategizing and process on a regular basis, not just after-the-fact. This is to ensure the CAF can both keep up with contemporary human resources and other operational practices, and to allow for civilian oversight;
    • Maintenance of the existing external advisory committee to the CAF’s Sexual Misconduct Reporting Centre (“SMRC”);
    • Increased opportunities for higher-ranking members to be seconded to the private sector; and
    • Monitoring of the implementation of the report’s recommendations by someone outside of the Department of National Defence (“DND”) and CAF, with publicly accessible reporting on a monthly basis.

In her report, Justice Arbour also noted, “I believe that true change must come not only from external oversight but also from external input into the various mechanisms used by the CAF to tackle sexual misconduct in ‘real-time’ as it occurs.”3

The Arbour Report’s recommendations

Justice Arbour’s recommendations are organized by three themes: focus on the offender, focus on the victim, and leadership/personnel development.

    1. Focus on the offender:

Simplify and focus policies and definitions: Justice Arbour noted that CAF policies related to sexual misconduct were as confusing and unhelpful as they had been when Justice Deschamps reviewed them seven years before. As such, Justice Arbour recommended the CAF abandon its confusing, catch-all definition of “sexual misconduct” and instead, properly define terms such as “sexual harassment” and “sexual assault.” Specifically, she recommended the CAF use the sexual assault definition that Justice Deschamps provided in 2015, and use the Canada Labour Code definition of “sexual harassment,” instead of the CAF’s confusing, self-drafted definition.

CAF policy required disclosure of romantic relationships between members only in certain, vague circumstances. Justice Arbour, like Justice Deschamps before her, viewed this as insufficient to protect lower-ranking members (usually women) in romantic relationships with members of higher rank. Justice Arbour recommended the CAF adjust its policies to deem as non-consensual all undisclosed personal relationships between members of different rank, with any negative consequences from the non-disclosure to be primarily applied to the senior ranking member.

Justice Arbour also recommended that the CAF abolish its “duty to report.” Under this requirement, members who suffered or witnessed sexual misconduct, but who failed to report it, were subject to discipline. Justice Arbour noted that this duty did not increase reporting; rather, it only added to a victim’s burden the fear of being disciplined for not wanting to report an incident.

Ensure internal, remedial processes are swift and effective: Justice Arbour took issue with the CAF’s in-unit response to reports of sexual misconduct. Unit-level response procedures were intended to allow a commanding officer to take swift action to protect a victim while an investigation is ongoing, such as removing the accused from a command position pending the outcome of an investigation. Unit-level procedures were also meant to allow for responsive remedial measures, ranging from training to release from military service.

Justice Arbour found that in-unit responses were often unduly slow – in some cases, commanding officers delayed consideration of any administrative action until after a criminal investigation had been completed, instead of taking appropriate measures to protect the victim while the investigation was ongoing. Remedial measures were often slow to be effected, and if a commanding officer recommended the release of an accused from service, that decision was subject to a higher-level administrative review that often took many months to complete.

Justice Arbour recommended the CAF ensure that in-unit remedial processes and administrative review of decisions to release be undertaken quickly and in parallel with discipline proceedings. She noted that at the time of her report, the CAF was designing a new internal disciplinary process that arguably could negate the need for administrative reviews. She encouraged the CAF to eliminate duplicative processes where possible.

Ensure expert investigation and prosecution: The recommendation made by Justice Arbour that received the strongest media attention was that sexual assault and harassment be investigated and prosecuted by the civilian police and prosecutions system, and the Canadian Human Rights Commission, respectively.

Justice Arbour noted that in 1998, the CAF was granted concurrent jurisdiction with the civilian courts to prosecute sexual assault. This was because the CAF argued that its focus on unit cohesion required it to be able to prosecute sexual assault quickly, and impose severe penalties. However, Justice Arbour found that the military’s investigation and prosecution of sexual offences and harassment was typically neither quick nor effective.

Rather, Justice Arbour found that the Military Police, Judge Advocate General, and unit commanders were not perceived by victims as trustworthy or impartial. She noted civilian authorities have considerably more experience and expertise in investigating and prosecuting sexual assault and harassment. She also noted that the military justice systems conviction rate for sexual assault charges was half the civilian justice system rate.

The Minister of National Defence accepted this recommendation on a trial basis in late 2021, before Justice Arbour released her final report, and the CAF started transferring cases to civilian authorities. In December 2022, Minister Anand directed the DND and the military to “present options regarding how such jurisdictional change can occur” on a permanent basis.

Separate the victim support function from the advisory and monitoring functions: As described in my two prior posts in this series, in 2015 Justice Deschamps recommended the military stand up an independent, comprehensive centre of excellence in sexual misconduct. She envisioned the centre being tasked with a wide variety of responsibilities, including receiving reports of inappropriate sexual conduct, the prevention, coordination, and monitoring of training, victim support, monitoring of accountability, research, and to act as a central authority for the collection of CAF data concerning sexual misconduct.

The CAF did establish the SMRC as the recommended centre of excellence. At first, it tasked the SMRC only with victim support. By the time of Justice Arbour’s review, the SMRC’s mandate had expanded to include providing expert guidance and advice to the CAF on all aspects of sexual misconduct, and monitoring the CAF’s progress on addressing sexual misconduct.

Justice Arbour found that the SMRC’s serving the interests of both victims and the CAF was leading to widespread suspicion of the SMRC’s independence.

Justice Arbour recommended that the SMRC be refashioned as an independent, victims-only resource centre. She recommended that as a victims-only resource centre, the SMRC should assist victims to not only navigate the military and civilian complaint processes, but also to access medical, legal, and career-focused services. In keeping with her emphasis on independent oversight, she suggested the SMRC’s progress should continue to be reviewed by the external advisory council established for that purpose in 2018.

Further, Justice Arbour recommended the CAF stand up a separate, internal centre of excellence to advise the chain of command and alleged perpetrators, and to own responsibility for sexual misconduct -related training. She further recommended that the monitoring of the CAF’s effectiveness in responding to sexual misconduct should be removed from the SMRC’s mandate, and assigned to the Assistant Deputy Minister (Review Services).

    1. Leadership and personnel development

Screen out problematic candidates and new recruits: Justice Arbour found that the CAF’s recruitment and onboarding procedures did not help the CAF attract and retain members with high moral standards and potential. The application process was cumbersome and long; there was no probationary period to allow for release of those who would not meet the CAF’s standards of conduct at an early stage; efforts to recruit women were insufficient; and screening for problematic attitudes was lacking.

Justice Arbour recommended the CAF significantly simplify and shorten its recruitment cycle and to screen for problematic views towards, and ability to function with, women, Indigenous people, racialized minorities, and LGBTQ+ members.

She also suggested implementing a probationary period, during which recruits who prove unable to meet the required moral and behavioural standards can be weeded out at an early stage.

Provide quality training: Justice Arbour noted that the CAF itself had already identified issues with its basic training program. Training was conducted by members on temporary secondments from their “real” jobs within the CAF, who lacked instructor training and who often viewed the posting to a training role as a barrier to career progression. Trainees reported that it was often evident that trainers viewed the diversity and anti-harassment components of basic training with disdain. She recommended that:

In the development of what the CAF considers important, recruits should, at the outset of their training, be exposed to and taught by the very best, not by those who do not want to be there, do not believe in what they are asked to teach, and whose demeanour is completely at odds with the purported values of the organization.4

To increase the quality of overall basic training, Justice Arbour recommended that, at a minimum, the CAF should increase incentives for completing instructor training and completing instructor postings, address real or perceived barriers to career progression, and ensure appropriate instructor screening.

Justice Arbour strongly encouraged the CAF to explore the idea of creating a new trainer/educator permanent occupation, so that training is afforded the expertise and commitment required to inculcate the desired culture in recruits at their point of entry.

Finally, Justice Arbour recommended the CAF implement Justice Deschamps’ 2015 recommendation that sexual misconduct-related training be interactive and led by expert trainers, rather than presented through dry PowerPoint slides and by an in-unit commander who exhibited little buy-in.

Query whether to continue the military colleges: The CAF operates two Royal Military Colleges (“RMCs”), RMC Kingston and RMC Saint-Jean. Justice Arbour found that the colleges perpetuate a discriminatory and misogynistic culture that graduates carry into the CAF, where they, as military college graduates, are preferred candidates for leadership roles. She noted that the percentage of female and visible minority cadets at the military colleges is nearly half that of civilian colleges, and cited a 2020 Statistics Canada survey that found that women enrolled at military college experience unwanted sexualized behaviour at a much higher rate than women at civilian institutions.

Justice Arbour recommended a deep assessment be conducted by a committee of DND and external experts as to whether to continue operating the military colleges. She suggested that requiring recruits to first complete a civilian diploma followed by a shorter military college component might better meet the goals of quality education combined with appropriate socialization and military training.

Justice Arbour recommended that in the meantime, the new internal sexual misconduct centre of excellence that she suggested be put in place to advise the CAF, and should work with the colleges to address their long-standing cultural concerns.

Change performance evaluation and promotion procedures: Justice Arbour found that the CAF’s promotion system, supposedly structured to further impartial assessment of candidates, is largely based on subjective performance assessments by one’s current supervisor. This allows the system to be “gamed” by supervisors to secure promotion of a supervisor’s preferred candidate, most of whom continue to be white males.

Further, the assessment process does not include a process to ensure selection boards are made aware of a candidate’s past or ongoing misconduct issues.

Justice Arbour recommended that the performance assessment form be amended to require the supervisor to certify that, to their knowledge, the candidate is not currently subject to any investigation or proceeding, whether criminal, disciplinary, administrative or otherwise, related to allegations of sexual misconduct.

She also recommended that in processes for certain leadership roles, a “past misconduct sheet” should be prepared, that lists for the selection committee all the candidates’ past serious misconduct issues. Justice Arbour recommended that the CAF “prepare appropriate guidance to selection boards on how to take past misconduct into account as part of their deliberations and decision-making.”5

Justice Arbour noted that the promotions process for the highest-ranked positions in the CAF is subject to greater assessment and rigor, including final approval by the Minster of Defence. The CAF recently added psychometric testing and a 360 evaluation to the process, of which Justice Arbour spoke approvingly.

However, Justice Arbour recommended that additional quality controls and external input should be added, in the form of a) routine re-assessment and refining of the promotional process, and b) a civilian advisor to the Minister who can assist with assessing the efforts being made to correct the overrepresentation of white men in the higher-ranking CAF staff complement.

Finally, Justice Arbour questioned the CAF’s current targets for the promotion of women. The CAF’s current target for senior leadership roles is to increase the number of women to reflect the proportion of women in the CAF overall. Justice Arbour opined that this target is too low, and noted that:

Women make up nearly half the labour force in Canada. There is no reason why the CAF, like any other modern organization, should not also aim for gender parity. This may seem overly ambitious in a field that is notoriously male-dominated, but there will be little progress if the promotion policies simply aim to maintain current ratios….

Given this reality, the CAF should establish a system of targets to increase the number of women above [CAF] population levels.6

Career management and postings:

Justice Arbour noted that the CAF’s human resources function, including its internal expertise and its career and succession planning functions, needs improvement. She noted that the CAF’s emphasis on moving members between jobs and physical locations resulted in loss of the expertise that could result from long-term postings.

She suggested that the CAF consider ways to increase its internal human resources expertise and to leverage external expertise to help it review its career and succession planning processes through a Gender Based Analysis Plus (“GBA+”) lens.7 This type of analysis focuses on ensuring that processes that seem neutral on their face do not inadvertently disadvantage members on the basis of gender.

Establish independent oversight to keep the CAF accountable: With respect to oversight of the CAF’s handling of sexual misconduct, Justice Arbour did not think a new inspector general or other high-level oversight body was necessary. Instead, she recommended that a few more accountability processes be implemented to those already existing and recommended: direct briefs to the Minister of Defence on all investigations of sexual misconduct; annual reporting to the Minister on sexual misconduct investigation statistics; a public online database for all internal research and policies relating to sexual harassment and misconduct, gender, sexual orientation, race, diversity and inclusion; and culture change.

However, Justice Arbour did view the appointment of an external monitor, with the specific task of overseeing the implementation of her recommendations, to be required. Justice Arbour suggested the external monitor produce a monthly “monitoring assessment and advice” report directly to the Minister and publish bi-annual public reports.

Conclusion

How, and to what extent, the Canadian military implements Justice Arbour’s recommendations remains to be seen.

In October 2022, Minister Anand announced the appointment of Madame Jocelyne Therrien as external monitor to oversee the military’s implementation of Justice Arbour’s recommendations. In December 2022, Minister Anand announced that she was accepting all of Justice Arbour’s recommendations, and that the military was already taking action on 17 of them.

Justice Arbour said, in the concluding remarks of her report, “The exposure of sexual misconduct in the CAF has shed light on a deeply deficient culture fostered by a rigid and outdated structure that did little to modernize it. For all the hardship it has caused over decades, the attention that this issue has recently attracted presents opportunities for change that might have been unimaginable without such a shock to the system.”

Here’s hoping the military takes full advantage of those opportunities.


1 The Honourable Marie Deschamps, C.C., Ad. E., External Review Authority, External Review into Sexual Misconduct and Sexual Harassment in the Canadian Armed Forces (March 27 2015) (“Deschamps Report”), online: Government of Canada < https://www.canada.ca/en/department-national-defence/corporate/reports-publications/sexual-misbehaviour/external-review-2015.html>, at page 26.

2 The Honourable Louise Arbour, C.C., G.O.Q., Report of the Independent External Comprehensive Review of the Department of National Defence and the Canadian Armed Forces (May 20 2022), online: Government of Canada <https://www.canada.ca/en/department-national-defence/corporate/reports-publications/report-of-the-independent-external-comprehensive-review.html >, at page 12.

3 Ibid. at page 274.

4 Ibid at page 214.

5 Ibid. at page 249.

6 Ibid. at page 255.

7 The Government of Canada offers a free online course on GBA+, at https://women-gender-equality.canada.ca/gbaplus-course-cours-acsplus/eng/mod00/mod00_01_01.html

 


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