Ottawa, May 30, 2022
About the reviewer
The Honourable Louise Arbour, C.C., G.O.Q. is a former justice of the Supreme Court of Canada, and now Senior Counsel with Borden Ladner Gervais LLP. Madame Arbour served as Chief Prosecutor for the International Criminal Tribunals for the former Yugoslavia and for Rwanda from 1996-1999. She was appointed to the Supreme Court of Canada in 1999, and served until 2004, when she was appointed as United Nations’ High Commissioner for Human Rights. More information about the Hon. Louise Arbour can be found here.
Background and previous reviews
In 2015, Justice Marie Deschamps documented the sexualized culture in the CAF, shocking many Canadians who, until then, might have been content to believe that previous media accounts of sexual abuse in the Armed Forces were merely anecdotal and marginal. The revelations of Justice Deschamps led to a flurry of activity by the CAF in an attempt to fix the problem. Unfortunately, those efforts have so far failed.
Since then, these issues have also been examined by the Auditor General of Canada, the House of Commons Standing Committee on the Status of Women, the House of Commons Standing Committee on National Defence, the Standing Senate Committee on National Security and Defence, Statistics Canada, the Heyder and Beattie class actions and Justice Morris J. Fish.
Scope and mandate of the review
While comprehensive, the Reviewer’s mandate required that she examine two key issues: sexual misconduct and leadership. The two are demonstrably interrelated. The cultural shortcomings that have allowed widespread sexual misconduct in the CAF have been amply demonstrated. Events in the last few years have exposed the extent to which this culture was present in the CAF’s senior ranks. The mandate explicitly precluded the Reviewer from making any assessments or recommendations related to specific cases.
While the mandate of the Review referred to leadership and sexual misconduct as they related to both the CAF and the DND, the focus of this Report is clearly on the CAF. Some issues, such as leadership and military justice, have little connection to the DND. Indeed, what led to the present Review was allegations of inappropriate behaviour by senior CAF members and inaction throughout the chain of command, as well as concerns about the quality of leadership development in the CAF. The Reviewer had no mandate to examine issues in the public service at large.
The need for external input
Sexual misconduct has brought the CAF into disrepute, both internally and in the eyes of the general public. This reaction should not be viewed as reflecting a kind of moral panic in society at large, an unfair changing of the game to penalize those who have been successful under a different set of rules. Rather, it is a justified condemnation of an archaic and deeply damaging organizational culture.
The CAF is a “total institution”. Its members not only work, but live, train and socialize together within institutional and social structures controlled by the organization. This means that sexual misconduct, particularly when perpetrated by a CAF member on another, can have a significant impact on the victim. This includes not only their health and well-being but also their career, including promotion and posting. The nature of the CAF as a total institution also explains the extent of the problems they face. It creates an inward-looking culture that is inherently distrustful of external views and resistant to change.
What the sexual misconduct crisis reveals is complex and subtle. It combines abuse of power, antiquated practices unsuited to a more diversified workplace, the glorification of masculinity as the only acceptable operational standard for CAF members, and the continued unwillingness to let women in particular, as well as members of the LGBTQ2+ community, visible minorities and equity-seeking groups occupy their proper place in the military.
External reviews have become a way of doing business for the CAF. This Report illustrates how the handling of recommendations has become a mini-industry of chart-making, with little meaningful action within the organization. This has become exacerbated by the piling-up of additional recommendations, many inconsistent with each other.
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.
There is no reason to doubt the CAF’s competence in operations, or in training its members’ technical capabilities. Certainly, the CAF has a good reputation internationally in this regard. But in other areas, such as military justice, education, recruitment and human resources, it would benefit from resorting to external actors.
The Review contains 48 detailed recommendations across all the areas of the Reviewer’s mandate. The most significant of these are detailed below. However, just as the issues of sexual misconduct and leadership are inter-related, so are many of the recommendations. Each one is based on the assumption that others will also be implemented. Some are precise and capable of implementation without further studies, working groups, committees or consultations. Others merely point to a direction, a different way of doing certain things. Those who live with these issues on a day-to-day basis are eminently capable of determining how best to proceed, if they accept the general direction and changes being proposed. On the other hand, if they do not, no amount of detailed recommendations will produce the desired result.
Arbour recommendations
Part I - Sexual Misconduct
Under the first pillar of the mandate, the Reviewer makes recommendations to improve the investigation and resolution of sexual misconduct and improve the situation of victims.
Terminology
“Sexual misconduct” is too broad a term. It captures everything from sexual assault and harassment, to the many micro aggressions that are the weapons of choice for the expression of discriminatory views, harmful stereotypes and even unconscious biases. It is merely a convenient expression to refer to the whole range of issues when differentiation amongst them is not required. Echoing Justice Deschamps’ recommendations, the CAF should refocus the definitions it uses in its policies on specific forms of conduct that align with the relevant legal instruments, including the Criminal Code and the Canada Labour Code.
Military Justice and Complaints
The Reviewer recommends that civilian authorities have exclusive jurisdiction over Criminal Code sexual offences alleged against CAF members.
The CAF first gained concurrent jurisdiction over sexual offences committed in Canada in 1998. The rationale was that this would improve the CAF’s “ability to do prompt justice and maintain discipline” and thereby improve discipline, morale and efficiency. Twenty-four years later, this promise has not been met. Surveys conducted by the CAF show that faith in the military justice system is low. Serious concerns about the independence and competence of military investigators and prosecutors to handle sexual offences remain. Conviction rates are higher - and punishments tougher - in the civilian system.
Similarly, the Reviewer recommends that cases of sexual harassment be handled by the Canadian Human Rights Commission (CHRC).
Civilian authorities should be the first “port of call” for the reporting and investigation of all serious forms of sexual misconduct. This does not leave the chain of command without tools to address these issues; rather, “civilianizing” these processes ensures their independence from the chain of command – as well as the appearance of independence that the CAF so desperately requires to rebuild confidence in its ability to address misconduct and take care of its own. It also provides much needed ongoing civilian input into the conduct of CAF members and the application and content of its policies.
Duty to Report
All CAF members must “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.” The duty to report is not specific to sexual misconduct and, according to the CAF, has existed in some form since the 1930s.
A failure to report is punishable as a service offence. But there are virtually no precedents for such charges. Indeed, it is remarkable that the duty to report could have become such a prominent issue considering that it is almost never enforced.
The duty to report is a widely acknowledged problem. There is no convincing argument to maintain it – at least in the area of sexual misconduct since is has never achieved its intended purpose. As in the civilian system, reporting should be left to conscience and trust. The uncertainty created by a legal duty that is not enforced is harmful. It invites speculation about the risk of non-compliance and sends an ambiguous message about the virtue of compliance. The duty to report should simply be abolished.
Victim Support
Victim support is largely the province of the Sexual Misconduct Response Centre (SMRC), which is housed within the DND. Some have argued that it should be external not only to the CAF but also to the DND. The Review concludes that it is not desirable to sever the SMRC from the DND and have it report directly to Parliament. The issues that the SMRC deals with are highly personal and confidential and would not necessarily benefit from review in a partisan environment. Moreover, it would be difficult to justify providing direct parliamentary oversight on sexual misconduct to one entity, the CAF or even the entire Defence Team, and not the RCMP, for example, or the entire federal public service. The best way for the SMRC to be effective as a service provider is for it to maintain a close enough connection to the CAF without being in any way subjected to the CAF’s direction or control.
Therefore, the Reviewer recommends that the SMRC remain within the DND, with measures taken to increase its independence, both actual and perceived, including by increasing its external connections. To better reflect its mandate, it should be renamed the Sexual Misconduct Resource Centre.
In addition, the Review concludes that victims should be given free independent legal advice at the earliest opportunity, so that they can assess the options available to them.
Part II - Leadership
The second pillar of the Reviewer’s mandate – Leadership – is related to the first. The CAF is a complex and unique organization. Its most striking feature is the role of leadership. It is developed early and is omnipresent in a hierarchy that is broken down by numerous ranks, trades and postings under a chain of command designed to enforce the principle of “command and control.”
In the Reviewer’s view, CAF leadership has fallen short of the ideals it ascribes to. That failure of leadership is responsible for the long-standing culture of sexual misconduct, itself a manifestation of discriminatory attitudes that remain present today. That responsibility cannot be laid at the feet of only a few individual leaders. Fundamentally, it is the collective failure of an organization that has preserved such a high degree of self-regulation and resistance to external influence and progress.
Recruitment and Training
Recruitment is a laborious and resource-intensive process. The CAF would benefit from re-adjusting its long-standing procedures to shorten the onboarding process.
Similarly, when it comes to military training, there is an obvious disconnect between rhetoric and reality, between what is taught and what is modelled. Put simply, the “ethical teaching” is often not taken seriously.
The Reviewer recommends that the CAF should prioritize and incentivize postings to training and instructor positions and ensure the proper screening of qualified instructors for competence and character.
Issues with early training extend to the military colleges, which have a well-documented problem with sexual harassment, discrimination and misconduct. There remain significant reasons for concern both with the operation of the military colleges as currently conceived, as well as with the environment in which young female cadets are expected to grow and excel.
The military colleges appear as institutions from a different era, with an outdated and problematic leadership model. The military colleges do not train all officers as many receive their education in civilian universities. The population of the military colleges is predominantly young white men from Ontario and Quebec. The Reviewer recommends that there be a detailed review of the benefits, disadvantages and costs of continuing to educate cadets at the military colleges, including whether they should continue as undergraduate degree-granting institutions.
Promotions, Postings and Succession Planning
The development of leadership in the CAF is a vast enterprise that occupies a large part of its activities. It is an internally focused, detailed and sophisticated process that is heavily devoted to the management of its members’ careers.
Vast resources are spent each year in assessing CAF members’ suitability for promotion. Those who show particular potential are carefully career-managed as part of the CAF’s various succession plans.
The CAF emphasizes the objectivity of its performance appraisals processes. However, no system offers perfect objectivity, and the most problematic ones are the ones that think they do, oblivious to the unconscious, and sometimes not-so unconscious, biases that inevitably creep in.
The CAF has historically placed a greater emphasis on performance than on conduct. While there have been moves in the right direction, there is still more to be done to ensure that conduct issues are properly taken into account as people progress through the ranks.
The current processes tend to simply reinforce the status quo, with numbers of women promoted remaining at, or close to, their overall (low) proportion of the CAF population. This misses an opportunity to increase the representation of women at higher ranks, which would provide numerous benefits to CAF leadership.
The inclusion of “honest brokers” from other areas of the CAF or DND on many decision-making boards is a welcomed initiative that should be expanded.
Beyond succession planning, frequent posting brings its own set of problems. As a general observation, the CAF’s addiction to mobility – resulting in multiple short-term postings over the career of a CAF member – is the root cause of many problems. CAF members, like anyone, need time to develop expertise, build teams, and situate themselves with purpose within the organization. They require the support of their family and community to do all of this successfully. This is a significant endeavour, which should be undertaken with maximum input from all those directly affected by these practices.
Input and Oversight
Several stakeholders have proposed the creation of an “inspector general” tasked with investigating and overseeing professional culture and conduct in the CAF.
The Reviewer concludes that, assuming her other recommendations are implemented, an inspector general is not necessary to address sexual harassment or misconduct. Should the civilian authorities have exclusive jurisdiction over the investigation and prosecution of criminal sexual offences, and that the CHRC and CHRT perform a similar function for complaints of sexual harassment and discrimination by members of the Defence Team, the need for oversight in this area will be greatly reduced as the CAF will no longer perform these functions.
However, if this Review is not to go the way of its predecessors, with its recommendations simply added the CAF’s recommendations database and then ignored in whole or in part, there must be some monitoring of its implementation. The Reviewer recommends that the Minister should clearly commit to implementing the recommendations that she accepts. To that effect, she should put in place an appropriately resourced external monitor outside the Defence Team who should provide monthly updates to the Minister and bi-annual public reports.
Conclusion
Two things could derail the path to significant change. The first would be to assume that this is only attributable to a culture of misogyny, and that change will come naturally with time and more enlightened attitudes. The second would be for the CAF to think that it can fix its broken system alone.
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