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Terms of Reference – Independent External Comprehensive Review of the Department of National Defence and the Canadian Armed Forces

Purpose

Allegations of incidents of inappropriate behaviour by senior Canadian Armed Forces (CAF) members are now the subject of investigations by the Canadian Forces National Investigation Service. The allegations raise concerns regarding Department of National Defence (DND) and CAF policies, procedures, programs, practices, and culture, and may lead to a sense of betrayal by members of the Defence Team.Footnote 1 The allegations also raise questions of complicity of inaction throughout the chain of command that must be explored. Every member of the Defence Team should feel safe and respected in their workplace environment. Eliminating harassment and sexual misconduct and creating a safe work environment for every Defence Team member is a priority.

An independent external comprehensive review of current policies, procedures, programs, practices and culture within the CAF and the DND will be initiated to shed light on the causes for the continued presence of harassment and sexual misconduct despite efforts to eradicate it, identify barriers to reporting inappropriate behaviour and to assess the adequacy of the response when reports are made, and to make recommendations on preventing and eradicating harassment and sexual misconduct. To that end, a review of the recruitment, training, performance evaluation, posting and promotion systems in the CAF, as well as the military justice system’s policies, procedures and practice to respond to such allegations will also be conducted. The review will also assess progress made in addressing the recommendations contained in the External Review into Sexual Misconduct and Sexual Harassment in the Canadian Armed Forces by Marie Deschamps, C.C. Ad.E (Deschamps Report). The Sexual Misconduct Response Centre’s (SMRC) mandate, independence, and reporting structure, will also be reviewed.

The neutral and independent third-party review (the Independent External Comprehensive Reviewer, or Reviewer) will consider all relevant independent reviews concerning the DND or the CAF, such as the Deschamps Report and the report of the Independent Review conducted pursuant to section 273.601 of the National Defence Act, as well as reports by the Office of the Auditor General and internal audits along with their findings and recommendations.

The Reviewer will deliver its Draft Review Report to the Minister of National Defence (Minister) and, subsequently, to the Deputy Minister of National Defence and the Chief of the Defence Staff. The Final Review Report will made public by the Minister within 10 days of receipt from the Reviewer and will be forwarded to the Prime Minister.

Context and Ongoing Reviews

The DND and CF Code of Values and Ethics requires all DND employees and CAF members to respect human dignity and the value of every person, by treating every person with respect and fairness, helping to create and maintain safe and healthy workplaces that are free from harassment and discrimination, and working together in a spirit of openness, honesty and transparency that encourages engagement, collaboration and respectful communication.

DND and CAF policies make clear that harassment and sexual misconduct are not tolerated.  This behaviour goes against the CAF military values and undermines operational effectiveness, such that sexual misconduct must never be minimized, ignored or excused, and those who submit complaints should be supported without fear of reprisal.

On 5 November 2020, the Minister of National Defence initiated an Independent Review pursuant to section 273.601 of the National Defence Act, to review the specific provisions enumerated in subsection 273.601(1) of the National Defence Act, and appointed the  Honourable Morris J. Fish as the Independent Review Authority. The Report of the Independent Review (Fish Review) will be tabled in Parliament in June 2021.

On 17 December 2020, the Minister of National Defence announced the creation of an Advisory Panel on Systemic Racism, Discrimination with a focus on anti-Indigenous and anti-Black racism, LGBTQ2 Prejudice, Gender Bias and White Supremacy.

Objective and Scope

The Reviewer will conduct a review of the current policies, procedures, programs, practices and culture within the CAF and the DND, identify the causes for continued presence of harassmentFootnote 2 and sexual misconductFootnote 3 despite efforts to eradicate it, identify barriers to its reporting, and assess the adequacy of the policies, procedures and practice to respond when reports are made. The Reviewer will also make recommendations to eradicate sexual harassment and sexual misconduct, drive change, improve prevention measures, and reduce or remove barriers to its reporting.  Specific consideration is to be given to the role that reprisal, or the fear of reprisal, or the existence of any culture of silence or complicity may play as a barrier to reporting, as well as any indication – based on the experiences of DND employees and CAF members – of inconsistencies or challenges in the application of policies. 

The review will also assess progress made in addressing the recommendations contained in the Deschamps Report. It will also review the recruitment, training, performance evaluation and promotion system in the CAF, with a focus on how leaders are selected and trained. 

The review will include assessments of the Sexual Misconduct Resource Centre’s (SMRC) mandate and activities, including its independence and reporting structure and recommendations for improvement to these elements.

The Reviewer will coordinate with former Justice Fish to avoid overlap with the Fish Review, while allowing for a complete and independent examination by the Reviewer. For clarity, the Reviewer may consider and include assessments and recommendations about any barriers within the military justice system to reporting harassment or sexual misconduct or to dealing with such behaviour.

The Reviewer will also include assessments and recommendations related to establishing external oversight and/or review mechanisms related to misconduct.

The recommendations must take into account the separate but related legal and policy frameworks applicable to the Defence Team. 

The review will include assessments and recommendations for the Minister. The assessments and recommendations will be used to address general and specific Defence Team workplace concerns in relation to harassment and sexual misconduct.

The Reviewer will also coordinate with the Advisory Panel on Systemic Racism, Discrimination with a focus on anti-Indigenous and anti-Black racism, LGBTQ2 Prejudice, Gender Bias and White Supremacy to minimize any unnecessary or unintended duplication of effort, while allowing for a complete and independent examination by the Reviewer.

Methodology and Approach

The review will be led by Louise Arbour, who will deliver the Draft Review Report and Final Review Report to the Minister. The Final Review Report will made public by the Minister within 10 days of receipt from the Reviewer and will be forwarded to the Prime Minister.   

The Reviewer will provide the Minister with any interim assessments and recommendations, in the form of letters, which will be made public, addressing issues for immediate action that may become apparent during the conduct of the review.

The review is to include the views and Defence workplace experiences of current and former DND employees, CAF members, Staff of the Non-Public Funds, Canadian Forces (SNPF) employees, and contractors. It is also to include the perspectives of those employees, members and contractors who identify as part of historically disadvantaged groups, with specific focus on women, and the Lesbian, Gay, Bisexual, Transgender, Queer, Two-Spirit (LGBTQ2) community, to assist the DND and the CAF in furthering understanding of the perspective of these groups.

Interested current and former DND employees, CAF members, SNPF employees, and contractors will be invited to meet with or provide input through other means to the Reviewer in confidence, to provide their views and experiences in relation to: the policies, procedures, programs, practices and culture of the DND and the CAF, to identify any barriers to reporting harassment or sexual misconduct, to help in assessing the adequacy of policies, procedure and practice in guiding an appropriate response when reports are made, and to inform the assessments and recommendations related to the review of the SMRC. Targeted invitations may also be used.

The Reviewer will use detailed questions that allow the interviewees to be heard and provide a framework for gathering and analyzing the information. The Reviewer is to gather and synthesize comments and input of interviewees in order to assess DND and CAF culture, identify perceived or actual barriers to reporting inappropriate behaviour, and assess the adequacy of the response when reports are made.

The Reviewer may meet – once familiarized with any law or policies regarding harassment and sexual misconduct within the DND and the CAF – with any person, internal or external, who is or was responsible for the development and application of policies and direction regarding harassment or sexual misconduct, or who has or had a role in their development or application. The External Reviewer may also review the policies of likeminded allies to collect information and best practices that may inform their recommendations.

The Reviewer may also meet with other organizations within the Minister’s portfolio, external to the DND and the CAF, which are responsible for dealing with complaints or grievances from Defence Team members, and with external experts in governance, culture, gender, diversity, harassment and sexual misconduct, or other areas, as appropriate. 

Responsibilities of the External Reviewer

To the extent possible, the Reviewer will conduct the review, including the gathering of statements, in a manner that is trauma-informed.

The Reviewer will conduct the review pursuant to these terms of reference and in accordance with the Privacy Act, Official Languages Act and other applicable legislation and regulations.

The Reviewer will perform its duties without expressing any conclusions or recommendations regarding liability or wrongdoing of any person or organization and will not include any reference to, or provide any assessments or recommendations related to, any specific cases of harassment or sexual misconduct.

The Reviewer will perform its duties in such a way so as to ensure that the conduct of the review does not jeopardize any possible Criminal Code, Code of Service Discipline or similar investigation.

If, in the course of interviews, the Reviewer is presented with information relating to specific cases of potential misconduct, the Reviewer is to suspend that interview, and prior to reconvening, is to inform the interviewee:

  1. That there will be no findings made in relation to any specific case;
  2. That such information may be considered when formulating recommendations;
  3. That the information will be recorded but anonymized; and,
  4. Provide information (furnished by Liaison Officer) to the interviewee about options for making a report to the appropriate authority and any support mechanisms available to those wishing to make reports.

The Reviewer will ensure that the review is conducted in a manner that does not impede ongoing efforts to isolate and contain COVID-19. The Reviewer’s work plan may need to be amended to respond, among other things, to COVID-19 related constraints.

The review will respect all public health measures in effect at the relevant time. As such the Reviewer will make use of electronic means where appropriate, including receiving and providing documents in electronic form, and conducting, where possible and appropriate, briefings and interviews virtually.

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Reporting Requirements

Subject to these Terms of Reference, the Reviewer will manage the review and produce the Draft Review Report and Final Review Report in full independence, including from the DND and the CAF.

The Draft and Final Review Report will be provided directly to the Minister, and subsequently to the Deputy Minister and Chief of the Defence Staff, and will include:

  1. An assessment of the policies, procedures, programs, practices and culture within the CAF and the DND, of the causes for the continued presence of harassment and sexual misconduct despite efforts to eradicate it, identification of any barriers to reporting inappropriate behaviour, and the impact of the recruitment, training, performance evaluation, posting and promotion systems in the CAF;
  2. An assessment of the causes and effects of barriers to reporting inappropriate behaviour in relation to harassment or sexual misconduct and the adequacy of the policies, procedures and practice to respond when reports are made;
  3. Recommendations to reduce or remove such barriers in relation to harassment or sexual misconduct;
  4. Recommendations on how to prevent and/or eradicate harassment and sexual misconduct within the CAF or the DND;
  5. Recommendations on any further changes to the performance evaluation system and the promotion system used in the CAF with a focus on how senior leaders are selected, while CAF/DND are proceeding with improvements;
  6. An assessment of DND and CAF progress made in addressing the recommendations contained in the Deschamps Report;
  7. An assessment of the SMRC’s mandate and activities, including its independence and reporting structure and recommendations for improvement to these elements; 
  8. An assessment and recommendations related to establishing external oversight and/or review mechanisms related to harassment and sexual misconduct;
  9. Any other assessments and recommendations that the Reviewer wishes to include to address areas of review mandated to the Reviewer within these Terms of Reference that were not addressed in paragraphs A through H; and
  10. A description of the underlying methodology used to make the assessments and/or recommendations above.

Deliverables and Associated Schedule

The Reviewer shall produce the following deliverables:

The Reviewer will provide a Draft Review Report and Final Review Report in accordance with these terms.

The Reviewer will provide a verbal detailed briefing to the Minister, and subsequently to the Deputy Minister of National Defence and the Chief of the Defence Staff, on the results of the Review to coincide with the provision of the Draft and Final Review Reports.

The Minister, Deputy Minister and Chief of Defence Staff will provide their response, if any, to the Reviewer within 30 days of having received the Draft Review Report.

The Reviewer will provide the Final Review Report to the Minister of National Defence, and subsequently to the Deputy Minister of National Defence and the Chief of the Defence Staff, not later than 30 days after the receipt of comments on the Draft Review Report forwarded on behalf of the Minister of National Defence. 

The Final Review Report will made public by the Minister within 10 days of receipt from the Reviewer and will be forwarded to the Prime Minister. The names of those who participated in the Review will remain anonymous and there will be no findings made in relation to any specific case.

All letters containing interim assessments and recommendations and the Final Review Report are to be delivered simultaneously in both official languages, and with the contents and format of the letters or report being suitable for publication.

Language Requirements

The Reviewer shall conduct all meetings and interviews in English or French as required by the person being interviewed.

Document translation, including of any deliverables, may be facilitated by the Liaison Officer supporting the Reviewer.

Timing

The review is to start upon the effective date of the contract appointing the Reviewer, conducted so as to provide the Final Review Report within 12 months of the contract.

The timelines may be adjusted by the Minister, if requested by the Reviewer as a result of unforeseeable delays, including in relation to COVID-19-related constraints, and may include an extension of up to 3 additional months, for a total of 15 months.

Confidentiality and Disclosure

The information gleaned throughout the interview and report-writing process, as well as contents of the Draft Review Report and Final Review Report are to be kept confidential by the Reviewer until the Final Review Report is made public, at which time the content of the Final Review Report only shall be disclosed (the other items above remaining confidential). In addition, the Reviewer will

  1. conduct the review with the utmost discretion and confidentiality;
  2. inform participants of their responsibilities to respect the confidentiality of the review process;
  3. inform participants that the contents of the Final Review Report will be released publicly, and that information will be handled in accordance with the requirements of the Access to Information Act and the Privacy Act;
  4. ensure the anonymity of those who participated in the Review; and,
  5. ensure that there is no personal information included in any letter or Draft or Final Review Report.

DND and CAF Support to the External Reviewer

The Department of National Defence will identify a Liaison Officer who will facilitate timely access to DND and CAF documents, organizations, and to DND employees, SNPF employees, and CAF members. The Liaison Officer will also coordinate any briefings to be provided by the Defence Team to the Reviewer, and facilitate access to the laws and policies referred to herein, or other relevant source material.

The Reviewer will be provided with access to relevant records under the control of the DND, the SNPF, or the CAF, through the Liaison Officer. All access to relevant records will be provided subject to applicable exemptions or those ordinarily applied under the Access to Information Act and Privacy Act, with the Liaison Officer consulting with the Director of Access to Information and Privacy if required. Where the Reviewer requests records that contain personal information, they will be provided in anonymized form if possible. No access will be provided to records that are litigation privileged or solicitor-client privileged or, in civil law, subject to immunity from disclosure or professional secrecy of advocates and notaries, or that constitutes a Cabinet Confidence.

The DND and the CAF will provide the Reviewer with information about supports that are available to Defence Team members, so that those members who participate in the review may be supported as needed. 

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