Chapter 2 – Sexual Misconduct

Historical Context
Military Jurisdiction Over Sexual Misconduct
1. Sexual Misconduct other than Sexual Assault
2. Sexual Assault
Duty to Report Incidents of Sexual Misconduct
1. The Problem
2. Proposed Solutions
Protection and Support for Victims
1. Independence of the Sexual Misconduct Response Centre
2. Powers and Mandate of the Sexual Misconduct Response Centre
  1. Provision of Free Independent Legal Advice to Victims
  2. Power to Monitor Accountability
Restorative Justice Approaches

Historical Context^{Footnote *}
1. Sexual misconduct in the Canadian Armed Forces (“CAF”) remains persistent, preoccupying and widespread – despite the CAF’s repeated attempts to address the problem and to curb its prevalence. It has had a traumatic impact on the lives and careers of victims,^{Footnote 577} a corrosive effect on discipline and morale, and a marked tendency to undermine public confidence in the CAF’s institutional capacity to solve the problem internally. It is plainly inimical as well to the CAF’s intention, as a matter of policy, to “focus on increasing diversity and gender balance”^{Footnote 578} within its ranks.
2. The government has taken notice. Days before the deadline for delivery of my Report, the government announced in its Budget a major initiative to combat sexual misconduct in the CAF. It promised:
  1. to “strengthen accountability mechanisms, promote culture change in the military, and provide a safe place for survivors to report misconduct and access the services they need”;
  2. to “implement new external oversight mechanisms to bring greater independence to the processes of reporting and adjudicating sexual misconduct within the military”; and
  3. to “enhance internal support services to victims, including access to free, independent legal advice and enabling military members to access services without making a formal complaint”.^{Footnote 579}
3. Some will lament the belated implementation of these measures – many were recommended six years ago by my former colleague, the Honourable Marie Deschamps, in her watershed report.^{Footnote 580} I understand that sentiment, but prefer looking forward with optimism to looking backward with despair.
4. My recommendations in this Chapter were prepared before the government’s Budget commitments were disclosed. Yet they are strikingly similar, which is not at all surprising since they speak largely to the same objectives: to make the military justice system more responsive to the welfare, security and health of CAF members; more protective of the autonomy of victims; and better equipped to monitor individual accountability and organizational compliance with the CAF’s governing rules and stated objectives.
5. In formulating these recommendations, I have had the benefit of extensive and informative submissions by the Sexual Misconduct Response Centre (“SMRC”) and by several experts on sexual misconduct in the military. I have learned much as well from my extensive discussions with senior officials of the Department of National Defence (“DND”); with the Judge Advocate General (“JAG”); with leading commanders of the CAF; and, notably during 16 virtual town hall meetings, with CAF members of all ranks. My recommendations thus rest on the solid foundation of expertise, both in military culture and in the problem of sexual misconduct. For that reason particularly, I hope the government, in implementing its Budget commitments, will attach appropriate weight to my recommendations.
6. In 2014, Justice Deschamps was appointed by the Chief of the Defence Staff (“CDS”) as External Review Authority. Her mission was to “examine CAF policies, procedures and programs in relation to sexual harassment and sexual assault, including the effectiveness with which these policies are currently being implemented”.^{Footnote 581} Curiously, however, Justice Deschamps was expressly prohibited from considering relevant aspects of the CAF’s military justice system.^{Footnote 582}
7. Accordingly, and pursuant to my own mandate, I will focus in this Chapter on aspects of the military justice system that impact, directly and indirectly, on sexual misconduct in the CAF. Recent events, described below, underline the need to include in my Report sufficient background and specific recommendations concerning sexual misconduct in the CAF.
8. By way of background, I begin with an overview of three recent periods in the CAF’s ongoing struggle with sexual misconduct. They all begin with disclosures by investigative journalists. The first two ended with important reforms to the military justice system; the third has just begun and its outcome remains promising but uncertain.
9. The first period began in 1998, with the publication in Maclean’s Magazine of three articles on the subject of sexual misconduct in the CAF.^{Footnote 583} Maclean’s summarized its findings this way:
  - Maclean’s has interviewed 13 women who say they were the victims of sexual assault in the Canadian military—and that their cases may represent a pattern of sexual harassment and assault of Canada’s servicewomen. Most of the incidents took place in the 1990s, after the military began its program of fully integrating women into the armed forces. And many of them reveal a systematic mishandling of sexual assault cases: investigations were perfunctory, the victims were not believed and often they—not the perpetrators—were punished by senior officers who either looked the other way or actively tried to impede investigations. […] The cases also reveal a culture—particularly in the navy and combat units—of unbridled promiscuity, where harassment is common, heavy drinking is a way of life, and women, who now account for 6,800 of the Canadian Forces’ 60,513 members, are often little more than game for sexual predators.^{Footnote 584}
10. In response, high‑ranking officers assured Maclean’s that the CAF would have zero tolerance for conduct of this kind. The then Minister of National Defence (“Minister”), the Honourable Arthur Eggleton, told Maclean’s that “new initiatives, such as anti‑harassment programs, a new military investigative unit and a grievance board that operates outside the chain of command, will help solve whatever problems exist”.^{Footnote 585} And Parliament introduced Bill C‑25,^{Footnote 586} which included a legislative response to the disclosures.
11. Bill C‑25 received Royal Assent in 1998. It incorporated several recommendations made in the Dickson Report^{Footnote 587} and the Somalia Inquiry Report.^{Footnote 588} Notably, Bill C‑25 granted the CAF shared jurisdiction over the offence of sexual assault, enabling the CAF to rely on its own institutions and processes to confront the problem.
12. The second period, like the first, was the product of investigative journalism. In 2014, two magazines published detailed reports on sexual misconduct in the CAF. In the first,^{Footnote 589} L’actualité headlined its report: “Chaque jour, cinq personnes sont agressées sexuellement dans les Forces canadiennes”.^{Footnote 590} Two weeks later, Maclean’s followed with a story that echoed its findings in 1998.^{Footnote 591}
13. Justice Deschamps was appointed several months after publication of the disclosures in L’actualité and Maclean’s. Over a period of six months, she interviewed more than 700 individuals and here, in part, is what she found:
  - [The] ERA’s consultations revealed a sexualized environment in the CAF, particularly among recruits and non‑commissioned members, characterized by the frequent use of swear words and highly degrading expressions that reference women’s bodies, sexual jokes, innuendos, discriminatory comments with respect to the abilities of women, and unwelcome sexual touching. Cumulatively, such conduct creates an environment that is hostile to women and LGTBQ members, and is conducive to more serious incidents of sexual harassment and assault.^{Footnote 592}
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14. Justice Deschamps recommended the creation of an independent center for accountability for sexual assault and harassment, which has since become the SMRC.
15. When the SMRC was established in 2015, it was only mandated to provide support to CAF members who were victims of sexual misconduct.^{Footnote 593} That same year, the CAF launched Operation HONOUR to confront its sexual misconduct problem. Three years later, the Auditor General of Canada described Operation HONOUR as “a top‑down, institution‑wide military operation to eliminate inappropriate sexual behaviour”.^{Footnote 594} The Auditor General acknowledged that Operation HONOUR had “increased awareness of inappropriate sexual behaviour within the Canadian Armed Forces”,^{Footnote 595} but found that “some members still did not feel safe and supported”,^{Footnote 596} that “many victims also did not understand or have confidence in the complaint systems” and that the duty to report actually “discouraged some victims from coming forward”. ^{Footnote 597}
16. In 2018, Statistics Canada conducted Surveys on Sexual Misconduct in the Canadian Armed Forces.^{Footnote 598} It found that, in the 12 months preceding the survey, approximately 900 members of the Regular Force reported being victims of sexual assault in the military workplace or in incidents involving CAF members. The prevalence among women was about four times that among men (4.3 per cent versus 1.1 per cent). The problem was not limited to the Regular Force, as approximately 600 members of the Reserve Force indicated that they had been sexually assaulted in the previous 12 months. The prevalence among women was six times that among men (7.0 per cent versus 1.2 per cent). The total number of alleged assaults was approximately 1,500. The estimate made by L’actualité in 2014 – 1,780 sexual assaults per year – was not far off.
17. According to the SMRC, “very few of these cases were reported and even fewer resulted in charges that were tried in the military justice system”.^{Footnote 599} In fact, only 25 per cent of Regular Force members who were sexually assaulted stated that someone in authority found out about the incident, while 57 per cent said nobody in authority was aware. Reservists, for their part, indicated that 30 per cent of sexual assaults had been reported to someone in authority. Finally, 54 per cent of women and 40 per cent of men in the regular force agreed that inappropriate sexual behaviour is a problem in the CAF.
18. The third period of the CAF’s struggle with sexual misconduct since 1998 began on February 2, 2021, when Global News reported allegations of inappropriate behaviour between a retired CDS and two female subordinates.^{Footnote 600} Three weeks later, another CDS stepped aside after several news outlets had contacted the DND to confirm that he was the subject of a sexual misconduct investigation.^{Footnote 601} And on March 31, 2021, the Chief of Military Personnel stepped aside as well, this time amid allegations of sexual assault on a subordinate female member.^{Footnote 602}
19. These allegations have created fresh pressure on the CAF and on the government to respond with urgency to the problem of sexual misconduct in the CAF. They have revived concern whether the CAF itself, and its military justice system in particular, are capable of dealing appropriately with conduct of this sort.
20. Meanwhile, on March 24, 2021, Lieutenant‑General Wayne D. Eyre, now Acting Chief of the Defence Staff, publicly released a letter to all members of the CAF announcing the end of Operation HONOUR. He also announced that the CAF was ready to pivot towards greater external examination in order to deal with sexual misconduct and other problems, writing to all members:
  - We will fully support and welcome an external review of our institution and its culture with the full realization that we do not have all the answers. We will embrace external recommendations, including an independent reporting chain.^{Footnote 603}
21. In like vein, several senior officers of the CAF assured me during my consultations that they were not opposed to relinquishing some of their responsibilities dealing with sexual misconduct if it would help to eradicate the problem.
Military Jurisdiction Over Sexual Misconduct

Sexual Misconduct other than Sexual Assault
1. Sexual misconduct is not a specific offence under the National Defence Act^{Footnote 604}(“NDA”). It is currently prohibited by the combined effect of subsections 129(1) and 129(2) of the NDA, which create an infraction for an “act, conduct, disorder or neglect to the prejudice of good order and discipline”, and section 4.5 of DAOD 9005-1, Sexual Misconduct Response^{Footnote 605}(“DAOD 9005-1”), which provides that “CAF members are prohibited from engaging in sexual misconduct”. Sexual misconduct is defined as follows in DAOD 9005-1:
  - Conduct of a sexual nature that causes or could cause harm to others, and that the person knew or ought reasonably to have known could cause harm, including:
    - actions or words that devalue others on the basis of their sex, sexuality, sexual orientation, gender identity or expression;
    - jokes of a sexual nature, sexual remarks, advances of a sexual nature or verbal abuse of a sexual nature in the workplace;
    - harassment of a sexual nature, including initiation rites of a sexual nature;
    - viewing, accessing, distributing or displaying sexually explicit material in the workplace; and
    - any Criminal Code offence of a sexual nature, including: […] sexual assault […] ^{Footnote 606}
2. No one I consulted took serious issue with the CAF maintaining jurisdiction over sexual misconduct that does not amount to sexual assault or another criminal offence. Trying these acts of sexual misconduct publicly in the CAF serves a deterrent purpose.
3. I would, however, add two comments on the investigation of this category of sexual misconduct. First, these investigations should be conducted by the military police and not by the units – except in the most minor cases and absent exceptional circumstances.^{Footnote 607} Unit disciplinary investigations do not present the hallmarks of independence required to reassure victims of sexual misconduct that no extraneous considerations, including protection of the chain of command,^{Footnote 608} will influence the course of the investigation.
4. Second, the Declaration of Victims Rights, much like the Canadian Victims Bill of Rights, is meant to provide victims of service offences rights to information, protection, participation and restitution. Though the DVR is not yet in force, I believe the military police should begin to receive specific training on the application of its principles to investigations of sexual misconduct. The SMRC, with the help of the Canadian Forces Provost Marshal, should design this training.
  - Recommendation #65. Except in the most minor cases and absent exceptional circumstances, allegations of sexual misconduct should be investigated by the military police and not by the units.
  - Recommendation #66. The military police should receive appropriate training on the application of the Declaration of Victims Rights to investigations of sexual misconduct, even before its entry into force. The Sexual Misconduct Response Centre, with the help of the Canadian Forces Provost Marshal, should design this training module.
5. Once Bill C-77 comes into force, there will presumably be two categories of punishable sexual misconduct: sexual misconduct offences triable only by court martial, and sexual misconduct infractions triable only by summary hearings. The victims of sexual misconduct infractions will not benefit from the rights afforded in the DVR.^{Footnote 609} For the SMRC, this will create a hierarchy of victims:
  - […] defining some offences of a sexual nature as service infractions and others as service offences will create a hierarchy of victims of sexual misconduct whereby those within the court martial system will have access to rights under DVR and those within the summary hearing system will not. In effect, the DVR will only apply to a small minority of sexual misconduct cases, thereby rendering the intent of the legislation inconsequential.^{Footnote 610}
6. I believe that the issue should be examined once Bill C-77 comes into force and there is actual experience with summary hearings.
  - Recommendation #67. In the performance of her superintendence of the administration of military justice in the Canadian Armed Forces, the Judge Advocate General should consider the desirability of extending the rights afforded to victims of service offences by the Declaration of Victims Rights to victims of service infractions, particularly victims of sexual misconduct.
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Sexual Assault

Several of the experts and CAF members I interviewed contended that the CAF should not have jurisdiction over sexual assaults.^{Footnote 611} Without expressing a decided opinion in this regard, one expert, Professor Elaine Craig, identified several reasons for prosecuting sexual assaults in the civilian system.^{Footnote 612} And she argued that if the CAF were to retain jurisdiction over sexual assaults, the NDA should be amended to track changes in the Criminal Code regarding sexual offences.
Upon reflection, I am not persuaded that Parliament should withdraw military jurisdiction over sexual assaults at this time. For one thing, in enacting Bill C‑77 in the aftermath of the Deschamps Report, Parliament decided to afford victims the same rights in both military and civilian proceedings. Giving effect to that legislative choice requires implementation as soon as possible of the relevant provisions of Bill C‑77.
In addition, some rights and protections afforded by the Criminal Code to victims and to persons accused of sexual offences are not included in the NDA. While I am informed that some at least are, in practice, applied at courts martial,^{Footnote 613} I think it preferable that all the rights and protections available in the civilian justice system be expressly incorporated into the NDA.
Finally, unless the victim consents, it would in my view be inappropriate for the military justice system to continue to investigate or prosecute alleged sexual assaults until it extends to all victims the protections afforded by the DVR. The civilian authorities should, in the intervening period, exercise their own investigative and prosecutorial jurisdiction over alleged sexual assaults.
- Recommendation #68. The Declaration of Victims Rights should be brought into force as soon as possible, ensuring that victims investigated or prosecuted under the National Defence Act will be entitled to substantially the same protections as the Canadian Victims Bill of Rights affords. Until the Declaration of Victims Rights comes into force, and unless the victim consents:
  1. sexual assaults should not be investigated or prosecuted under the National Defence Act and should instead be referred to civilian authorities; and
  2. there should also be a strong presumption against investigating and prosecuting under the National Defence Act other offences committed against a victim.
- Moreover, the National Defence Act should be amended to expressly incorporate, in substance, the rights and protections afforded by the Criminal Code to victims and to persons accused of sexual offences.
In its progress report on the first five years of the CVBR, the Office of the Federal Ombudsman for Victims of Crime (“OFOVC”) noted:
- There has been no consistent effort to implement the Act. Training opportunities for criminal justice officials have been limited, and there has been no public education effort to inform citizens of their rights. Thus, the situation of victims of crime has not fundamentally changed since it was passed. I believe the Act needs to be strengthened to require officials to uphold victims’ rights in the criminal justice system and require institutions to measure and report on their compliance with the Act.^{Footnote 614}
The lessons learned from the implementation of the CVBR should be used to improve the implementation of the DVR.
- Recommendation #69. The regulations implementing the Declarations of Victims Rights, or their associated policies, should:
  1. specify that victims are to be provided clear information about their rights under the Declaration of Victims Rights, including what information they are entitled to receive, who is responsible for providing it and when it should be provided;
  2. develop a complaint mechanism that is simple, accessible, robust, and results in meaningful enforcement and accountability; and
  3. include a requirement for role‑specific mandatory training for military justice actors on victims’ issues (including the impact of trauma and how best to interact with victims), victims’ rights and the actors’ obligations under the Declaration of Victims Rights.

Duty to Report Incidents of Sexual Misconduct
1. The Problem
  1. The duty imposed on CAF members to report all incidents of sexual misconduct was identified as one of the critical areas for reform by most experts, public servants, victims and CAF members consulted during my review, including the Deputy Minister of National Defence (“Deputy Minister”), the JAG, the SMRC, Justice Deschamps, Professor Craig, Marie‑Claude Gagnon, founder of “It’s Just 700”, and many town hall participants.
  2. Every member of the CAF has a duty to “report to the proper authority [in the chain of command] any infringement of the pertinent statutes, regulations, rules, orders and regulations governing the conduct of any person subject to the Code of Service Discipline”, unless the member is an officer who can “deal adequately with the matter”.^{Footnote 615} In theory at least, victims of sexual misconduct, their confidants and witnesses of incidents are therefore obliged to report the incidents to their chain of command, lest they be charged with having failed to do so.^{Footnote 616}
  3. The rationale for the duty to report incidents of sexual misconduct is clear: If the leadership of the CAF and its commanding officers are unaware of the incidents – and incidence – of sexual misconduct in its ranks, they cannot take steps to eradicate or even reduce its occurrence. They cannot apply informed strategies, nor deal with offenders swiftly and with appropriate severity.
  4. The duty to report, however, has had unintended effects and caused undesirable results. It has “forced victims to report when they were not ready or did not want to”.^{Footnote 617} It has "[raised] concerns about negative consequences for the complainant’s career, loss of privacy and confidentiality, fear of collateral charges, and a deep scepticism that the chain of command would respond sensitively and appropriately to the complaint”.^{Footnote 618} It “impacts a victim’s/survivor’s autonomy over whether, when, and how to report their victimization, and whether and how to seek support and assistance following an incident”, and has left victims “at significant risk of further harm, as they are drawn into investigations before they are ready, or that they don’t want”.^{Footnote 619} And I have heard anecdotal evidence that many victims who have been drawn into investigations and prosecutions do not remain in the CAF because of the impact on their health and their military careers.
  5. I acknowledge that DAOD 9005‑1, issued on November 18, 2020, improves the situation by providing more reporting options to victims.^{Footnote 620} However, all reporting authorities remain within the CAF, except for the civilian police, which poses other challenges.^{Footnote 621} This does not address the problem of mistrust in the institution identified in the Deschamps Report and the fear of reprisals or other negative consequences resulting from a report.^{Footnote 622}
2. Proposed Solutions
  1. I was presented with two proposed solutions to the problem.
  2. The first is to maintain the duty to report, but to provide that the duty is fulfilled when the report is made to the SMRC, which would become a “proper authority” to receive the report under the QR&O. A report to the SMRC could be “restricted”, in the sense that it would not trigger a formal disciplinary investigation.
  3. This was one of the solutions suggested by both Justice Deschamps^{Footnote 623} and the SMRC.^{Footnote 624} It would remove the matter from the chain of command and increase confidence in the system. Many senior officers of the CAF support this option. Some even told me they thought the SMRC was already authorized to receive reports. But this would still require victims, ready and willing or not, to share their experience with strangers.
  4. A second solution is to simply eliminate the duty to report incidents of sexual misconduct. The SMRC would remain the primary recipient of reports of sexual misconduct. But the victims would retain full control over their fate and their narrative, an outcome consistent with the policy behind the DVR.
  5. I believe that removing the duty to report for victims, their confidants and health and support professionals offers the best path to renewed confidence in the system. Some victims still perceive the SMRC as not fully independent from the chain of command. Strengthening the independence of the SMRC would increase victim confidence in the organization.^{Footnote 625} This should in turn give victims the needed confidence to disclose their experience to the SMRC.
  6. This solution is supported by Justice Deschamps, by the Deputy Minister, by the JAG and by the SMRC. It is supported as well by experts in the field and by advocates of victims’ rights who have considered this issue, including Professor Craig and Ms. Gagnon.
  7. One question remains: Should the elimination of the duty to report apply only to victims, or should it apply as well to confidants and witnesses, including bystanders? I am satisfied that it should at least apply to confidants, lest victims be further isolated by fear of sharing their stories with persons they trust.
  8. Removal of the duty to report for witnesses is a more complicated matter. For one thing, the duty to report for witnesses would help find and punish perpetrators. And removing it might foster a climate in which members remain passive in the face of misconduct. On the other hand, preserving the duty to report for witnesses might deprive victims of their autonomy, as they would often be drawn into the investigation process against their will. This is a complicated issue on which we did not have the benefit of many suggestions. I believe the issue is therefore best left to be considered and resolved by a separate working group.
  9. The working group should also make recommendations on when the duty to report should be maintained, even if the victim objects. The SMRC has suggested that removal of the duty to report should not apply where there exists a “risk of imminent harm, harm to children, national security”.^{Footnote 626}
  10. The adoption of these exceptions could have important policy implications. Would they apply to victims or only to confidants, health and support professionals and witnesses? In what circumstances is a sexual misconduct incident likely to cause national security concerns? Would providing an exception where there are risks of ongoing or imminent harm not mean that the duty to report would remain applicable whenever the perpetrator is susceptible of offending again (which may turn out to be in most cases)? These are all questions that should also be addressed in depth by a specialized working group.
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    - Recommendation #70. An exception to the duty to report incidents of sexual misconduct should be established for victims, their confidants and the health and support professionals consulted by them.
    - Their duty to report should be retained, however, where a failure to report would pose a clear and serious risk to an overriding interest, which may include ongoing or imminent harm, harm to children and national security concerns. A working group should be established to properly identify these exceptional cases. The working group should include an independent authority and representatives of the Sexual Misconduct Response Centre, military victims’ organizations and the military justice system.
    - The working group should also consider (a) the removal of the duty of witnesses to report incidents of sexual misconduct; and (b) requiring witnesses to report incidents of sexual misconduct to the Sexual Misconduct Response Centre only.
Protection and Support for Victims
1. Victims of sexual misconduct must be provided the support they need to report the misconduct when they are ready and inclined to do so, without fear that their well‑being, careers or personal lives will be compromised. Strengthening the independence of the SMRC would attenuate these concerns. Providing free independent legal advice to victims would as well.
  1. Independence of the Sexual Misconduct Response Centre
    1. I was informed by the Assistant Deputy Minister (Review Services) of National Defence that the Chief of Programme, who reports to the Vice Chief of the Defence Staff (“VCDS”), presents the budgetary requirements of the SMRC to the Deputy Minister. The fact that the VCDS can in this way influence the SMRC’s resources means that the SMRC is not completely independent from the chain of command. Alternatives should be explored.
    2. In addition, it was suggested to me that the SMRC is “too close” to the CAF. In light of my meetings with representatives of the SMRC, I do not share these concerns. But perceptions matter and I think an examination of the relationship between the SMRC and the CAF would assure victims that the SMRC is fully committed to tend to their well‑being.
    3. Finally, I was told that the SMRC, as an entity within the DND, must follow all departmental policies and processes prior to any public communication. This affects the perception of its independence. I believe that the credibility of the SMRC requires that it be able to speak publicly about its findings, without undergoing the policies and processes of the DND or the CAF.
      - Recommendation #71. The relationship between the Sexual Misconduct Response Centre, on one hand, and the Canadian Armed Forces and the Department of National Defence on the other, should be reviewed to ensure that the Sexual Misconduct Response Centre is afforded an appropriate level of independence from both. The review should be conducted by an independent authority.
  2. Powers and Mandate of the Sexual Misconduct Response Centre
    1. Provision of Free Independent Legal Advice to Victims
      1. The SMRC recommended in its submissions that victims be provided with access to free independent legal advice. This would give them the same rights as CAF members tried by courts martial who are given access to free military defence counsel.^{Footnote 627} And as the SMRC notes, it is a solution that has been adopted in many provinces and in the United States Armed Forces.^{Footnote 628} The Director General of Professional Military Conduct –Operation HONOUR in fact recognized that this lack of legal assistance for victims constitutes a service provision gap.^{Footnote 629}
      2. The provision of free independent – and therefore civilian – legal advice to victims should be the responsibility of the SMRC. This would increase its credibility as a helpful resource centre for victims who seek support and counsel, and in that way alleviate the problem of underreporting.
      3. Moreover, embedding legal counsel in the SMRC would meaningfully assist victims of sexual misconduct and ultimately benefit the administration of military justice in the CAF. Victims would be secure in knowing that their statements to counsel are privileged. And counsel could help them navigate the complaint and investigation process and provide guidance in deciding to whom to report, should they wish to do so (chain of command, military police or civilian police). This would encourage more victims to engage the legal process, thereby improving the overall safety of CAF members everywhere. Finally, counsel could also inform victims about restorative justice options, if any.^{Footnote 630}
        
        Recommendation #72. The Sexual Misconduct Response Centre should be tasked with implementing a program that provides free independent legal advice to victims of sexual misconduct, including advice on whether, how and where to report, and guidance throughout judicial processes. The civilian lawyers who will provide these services should receive adequate training in military law and the military justice system, in order to be capable of properly advising victims on all their options.
    2. Power to Monitor Accountability
Restorative Justice Approaches
1. The SMRC also made compelling arguments in favour of allowing for restorative justice approaches in the military justice system. The goal of restorative justice is “to acknowledge the harm caused and promote a sense of responsibility in the offender; in some cases, it provides the opportunity for the victim and perpetrator to work in tandem toward accountability and restitution”.^{Footnote 634} This would, according to the SMRC, foster “justice outcomes that better meet the needs of victims/survivors, perpetrators, and the organization”.^{Footnote 635}
2. In support of this proposal, the SMRC refers to instances of “disproportionate sanctions [that] have the effect of making victims unwilling to report because they do not necessarily want the person who perpetrated against them to lose their job”.^{Footnote 636} These concerns are shared by victims, leaders of victim advocacy groups and CAF members, particularly in cases where sanctions are imposed on lower‑ranked CAF members.
3. The SMRC also points to the fact that “[r]estorative justice approaches have been part of the civilian criminal justice system for decades”, in Canada and abroad.^{Footnote 637} Indeed, the OFOVC recognized the strong contribution of this model of justice when it stated, in November 2020, that “[r]esearch has found that restorative justice can benefit victims, offenders and public safety”, and added that “besides providing redress, restorative justice can also provide victims with answers to some of their questions, which may reduce their fear and anxiety and promote healing”.^{Footnote 638}
4. This is not a novel field of interest for the SMRC. In its 2018‑2019 annual report, the SMRC described the work it had done in developing a restorative justice model for the military justice system. In addition to laying out the principal characteristics of its model, the SMRC said that it would “continue to assess the feasibility and validity of a restorative approach within the Canadian military context and to build the necessary partnerships to ensure that the model is expertly designed, implemented, and evaluated”.^{Footnote 639}
5. In its submissions to me, the SMRC did not report the conclusions of this assessment. It also suggested that some work remained to integrate restorative approaches in the military justice system:
  - Currently, through the CAF/DND Sexual Misconduct Class Action Final Settlement Agreement (FSA), the SMRC is mandated to develop a Restorative Engagement Program to provide FSA class members the opportunity to share their sexual misconduct experiences with a senior DND or CAF representative, through a process facilitated by specially‑trained civilian restorative practitioners. This work presents an opportunity for the CAF to learn and build from the FSA Restorative Engagement Program to embed formalized restorative approaches in the military justice system.^{Footnote 640}
6. In her 2018-2019 Annual Report, the JAG also referred to a work in progress:
  - The Office of the JAG remains closely engaged with the Department of National Defence and the Canadian Armed Forces’ efforts to enhance victim support in the military justice system. This includes examining how the restorative approaches of the Canadian Armed Forces can assist in creating a more supportive environment that respects the dignity of all employees and military members.^{Footnote 641}
7. During my meeting with Rear‑Admiral Geneviève Bernatchez, the current JAG, she expressly supported the implementation of restorative justice initiatives in the military justice system.
8. These initiatives are encouraging. Given the respective expertise of the JAG and the SMRC on the military justice system and with the issue of sexual misconduct, I believe they are especially well-placed to jointly develop formalized restorative justice approaches that are best suited to the reality of the CAF and its justice system.
  - Recommendation #74. The Judge Advocate General and the Sexual Misconduct Response Centre should cooperate to make a joint proposal to the Minister of National Defence in respect of amendments to the National Defence Act which would allow for restorative justice approaches in the military justice system. They should also collaborate to develop a formalized restorative justice model that is adapted to the needs of victims and perpetrators and suited to the reality of the Canadian Armed Forces and its justice system.

Footnotes

Footnote *

The day before my Report was due, the Minister of National Defence launched an independent, external review of sexual misconduct in the Canadian Armed Forces and the Department of National Defence, to be conducted by my former colleague, the Honourable Louise Arbour. This Chapter was prepared before the Minister’s announcement.

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Footnote 577

When referring to victims of service offences, I use the term “victim” (rather than “survivor” or analogous expressions) as victim is the term used in the Declaration of Victims Rights (“DVR”)enacted by section 7 of An Act to amend the National Defence Act and to make related and consequential amendments to other Acts, SC 2019, c 15 (“Bill C-77”) and in the Canadian Victims Bill of Rights, SC 2015, c 13, s 2 (“CVBR”).

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Footnote 578

Department of National Defence, “Defence Policy – Strong, Secure, Engaged” in Defence 101 – Transition Binder 2020, online.

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Footnote 579

Her Majesty the Queen in Right of Canada, Budget 2021 – A Recovery Plan for Jobs, Growth and Resilience (April 19, 2021) [PDF, 8.9MB], online at 288-289.

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Footnote 580

Deschamps Report, supra note 15.

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Footnote 581

Ibid at i.

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Footnote 582

Ibid at 4.

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Footnote 583

Jane O’Hara et al, “Rape in the Military” in Maclean’s (May 23, 1998), online;
Jane O’Hara et al, “Speaking Out on Sexual Assault in the Military” in Maclean’s (June 1 1998), online;
Jane O’Hara et al, “Of Rape and Justice” in Maclean’s (December 14, 1998), online.

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Footnote 584

Ibid (“Rape in the Military”).

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Footnote 585

Ibid (“Rape in the Military”).

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Footnote 586

An Act to amend the National Defence Act and to make consequential amendments to other Acts, SC 1998, c 35 (“Bill C-25”).

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Footnote 587

Supra note 34.

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Footnote 588

Supra note 27.

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Footnote 589

Noémi Mercier and Alec Castonguay, “Crimes sexuels: le cancer qui ronge l’armée canadienne” in L’actualité (April 25, 2014), online.

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Footnote 590

“Every day, five persons are sexually assaulted in the Canadian Forces” (my translation). The authors’ estimate of five sexual assaults per day is based on the following reasoning : “Selon les chiffres obtenus, depuis 2000, il y a en moyenne 178 plaintes pour agressions sexuelles par an dans les Forces canadiennes. […] Si on considère que moins d’une agression sexuelle sur 10 est divulguée aux autorités, comme l’estime Statistique Canada, on dénombrerait un total de 1 780 incidents par année dans les Forces. Cinq par jour”. Or, in English, “The data shows that, since 2000, there are approximately 178 complaints of sexual assault per year in the Canadian Forces. […] Considering that less than one incident of sexual assault in 10 is reported, as estimated by Statistics Canada, there would be a total of 1,780 incidents per year in the Forces. Five per day” (my translation).

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Footnote 591

Noémi Mercier and Alec Castonguay, “Our Military’s Disgrace” in Maclean’s (May 5, 2014), online.

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Footnote 592

Deschamps Report, supra note 15 at ii.

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Footnote 593

In August 2019, its mandate was expanded to add two additional responsibilities which were envisaged by the Deschamps Report: (a) provision of expert advice and guidance; and (b) monitoring of CAF progress in addressing sexual misconduct: SMRC Annual Report 2019‑2020 at 4.

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Footnote 594

2018 Fall Reports of the Auditor General of Canada to the Parliament of Canada, Report 5 – Inappropriate Sexual Behaviour – Canadian Armed Forces (“2018 OAG Inappropriate Sexual Behaviour Report”) at para 5.5.

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Footnote 595

Ibid at para 5.17.

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Footnote 596

Ibid at para 5.19

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Footnote 597

Ibid.

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Footnote 598

Statistics Canada, “Sexual Misconduct in the Canadian Armed Forces Regular Force, 2018” (May 22, 2019), online; Statistics Canada, “Sexual Misconduct in the Canadian Armed Forces Primary Reserve, 2018” (May 22, 2019), online. See also Department of National Defence, “Research, data and analysis on sexual misconduct” (February 26, 2021), online.

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Footnote 599

Sexual Misconduct Response Centre, “3rd Independent Review of the National Defence Act. Considerations related to Sexual Misconduct in the Canadian Armed Forces. SMRC Recommendations for Improving the Military Justice System Framework for Sexual Misconduct Cases” (January 2021) (“SMRC Submissions”) at 3.

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Footnote 600

Mercedes Stephenson, Marc-André Cossette and Amanda Connolly, “Former top soldier Gen. Jonathan Vance facing allegations of inappropriate behaviour with female subordinates: sources” in Global News (February 2, 2021), online.

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Footnote 601

See, e.g.,The Canadian Press, “Admiral Art McDonald steps aside as defence chief amid investigation” in The Toronto Star (February 24, 2021), online.

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Footnote 602

See, e.g., Sean Boynton, “Head of military personnel on indefinite leave amid sexual assault investigation” in Global News (March 31, 2021), online.

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Footnote 603

“March 24: Letter from the Acting Chief of the Defence Staff (A/CDS)” in The Maple Leaf (March 24, 2021), online.

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Footnote 604

RSC 1985, c N-5.

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Footnote 605

Supra note 302.

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Footnote 606

Section 2 of DAOD 9005-1.

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Footnote 607

Even in the most minor cases, unit disciplinary investigations should be conducted with some form of oversight by the military police.

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Footnote 608

Deschamps Report, supra note 15 at 32: “Too many participants expressed the view that the chain of command is mostly interested in protecting itself from the negative effect of a complaint on the reputation of leaders in the unit, and is less concerned with protecting the well‑being of complainants”.

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Footnote 609

Section 71.01 of the NDA, enacted by section 7 of Bill C-77.

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Footnote 610

SMRC Submissions, supra note 599 at 16.

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Footnote 611

I will mostly refer to sexual assault in this chapter, but I should not be taken to exclude other criminal offences of a sexual nature: see sections 162, 162.1 and 271 of the Criminal Code.

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Footnote 612

See generally Craig, supra note 304. Her findings are summarised in the executive summary of her article: “First, the conviction rate for the offence of sexual assault by courts martial is dramatically lower than the rate in Canada’s civilian criminal courts. The difference between acquittal rates in sexual assault cases in these two systems appears to be even larger. Since Operation Honour was launched in 2015 only one soldier has been convicted of sexually assaulting a female member of the Canadian Armed Forces by Canada’s military legal system. (One other conviction was overturned on appeal and is pending before the Supreme Court of Canada.) In addition, plea bargains in which accused individuals can avoid Criminal Code convictions by pleading guilty to military specific discipline offences like drunkenness, conduct to the prejudice of good order and discipline, and disgraceful conduct have been used in some cases involving aggressive sexual attacks. Sanctions for even these serious sexual attacks involved fines and reprimands. Last, the decisions of military judges in some cases suggest a critical failure to recognize the Canadian military’s culture of hostility to women documented in the Deschamps Report”.

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Footnote 613

See, e.g., R v Brooks, [1999] CMAJ No 8 at paras 28-30 and R v Tait, 2021 CM 2009.

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Footnote 614

Office of the Federal Ombudsman for Victims of Crime, “Progress Report: The Canadian Victims Bill of Rights” (November 2020) (“OFOVC Progress Report”) at 2.

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Footnote 615

Sections 4.02(1)(e) (for an officer) and 5.01 (for a non‑commissioned member) of the Queen’s Regulations and Orders for the Canadian Forces (“QR&O”).

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Footnote 616

Senior officers of the CAF, including the Director of Military Prosecutions, have, however, assured me that they would never charge a victim for failing to report an incident of sexual misconduct.

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Footnote 617

2018 OAG Inappropriate Sexual Behaviour Report, supra note 594 at para 5.71.

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Footnote 618

Deschamps Report, supra note 15 at 28.

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Footnote 619

SMRC Submissions, supra note 599 at 4-5.

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Footnote 620

Section 5.12 of DAOD 9005‑1.

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Footnote 621

When reporting to the police, the victim loses control over the process.

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Footnote 622

Beyond the fear of reprisals, a recent study found that “most of the [67] participants felt some degree of dissatisfaction with the CAF response to these incidents, and with the level of care and/or support they had received overall”: Defence Research and Development Canada, “Experiences of CAF members affected by sexual misconduct: Perceptions of support” (February 2020), online.

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Footnote 623

Deschamps Report, supra note 15 (Recommendation #3).

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Footnote 624

SMRC Submissions, supra note 599 (Recommendation #2).

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Footnote 625

See Part IV of this Chapter, below at paras 535ff.

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Footnote 626

SMRC Submissions, supra note 599 at 6.

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Footnote 627

See Part I(C) of Chapter 1, above at paras 120ff.

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Footnote 628

SMRC Submissions, supra note 599 at 11‑12.

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Footnote 629

Ibid at 11.

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Footnote 630

See Part V of this Chapter, below at paras 545ff.

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Footnote 631

2018-2019 SMRC Annual Report at 4.

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Footnote 632

Paragraph 4(d) of the Terms and Conditions of Employment of the Federal Ombudsman for Victims of Crime, SOR/2007-54.

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Footnote 633

For example, the SMRC could be granted powers similar to those of the Military Grievances External Review Committee (section 29.21 of the NDA), modified as recommended in Part IV(H) of Chapter 4, below at para 682.

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Footnote 634