Sexual Misconduct Incident Management Decision Tree

The chain of command (CoC)’s role and responsibilities:

• Be knowledgeable on the actions required upon receipt of a report of sexual misconduct. Consult the Respect in the Canadian Armed Forces (RITCAF) App or the Defence Team Sexual Misconduct website for more details on how to be prepared, particularly with respect to support to victims, and procedural fairness;
• Ensure, subject to legal limitations, ongoing communication and transparency with the victim. Enquire with the victim as to immediate care, safety and support needs and ensure these are considered, including encouraging the victim to seek support from individuals close to them (such as friends, partners or colleagues) and referring the victim to support services such as the Sexual Misconduct Support and Resource Centre (SMSRC);
• Consider how to mitigate (and monitor continually) the real and ongoing risk of reprisal and retaliation and immediately address, to the extent possible, any such issues;
• Consult local Conflict and Complaint Management Services (CCMS) when cases of sexual harassment are suspected; and
• Consider consulting with the SMRC for guidance on effective response and support to victims. The SMRC is available to provide advice to members of the CoC.

Upon an officer’s receipt of a disclosure or report of an alleged incident of sexual misconduct, that officer must first determine whether they are required to report it to a proper authority or if they can adequately deal with the matter. Consult DAOD 9005-1, Sexual Misconduct Response for more detail.

Upon a Non-Commissioned Member’s (NCM) receipt of a disclosure or report of an alleged incident of sexual misconduct, they must report the alleged infraction to the appropriate authority. Consult DAOD 9005-1, Sexual Misconduct Response for more detail.

Action by Commanding Officer (CO):

Upon becoming aware of an alleged incident of sexual misconduct, the CO must:

• take immediate action, as necessary, to ensure the well-being and safety of the victim;
• ensure that victims and witnesses are informed about the full range of support options that may be available to them;
• ensure that the well-being and safety of the respondent are considered, and that they are informed about the full range of services that may be available to them. The respondent has a right to due process and procedural fairness;
• consult the unit legal advisor to obtain advice throughout the process;
• consider whether it is appropriate to remove the respondent from supervisory, instructional or command positions, temporarily modify their work location, or order no contact or any form of communication, directly or indirectly with any victims or witnesses;
• ensure that the details are captured in the Sexual Misconduct Incident Tracking System (SMITS) through their appointed representative in accordance with the relevant SMITS direction;
• submit, in accordance with DAOD 2008-3, Issue and Crisis Management, and the Critical Information Requirements of the CDS, a SIR through their CoC to the Canadian Forces Integrated Command Centre and SMITS-SSIIS@forces.gc.ca , with an information copy to DMCA 2. The following information must not be included in sexual misconduct SIRs: names, service numbers or personnel record identifiers of victims or respondents; and
• monitor the impact on unit morale and cohesion.

Commanders at all levels must treat information regarding sexual misconduct complaints in a discreet and sensitive manner and in accordance with the proper handling of personal information.

There are circumstances that will warrant administrative action even before any police or disciplinary investigation is contemplated or completed, such as: removal from command, relief from the performance of military duty, relief from supervisory, instructional or key positions, remedial measures, separating the member from their unit, repatriation, or taking other actions to ensure separation between the victim and respondent as necessary. It is important to ensure that any administrative action anticipated by the CoC respects the right of the respondent to procedural fairness. Before taking action, consult your legal advisor.

Note - When the CoC has determined on a balance of probabilities that a CAF member has engaged in sexual misconduct, and is considering remedial measures or administrative review, the Initiating Authority (IA) must consult DMCA 2 and obtain advice. In weighing the evidence surrounding the incident of sexual misconduct, and before determining appropriate administrative action, the following factors must be considered:

1. all relevant facts, including:
1. the degree to which the act was intrusive or violent;
2. the sentence imposed, if any;
3. whether the respondent ignored a request to stop or failed to confirm consent;
4. the victim’s circumstances, including the impact on their health and well-being; and
5. the respondent's relationship to the victim at the time of the incident, including:
• position of authority or trust, if any;
• and rank differential, if any.
2. the degree to which the respondent:
1. accepted responsibility and demonstrated remorse for the sexual misconduct; and
2. actively took steps to modify their behaviour.
3. the respondent’s entire period of service, taking into account their rank, military occupation, experience, position and leadership role, and previous conduct deficiencies; and
4. the impact on the respondent’s unit and the CAF.

If an investigation is required, a unit disciplinary investigation may only be conducted once it is determined that all police with jurisdiction to investigate the matter have declined to investigate. Before proceeding to investigate, the unit legal advisor should be contacted and will advise on the most appropriate investigation process.

Regardless of where the complaint was made, jurisdictions (mil or civ) will be decided among the implicated police services and prosecutors. If the incident is sensitive or complex, the Military Police (MP) may conduct the investigation even if the alleged behaviour does not constitute an offence under the Criminal Code.

The unit should not conduct an investigation while there is an ongoing police investigation.

If charges are to be laid, it is normally following consultation with the unit legal advisor. Lack of a charge should not be construed as a belief that unacceptable behavior did not occur.

If the member was found not guilty of a charge, was discharged, or charges were not proceeded with, a review of the facts of the case is still required by the CoC to determine whether there is reliable evidence that establishes on a balance of probabilities that sexual misconduct has occurred.

Administrative action can be taken at any stage of the process as appropriate. Consult DMCA 2 for advice. The CO must forward all related documents to DMCA 2 along with recommendations based on their review of the case.

If DMCA 2 recommends issuing a NOI to Recommend Release, the CO must issue the NOI to Recommend Release to the member and forward the following to DMCA 2 for administrative review in accordance with DAOD 5019-2:

1. commanding officer’s administrative action recommendation;
2. investigation report(s);
3. member’s conduct history;
4. synopsis of member’s personnel file;
5. member’s representation;
6. the court transcript, if applicable; and
7. any other pertinent information.

In order to ensure consistent CAF-wide application of this DAOD, the CO of any CAF member convicted of sexual misconduct, either by summary trial, court martial or civilian court, must consult DMCA 2 to determine if a NOI to Recommend Release should be issued, or if any remedial measures should be initiated. DMCA 2 will conduct an administrative review if a NOI to Recommend Release is issued.

A guilty finding is not required to recommend a release or impose other administrative actions.

If the recommendation is for release, a NOI to Recommend Release will be required. The notice format and requirements can be found at DMCA 2 – Misconduct Administrative Review.

If a CAF member is tried for an offence, the CAF member's CO must obtain, upon the conclusion of the service tribunal or civil court proceeding, the documents listed in the following table:

Post disciplinary proceeding, the CO must forward to DMCA:

1. all the above applicable documents;
2. a summary of the evidence;
3. a recommendation, with explanation, as to administrative action that should be taken in respect of the CAF member; and
4. any other relevant information to assist the administrative review.