It's time CAF cedes more control to civilian authorities on sexual offences: Arbour

The Canadian Armed Forces (CAF) has been “unwilling” and “unable” to embrace action on military sexual harassment and assault and it’s time the body cedes more control to civilian authorities, former Supreme Court Justice Louise Arbour says.

In her highly-anticipated review of the cultural crisis within the military and recommendations for a path forward, Arbour says tackling this issue requires a major rejig of existing structures, and minimizing the monopoly the CAF has over its members by tapping into the services of external institutions as it relates to prosecuting members for sexual offences.

“The CAF has been unwilling or unable to embrace the intent and vision that came from external sources, choosing the letter over the spirit, often the appearance of implementation over its substance, thereby entrenching their ways of operating. I believe this is a consequence of the insularity within which the CAF has traditionally operated, and its determination to perpetuate its old ways of doing business,” she says.

Arbour lists 48 recommendations for consideration by the federal government, ranging from terminology changes, to recruitment targets, and improved reporting schemes.

The former Supreme Court judge said civilian police and courts should permanently handle all cases of assault and that all complaints related to sexual harassment or discrimination on the basis of sex should be directed to the Canadian Human Rights Commission.

• 2021: A year of investigations into alleged military sexual misconduct

“The CAF has to open up to outside partners…the CAF should let others do what they can do better, more efficiently and concentrate on its operations and in my view it’s true in justice, it’s true in education,” Arbour said.

In the fall, Arbour made an interim recommendation calling on the federal government to immediately adopt former Supreme Court Justice Morris Fish’s call to action to temporarily move sexual assault cases to the civilian criminal courts.

National Defence Minister Anita Anand soon after accepted the provision but the department has since stayed mum on how many cases have been officially transferred over.

On Monday, Anand said it’s up to individual prosecutors to work with complainants on the legal transition of cases introduced prior to the adoption of the recommendation, but in terms of new investigations, it’s a work in progress.

“We have had the RCMP accepting transfers of new files from the Forces since January, we have Quebec's Ministry of Public Safety advising their police force to accept new files since February, and the transfer of cases generally speaking, is going well,” she said.

In Arbour’s expanded recommendation, she notes that the reporting process should not include the involvement of the CAF’s military police. Instead, she envisions a system whereby a victim would contact civilian authorities directly.

Additionally, “if this interim measure is to stay in place pending legislation to provide exclusive jurisdiction to civilian courts, all new cases should go to the civilian system regardless of any preference expressed by the victim.”

GOV’T RESPONSE TO REPORT

Anand says the federal government “accepts” the report in its entirety and is currently in the process of implementing 17 recommendations.

Among them, the immediate appointment of an “external monitor” mandated to oversee the execution of the report and who will produce a monthly “monitoring assessment and advice” report to the minister and bi-monthly public reports.

Ottawa will also immediately rename the Sexual Misconduct Response Centre (SMRC), which provides support to CAF members affected by sexual misconduct, to the Sexual Misconduct Resource Centre and ensure that the SMRC provides legal assistance to victims.

“Such legal assistance must be available across the country and on the full range of issues related to sexual misconduct in the CAF, including in respect of the various processes triggered by disclosure,” the report reads.

Anand says she has also accepted a call for the defence minister to be briefed by the associate defence minister directly on all investigations related to sexual harassment, sexual misconduct, and leadership culture in the defence team.

The federal government drew criticism for its handling of an allegation of inappropriate sexual conduct levied against former defence chief Gen. Jonathan Vance. According to former military ombudsman Gary Walbourne, then-defence minister Harjit Sajjan refused to listen to details of the allegation in 2018, demanding he instead refer to the “appropriate authorities” without clarity on who that was.

Sajjan clarified his position later, stating that it would have been “inappropriate” to involve himself and that he instructed his team to inform the Privy Council Office of the situation to draw more details.

Other notable recommendations from the Arbour report include:

• In respect of sexual offences, the CAF should bring its definitions in line with the Criminal Code. As such, the definition of “sexual misconduct” should be abolished;
• The Canadian Human Rights Act should be revised to permit the award of legal costs and to increase the amount in damages it can award to successful complainants;
• The CAF should outsource some recruitment functions to reduce the burden on recruiters, while also increasing the competence of recruiters;
• Leadership should consider abolishing the “duty to report” specifically as it relates to sexual misconduct as it creates “considerable fear and anguish” and hasn’t been properly implemented;
• The CAF should assemble a past misconduct sheet prepared for each candidate considered for promotion to the rank of lieutenant-colonel/commander or above;
• Defence team members and external experts, led by an education specialist, should review the benefits, disadvantages and costs of continuing to educate cadets at military colleges and the Chief of Professional Conduct and Culture should engage with the Royal Military College in Kingston and St-Jean to address culture concerns; and
• The CAF should establish a system of targets for the promotion of women.

Anand has also committed to identify to Parliament the recommendations the government doesn’t intend to implement by the end of the year, as advised by Arbour.

“The current problem is that you never get a clear answer on that. The CAF is currently sitting on hundreds of recommendations, some more or less internally generated, many from external reports, others from examining what allies have done on similar issues,” Arbour said.

“If something isn’t going to happen, just say it… I just hope that these recommendations don't end up a little box on the chart of the many that are still being studied.”

OPPOSITION WEIGHS IN

Conservative national defence critic Kerry-Lynne Findlay and public services and procurement critic Pierre Paul-Hus said they welcome the report, however many of the findings are already well-documented and simply haven’t been acted on.

“That for years the Liberal government has ignored issues of sexual harassment and misconduct in the CAF, that Minister Sajjan failed to act immediately on sexual misconduct allegations in the highest ranks of the CAF, and that the Trudeau Liberals refused to fix the culture in the CAF at a time when the Forces are already short more than 10,000 soldiers and is facing a retention crisis,” a party statement reads.

They said they hope Anand takes the report “seriously.”

The NDP too directed criticism at the Liberals for not moving quickly enough to protect victims.

“Our thoughts are with the women of the Canadian Armed Forces who continue to face sexual misconduct and assault in the military under this Liberal government. Despite empty words and platitudes from the government, service women are still waiting for the systemic change they were promised,” a statement reads.

“This government must develop the political will and courage to finally act on the recommendations.”

Anand sought to reassure Canadians on Monday the report will not fall by the wayside and that it provides Ottawa with a concrete roadmap to move forward with deliberate action.

“If we do not take this moment for what it is, implement the recommendations that identify deep areas of need for change in the Canadian Armed Forces and the defence team broadly, we run the risk of not being fully effective military domestically and internationally. And in this moment in time, when the world appears to be growing darker, we must grab the bull by the horns and make these changes now,” she said.