Former Supreme Court of Canada Justice Louise Arbour has released her report on sexual misconduct, including sexual assault and sexual harassment, in the Canadian Armed Forces. The report is called the Independent External Comprehensive Review, excerpts of which are available online. There is significant information contained here that is worth further exploration.
History of sexual harassment and sexual assault in the Canadian Armed Forces
The Canadian Armed Forces are one of the largest employers in Canada with 68,000 full-time personnel and another 27,000 reservists. The Canadian Armed Forces is in many ways like any other employer, it has to address issues with recruitment, training, promotions, diversity and inclusion. However, it has some unique elements as an employer that are important to understanding the challenges of addressing sexual misconduct.
The Canadian Armed Forces have civilian control but is a self-administered and self-regulated institution. When sexual misconduct of any kind occurs in the military, (this includes sexual harassment micro aggressions all the way to sexual assault and rape) the military retains jurisdiction over those matters, not civilian institutions like the police. Over the last three decades, survivors of sexual assault in the military have indicated that these acts are not well investigated and adjudicated in the present model.
The Independent External Comprehensive Review highlighted a series of actions taken by senior leadership in the military in response to media reports, other independent reviews and class action cases. Unfortunately, these actions appeared to not lead to tangible improvements:
The problem was first highlighted publicly in 1998 in a series of news articles citing allegations of sexual harassment, rape and racism in CAF ranks. At that time, the CAF responded by establishing the Standards for Harassment and Racism Program (SHARP), a sensitization and skills development program intended to change attitudes and behaviours.
In addition to the program, the CAF established a hotline to encourage personnel to report incidents. Unfortunately, the program did not have the enduring impact expected. Subsequent analyses of the effort indicated that the institution did not assign sufficient military personnel to this initiative, and the lack of a dedicated expert cadre may have resulted in focusing on the symptoms of the problem, rather than the underlying causes.
Women were added to the Canadian Armed Forces in administrative roles in the 1950s with opportunities expanding in the 1970s and 1980s with the passage of the Canadian Human Rights Act and the Canadian Charter of Rights and Freedoms. Women were not fully integrated into all combat roles until 2000. Many women reported that despite this equality on paper, the military felt like a “boys club” where women are “guests” in the military. This led to mistreatment like sexual harassment and even sexual assault.
Class action litigation on sexual harassment and misconduct in Canadian Armed Forces
In addition to the media reports and independent reviews, some survivors of sexual misconduct in the military proceeded with a class action lawsuit, Heyder et al v Canada (Attorney General), to hold the military leadership accountable. Specifically, the class action was related to sexual harassment, sexual assault and gender-based discrimination. The claim was brought by current and former women and men serving in the Canadian Armed Forces.
This class action was settled and the court-approved that settlement. Individuals who were impacted by the sexual misconduct were eligible to make a claim in accordance with that procedure. Those with the most minor sexual harassment claims were eligible for $5,000, those who experienced more severe harassment or unwanted touching were eligible for $5,000-$50,000, sexual attack survivors were eligible for $30,000-$50,000, and those with the most severe cases were eligible for $50,000-$100,000.
Mandate to investigate sexual misconduct including sexual harassment
The Minister of Defence engaged Justice Arbour to review the systems and cultures in place within the Canadian Armed Forces that prevented the Canadian Armed Forces from appropriately addressing sexual misconduct in the military. Specifically, Justice Arbour’s mandate included the following:
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 assess the adequacy of the response when reports are made; and
Make recommendations on preventing and eradicating harassment and sexual misconduct.
Key findings with respect to sexual harassment and misconduct
Justice Arbour’s review was substantial and took over a year to complete. While there are 48 recommendations in total, here are a few highlights that cover a few of the most significant recommendations:
- Separate out sexual crimes (assault, unwanted sexual touching) from other forms of sexual harassment;
– Have regular civilian criminal processes apply to sexual assaults (ie civilian police); and
- Develop appropriate processes for complaints of sexual harassment.
- Create and fund better support internally for survivors of sexual assault and sexual harassment in the Canadian Armed Forces;
- Take steps to professionalize recruitment with enhanced probationary periods to detect sexual misconduct and address issues early in careers; and
- Review and enhance current training, including contemplating the elimination of military colleges and use civilian universities in their place.
Contact Guelph Employment Lawyer Peter A. McSherry for Experienced Advice on Sexual Harassment in the Workplace
Sexual harassment, racial discrimination, religious discrimination and any other Human Rights Code violation can be devastating. It may be difficult to return to work or to face co-workers after certain incidents, and that is not your fault.
If you have been the victim of harassment and discrimination, we can help you evaluate your options and pursue the resolution that can best serve your interests and compensate for the pain and damages you have suffered.
At Peter A. McSherry Employment Lawyer in Guelph, we provide our clients with compassionate care, attentive service and the efficient resolution of legal issues. Contact our office today to schedule an initial consultation through our website or by calling the office at 519-821-5465.