DND’s “new path to justice”

15 August 2023

Fifteen months after retired Supreme Court of Canada (SCC) Justice Louise Arbour concluded that a “deeply deficient culture” within the Canadian Armed Forces had done virtually nothing to address a history of misogyny, the Department of National Defence has announced a “new path to justice” for its victims.

Effective immediately, the initiative confirmed August 15 by Defence Minister Bill Blair changes how victims’ complaints are handled, specifically responding to two of Arbour’s 48 recommendations in her Independent External Comprehensive Review of the military’s record on the long-standing issue.

In one, Arbour had recommended that any complaints about assault or harassment or about chain-of-command retaliation must be directed the Canadian Human Rights Commission (CHRC) at the complainant’s discretion.

She also effectively called on the CAF to butt out of that process, freeing the CHRC to assess “any complaint” regardless of whether internal DND complaint options had been exhausted. She also pushed the federal cabinet to ensure that the CHRC and the Canadian Human Rights Tribunal (CHRT) were “adequately resourced” to deal with complaints expeditiously.

Arbour brought impeccable credentials to the challenge, including four years as the UN High commissioner for Human Rights before her appointment to the Supreme Court in 1999, from which she retired after nearly five years.

Her influence is reflected in DND’s response as announced by Blair, who had replaced Anita Anand in the portfolio in a major cabinet shuffle only three weeks earlier.

The DND announcement confirmed that any CAF member who has “experienced sexual harassment, sexual misconduct or any other form of discrimination based on sex/gender while performing their duties” has access to the “new path to justice.”

Specifically, they can opt to have their complaints dealt with internally – an approach condemned by Arbour – or file a complaint with the CHRC. “Members who choose to go directly to the CHRC will no longer be required to exhaust internal grievance and harassment processes first,” DND said. “Implementation of these recommendations applies to both new and existing complaints.”

Nor, DND conceded, will the CAF be able to file legal objections as provided for through the Canadian Human Rights Act. “The Canadian Armed Forces recognizes the CHRC’s decades of experience in this area and is committed to learning from the CHRC’s expertise.”

Blair said in a statement that it is his “top priority” to ensure that CAF personnel are “protected, respected and empowered to serve” and that the announcement “demonstrates demonstrates our commitment to implementing meaningful and transformative change.”

The Chief of the Defence Staff, General Wayne Eyre, agreed that “transforming and modernizing” the process is critical to the CAF’s evolution. “This change, along with all our culture evolution initiatives, will make our teams stronger and ultimately more operationally effective.”

Lieutenant-General Jennie Carignan, the highest-ranking female in the CAF who was tasked with overseeing change in April 2020 as Chief, Professional Conduct and Culture, said there has already been “substantial and concrete” progress since assault and other misconduct was uncovered at the highest ranks.

“We are ensuring that our members have more options when it comes to reporting incidents and filing complaints related to sexual harassment or discrimination on the basis of sex,” Carignan said. “Change takes time but we are seeing encouraging progress on many fronts, and we will continue with this important work to create a better workplace for all our members.”

As for the CHRC, which continues to monitor how DND and the CAF handle the challenge going forward, its interim commissioner, Charlotte-Anne Malischewski, welcomed the latest initiative, hoping that “implementation of these recommendations will help people access human rights justice swiftly.”

In her May 2022 report, Arbour, who now is in private practice in Montreal, said the situation within the CAF, while “reflective” of society as a whole, was a particularly “sinister abuse.”

She noted, among other things, that members of the LGBTQ2+, indigenous and black communities had been purged at times, that other visible minorities and equity-seeking groups had been “largely absent, clearly not welcome” and that “for years, women were simply shut out” of careers in uniform.

“When finally allowed to serve, women were made to feel they did not belong,” she said. “They were denied opportunities to compete fairly and to thrive . They were harassed, humiliated, abused and assaulted, and, appallingly, many continue to be targeted today”.

She also lamented the fact that after her former SCC colleague, Justice Marie Deschamps, had documented the military’s “sexualize culture” in a 2015 report, “a flurry of activity by the CAF in an attempt to fix the problem” had failed.

It’s clear now that failure a second time isn’t an option for the chain of command.

“Bringing a sexual harassment complaint to the CHRC is a free, safe and confidential way to seek resolution for what has happened,” DND reiterated in footnotes to its announcement. “CHRC employees responsible for handling complaints receive ongoing training on trauma-informed approaches, all forms of systemic discrimination, and intersecting forms of discrimination.”