Sexual misconduct in the Canadian Forces remains as “rampant” and “destructive” in 2021 as it was back in 2015 when a landmark federal report first documented the extent of the problem — and pressing reforms are needed now, according to a new report released Tuesday.
Former Supreme Court justice Morris Fish’s independent review of the military justice system was tabled in the House of Commons on Tuesday morning. In it, Fish said his work had heard extensive evidence that “confirmed the factual findings” of the 2015 report by former Supreme Court justice Marie Deschamps.
“The nature, extent and human cost of sexual misconduct in the CAF remain as debilitating, as rampant and as destructive in 2021 as they were in 2015,” Fish wrote in his report.
He said he hopes to see “rapid implementation of the pressing reforms” he recommended in the report, including removing the current requirement for military members who experience sexual misconduct to report that through their chain of command — a key barrier flagged by Deschamps in 2015.
“I see no reason, for example, to delay removal of the present duty of victims to report their victimization to the chain of command, which impacts on their autonomy and, I have been told, risks their exposure to reprisals, ostracization and pressures to withdraw their complaint.”
The report makes a total of 107 recommendations to change the system.
In a statement on Tuesday, the Department of National Defence said officials accepted in principle all of those recommendations and will start work to implement 36 of them in the short-term.
“This report comes at a critical time,” said Defence Minister Harjit Sajjan in a press conference.
He said the government is committing to laying out a “thorough and detailed” plan mapping out proposed legislative changes and ideas to implement Fish’s recommendations, with this plan being shared with the House of Commons defence committee this fall.
Sajjan said the last several months have seen “too many accounts of appalling abuses of power.”
“We know that more work needs to be done so we can have meaningful and lasting culture change.”
Sajjan appointed Fish in November 2020 to lead a review into the military justice system and how it can be made better. The system has long been criticized for failing to take sexual misconduct allegations seriously enough but reporting by Global News earlier this year into allegations of high-level sexual misconduct has sparked an institutional crisis for the Canadian Forces.
Multiple military police probes into senior leaders have been launched, as well as two parliamentary committee studies that have heard repeated testimony from witnesses who say the military justice system failed them when they tried to report sexual misconduct and sexual violence.
A Global News investigation revealed less than one-quarter of military police investigators on sexual misconduct cases are female — far less than the number in three major Canadian civilian police forces.
The data mirrors larger trends in the makeup of both military police writ large as well as the broader membership of the Canadian Forces as a whole — despite efforts to increase the number of women in the military over recent years, the figures remain low.
One in seven members of the Canadian military as a whole identified as women in 2019.
In 2020, women made up just 15.8 per cent of regular force members and 16.6 per cent of reservists, for a total representation of just 16 per cent.
Similar numbers appear in the military police overall as well. In 2015-2016 female members made up 14 per cent of total military police, a number that has risen in the years since to 16.9 per cent in 2016-2017, 24 per cent in 2017-2018, 24 per cent in 2018-2019, and 25 per cent in 2019-2020.
Victims and survivors of sexual misconduct in the military have testified repeatedly over the last three months about how they say they were left shaken by recent experiences of trying to report allegations of sexual misconduct to male military police investigators.
The 400-page Fish report released on Tuesday included a chapter specifically focused on sexual misconduct and how allegations are handled within the military justice system.
The persistence of the problem has a “traumatic” impact on the lives and careers of military members who try to come forward, and Fish also noted that while Deschamps was “prohibited” in her 2015 report from looking at how the military justice system fit into the problem, he wanted to do so in detail.
Fish also noted throughout the military’s continued struggle to address sexual misconduct, efforts to do so have been sparked by journalists investigating different facets of the matter.
“They all begin with disclosures by investigative journalists,” he wrote, flagging key reporting from Maclean’s in 1998, from L’actualité and Maclean’s in 2014, and from Global News this year.
“The first two ended with important reforms to the military justice system; the third has just begun and its outcome remains promising but uncertain.”
Global News first broke details of allegations of inappropriate behaviour against former chief of the defence staff Gen. Jonathan Vance on Feb. 2 and in the months since, multiple other senior leaders have faced allegations amid what experts have described as a reckoning for the military.
Vance denies all allegations of inappropriate behaviour.
Fish cited that reporting and subsequent allegations against senior leaders as creating “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,” Fish said.
Fish said he did not hear during his consultations any “serious issue” expressed about the military maintaining control over sexual misconduct investigations. However, he recommended the rules be changed so that all such investigations are handled by military police and not by military units.
And while C-77 — federal legislation creating a Declaration of Victims Rights for the military justice system — is not yet in force, Fish recommended military police should be trained on it as soon as possible to prevent further harm done to victims in the course of sexual misconduct investigations.
Fish added he did hear some concerns while preparing his report that the military should not have jurisdiction over sexual assault cases. But he said he believed bringing C-77 into force could have a significant effect in bolstering the rights of victims within the military system and that removing sexual assault from military jurisdiction was not the right course of action right now.
“Upon reflection, I am not persuaded that Parliament should withdraw military jurisdiction
over sexual assaults at this time,” he wrote.
But Fish also added a significant caveat to that recommendation: until C-77 comes into force, it should be civilian authorities to investigation and prosecute alleged sexual assaults.
Conservative defence critic James Bezan called the report a “damning” account of the government failing to act to implement the recommendations from the 2015 Deschamps report over the last six years.
“Enough is enough. The status quo must immediately change. Our women and men in uniform deserve better than this,” he said in a statement.
It’s Not Just 700, the support group for survivors of military misconduct, also released a statement saying they were “encouraged” to see Fish focus on the system nature of sexual misconduct in the military justice system, they would remain “cautious in our assessment until we see concrete action.”
The group was formerly known as It’s Just 700.
“We are encouraged by Justice Fish’s report and remain cautiously optimistic that change in the way victims of sexual misconduct are treated and their reports processed in the eyes of the law, can be addressed by implementing these recommendations,” said the group in the statement.
“Our skepticism remains, in that, while programs have been put in place as window dressing and created some movement, very little has really changed in the intervening years as reports have been tabled to parliament. Nothing about us, without us.”
Elaine Craig, an associate professor at the Schulich School of Law at Dalhousie University, also noted while there are things that are “very positive” about the report, it doesn’t go far enough.
In particular, Craig pointed to Fish’s recommendation that the military should temporarily hand over sexual assault cases to civilians until the Declaration of Victim’s Rights comes into force.
“There’s still some important procedural protections that survivors of sexual assault or complainants in the civilian system receive that are not granted to complainants in the military system and that are not captured by the Declaration of Victims Rights,” she said.
“I think it would have been preferable for Justice Fish to recommend that the military not conduct sex offence cases until all of those gaps between the military’s legal system in the civilian system have been addressed.”
Senior government officials would not answer clearly when pressed on whether the military will temporarily hand sexual assault cases over to civilian authorities — a key concern raised by victims and survivors in testimony before the parliamentary committees studying military sexual misconduct.
Officials speaking at a technical briefing Tuesday said they will examine the recommendation.
Sajjan offered similar comments when asked whether he will push to remove sexual assault from the military justice system, which would require an amendment to the National Defence Act’s Section 70.
“This is something that we’ll be examining closely,” he said.
Justice Minister David Lametti also weighed in, echoing Sajjan but noting the “merit” of the proposal.
“This is a course of action that has a great deal of merit but it is complex and we need to do it right,” he said. “It is something we’re committed to but it will take time.”
Judge Advocate General Commodore Geneviève Bernatchez added the recommendations must be implemented to their “fullest extent.”
“I would like to put on the record that as the current JAG I fully embrace the recommendations,” she said. “This goes to the very heart of the ongoing credibility and legitimacy of the military justice system.”