The Department of National Defence and Canadian Armed Forces are beginning the process of repealing regulations known as the “duty to report” as part of cultural reforms following the sexual misconduct crisis.
The longstanding regulations require military members to report any kind of misconduct that violates the military code of service to the relevant authorities. And while intended to promote order and discipline, the rule has been highly criticized for how it applies in forcing reporting of sexual misconduct even if the survivors and victims may not want to report.
In retired Supreme Court of Canada justice Louise Arbour’s external review of the CAF’s handling of sexual misconduct, spurred by months of exclusive Global News reporting, she called for the repeal of the duty to report due to the potential to harm victims.
“Sexual assault survivors weigh their options. If they choose to remain silent, they do not have to fear further punishment or face unwelcome exposure if others inform on their predicament against their wishes,” Arbour wrote in her report.
In a media briefing, Lt.-Gen. Jennie Carignan said the military carefully examined this recommendation and found that the duty to report can bring unintended harm to victims of abuse and harassment.
“We never want the stress of reporting to prevent someone from getting the care and support that they need,” she said.
“Our intent will always be the timely treatment of all forms of misconduct in a fair and equitable way.”
Carignan added that while Arbour’s report recommended an exemption in the duty to report regulations for sexual misconduct, it was ultimately decided to fully repeal the policy so other issues of harassment, like hateful conduct, are also not subject to it.
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Megan MacKenzie, director for the school of international studies at Simon Fraser University, says this move is long overdue. She says the idea of the duty to report came from a place of good intent, but that hasn’t been the reality.
“We know that many victims of sexual misconduct don’t come forward right away. It takes some time. And it’s important to let victims decide how and when to come forward,” she said.
The repeal is expected to take effect this winter. Prior to this, DND and the CAF say they are undertaking a review of relevant policies, orders and directives to identify potential amendments or refinements needed to address issues that may arise with the repeal.
This is something military lawyer Michael Drapeau says should have been done much sooner, as the recommendation has been out since May 20, 2022.
“It’s not as if the Arbour Report came as a surprise to the Defence Department,” Drapeau said.
“We’re able to deploy at a moment’s notice, and that’s the task of the military. Surely, we can do better and faster when it comes to the defence of our own people who are themselves victims of sexual misconduct.”
Drapeau adds that while he is pleased that this recommendation is being implemented, he’s worried that additional studies can delay the further implementation of all 48 recommendations put forward in the Arbour Report.
It’s a sentiment shared by MacKenzie.
“At this point, less than half of them are underway or being initiated. And so that’s very, very disappointing considering that the Arbour Report took a year,” MacKenzie said.
Carigan says that the military is developing a new digital case management system, among other initiatives. She says she’s confident people will still report issues of misconduct without the obligation.
DND says that repealing this regulation is not meant to limit a CAF member’s ability to report their own experiences of misconduct. The change just removes the legal obligation to report, so members will be in control and be able to report issues of misconduct on their own terms, just like in the civilian justice system.
“We must foster a culture where survivors, and all those affected by misconduct, feel safe, supported, and able to report wrongs on their own terms,” Chief of the Defence Staff Gen. Wayne Eyre said in a statement.
This is the second change to how reports of misconduct are handled in the military this month.
On Aug. 15, Defence Minister Bill Blair announced that CAF members who experience sexual misconduct or harassment can now file a complaint directly with the Canadian Human Rights Commission instead of the internal military grievance process.
“Fostering a safe and respectful workplace for all Canadian Armed Forces members is my utmost priority. Today’s announcement further demonstrates our commitment to making meaningful and transformative change,” Blair said in a statement.
DND says it continues to work on its reforms to cultural changes as outlined in Arbour’s recommendations.
This indeterminant has Drapeau calling on more urgency to be taken, as he says it is the role of the military to respond to a crisis quickly and effectively.
“The ball is in the minister’s court, and it’s the minister in fact, who should be looking the cameras in the eye and explain as to why so many of Ms. Arbour’s recommendations are still pending review have not been put into force yet,” he said.
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