By: Mathew Benoit*
AN OVERVIEW
On 29 April 2021, former Supreme Court justice Louise Arbour was tasked with reviewing the policies and procedures regarding “sexual misconduct” within the Department of National Defence (DND) and the Canadian Armed Forces (CAF). On 30 May 2022, Arbour released her report The Independent External Comprehensive Review into Sexual Misconduct and Sexual Harassment in the Department of National Defence and the Canadian Armed Forces.
Arbour Finds that CAF Not Really Committed to Changing Workplace Culture
Arbour’s findings were damning. She notes that despite previous external reviews, such as one completed by former Supreme Court justice Marie Deschamps in 2015,“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” (at p. 12).
Gender Discrimination Prevalent
Additionally, uneven treatment between genders exacerbated existing situations of harassment; as one servicewoman noted, “A man can be seen as stoic and forceful, and a woman is a bitch. I was told early in my career that I had three choices: to be a slut, bitch or dyke” (at p. 34). This further led to the accustomization of this toxic environment; as a servicewoman opined, “You wake up every day wondering if you are going to make it through the day, what name you will be called, and if they will find something you cannot do” (at p. 35).
CAF Member Afraid to Report Sexual Harassment
Additionally, Deschamps’ 2015 review highlighted concerns about under-reporting incidents and some of the fears that affect a member’s decision to report or not, including the impact on career progression, the lack of confidentiality, and the lack of trust in the chain of command (at pp. 28-32).
Statistics Reflect CAF Culture Not Improving
The statistics are also quite damning. In a survey completed in 2022, Statistics Canada found that nearly one in five (19%) Regular Forces members experienced sexualized or discriminatory behaviour in the workplace, up from 17% in 2016 and 15% in 2018. Additionally, one in three (34%) of women in Regular Forces experienced at least one instance of sexualized or discriminatory behaviour in the 12 months preceding the survey. Perhaps most troubling, two-thirds (67%)of Regular Forces members stated that they witnessed (saw or heard) or personally experienced sexualized or discriminatory behaviour in the 12 months before the survey. It is particularly troubling that nearly half of those who witnessed sexual communication (46%), other sexualized behaviours (49%), or discriminatory behaviours (44%) reported not intervening.
HUMAN RIGHTS IN THE CAF & DND
As federal employers, the DND and CAF are subject to claims under Canadian Human Rights Act (CHRA). As such, claims can be brought before the Canadian Human Rights Tribunal (CHRT). Under section 14 (1) of the CHRA, sexual harassment is a discriminatory practice. This extends to conduct such as dead naming or repeatedly using incorrect pronouns toward gender-diverse individuals. You can read more about that in my previous post here. Additionally, the policy directive of the DND and CAF DAOD 5516-0 requires both entities to promote the principles of the CHRA.
Canadian Human Rights Commission and Tribunal
Bringing a claim before the CHRT is a two-step process. First, a complaint is filed with the Canadian Human Rights Commission (CHRC). The CHRC acts as a screening body for the CHRT. It will receive your complaint and determine if it can be accepted. If the complaint is accepted, it is processed, and (where appropriate) mediation and/or conciliation are offered to the parties. If that is unsuccessful, the CHRC reviews and assesses the complaint, and the CHRC makes a decision about the validity of the complaint. The CHRC may ask for additional information; decide not to deal with the complaint, not to deal with is at that point of time, to deal with the complaint, or send the complaint to conciliation; refer the complaint to the CHRT, approve a settlement, or dismiss the complaint. If the CHRC chooses to refer the complaint to the Tribunal, mediation will be proposed again to the parties, and if the parties do not agree to mediation, a hearing will be held.
If you disagree with the Tribunal’s decision, within 30 days of receiving it, you may apply to the Federal Court of Canada for judicial review. This is a discretionary remedy, meaning the Court is not required to hear the matter; you must seek permission for your review to be heard.
Mowat v. Canada (Armed Forces)
An example of a successful claim before the Tribunal is Mowat v. Canada (Armed Forces) 2005 CHRT 31. Between November 1993 and April 1995, Ms. Mowat was subjected to degrading commentary by superiors, subordinates, and civilians. In that case, the Tribunal held that Ms. Mowat should be awarded $4,000 in damages for injury to dignity and self-respect (at paras 398-402).
RESOURCES
If you or somebody you know is a service member experiencing sexual harassment or a veteran who experienced sexual harassment during your service, help is available.
The DND’s Sexual Misconduct Support and Resource Centre (SMSRC) provides confidential support, information about options and resources, peer support groups, and service referrals. You can reach them via phone or email.
By phone: 1-844-750-1648
By email: DND.SMSRC-CSRIS.MDN@forces.gc.ca
The VAC Assistance Service is a 24-hour, toll-free helpline providing immediate short-term mental health counselling, referral services, and support for emotional and mental health concerns. You can reach the helpline by calling 1-800-268-7708.
Additionally, you can reach out to the Suicide Crisis Helpline by calling or texting 988.
*Matthew Benoit grew up in St. Thomas, Ontario. He received his law degree at the University of Toronto after receiving an HBA and an MA in English at Wilfrid Laurier University and Lakehead University, respectively. He was awarded Lakehead University President’s Award for his academic accomplishment, community service, and contribution to the university's welfare. His academic interests include comics, Indigenous literature, literary theory, ludonarratives, Medieval and Early Modern literature, and science fiction. His areas of legal interest are administrative, constitutional, and criminal law. He is articling at the Northumberland Community Legal Centre and previously summered at the Middlesex County Crown Attorney’s Office. He enjoys academic writing, hiking, gaming, fencing, tennis, and weightlifting.
Disclaimer: This post contains general legal information as of December 12, 2024, that may or may not apply in a particular situation. It is important to note that the law, government policies and available programs can change, and this blog will not be updated to reflect these changes. It is highly recommended to seek legal advice from a lawyer.
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