Defence Administrative Order and Directive 9005-1 - Sexual Misconduct Response

On 18 November 2020, the Canadian Forces quietly cancelled Defence Administrative Order and Directive (DAOD) 5019-5 - Sexual Misconduct and Sexual Disorders, and replaced it with DAOD 9005-1 Sexual Misconduct Response.  The term 'quietly' is used above as, unlike other recent significant policy changes in the Canadian Forces (CF), such as the proposed changes to the 'naval rank designations' for junior non-commissioned members, the policy change was not accompanied by a public announcement through a Press Release.  There was an 'internal' announcement on the Defence Wide Area Network (DWAN) by the Vice Chief of the Defence Staff, Lieutenant-General Mike Rouleau.

There had been prior indications (i.e. in submissions to Parliamentary committees, in CF publications) that a 'new' CF policy on Sexual Misconduct would be designated using the DAOD number 9005-1; however, the date for promulgation was not widely broadcast.

It is not clear why the new 'Sexual Misconduct Response' DAOD was re-designated in the '9000' series of DAOD, rather than remaining in the '5019' series, along with other DAOD relating to conduct and performance.  The change appears to follow the rationale behind the creation of DAOD 9004-1 - Use of Cannabis by CAF Members.  DAOD 9004-1 was created, rather than incorporating the new rules relating to cannabis into DAOD 5019-3 - Canadian Forces Drug Control Program or by creating a 'new' DAOD under the 5019 series relating solely to cannabis.

The new Sexual Misconduct Response policy will undoubtedly raise a variety of questions, beyond why it was placed in an entirely different series of DAOD and why there was no public announcement to coincide with the change.  For example, the 'Definitions' section of the DAOD (Section 2) defines the terms 'sexual misconduct' and 'workplace'.  Yet, Section 4 of the DAOD - 'General Principles' - includes five more definitions that apply to the DAOD: 'complainant', 'consent', 'respondent', 'sexual assault', and 'victim'.  Why these definitions were not simply included under the Section entitled 'Definitions' is not clear.

Neither is it clear whether the Canadian Forces will concern itself with 'Sexual Disorders'.  Unlike DAOD 5019-5, DAOD 9005-1 makes no mention of any policy relating to sexual disorders.

Also, there are undoubtedly ongoing processes that were initiated under the now-cancelled DAOD 5019-5.  Presumably, those processes must continue to apply the DAOD that was in force at the time that the allegations of sexual misconduct were raised (or, at the very least, the portion of the DAOD that pertained to the prohibited conduct).  However, that policy instrument is no longer publicly available.

There will assuredly be further analyses of this new policy in the coming weeks, as it represents the latest step in the process by which the current (and, presumably, soon to retire) Chief of the Defence Staff intends to eliminate sexual misconduct from the Canadian Forces.  However, even a cursory review of the new policy tends to convey a perspective that any 'respondent' in the new process seems to face a rebuttable presumption of guilt, rather than a truly open-minded and procedurally fair adjudication of what are often contested versions of facts.  It takes more than the occasional inclusion of the terms 'procedural fairness' and 'due process' in a policy instrument to ensure that a process is truly fair.