Wednesday, April 21, 2021

The Canadian Forces & #MeToo

On 21 April 2021, Professor Lesley Wexler posted a Blog entitled "Military #MeToo, Part II: In Bad Company— Canada’s Armed Forces #MeToo Crisis", which offered an American's perspective of the current trials and tribulations experienced by the Canadian Forces in light of a series of claims that the Canadian Forces and Canadian government is not doing enough to curb sexual misconduct in Canada's armed forces.  Professor Wexler offered this view as a means of comparing the American experience with that of their Canadian cousins.

As a Canadian, I see a couple of obvious benefits arising from Professor Wexler's observations.  First, it is valuable to have an 'outsider's' perspective.  Often, views of the Canadian experience are offered by the 'usual suspects' (the author of this post included), which can result in a bit of an echo chamber.  Second, there is value in comparing experiences of close allies, where even marked contrasts can offer lessons.

However, I must admit that I do not agree with everything that Professor Wexler asserts in her blog, and where we differ in our perspectives might be informative for other observers.

My views differ from those of Professor Wexler in two general ways: (1) I contend that some of her assertions are either factually incorrect or offer an incomplete explanation of the underlying facts; and, (2) I contend that some of of the conclusions are open to dispute.

Many observers - certainly not just Professor Wexler - have relied upon data describing claims that have not yet been proven through the examination of evidence before a court or tribunal.  Reliance on such data has not been uncommon in the context of examination of sexual misconduct in the Canadian Forces.  I do not suggest that the data is therefore irrelevant; however, I believe we must acknowledge that we are dealing with untested allegations - particularly where we are discussing recent allegations against specific persons.

But that is not what I mean when I say that I contend that some of the assertions are factually incorrect or inaccurate.  One paragraph in particular contained several of what I would characterize as erroneous or potentially misleading statements:

Like the U.S. armed forces, the Canadian armed forces have also faced a series of sexual misconduct scandals, followed by government attention, promises of zero tolerance, and more scandals with limited progress on accountability and changes in climate. For instance, the media attention to the sexual assault of Dawn Thomson in the 1990s prompted sexual harassment training across the Canadian forces. In the early 2000s, the sexual assault of and ensuing mishandling of Stephanie Raymond’s claims prompted a scathing 2015 review from former Supreme Court Justice Marie Deschamps suggesting a major overhaul of the military justice system. Gen. Jonathan Vance, then chief of the defence staff in 2015, spoke of zero tolerance in the military and initiated Operation Honour to root out sexual misconduct. Such efforts produced few tangible results, and he is now the subject of an ongoing investigation regarding harassment of a subordinate. His successor, Admiral Art McDonald, followed a similar pattern of tough talk on sexual misconduct but lasted only a month, as he is now also facing an investigation for possible sexual misconduct. Only this month, the premature closing of a government investigation into the Vance scandal and what the government knew about the allegations sparked a major outcry. The highest-ranking woman in the Canadian forces, Lieutenant Colonel Eleanor Taylor publicly resigned citing the military’s abysmal failures on this issue. Former Corporal Sherry Borden’s Facebook video detailing her sexual assaults and other assaults on base has gone viral. Right now the House of Commons’ standing committee on the status of women is conducting hearings on military sexual misconduct.

I would suggest the following clarification:

The review by retired Supreme Court of Canada Justice Deschamps - entitled the "External Review into Sexual Misconduct and Sexual Harassment in the Canadian Forces", and abbreviated as the "Deschamps Report" - was prompted by a variety of factors, not solely the prosecution of the complaint by Ms Raymond.

I would dispute the assertion that there were few tangible results from Op HONOUR.  Part of the challenge in identifying the outcomes of 'Op HONOUR-related' processes is the difference in the processes that were used.  While prosecution under the Code of Service Discipline tends to be public, and therefore transparent, a variety of administrative actions that were characterized as falling within the rubrique of 'Op HONOUR' were neither public nor transparent.  And the number of administrative processes used by the chain of command markedly exceeded the number of processes initiated under the Code of Service Discipline.

I would also suggest that a not-insignificant number of these administrative processes fell short of the procedural fairness required for such processes.  And often, it appeared that the military leadership relied upon administrative processes, rather than the Code of Service Discipline, at least in part because the former was subject to less scrutiny by constitutionally independent judges.  I examined this issue about 13 months ago in "Examining Vavilov’s Impact on Military Administration – Hypothetical Scenario".  And in September 2019, I examined a principal defect in the Canadian Forces' so-called 'Sexual Misconduct Incident Management Decision Tree': "The Sexual Misconduct Decision Tree & Closed-Minded Decision-Making".  In June 2019, I provided "An Example of Decision-Making on a ‘Balance of Probability’ Under Op HONOUR" which could be contrasted with "The ‘Golden Rule’ and Statutory Decision-Making in the Canadian Forces".

The statement that "...the premature closing of a government investigation into the Vance scandal and what the government knew about the allegations sparked a major outcry ..." is a bit misleading.  Professor Wexler appears to be referring to the initial indications that the Parliamentary Standing Committee on National Defence would be concluding its 'inquiry', which was begun in early February, in order to table a report before Parliament on 10 June 2021.  However, the inquiry by the Standing Committee was not an inquiry into the specific allegations against General Vance (who is now retired).  There is a separate Military Police investigation that is being conducted.  Indeed, it would have been improper for the Standing Committee to interfere with that investigation.  

Instead, the Standing Committee was purportedly focused on inquiring into what the Government knew in March 2018 about supposed allegations that had been raised by the DND/CF Ombudsman, and what the government did (and did not do) at that time.  Also, it appears now that the Standing Committee has reversed that decision in light of public outcry.  For those interested in what would, and would not, be appropriate subject matter for the Standing Committee: "A Comment or Two on the Standing Committee on National Defence".  For those interested in what the Minister of National Defence could have done regarding the allegations in 2018 (or, indeed, in 2021): "What could the Minister of National Defence have investigated?"

After the Standing Committee on National Defence commenced its inquiry, the Standing Committee on the Status of Women also began a parallel inquiry.  That, too, remains ongoing.

And lest the significance of these inquiries be misconstrued - particularly in light of how similar Congressional inquiries might be conducted in the United States - permit me to offer the following observations:

  • 'Testimony' is not given under oath.
  • Questions by members of the Standing Committees are frequently politicized, and some bear a stronger resemblance to speeches, than questions.  [And, yes, I am aware that this is not an uncommon phenomenon in the United States.]
  • There are very strict time limits on the questions.
  • The examination of 'witnesses' is not comparable to the examination and cross-examination with which many 'trial lawyers' might be familiar (notwithstanding inelegant attempts by Members of Parliament to 'cross-examine' some 'witnesses').
  • As fact-finding processes, these 'hearings' fall markedly short of Commissions of Inquiry under the Inquiries Act.
Eleanor Taylor was not the highest ranking woman in the Canadian Forces.  The highest ranking woman in the Canadian Forces is Lieutenant-General Frances Allen, the Vice Chief of the Defence Staff (essentially the second highest position in the Canadian Forces, after the Chief of the Defence Staff).  However, Lieutenant-Colonel Taylor is a widely respected and accomplished infantry officer whose letter accompanying her request for release (essentially, her notice of retirement) went viral on social media. 

Professor Wexler also describes what she refers to as the '2019 Victims' Bill of Rights' for the Code of Service Discipline.  What she is referring to is the enactment of Bill C-77 in 2019, which introduced to the Code of Service Discipline provisions that were introduced to the Criminal Code of Canada by the Canadian Victim Bill of Rights, which received royal assent in 2015.

Professor Wexler states: "That said, the military appears to be slow walking the Bill of Rights, with the relevant regulations still undrafted."  While this is true - and the regulations that would implement what I consider to be a problematic new form of 'Summary Hearing' also remain on the drafting table - what Professor Wexler does not mention is that many of the processes that were included in this 'Victim's Bill of Rights', such as the provision of Victim Impact Statements and measures intended for the protection of complainants, are already common-place by virtue of policy and judicial discretion.

Specifically, article 101.04 of the Queen's Regulations and Orders for the Canadian Forces (QR&O) states: "When in any proceedings under the Code of Service Discipline a situation arises that is not provided for in QR&O or in orders or instructions issued to the Canadian Forces by the Chief of the Defence Staff, the course that seems best calculated to do justice shall be followed."  And, pursuant to section 179 of the National Defence Act:

179 (1) A court martial has the same powers, rights and privileges — including the power to punish for contempt — as are vested in a superior court of criminal jurisdiction with respect to
(a) the attendance, swearing and examination of witnesses;
(b) the production and inspection of documents;
(c) the enforcement of its orders; and
(d) all other matters necessary or proper for the due exercise of its jurisdiction.

I have commented previously on Bill C-77 in late May 2019, shortly before it was enacted: "A few comments on Bill C-77 …" and "A Few Comments on Bill C-77 … Redux".

Like many commentators in Canada, Professor Wexler observes that there have been calls for 'external' and 'independent' actors who might improve processes.  Indeed, a common assertion is that this independent and external actor must 'report to Parliament'.  However, one of the problems with these assertions is that many commentators are recommending solutions before they have fully identified the scope of the problem(s), the options for remediating these problems, the key legal principles that would inform the solutions, and how those solutions could be implemented.  I expand on some of those issues in recent Blog posts of my own:
Certainly, examination and comparison of similar problems and challenges in Canada and the United States (as well as Australia, the United Kingdom, and New Zealand) present an opportunity for comparative problem solving.  However, I suggest that, first, we must ensure that we have accurately identified the relevant factors.

No comments:

Post a Comment

Comments are subject to moderation and must be submitted under your real name. Anonymous comments will not be posted (even though the form seems to permit them).