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View Larry Bagnell Profile
Lib. (YT)
View Larry Bagnell Profile
2021-04-19 12:26
Thank you, Madam Chair.
Thank you very much.
I appreciate the last intervention.
I want to remind the committee though that politicians in committees do not do investigations. That has to be independent. The appropriate investigations are going on, they will run their course and the information will be public.
To add to what Mr. Spengemann said in relation to Ms. Alleslev's comment about limiting people's input, as Mr. Bezan said, people should be allowed to speak. This motion extends the debate for reasons I'm not sure of.
Any comments that members have about things that would be more useful in extending a debate or why it doesn't need to be extended or other input.... If we're going to extend it like we are today, there's some valuable information getting on the record. If one member agrees and says that, there's nothing to stop another member from saying that and repeating it.
There was an email and the person refused to allow an investigation. As Mr. Wernick said, there was nowhere to go. People know that in this particular instance. I'm not sure what more information there would be on that. There is a lot of information from the thousands of members in the military who have, as I explained in a previous meeting, been affected by this, plus the serious and sometimes terrible information we have from serving members, victims.
As Mr. Bezan said, we should respect them. I would suggest we respect them and get on with it. If Mr. Bezan would withdraw his motion instead of prolonging this, we could move forward on this.
The second concern is that Mr. Bezan was prejudging the recommendations. This is very concerning to me because we haven't even discussed those yet from what I have heard. The things that Liberals are bringing up, we'll continue to get on the record.
As Xavier said, important input from members and victims is related to the changing culture, the independence of the processes and the repercussions. People are terrified of reporting because of the repercussions on their careers.
I'm not sure which of those things Mr. Bezan is calling into question in terms of recommendations when we haven't even discussed those. Anything that I've heard the Liberals put forward is related to what the victims and the experts have said needs to be done, so why would we be questioning those recommendations?
I have more to add to the debate. I could repeat someone else just so I could agree with them and read in excess of what they have said. What I am going to add now has not been said by anyone. It's something I've wanted to get in at previous meetings but I didn't have a chance yet.
It's related to the change in administrative directives, which is very important information and is much more than what the motion suggests. It's the change in directive to the DAOD 9005-1, which replaced the DAOD 5019-5.
I read these about a month ago because I was interested in what changes had been made. I read these directives dealing with the situation. It appears on the surface to be very comprehensive with very good changes. The question that the committee should be looking at, which would be a much more valuable witness than the motion before us, is why these things aren't changing.
The new 9005—for the record it's DAOD 9005-1, which I'll refer to as 9005—has a fundamentally different approach in how it frames sexual misconduct in addressing allegations of sexual misconduct in a preventive and reactionary methodology compared to 5019.
DAOD 9005's language and approach is very intentional, clearly designed to give direction and not be left up to the reader's discretion. I thought this was an excellent change, but the victims have explained that this isn't working. The DAOD expands to include specific definitions, frameworks and perspectives, which include supporting the respondent, not simply dealing with the incident.
The case can be made for this interpretation based on numerous items in the 30-page document. I won't read them all, but I'll read some of the sections that support this claim and then make the case for our witness—instead of the one proposed, which are dealing with something we've already dealt with—on why this 9005 isn't being effective.
View Larry Bagnell Profile
Lib. (YT)
View Larry Bagnell Profile
2021-04-19 12:33
Thank you.
If Ms. Gallant wants to add to the stalling by continuously bringing points of order, this is a motion about a witness. As I said at the beginning, there could be more effective ones if the committee insists on stalling this further.
The framework of 9005 on sexual misconduct is elaborated and identified using specific languages and definitions—
View Larry Bagnell Profile
Lib. (YT)
View Larry Bagnell Profile
2021-04-19 12:36
Thank you, Madam Chair.
All I was saying was that, if the opposition member would withdraw the motion, they wouldn't continue prolonging this when members of the military really need the action we know is necessary at this time.
View Larry Bagnell Profile
Lib. (YT)
View Larry Bagnell Profile
2021-04-19 12:37
Thank you.
As I said at the beginning, we have important work to do. There's a report on COVID. We're in a pandemic and it's affecting the military as it is the rest of us. There's a report on mental health. There's this serious report that affects thousands of members of the military that we could make some meaningful change on. That's what I think we should be debating today. That's the summary of what I was saying.
Carrying on where I was, sexual misconduct is elaborated and identified using specific language and definitions in section 2 of 9005, compared with 5019. DAOD 9005 also establishes the various means of conducting sexual misconduct as well as specifically highlighting the Canadian Criminal Code and using it as a framework for definition within the DAOD. DAOD 5019 is broad and only addresses sexual disorder as it is a part of the APA and defines sexual misconduct as acts that are “sexual in nature”. DAOD 5019 does not address harassment, use of technology to cause harm or evaluation as a form of sexual misconduct, whether that's based on sex, sexuality, sexual orientation or gender identity, etc. DAOD 9005 also identifies the workplace and work environment and leaves no room for guesswork as to where SM can occur. DAOD 5019 does not even go near these items or topics.
The general principles for both of the DAODs—section 3 for 5019 and section 4 for 9005—are framed differently. DAOD 5019's language is simple and straightforward and aims to protect the institution, whereas 9005's first point of concern is the claimant and victim. DAOD 5019 states that CAF is committed to investigating and dealing with misconduct as soon as practicable. DAOD 9005 states that CAF is committed to three things, which are preventing sexual misconduct, addressing sexual misconduct “as soon as practical”—I found this language a little off-putting, but that's just an aside—and supporting victims of sexual misconduct.
The language used in section 4 explicitly delves into consent and the potential harm and trauma a victim can face via SM. DAOD 5019's language frames it more so as harming the institution of CAF and how it undermines the institution's values. While that can be true, 5019's objectivity fails to address the needs of the claimant or the victim.
I think all these things should be and are improvements. Why aren't they effective? In 5019, 3.7 and section 4, “Process”, and 9005 section 5, “Reporting”.... DAOD 9005 states “all CAF members have a duty to report”, which is not explicitly stated in 5019. We heard from the witnesses that this has led to some problems and this needs to be certainly part of our debate on the recommendations on what should happen there.
DAOD 9005 breaks down potential conflicts, considerations and duties that the officer has when deciding if they can adequately address the misconduct, and if and how it should be reported. DAOD 5019, in contrast, is very procedural and almost like a flow chart. There is no mention of factors to consider and not consider, which 9005 does in great detail.
Section 5.5, “Reporting Considerations”, to 5.16, which is reprisal and harmful behaviour, is one of the fundamental differences between the two DAODs. I've brought this up. Where's the defence in the code of ethics and in the code of service? Are there strong enough penalties related to reprisals? Because with the hundreds of people who were aware or involved and only a few reports, obviously there's a problem. I think that's what this new directive is trying to focus on.
DAOD 5019 uses language that focuses more on the respondent in section 6, “Treatment and Rehabilitation”. While 9005 does not discourage treatment and help for those who need it, the language focuses on the claimant, the victim, in section 7, “Support”.
The chain of command can help by keeping open lines of communication or providing CAF and non-CAF-related resources as support. The support has to be.... From what we heard from members, victims have to be independent of the chain of command. Mental health and well-being is also stressed, along with discussing the potential workplace difficulties a claimant may face.
The DAOD 5019 makes no mention of what the CO's responsibility toward the victims is, where 9005 does. All members of the committee would agree that this is a very important change, that there be support for the victims, which we've heard is necessary in the testimony provided.
We found that the legislative requirement of members of the CAF to report all incidents of misconduct, including inappropriate sexual behaviour, was reinforced through the Operation Honour order, known as the duty to report. This requirement meant the commanding officer and members with knowledge of an incident feared significant consequences if they did not report. Victims were therefore required to report inappropriate sexual behaviour, whether or not they wanted to or were ready. This discouraged some victims from disclosing for fear of being forced into a formal complaint process, which contributed to under-reporting. Finally, it placed a heavy administrative burden on the chain of command and the military police to manage the complaints.
As I mentioned previously, I tried to do some research on this, as to why this duty to report was causing a problem for victims who did not want, for instance, to have an investigation, and could cause even more grief for the victim. That's something we have to look at in the report.
One of the recommendations is that the Canadian Armed Forces should establish clear guidance for members, in the regulations, to report to the proper authority in the context of inappropriate sexual behaviour. The guidance should clarify who's considered the proper authority and under which circumstances. The goal should be to balance the need to protect the organization's safety with the need to support victims by allowing them to disclose and seek support without the obligation to trigger a formal report and complaint process. We have to look at that very carefully.
I will leave it there. There's more information I can bring back later, but the point is, and no one's raised this, that we have DAOD 9005 that replaced the existing order. As I said, I read it about a month ago, because I was interested in what improvements had been made. A number of improvements have been made in the last few years, but some of them, obviously, aren't working to the extent they should. There are some very good changes in this change of orders, but why isn't it working? The recommendations that we come forward with would have to deal with that.
I'll leave it at that for now, but I could add more later.
View Larry Bagnell Profile
Lib. (YT)
View Larry Bagnell Profile
2021-04-19 13:19
On that point of order, Ms. Gallant keeps making the same point of order, and it's not a point of order. I suggest we carry on.
View Larry Bagnell Profile
Lib. (YT)
View Larry Bagnell Profile
2021-04-19 13:57
Thank you, Madam Chair.
I'm going to pick up where Mr. Baker left off.
As you know, the three major areas for improvement or for recommendations that victims have given, which are of primacy, are the culture—
View Larry Bagnell Profile
Lib. (YT)
View Larry Bagnell Profile
2021-04-19 13:57
The three major areas for improvement were the culture, the independence of the processes and the repercussions on reporting.
Mr. Baker did a good outline from Deschamps on the culture, information on culture. I'm going to follow up on another major area, which is the independence of processes.
Except where sexual harassment rises to the level of criminal conduct, sexual harassment and sexual assault are treated as distinct and unrelated conduct. In the ERA's review, this strict dichotomy is misplaced and risks allowing some improper sexual conduct to go unpunished, particularly low-level sexual assaults. Moreover, the consultations raised a number of serious concerns with respect to whether the procedures currently in place are appropriate and effective.
Because sexual assault and sexual harassment are treated separately, I will start with how sexual harassment is dealt with and then in my next intervention, I will go on to the processes for sexual assault, although as it was said earlier, they shouldn't necessarily be treated separately, but at the moment they are.
Under the “Current Practices” related to sexual harassment:
The practices and procedures for receiving, investigating and adjudicating a complaint of sexual harassment are set out in a number of different policy documents within the CAF. As noted, DAOD 5012-0 regulates four different types of harassment: personal harassment, abuse of power, sexual harassment, and racism. While the DAOD establishes the broad parameters of the policy—including the delegation of authority to certain individuals to receive, investigate and adjudicate complaints of harassment—more detailed instructions are provided in the Harassment Prevention and Resolution Guidelines.
They then refer to them as the “Guidelines”.
These Guidelines are intended to provide procedural guidance in support of the Harassment Prevention and Resolution Policy. They are issued under the authority of the CDS and have the same compulsory force as the DAOD 5012-0. Both DAOD 5012-0 and the Guidelines flow “directly from and are consistent with the Treasury Board of Canada Secretariat Policy on the Prevention and Resolution of Harassment in the Workplace”.
As set out in DAOD 5012-0 and in the Guidelines, COs and other more senior officers may be assigned the responsibility to adjudicate harassment complaints and, in such circumstances, are referred to as ROs. ROs have decision-making authority under the DAOD and the Guidelines. They receive specific instructions from the CDS to discharge their duties. Guidance is also provided to Harassment Advisors—
I'll refer to them as HAs.
—whose role includes advising ROs with respect to processing a complaint of harassment. HAs are designated by COs and will generally be members of a unit who have either volunteered, or been requested, to serve in this role.
The Harassment Advisor Reference Manual identifies two broad approaches to resolving harassment complaints: (1) alternative dispute resolution (ADR), which is “encouraged”; and (2) administrative investigation. Generally speaking, complainants are strongly encouraged to pursue ADR (either through informal ADR techniques used by those in the chain [of] command, or with the assistance of a third party mediator) before laying a formal complaint and requesting an administrative investigation. In either case, the Harassment Advisor Manual establishes that one of the guiding principles for the RO is to attempt to resolve the problem at the lowest possible level utilizing ADR techniques:
“When harassment has occurred and/or a harassment complaint has been submitted, DND employees and CAF members are encouraged to resolve harassment issues at the most appropriate, lowest possible level, through alternative dispute resolution techniques.”
In either case, the harassment adviser manual establishes that one of the guiding principles for the RO is to attempt to resolve the problem at the lowest level.
The report continues as follows:
This focus on low-level resolution and ADR is also reiterated in the RO Guide.
Given these procedural requirements, before a harassment complaint is fully resolved, a harassment victim may be required to go through three separate stages. The first stage (ADR) takes place after the victim reports the improper conduct but before a formal complaint is lodged, the second stage (the Administrative Investigation) is initiated once a complaint is filed, and the third stage (a grievance) occurs if a party seeks to challenge the RO’s decision on the complaint.
With respect to the first stage, although it is not mandatory, the CAF strongly encourages its members to start by using so-called “self-help” techniques whereby the concerned individual should first speak directly to the instigator of the unwelcome conduct....If the immediate supervisor cannot help, or if the supervisor is a party to the incident, the victim may turn to a higher-level supervisor to seek his or her intervention. This approach is part of the CAF’s “open door” policy. If recourse to the chain of command does not produce adequate results, or if it is not appropriate, the member may be offered formal ADR with the help of a third party mediator.
If none of these techniques is successful or appropriate, the victim may lay a formal complaint, which leads to the second stage: an administrative investigation. This is generally initiated by a written complaint and triggers certain procedural obligations, such as that the complainant has the right to receive information about the complaint. A workplace relation advisor (WRA) can also be assigned to the complainant. The WRA provides information about the investigation process, but cannot provide advice on the merits of the complaint. For moral and additional administrative support, both the complainant and the respondent can also receive the help of an “Assistant”. As with Has and WRAs, Assistants are members who have volunteered, or who have been requested, to take on [that] role.
Once a written complaint is received, a situational assessment is conducted. The Guidelines foresee that the investigation process is seldom terminated at this stage, however:
“There may be exceptional circumstances where the RO is completely satisfied that he/she has all the facts.”
In such rare circumstances, the RO will decide, based on the situational assessment, whether the criteria provided in DAOD 5012-0 are met or not. If he or she is not so satisfied, a harassment investigation will be conducted by a harassment investigator (HI). An HI is either a member who has been certified as an investigator through CAF training, or a civilian certified to conduct investigations. Also, if it is found that the facts warrant the continuation of the investigation process, the complainant will again be invited to use ADR. If it is determined that an HI must be appointed, terms of reference (TOR) circumscribing the mandate of the HI are drafted, and the file will be assigned to an HI.
After completing the investigation, the HI must first...draft [a] report, which does not contain any recommendations. The RO reviews the draft report for conformity with the TOR. Once the RO is satisfied that the draft report is consistent with the TOR, the RO forwards it both to the complainant and to the respondent. The RO must ensure that procedural fairness is respected. The RO is then in a position to make a decision as to whether or not administrative action will be taken, and of what kind. In the case of a harassment complaint that is found to be substantiated, the RO can impose remedial measures, which range from counselling to a written warning on the perpetrator’s record or, in the most severe cases, counselling and probation and release from the CAF.
The Guidelines provide that if either party is not satisfied with the decision of the RO, he or she can grieve the decision. Although the grievance process is not used exclusively for harassment complaints, for a harassment [complaint], it is the third and final stage. The grievance is submitted to an Initial Authority, who is usually the CO of the complainant. Upon receipt of the grievance, the CO must first determine if he or she is in a position to offer redress. If the CO has this authority and has no conflict of interest, he or she will make the initial decision on the grievance. If he or she is not in a position to adjudicate, the grievance will be forwarded to an officer who has the appropriate authority. Principles of procedural fairness must be followed, including disclosure to the respondent. If the grievor or the respondent remains unsatisfied with the decision of the Initial Authority, he or she can ask the Final Authority—the CDS—to review the grievance decision. The CDS may ask the Military Grievance External Review Committee (MGERC) to review the matter and present recommendations. The MGERC is an independent body, and it does not have authority to issue a final and binding decision, but only to make recommendations to the CDS.
In addition to the multiplicity of policy documents that apply across the CAF, more explicit or specific orders may also be issued by the COs of the Naval, Land and Air Forces, which apply to the members in the unit. Within each formation or unit, additional orders may be made which may reiterate, or in some cases expand upon, the words of the policy. As a consequence, just as a subordinate member must obey the order of his or her superior unless it is manifestly illegal, in practice members must abide by the lowest level instrument, the CO’s standing orders, which he or she is asked to recognize in writing upon joining the unit—
View Larry Bagnell Profile
Lib. (YT)
View Larry Bagnell Profile
2021-04-19 14:11
Thank you. I'll continue:
For example, unless it is illegal, a seaman must follow the standing orders issued by the vessel’s CO, without questioning whether these are consistent with the upper level policy statements in the DAOD or Guidelines.
The ERA notes that this normative order is significantly different than in the civilian world. In civilian law, there is a clear hierarchy of law, which is vertical and works top down. The most fundamental law, the Constitution, takes precedence over statutes, which take precedence over regulations, which take precedence over policies. Every citizen may question the authority of a government policy, regulation or law if it appears to be contrary to the Constitution. In the military, by contrast, a number of different policy instruments all have the same—horizontal—normative force. This can result in the inconsistent interpretation and application of CAF policies and, in practice, may lead to practices that do not conform to the policies.
Given this difference in the operation of rules, it is all the more important that CAF leadership is appropriately trained in the content and importance of policies on inappropriate sexual conduct, in order to ensure a more consistent implementation of the policies across the organization.
Not surprisingly, given the number of different stages involved in a harassment complaint and the number of steps within each stage, interviewees described the harassment complaint process as confusing and overly complex. In addition, participants raised a number of concerns which highlighted substantive problems with the processes in place to investigate sexual harassment.
7.1.2 Lowest-level Resolution
The ERA heard numerous serious criticisms about the CAF’s policy of attempting to resolve sexual harassment complaints at the lowest level. The purpose of this policy appears to be to allow for the resolution of minor disputes without unnecessarily escalating a complaint, which can be damaging both for the respondent and for the complainant. While this goal is laudable, the ERA found that in fact the policy acted as a major disincentive for complainants to come forward or pursue a complaint. In particular, the policy fails to recognize the anxiety many complainants may feel about having to face their aggressor, and the fact that the imbalance of power that may have given rise to inappropriate sexual conduct may still be at play in the context of “low-level resolution” or mediation. For example, while several resolute female interviewees said that they had been able to speak up about sexually harassing conduct and to confront the perpetrator, many more interviewees indicated that ADR techniques were not appropriate for sexual harassment cases because victims were not comfortable taking a confrontational position, particularly when the harasser was of a higher rank.
Further, the vast majority of interviewees who did take the step of discussing their complaint with supervisors reported that the complaint was not taken seriously. Responses from supervisors ranged from warning the complainant about the negative consequences to their careers if they continued with the complaint, to openly disbelieving the victim. Regardless of the basis upon which the supervisor discouraged the complainant from pursuing a complaint, it is clear that the policy of “lowest-level resolution” is a major impediment to the resolution of sexual harassment complaints and to a change in the overall culture of the CAF.
Furthermore, the ERA heard that the process of attempting to resolve complaints at the lowest level tends to undermine confidentiality—a key concern for most complainants. Lowest-level resolution requires sharing the information with the supervisor, or potentially escalating the complaint through numerous individuals up to the RO. Further, witnesses may need to be interviewed if an investigation is launched. All of which will result in a serious loss of confidentiality as a number of members will necessarily learn both about the details of the incident, and the fact that the victim has made a complaint. As a result, interviewees indicated that they preferred not to report out of fear that their reputations would be damaged, and the stigma that would likely attach. Many victims were also concerned about being labelled as someone who would complain about a teammate, which could result in becoming socially ostracized. Interviewees further reported that harassment incidents are “swept under the carpet” by those higher up in the chain of command. The easy answer from supervisors when learning of a complaint seems to be to just “get over it”.
Ultimately, the ERA found that, despite the good intentions [from] the policy, the pressure to settle a complaint at the lowest level functions to stifle complaints at an early stage and to intimidate complainants so that they will not pursue legitimate concerns. As a result, [the] actual or perceived roadblocks prevent victims from obtaining satisfactory resolution where sexual harassment has occurred, and feeds distrust in the system.
Furthermore, the policy of resolving complaints at the lowest level is inconsistent with the CAF’s zero tolerance policy. This policy is embodied in DAOD 5012-0:
“Harassment in any form constitutes unacceptable conduct and will not be tolerated.”
Because the practical effect of the low-level resolution policy is that complainants are strongly discouraged from pursuing their complaints and incidents of sexual harassment are swept under the carpet, this directly undermines the credibility of the CAF’s zero tolerance policy. Most participants viewed the zero tolerance policy as purely rhetorical, with little connection to the reality on the ground.
In respect to the “Open-Door Policy”, it states:
At the same time that many interviewees reported facing difficulties resolving complaints at the lowest level, the ERA found that attempts to escalate complaints to a higher level were also largely unsuccessful. Although several COs advised the ERA that the CAF has an open door policy, many interviewees described this as an unrealistic option. Too many NCOs are seen as part of the boys’ club and concerned more with protecting the reputation of their unit than supporting [the] victim. Interviewees further reported that, groomed by NCOs, junior officers often turn a blind eye to inappropriate sexual conduct. Moreover, not only is it seriously frowned upon to skip a level in the chain of command, but there also appears to be only a small number of exceptionally open COs who would be prepared to act on a complaint of sexual harassment in a meaningful way when a complainant skips one or more levels of the chain of command.
As a result, the practical reality is that when a member attempts to meet with a CO about a...harassment complaint, the “open door” is in fact guarded by a number of persons who insist on knowing why the CO is being approached. In such circumstances, the possibility of filing a formal complaint with an HA is not a realistic option, nor is the purported right of the complainant to convey his or her concerns directly to the CO or to someone at a higher level. Again, this creates serious impediments to reporting and to the effective investigation and resolution of complaints. It only takes one person in the chain of command to make a complaint disappear. Indeed, an individual who can make a complaint disappear is generally seen as a problem-solver and as appropriately protecting his superior.
Now I want to talk about “Challenges with Using ADR”. It states:
The heavy reliance on ADR techniques in the complaint procedures also raises concerns. The RO Guide suggests that ROs should consider ADR at two different points. First, ROs should consider utilizing ADR techniques early in the complaint process, before the administrative investigation is formally set in motion. Second, if this early attempt at resolution is unsuccessful and a formal complaint is filed, ADR should be utilized after the harassment investigation is concluded. While, theoretically, alternative dispute resolution has certain advantages, a number of critics have suggested that this approach is generally not appropriate when addressing incidents of sexual harassment. As one researcher notes, “(p)lacing the responsibility to confront the harasser on the person being harassed does not work well within the rigid power relations and hierarchy of the military.” Moreover, as a participant commented, the CAF’s ADR service is designed to help restore harmony to the workplace, not to address the broad cultural aspects of inappropriate sexual conduct. This comment was substantiated by many comments the ERA heard from participants in the Review. Indeed, it is not insignificant that although almost 15 years have passed since the adoption of the DAOD 5012-0, the ERA was not provided with any examples in which ADR techniques had been successfully used for sexual harassment cases.
Nonetheless, even if ADR techniques are generally inappropriate in addressing sexual harassment complaints, there may be a limited number of circumstances in which a complainant prefers to address the complaint with the help of a third party mediator—
View Larry Bagnell Profile
Lib. (YT)
View Larry Bagnell Profile
Lib. (YT)
View Larry Bagnell Profile
2021-04-19 14:22
I had to get water to clear my throat.
The essence of ADR is to offer an empowering approach to conflict resolution. In the context of sexual harassment, this principle is key because of the importance to victims of being able to exercise a degree of autonomy in the complaint process. For this reason, victims need to retain some control over the process and should, without pressure to settle, be offered ADR only as one possible course of action.
There are a few other problems related to this process:
Even where sexual harassment complaints were ultimately held to be well-founded and remedial measures were imposed, the sanctions were often perceived by interviewees as a “slap on the wrist” and meaningless—for example being required to complete an on-line training course—and inconsistent. At the same time, as previously discussed, complainants may experience a number of negative repercussions as the result of pursuing a complaint, including impediments to career progression, stigma, and becoming socially ostracized. The dichotomy of outcomes for the victim and harasser reinforces the view of many members, discussed above, that CAF does not take sexual harassment complaints seriously.
The ERA also heard frequently from interviewees that an unintended consequence of the posting system is that harassment complaints are not dealt with in a timely fashion by the departing CO, and are left for the incoming CO to deal with when he or she is new to a unit, and least capable of effectively resolving the matter. The fact that the cost of the harassment investigation is borne by the unit also appears to be a disincentive to ordering an investigation.
Overall, the ERA found that the complexity of policies and procedures related to sexual harassment diminishes the relative value of each one. In addition, the policies are, at times, inconsistent and inefficient. Reporting is not encouraged and the higher leadership is protected from information about what is occurring on the ground. In fact, the CDS’s instructions to COs indicate that ROs are unlikely to even hear about a harassment incident unless and until a written complaint is filed. Ultimately, many of those who used the formal complaint process were left scarred. One interviewee described the experience as “atrocious”, and a number stated that they would not do it again.
Just to sum up here, I'll add one more point on the collection of data:
Finally, the ERA found that data with respect to harassment complaints, investigations, and outcomes are not recorded in a systematic way. Although several members indicated that it would be possible to simply enter data with respect to sexual harassment complaints in logs already in use, this is not currently taking place. The Harassment Complaint Tracking System appears unreliable for many reasons, including the lack of clear instructions as to how and when to file reports, confusion over coding systems, and the absence of any sanction where members simply fail to use the tracking system. The Significant Incident Report (SIR) system appears to be more widely used but, as its name indicates, only tracks the most serious incidents. Further, the ERA was warned about the unreliability of the Canadian Forces Health Information System (CFHIS).
The end result is a general absence of any means of assessing the frequency of reported incidents or how these incidents were dealt with—including whether investigations were carried out, the length of time between when a complaint was lodged and any resolution achieved, and the nature of the ultimate sanction, if any. This makes it impossible for the CAF to measure the overall accountability of the chain of command in responding to harassment complaints. This lack of accountability allows those in command to minimize or ignore complaints if they choose, and those who breach the policies on sexual harassment to do so with impunity.
There are a number of serious problems with the investigation process, so what are the avenues for improvement to those? Some of them are:
Overall, the ERA found that the harassment complaint process is overly complex, emphasizes informal resolution to the detriment of victims, and impedes the CAF from fully confronting and resolving incidents of sexual harassment. As such, three important steps should be taken to improve the harassment complaint process.
First, as previously discussed, complainants should be able to report complaints of sexual harassment to the CASAH, acting as an independent authority outside of the CAF, and should have control over whether the complaint triggers a formal complaint process, including a possible investigation. If a victim chooses not to initiate an investigation, he or she should still have access to support and advice. If the complainant decides to commence a formal complaint process, the complaint would trigger the administrative investigation process.
Second, the process should be simplified and streamlined. Formal complaints should be channelled directly to a grievance procedure before a CO acting as an adjudicator, rather than emphasizing the use of self-help techniques, or requiring the [complainant] to pass through numerous members in the chain of command and then through the formal investigation process. This would have the advantage of making sure that incidents of sexual harassment would come to the attention of the CO as quickly as possible. The griever and the respondent would both be offered assistance to advise and support them with respect to the grievance procedures. Similar to the current practice for harassment complaints, the CO could have the option of requesting an HI to conduct a more in-depth investigation. Both parties would also have the right to submit a written statement to the CO. The respondent would be entitled to procedural fairness, including disclosure of the relevant information.
Finally, the third recommendation reads:
...the policy should significantly reduce the emphasis on ADR and low-level resolution of complaints. Requiring the victim to confront his or her harasser, particularly where there is an imbalance of power, will be inappropriate in most instances. While the CO should give the grievor the option of utilizing the most appropriate ADR mechanism, it should be made clear to her [or him] that this is only one option, and is entirely voluntary.
The proposed model allows the member to have access to a simplified process—one that is reduced from three stages to just one. In addition, under this model, the CO retains better control of his or her unit and is able to intervene at a much earlier stage.
To summarize that recommendation, it reads:
Simplify the harassment process by:
Directing formal complaints to COs acting as adjudicators in a grievance. [and]
Reducing emphasis on ADR.
As I said, sexual assault is dealt with differently, and I'll go over the processes and recommendations related to it in my next intervention.
Thank you, Madam Chair.
View Larry Bagnell Profile
Lib. (YT)
View Larry Bagnell Profile
2021-04-23 13:26
Thank you very much for being here, Mr. Marques. You're really providing the best you can, which is great. We really appreciate it at the committee.
I want to ask you a couple of questions. You may have covered them already, but I want to make sure we have the information on the record. We know that the Minister of National Defence's then chief of staff reached out to your office to bring the situation to your attention.
Can you confirm when you were first contacted on the issue, what steps you followed and when they occurred?
View Larry Bagnell Profile
Lib. (YT)
View Larry Bagnell Profile
2021-04-23 13:28
Mr. Bezan covered this a bit. We also know that this was raised to the Clerk of the Privy Council Office within hours of the allegations being brought forward. Were you the one who brought the allegations to the Clerk of the Privy Council Office?
View Larry Bagnell Profile
Lib. (YT)
View Larry Bagnell Profile
2021-04-23 13:29
Would it be fair to say that the minister's chief of staff, and consequently you yourself, moved pretty quickly to try to establish an independent process to investigate these allegations?
View Larry Bagnell Profile
Lib. (YT)
View Larry Bagnell Profile
2021-04-23 13:30
Okay. This has been very helpful.
Did you ever refuse to come to this committee?
View Larry Bagnell Profile
Lib. (YT)
View Larry Bagnell Profile
2021-04-23 13:30
We established that you took action immediately upon receipt of the information. I'd like to move on and ask why you thought it was appropriate to bring these allegations directly to the Clerk of the Privy Council Office.
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