Thank you. I think that is consistent with what happens at most committees. There's certainly leeway for members to express themselves on matters in the context, and the context is that we're discussing something that would extend the meeting to an area where I think it's less productive than dealing with the information that victims have provided on the serious situations they've been through. That is what we should really be discussing for those.... As Mr. Bezan and Madame Romanado said, this is where our focus should be right now.
So I'll just continue where I left off:
...the adequacy of CAF policies, procedures and programs relating to sexual misconduct; the training of CAF members in relation to sexual misconduct; the resources dedicated to the implementation of the policies, procedures and programs in relation to sexual misconduct; the extent to which CAF members report alleged incidents of sexual misconduct or any reasons why reporting may not occur, including the role of military culture and the chain of command;
As I mentioned earlier, some of the huge numbers of incidents have been mentioned in surveys, but there were not challenges or charges put forward. People were afraid to come forward, so that's why it's so important that we should be discussing that.
...and any other matter that the ERA considers relevant in assisting the CAF to strengthen the prevention of incidents of sexual misconduct.
As discussed above, sexual assault is included within the definition of misconduct.
Consistent with this mandate, throughout its six-month fact-finding process the ERA conducted interviews with members and civilian employees responsible for the implementation of the CAF policies on sexual misconduct, including members of the JAG office, the CFNIS branch of the military police, the regular military police service, and the military prosecution service. In addition, the CAF shared with the ERA relevant policies, protocols and other documents related to sexual misconduct. With the efficient support of the DMP, representatives of the JAG, and CAF bases and DND coordinators, as much information as possible was gathered in order for the ERA to fulfill the terms of the mandate.
This said, the ERA's mandate contains an express limitation which requires some comment. The mandate states that the ERA shall not review 'any matter related to the Judge Advocate General (JAG) in respect of his or her superintendence of the administration of military justice in the Canadian Forces'. A question arises as to what is captured by the JAG's 'superintendence of the administration of military justice' and therefore falls outside of the scope of this Review. Two interpretations may be offered.
And this is something that could be pursued by this committee.
Under a broad interpretation of the limitation, merely discussing sexual misconduct, the investigation of which falls under both military and civilian jurisdiction, would be excluded by this limitation. The consequence would be that most of the references to 'sexual misconduct' in the mandate would be moot. Such a broad interpretation of the limitation would therefore result in the exclusion of a large and explicit part of the mandate. Not only is such an interpretation at odds with a plain language reading of the mandate, but it also contradicts the way in which the CAF itself interpreted the mandate during the course of the Review. In fact, most of the interviewees involved in the implementation of the policies, procedures and programs on sexual misconduct would not have been made available to the ERA if their role was not relevant to the gist of its mandate.
A narrower interpretation of the limitation is more respectful of the text of the mandate, the respective responsibilities of the JAG and of the Provost Marshal, and the way in which the CAF interpreted the mandate in the course of the Review.
The JAG is a commissioned officer appointed by the Governor in Council to superintend the administration of military justice. To ensure the independence of the military justice system, the JAG reports to the Minister of Defence and not to the CAF. Among the JAG's responsibilities relevant to this Review in relation to the administration of military justice, the JAG is responsible for court martial and summary trials. The effect of the limitation in the ERA's mandate is therefore to exclude from review the JAG's oversight of court martial proceedings and summary trial.
By contrast, responsibility for the military police rests with the Canadian Forces Provost Marshal, who serves as the Commander of the Canadian Forces Military Police Group. Whereas the JAG is independent of the CAF, the Provost Marshal reports to the Vice-Chief of Defense Staff.
As we've heard and as Ms. Arbour will address, hopefully, in her recommendations on the restructuring, it is a huge job and one that I hope to comment on later, but change is very difficult when making major changes such as this, so her expertise will be excellent in proceeding on that.
As such, the ERA's mandate encompasses a review of the conduct of military police, including the CFNIS, vis a vis incidents of sexual misconduct. This includes the policies and procedures by which the military police receive complaints of sexual misconduct, communicate with and provide support to victims, and exercise their discretion as to which organization—the [military police], the CFNIS, or civilian police—should or will investigate such allegations.
Given that the CDS did in fact direct that the policies, procedures and programs related to sexual misconduct are to be the subject of meaningful review, the narrower interpretation of the limitation must be favoured. As such, the ERA makes no comment with respect to court martials or summary trials. However, the ERA's mandate clearly encompasses a review of the policies, procedures and programs that have been adopted by the CAF with respect to the investigation of, and laying charges for, sexual misconduct by the military police.
That limitation is something else that the committee and Ms. Arbour, if the committee does not raise it, could look into.
Until recently, complaints related to CAF members that involved sexual assaults, and which occurred in Canada, were normally investigated by civilian police, and all charges for such allegations were prosecuted before the civilian courts. This changed in 1998, however, when Parliament amended the National Defence Act to also allow the military justice system to handle charges of sexual assault. Under the shared jurisdiction, approximately half of the cases investigated by CFNIS are referred to the civilian justice system for a number of reasons, such as they involve cadets who are not subject to the CDS, civilian victims, or incidents of family violence, etc. As a consequence, even if, as a matter of military police policy, the military justice system takes priority over the civilian system, the sharing of jurisdiction is a reality.
Military Police (MP) operate on CAF property and “outside Canada during contingency and expeditionary” circumstances. When the [military police] is informed of an incident involving a sexual assault they notify the Canadian Forces National Investigation Service (CFNIS), which has jurisdiction over all sexual assaults. The CFNIS consists of members of the [military police] who are organized as an independent unit; it has jurisdiction over serious and sensitive offenses, including sexual assault. When CFNIS receives a report of a sexual assault, it determines whether it will exercise its investigative mandate, or whether it will refer jurisdiction back to the reporting [military police] unit. In practice, the CFNIS generally turns sexual assault incidents over to the [military police] where no penetration has occurred.
If the CFNIS determines that it will turn jurisdiction over to the local [military police], the [military police] can exercise their discretion as to whether or not the case will be pursued, following the same procedures as exist for other...charges.
As we heard in some of the victim testimony, there was not confidence in a number of cases that it was or would be pursued.
Notably, in determining whether or not charges should proceed, the [military police] consult with the chain of command.
That is another problem that we should be discussing in great depth right now.
By contrast, if CFNIS has carriage over the matter, it may lay charges without having to consult the chain of command.
According to comments made by Brigadier-General Pitzul several years after the CAF assumed jurisdiction over sexual assaults, the justification for allowing the military to deal with sexual assault is that such offences can have a detrimental impact on cohesion within a unit, and therefore should be treated in a similar manner to other offenses that may have the same effect.
I think all those offences will be looked at in our upcoming study on military justice, which hopefully we will get to soon.
General Pitzul's comment is consistent with the purpose of creating a separate system of military justice, as described by Justice Lamer in R. v. Généreux:
The purpose of a separate system of military tribunals is to allow the Armed Forces to deal with matters that pertain directly to the discipline, efficiency and morale of the military.... [T]he military must be in a position to enforce internal discipline effectively and efficiently. Breaches of military discipline must be dealt with speedily and, frequently, punished more severely than would be the case if a civilian is engaged in such conduct.
Again, there has been testimony that it is not necessarily what always happens.
Unfortunately, victims of sexual assault have not reaped the benefits hoped for under the new jurisdiction. Victims criticize the lack of training of the [military police], poor support by the chain of command, and inconsistency with which charges of sexual assault are ultimately sanctioned.
These are the serious types of things on which we should be moving forward quickly and doing a report right now, making recommendations on these serious items that affect hundreds of present members in the military, and of course, the past members who are victims.
While civilian law enforcement, prosecutorial authorities, and courts have also been criticized for their conduct of sexual assault cases, there is a strong perception among members of the CAF that the way in which the military handles such cases is the cause of added prejudice to the victim.
They then go on to discuss the treatment of victims.
Many participants complained about problems in the reporting and investigation process. Criticisms by contributors and interviewees touched on many aspects of the process, starting with failure to call the military police in a timely way when a report of sexual assault was made, to not having been offered immediate medical support, being made to feel, even before providing a statement, at fault for what had occurred, the case held in abeyance because of confusion over jurisdiction, failure to follow up with key witnesses, and poor training with respect to investigating incidents of sexual assault. Participants criticized delays in the investigation process and having to repeatedly provide statements, which required them to relive the events each time.
Is that really fair?
The ERA heard many examples of failings in the investigation of sexual assaults, including concerns about the contamination of evidence, and a frequent perception that the [military police] lack in their understanding of the legal concept of consent. One interviewee, referring to procedural problems in the investigation which could potentially be relied upon to undermine a prosecution and secure an acquittal, commented: “Defence attorneys love [CFNIS investigations] because there are always issues”. Such problems have resulted in a serious lack of trust in the ability of the [military police] to properly handle reports of sexual assault.
These problems are particularly unfortunate, given that [military police] are specifically warned about the consequences of sexual assault on victims. For example, [military police] orders state that:
Sexual assault is one of the most traumatic types of criminal victimization.
Sexual assault is an act of aggression using power and control to dominate and violate an individual. It is not an act of intimacy.
That's why I was saying earlier, when I talked about the directives, that some of the appropriate directives are in place, but why is it not working?
The applicable policies therefore make it clear that, in the context of military life, sexual assault requires heightened attention, particularly when the aggressor is a member of the CAF “family”. As the Sexual Assault [military policy] protocol states:
Sexual assault frequently includes a violation of trust by those who are in a position of perceived or real power or authority.
If the sentiments behind these statements were put into action and the relevant policies were fully implemented, many of the misgivings of the contributors would be resolved. Indeed, the ERA finds that the problem lies not in the policies themselves, but with inadequate training, poor implementation, and members' lack of faith in the ability or interest of the military justice system to respond appropriately to instances of sexual assault. While the ERA met with a number of dedicated and knowledgeable members of the [military police], it also found that others were confused about the process, insensitive to the problem of sexual assault, lacking training on the basic elements of the offence, and unaware of the available resources.
One of the problems appears to be that, although policies and protocols are in place, [as I've mentioned a couple of times] the number of incidents the military police system handles is far fewer than those in the civilian justice system. The various parties in the system are therefore caught in a deteriorating cycle: the way victims feel about their treatment by the military police system feeds underreporting, and underreporting leaves the military police unable to develop and maintain appropriate skills to manage these sensitive and important cases.
The ERA is further concerned that less serious incidents of sexual assault are given inadequate attention and consideration. Participants in the Review commented that when victims have reported less severe assaults, including unwelcome touching of breasts, buttocks, etc., they have been told by MPs that these incidents would not be prosecuted in the civilian justice system. The clear message is that the matter is not serious enough to be pursued. Whether or not such comments about the likelihood of prosecution before a civilian court are accurate, members of the CAF deserve fuller protection by the military justice system. Unless the incident reported is an isolated and benign one where the principle of proportionality dictates restraint, sexual assaults, even those that leave no physical injury, must be taken seriously. If criminal sanctions are inappropriate, the chain of command can resort to administrative or disciplinary action to send a clear signal that the dignity of all members will be protected. Only strong sanctions, through military justice, disciplinary and administrative action, will deter further assaults. Both individual and general deterrence are important.
The ERA further notes that while not all assaults are of the same gravity, different victims will react differently to an assault, depending on their own particular experiences and psychological make-up. While an incident of unwelcome touching may leave no psychological impact on one person, this same conduct may cause serious psychological injury to another. The thin skull principle in Canadian law makes clear that an aggressor does not get to choose his victim; regardless of how severe an assault, the conduct constitutes an offence under the Criminal Code. Discounting incidents of sexual assault where there has been no physical injury is inconsistent with Canadian law, which views psychological harm as seriously as physical harm.
I'm sure all members of the committee are totally on side and understand that and want to do something about it.
Overall, the ERA found that the difficulties met by victims of sexual assault have a damaging effect not only on the individual victims—who do not achieve resolution to serious and traumatic incidents—but on the CAF as a whole. When incidents of sexual assault go unresolved, this negatively impacts the CAF both because individual members have been harmed, and because it perpetuates the perception that the CAF does not take such incidents seriously.
With regard to data collection, as I mentioned earlier, the data is showing very many cases but not very many complaints.
As with sexual harassment, there is very poor collection of data regarding incidents of sexual assault in the CAF. Since sexual assaults go widely unreported, the data does not in any way reflect the actual rate of occurrence. Even where complaints are laid, the fact of a sexual assault will often be buried in the court record. For example, if the accused pleads guilty to an alcohol-related charge, or to conduct to the prejudice of good order and discipline, only a careful review of the sentence will, in some cases, indicate that the conduct or underlying issue involved acts of a sexual nature.