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Results: 1 - 15 of 115
View Larry Bagnell Profile
Lib. (YT)
View Larry Bagnell Profile
2021-05-18 16:17
Thank you very much, Madam Chair.
I'll just speak to the amendment. As I think Mr. Baker said, there is a lot to speak about on the other parts of the motion. In fact, as people have said, there are a lot of substantive parts. It doesn't deal with the main, big issue—the elephant in the room in the military—but there are a lot of parts. I think we each ought to figure out whether each one should be discussed with an amendment. They're totally different and have different ramifications. I'll just deal with this particular amendment first.
I agree with Mr. Barsalou-Duval on the amendment. The surveys that have been done recently showed that there are hundreds of allegations continuing to go and that people are aware of situations that are going on. Every few days there is a new one. We've studied these allegations every time there is one. In fact, we've spent so many meetings on one email that we'll never really get, as some members have said, to the substantive items about misconduct in the military, the chain of command link, the fact that people are worried about reporting because of repercussions, and the whole culture item. Those are the things.
Rather than going complaint after complaint, witness after witness on one individual situation, on one email, as I've said in all the meetings, it would be much better to get on with recommendations to help members of the military feel safe and deal with the substantive issues.
I'll leave it at that for now. I have a lot to say on the other parts of the motion, including the more serious allegations that were brought up about General Vance's appointment.
View Larry Bagnell Profile
Lib. (YT)
View Larry Bagnell Profile
2021-05-18 16:38
Thank you, Madam Chair.
As Mr. Baker said, we've heard all sorts of testimony about the big problem—sexual misconduct in the military—and three overriding themes that aren't addressed in this motion, number one being the culture, number two being the fear of reporting and number three being provisions to deal with those so that people feel safe outside the chain of command.
As Mr. Baker said very passionately, which is why I won't use all my time right now, and as we've both said since we started, this is what we should be focusing on to get the answers to those major problems so that people can again, or for the first time, feel safe, especially women in the military. Many have said in reports that they were aware of those problems or have been affected by them directly.
I sympathize with Mr. Garrison's comments that we should get on with the three reports, and I pass that on to anyone who keeps moving motions to bring more witnesses to deal with the one email. We had one email that had details that the person had every right not to want to be provided, so it was investigated right away, yet we're dealing, meeting after meeting, with that one email when we should be dealing with the major issues in the military. It would be easy to do if we just got on to the report.
On the elements of the motion, the first one related to a witness we've already dealt with. The minister replaced that witness, so obviously we need an amendment related to that and a discussion on that. On a second item, as the chair said, this is a very complicated motion, so I still have to have more study on it. Obviously we have to have more discussion and debate down the road on an amendment related to the scheduling of the report.
I don't see that it leaves very many meetings to discuss the substantive recommendations in the report on the schedule that's proposed in the study, and it seems that the motion suggests that a whole bunch of clauses.... There are many clauses and recommendations. As Ms. Vandenbeld said, all the Liberal recommendations except perhaps one deal with the survivors and these problems that we're talking about, but it sounds like the motion is suggesting that all those that aren't dealt with in the short period of time are just are voted on without any discussion, without any politicians who have been elected by their party being able to comment and give their provisions. They just have a vote.
I think we have to have an amendment on that at some time in the future. When we get to that, I would really like to know—and research can be done between now and when that happens—what kind of precedent there is for just approving a report clause by clause with no discussion or recommendation by recommendation with no discussion. I would find that people wouldn't take such a report seriously if we weren't even allowed to debate it and weren't even allowed to debate the recommendations and put comments related—
View Larry Bagnell Profile
Lib. (YT)
View Larry Bagnell Profile
2021-05-18 16:43
I'm sorry. My understanding was that there wouldn't be any discussion on each clause after a particular....
That's why, when you drop a complicated motion that we haven't had time to analyze—I wonder what Mr. Garrison thinks about getting a motion a few minutes before a meeting—with regard to the ramifications of these details about the way in which the report would go when we meet the deadline, I am asking these questions. I don't understand the process that is in the motion. That's why we need to at least debate it. As I said, I'd like to know the precedent on that and what the actual ramifications of that part are.
Finally, I want to go into great detail later. As was mentioned earlier in the meeting, if we can't get down to the serious recommendations that we should be making to help the Canadian military related to chain of command and fear of reporting and culture and we have to keep studying these.... As was mentioned before, recently—probably after the motion was written, which is why it's not as relevant—much more serious allegations have come forward related to the appointment of General Vance and investigations that were or were not done, but I'll go into all that later. I'm assuming that's still a work in progress too and that more information is coming out on those serious allegations that have been raised by the Toronto Star, Global News and whoever else did those investigations.
I'll leave it at that for now. I'll go into that in great detail probably the next time I'm up.
View Larry Bagnell Profile
Lib. (YT)
View Larry Bagnell Profile
2021-05-18 17:01
It's always hard to go after Mr. Baker because I think he's saying what many committee members are thinking but can't say as well, and I think all the committee members want to help the members of the CAF with the three main problems that Christine had outlined, the chain of command, the reporting and the culture, and as I said before, that's what we should get on to.
In reply to what Mrs. Gallant said, I agree with her that there were a lot of things in the Deschamps report. The many steps that were taken by the present minister have been outlined in this committee, but there are things that were not done, and so the form that they should take is exactly what we should be discussing now to deal with those particular issues.
As I said, I'd rather we just stopped all this and got on to dealing with those three major issues to help the members in the military, but if there are committee members who still want to do the “who knew what, why and where”, as was said earlier in this meeting, there have been much more serious allegations raised, probably since this motion was written and certainly since the last meetings, related to the appointment of General Vance in the beginning.
Mr. O'Toole, when he was Minister of Veterans Affairs, passed on a potential rumour, a complaint, to Ray Novak, who very nicely came before committee and provided his thoughts on that. He mentioned that he had asked the national security adviser, Richard Fadden, about the Gagetown incident and to look into it, but the media have suggested that Mr. Fadden has said he does not remember investigating that particular complaint or actually receiving it, although he doesn't disagree with Mr. Novak's memory that he may have mentioned it to Mr. Fadden, but there doesn't seem to be any evidence of that investigation or that it was acted upon.
If there was a complaint and it wasn't investigated or it wasn't acted upon, then why was General Vance appointed? On all these things, I think we need more details.
I've just heard from the media. I haven't had time to sort it out. Some of it I just saw this morning and the others I was just reading about on the weekend, but the outgoing chief of staff at the time said he was crystal clear that there was no allegation related to misconduct by Vance at Gagetown that was ever brought to him, and he was helping with the appointment of a new chief of staff. He said he was crystal clear about that in the article, including that when he was helping to find a replacement, he would have remembered any allegation, he said, and he said his mind was not fuzzy at all about that.
There was another investigation related to NATO, and Richard Fadden and I think the outgoing chief of staff mentioned it, but not the Gagetown one, and as I said, I don't want to go into any of this, but I will say to those members of the committee who honestly want to go into this, who want to know “who, what and where”, that this is a much more serious allegation.
Megan Mackenzie, an expert on sexual misconduct in the military at Simon Fraser University, said that no one handled it well, but if the investigation was still open or any investigation was still open, then why did cabinet appoint General Vance? Then the military police recommended an end to an investigation, apparently on July 17, the day that General Vance was sworn in, and then four days later it was closed. How did that process evolve on those dates?
I'm sure that things are still evolving as people are researching this. As I said, if we have to go into how, when, why, and where, these are much more serious allegations and would have to be dealt with. That's not my interest. My interest is in helping the women in the military, going back to recommendations that would change the culture and the fear of reporting.
There are so many incidents. Rather than spending time on these one or two instances and one or two individuals, we should get on with the major, substantial structural problem. Even though there are hundreds and probably thousands of incidents, an incident affects people for the rest of their lives. It's not just a momentary incident.
That's why we have to put all this aside and get down to recommendations to solve those three problems so that people never again fear to choose a great career in the military with the great honour of protecting us as citizens. If they make a report of something inappropriate, they should not worry that it's going to affect the career they've invested their lives in. We should not allow that to occur because of a culture that is accepted and has occurred not only in our military but, as Mr. Spengemann has pointed out, in militaries around the world.
I think there are people on the committee who have the ability to deal with those problems and get on with them and come up with some very good recommendations. That would be my preference at this time, but I'll leave that up to the committee.
View Larry Bagnell Profile
Lib. (YT)
View Larry Bagnell Profile
2021-04-30 13:47
Thank you very much, Madam Chair.
I really appreciate Ms. Romanado's being here. She comes from a military family and could have a lot more input than I would have knowledge of. I really appreciate that. She said passionately that we should get on with doing the recommendations. Mr. Baker and I said that at the beginning. That's what I'm going to spend most of my comments on today.
As we know, there was a complaint. An investigation was done as far as any information was available. That was carried out. As several members have mentioned already, information came out this week that's changed the whole focus of the General Vance situation, if you want to follow that. The victims want us to get on with and do the report and make the changes, so that's what I'm going to mostly concentrate on.
There are hundreds of victims and hundreds of perpetrators. We've already spent more than enough time on Mr. Vance, on one of those hundreds, and that is being investigated in the proper channels anyway, and the investigation of the one complaint was completed at the time as far as it could be done. As the member said, the focus has changed. If we were going to pursue that, which I'm not suggesting at this time, the much more serious news that's come out is that Mr. Vance was appointed while he was still under investigation. That could lead to all sorts of witnesses regarding that situation, but, as I've said before, that's not my focus right now. I want to carry on like I did before, talking about things that will help the witnesses.
The minister has made some very major steps this week, and Mr. Baker touched on those. There's a lot more to be done. I will go into those at great depth, but not right now. I want to get back to the second part of what I was doing the last time when we were making the case that there's enough information available, both from victims and reports, to do a really good job of helping the victims now, who must be thinking of a pox on all our houses if we don't move forward and suggest to the minister.... He's already taking steps, but we could give him more authority to take more steps if we had our recommendations done.
Before I get on to that, what I want to do is what I did in the second half of the last meeting, and comment on what has been done so far. There were suggestions about trust and confidence at the top. I think that's important. I think the minister has done so much. With parliamentary timelines, you have to act quickly to get things done. I think, with the present minister, the number of things he has done gives that confidence and trust. If we're going to get something done, he's going to do as much as he can.
I'll just remind some of the people who may not be too familiar with this subject, including some of the great national media, who I really appreciate.... They do some excellent research. I haven't noticed as much on the steps to date and, obviously, we have to do more, which has always been the focus of my discussion— some of the steps.
The present minister, long before any of this came up, said he was ensuring that our support and approach was victim-centric. It meant that victims are to be supported throughout the process. It meant the establishment of a case management system to ensure that cases are investigated and resolved in a timely manner.
He also said it involves increased training that is both victim-centric and accessible to all CAF members no matter where they work. It builds on some of the important work already under way, including a review of the unfounded cases, which is important both inside and outside the military, and the passing of C-77 that includes a declaration of victim rights that puts the victims at the core of the military justice system. He made it clear long ago that we owe it to our women and men in uniform to get this right on the sexual misconduct.
I appreciate Mr. Garrison's comments on the wording. The government took the allegations seriously and the minister said that no one should feel unsafe at work. He also said there's a lot of work to do, as I think all committee members agree today. That's why he launched the path to dignity and respect, a strategy for long-term cultural change to eliminate sexual misconduct within the Canadian Armed Forces. He made a very strong statement that the mission here is nothing less than cultural change and that we should not stop until our members are able to perform their duties in an environment free from harassment and discrimination.
On C-77, he said that that the government takes the allegations very seriously and that “No one should feel unsafe at work.” That's why Bill C-77 was passed. It's a declaration of victim rights that puts the victim at the core of the military justice system. The minister said that the government had also promised to consult victims as it drafted the regulations for the bill, and that's exactly what is being done.
So far, he has consulted federal partners, including the sexual misconduct response centre—the SMRC—and is developing an online survey to consult as many victims as possible. As you know, some of the feedback has shown—as I said at the beginning—there are hundreds of perpetrators and victims.
We owe it to our men and women to get it right. The minister has said time and time again before this started that inappropriate sexual behaviour of any kind is completely unacceptable and will not be tolerated. For every person who willingly serves their country, despite the many dangers and sacrifices, the military service deserves a professional environment in which they are treated with respect and dignity.
The Canadian Forces continues to take definitive action to address and eliminate sexual misconduct, but obviously we need to do more work. We heard from the victims at great length. I think they said that we've gotten the information from them and the steps we can take. Frankly, that's what we should be discussing now. Some of them have expressed their appreciation for us getting some more of that on the record.
The last time I was speaking, I talked about the Deschamps report. There are two parts on sexual misconduct. First there was a section on sexual harassment, which I covered the last time I spoke. The second part is on sexual assault.
To continue on our position that we have enough information, there's a lot we could be working on right now that's very important to the victims. I'm going to continue with that information to make sure it's on the record and to make sure that victims know that we're thinking about them and about the things that have been found out so far and the actions that need to be taken forward.
The report says:
As a preliminary matter, the ERA note[s] that as part of its mandate, it has been requested to consider and make recommendations concerning the following:
“the adequacy of the definition of sexual misconduct as provided for in DAOD 5019-5...;
I discussed at length at a previous meeting how the directives have made some very good, very comprehensive changes, but I'm not sure why those aren't working. That's what we have to be discussing.
View Larry Bagnell Profile
Lib. (YT)
View Larry Bagnell Profile
2021-04-30 13:58
On the point of order, we've already made this case. It has already been deemed relevant at the previous meeting when people where trying to extend the meeting way beyond the time to discuss things other than the recommendations, so I'll just continue with that rationale and that—
View Larry Bagnell Profile
Lib. (YT)
View Larry Bagnell Profile
2021-04-30 13:58
I'm sorry, but just to correct the member, this is totally new. I've never read this. I've never made these important points about the victims to show that we have the information that we need to move forward, that we need to be discussing, instead of constantly calling more victims on one particular case, that of General Vance.
As I've said, there are a lot more witnesses who are more important now that we've found critical new information this week about his appointment, but that's not what the people, the victims who have been so sadly hurt, have expressed and that's what I'm continuing.
As I said, I correct the member. I haven't said any of this before.
View Larry Bagnell Profile
Lib. (YT)
View Larry Bagnell Profile
2021-04-30 14:03
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.
It continues:
...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.
It continues:
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.
It continues:
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.
Further:
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.
View Larry Bagnell Profile
Lib. (YT)
View Larry Bagnell Profile
2021-04-30 14:23
I don't have too much more, but I don't think any committee member who seriously wants to help the victims thinks that this is inappropriate information or thinks that we should be discussing things as opposed to the witnesses. As I said, there are a whole bunch of witnesses related to the appointment of General Vance and the serious situation while an investigation was under way who could be called, but this doesn't help the victims.
I appreciate Mr. Bezan's comment. Yes, hopefully we can have this testimony put forward to our next study so that it doesn't have to be repeated, because some of it would be very helpful. The information that I'm providing is related to feedback and study on sexual assault, which is related to sexual misconduct in the military, which is the exact subject of our study.
As I said, I don't have too much more to go on this section.
Tracking the occurrence—
View Larry Bagnell Profile
Lib. (YT)
View Larry Bagnell Profile
2021-04-30 14:25
No, sorry.
Tracking the occurrence and outcome of incidents of sexual assault is essential to determine if the CAF's policies are functioning to improve the conduct of its members, both on an individual and systemic basis.
I'll just quickly finish off the last bit here:
In any event, even where a case of sexual assault is referred to civilian authorities, the CAF should carry out its own parallel assessment as to whether any administrative sanctions should be imposed (for example, suspension, demotion, release from the CAF, etc.). The ERA was informed that the [military police] maintains a shadow file for all incidents involving CAF members that are processed by civilian authorities. The CAF is therefore in a position to impose administrative measures on a perpetrator. The imposition of administrative sanctions is important in demonstrating to members the seriousness with which the CAF....
To achieve consistency in administrative measures, the CAF should establish guidelines to help guide COs. Factors to be taken into account in determining the appropriate sanction should include not only the personal circumstances of the offender and the nature of the incident, but the organization's over-arching goal of creating a more inclusive organizational culture that is less hostile to women and LGBTQ [2—I added the “2”] members.
As was the motivation for this input and the part A of this that I put at the previous meeting, I don't think there are any members on the committee who do not think these are the serious issues we should be trying to get to the bottom of and make the most effective recommendations on that we can to help the minister, to give him moral authority. He can and will go ahead without us. He's heard this stuff, the various input from the victims, from the Deschamps report.
Ms. Arbour will make the very important recommendations on some of the important things we've heard during the course of this study, particularly on the independent process, but also I think that would have an effect on the repercussions related to reporting, which is one of the three major items, and of course the culture.
As I said, there could be.... We wanted to stay on the investigation of the one General Vance investigation, one of hundreds of potential perpetrators. The seriousness of it has been investigated since 2015, because of his appointment while there were charges. All those witnesses could be called, but the point I've been making since the beginning, and Mr. Baker's point, is that we should get on with solving the serious input we've had from the victims and dealing with structural change.
As I think Ms. Romanado said, this didn't just occur recently. This is a long-time, systemic change both in our military, and as Mr. Spengemann said, in many militaries.
This committee actually could be part of leading the way on solving this systemic problem from decades back if we get on with that right away and give the minister some more moral authority for the direction he has been moving in since he was appointed. I listed at the beginning of my input a number of things he's done, unparalleled things he's done, to address sexual misconduct.
I'll continue to be very happy if we can make the structural changes necessary to deal with the culture and the reporting and the independence. If I can be part of that, I will be very happy. If we don't get it done....
I think all of the committee members I've heard from have mentioned it in their input at some time and really want to do that too.
That's the basis of my input.
Thank you, Madam Chair.
View Larry Bagnell Profile
Lib. (YT)
View Larry Bagnell Profile
2021-05-07 14:18
Thank you, Madam Chair.
I just want to make a couple of comments before I go to my questions.
First of all, there were some things said from other members that don't really jibe with the evidence we've had today . One thing was the words “dropped the ball”. When you turn something over for an investigation in almost record speed, you've hardly dropped the ball or covered up. The words “covered up” were used once. What could be covered up when it was turned over to investigators and investigators did everything they could with actually no information?
Also, the word “serious” has been mentioned at various times. It certainly was a serious allegation, but we didn't find that out until this year. At the time, as numerous witnesses said, they had no idea what the allegation was or if it was serious or not, so just to make sure....
There has also been discussion about all the things that have been done since the Deschamps report. Both today and previously there's been some discussion on a number of things and actions that have been taken. Of course, everyone admits that it's not enough.
I just want to add to that list a very strong administrative directive, DAOD 9005-1, which I read in detail about a month ago. It really does make serious changes to the directives, the whole direction to the members of the military, to try to address this serious systemic problem.
Going on from all those moves that have been made, those improvements that have been made, which certainly haven't solved the problem yet, budget 2021 included a substantial investment to address the very issues we are discussing at committee today. I can imagine the very active discussions on this matter when the government was working on the budget, and that questions around how the budget could be tooled to support much-needed cultural change were no doubt top of mind.
Obviously funding alone is not enough, nor is it a silver bullet, but the budgets reflect the government's values, and it was clear in this budget that the government was taking this matter seriously. This is a $236-million investment to eliminate sexual misconduct and gender-based violence in the Canadian Forces.
Ms. Telford, I know you cannot divulge the cabinet process or those deliberations that led to supporting this funding in the budget, but I'm wondering if you have any reflections from that process about the value of this investment and what you think you can do, and any other thoughts that might be relevant on this subject.
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.
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