Military #MeToo, Part II: In Bad Company— Canada’s Armed Forces #MeToo Crisis

Posted in: Military Law

Lest one think the U.S. military’s long-term failure to curb its sexual harassment and sexual assault epidemic is exceptional, it is in bad company with many other militaries, including the Canadian armed forces. In Part I, I discussed the U.S. military’s failure to successfully address its sexual harassment and sexual assault crisis and the possibilities of major changes to the military justice’s commander-centric model. In Part II, I offer an introductory compare and contrast with how the Canadian military is addressing the same issue.

Why is it a relevant comparison? Data in both countries suggest a serious problem that outpaces the problem in the civilian sector. In Canada, about 4 percent of women in the regular armed forces in a 2018 survey claimed they had been sexually assaulted in the last year. Almost 30 percent of women surveyed said they were sexually assaulted while enrolled in a military college, with 15 percent of female officer cadets saying they had been sexually assaulted within the last year. Over 25 percent of female regular forces and nearly 4 percent of men say they experienced a sexual assault during their military career. Personal testimony suggests many experience retaliation and perceive potential retaliation as a reason not to report.

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

Both countries are also considering interventions into the military justice system given the ongoing failures. Like in the United States, many victims and victim advocates in Canada are demanding that reporting and investigations be moved outside the chain of command. Like in the United States, high-ranking officials are saying “everything is The Canadian government might seriously consider implementing the 2015 Deschamps recommendation to create an independent center for reporting inappropriate and criminal behavior committed by servicemembers and the military. Others go further, suggesting an independent body with oversight capabilities and the authority to order the Armed Forces to act.

Even amongst all these similarities, three major differences merit further discussion. First, Canada, unlike the United States, allows victims to pursue civil litigation against the armed forces for its role in sexual harassment and sexual assault. Second, Canada has committed to a Victims’ Bill of Rights for servicemembers. Third, Canadian discourse on this issue at least contemplates a role for restorative and transformative justice, something I have not seen in the mainstream American discourse.

Civil Litigation

While civilians can sometimes sue the U.S. federal government, U.S. servicemembers injured while on active duty may not sue the armed forces for the negligence or intentional wrongdoing of its actors. The Feres doctrine, stemming from the 1950 Feres v. United States case, is a judicially crafted exemption to the Federal Tort Claims Act. The Court justified such an exemption as necessary to maintain the integrity of the military disciplinary structure and to provide respect for supervisory decisions. They felt that generous statutory disability and death benefits provided a satisfactory alternative compensation system. While many have urged the Supreme Court to revisit this doctrine, I would be very surprised if the current Court was inclined to abandon its longstanding deference to the military on this issue. A legislative override might be somewhat more likely, as Congress has done so with medical malpractice.

In contrast, Canadian service personnel, in addition to civilian employees of the defense department, can and have sued the Armed Forces for its role in numerous sexual misconduct allegations. Victims alleged systemic gender-based discrimination, bullying, harassment, and sexual assault by male servicemembers, and thus the Canadian government had breached their rights under Section 15 of the Charter of Rights and Freedoms. While the government initially maintained it had no duty “to provide a safe and harassment-free work environment, or to create policies to prevent sexual harassment or sexual assault,” Prime Minister Trudeau lamented the military’s litigating position and in 2019, reversed course by settling five class action sexual harassment and sexual misconduct lawsuits for nearly 700 million dollars. The Canadian government also offered its regrets to the victims. While it is probably still too early to say, I look forward to empirical studies demonstrating how this settlement and the possibility of litigation influences (or not) the military’s behavior.

Victims’ Bill of Rights

In addition to providing civil litigation options, Canada also differs from the United States in offering enhanced protections for victims of service offenses. The 2019 Victims’ Bill of Rights provides victims (civilian or servicemembers) rights similar to those found in the Canadian civilian criminal justice system. The Bill of Rights includes: the ability to have reasonable and necessary measures taken to protect them from intimidation and retaliation; the choice to present a victim impact statement, the consideration of the court-martial regarding restitution orders against the offender, and perhaps most importantly, a combination of a victim’s liason officer to ensure victims are properly informed and positioned to access their rights along with a right to file a complaint for infringements or denial of their rights under the declaration. That said, the military appears to be slow walking the Bill of Rights, with the relevant regulations still undrafted. Once drafted, I am eager for reports of its implementation and enforcement.

Discussion of Restorative and Transitional Justice

In addition to the differences in the civil and military justice system, Canada and the United States seem to differ in their openness to alternate modes of justice. In the United States, discussion of military justice focuses on who is best positioned to administer retributive justice and increasingly punitive modes of accountability. While some favor moving investigation, charging power, and dispositional authority away from the chain of command or from the military entirely, the dominant voices seem to share a belief that more punishment is needed. In contrast, Canada’s public debate has had more support for restorative and transitional justice mechanisms. These include a truth and reconciliation commission in which senior military members might acknowledge past misconduct in exchange for immunity for charges related to that behavior and service members might have an opportunity to air their experiences in a non-punitive environment. Such an idea builds on the restorative engagement promised as part of the 2019 settlement agreement which will likely provide victims an opportunity to share their experience of sexual misconduct in the military workplace with senior officials.

In sum, Canada’s government has adopted several tools that the United States has not yet accepted to address sexual harassment and sexual misconduct in the military. Of course, the two militaries are not identically situated, and what fits in one context may not necessarily fit the other. But close attention should be paid to these efforts.

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