Retired judge calls for overhaul of military’s handling of sexual misconduct cases

OTTAWA — A retired Supreme Court justice has found that sexual misconduct in the military is as pervasive and destructive now as it was six years ago, and that significant changes are required to address the problem.

Morris Fish’s findings are contained in an at-times scathing report tabled in the House of Commons on Tuesday following a months-long review of the military justice system that was required by law.

Yet while the report was greeted with promises of action from the Liberal government and military commanders, several experts on military sexual misconduct lamented what they saw as the government’s continued failure to address the issue head on.

The Fish report comes amid frustration and anger over how the government and Canadian Armed Forces have handled sexual misconduct allegations, particularly when it comes to those against top commanders.

Fish’s review was launched last November, before the public emergence of those allegations, and involved a detailed look at the whole of the military justice system, which works in parallel with the civilian system and applies only to Canadian Armed Forces members.

The system has been at a crossroads over the past year following the failed prosecution of chief military judge Mario Dutil last year, and several constitutional challenges, including over the independence of the military’s judiciary.

While Fish’s final report touched on these areas, it dedicated an entire chapter to the issue of sexual misconduct, which is currently the subject of a separate review by another retired Supreme Court justice, Louise Arbour.

Fish reported that little has seemingly changed since a third retired Supreme Court justice, Marie Deschamps, released her own explosive report on sexual misconduct in the military in 2015.

“The nature, extent and human cost of sexual misconduct in the CAF remain as debilitating, as rampant and as destructive in 2021 as they were in 2015,” Fish wrote.

To that end, Fish recommended a series of reforms to better investigate and prosecute inappropriate and criminal sexual behaviour, as well as measures to increase oversight and accountability of the military.

Those include the creation of new infractions specifically for sexual and hateful misconduct, and elimination of the requirement that victims and their confidants report incidents to their superiors.

The latter had been a key area of concern for advocates and experts, who have warned that the so-called “duty to report” was potentially harmful by exposing victims to retaliation.

“I see no reason … to delay removal of the present duty of victims to report their victimization to the chain of command, which impacts on their autonomy and, I have been told, risks their exposure to reprisals, ostracization and pressures to withdraw their complaint.”

Fish also added his voice to previous calls from advocates and others for the prompt implementation of a declaration of victims’ rights, which Parliament passed as law in June 2019.

A senior military officer told reporters during a technical briefing held on condition of anonymity Tuesday that work is underway on implementing the declaration, but that the COVID-19 pandemic had slowed consultation efforts.

The official said she wants to see the declaration implemented no later than next spring.

Until then, Fish said, sexual assaults should not be investigated or prosecuted by military authorities and instead referred to civilian counterparts.

Military officers were noncommittal when asked about this recommendation, however, saying they would need to review it before deciding whether it should be implemented

Defence Minister Harjit Sajjan later told reporters that while the government had accepted all 107 of Fish’s recommendations “in principle,” he had directed the military to implement only 36 of them immediately. The rest, he said, would be reviewed.

“There is a lot of work in behind it that needs to be done,” he said when asked for a timeline. “But we do need to get this right.”

That prompted concern and frustration from several experts on military sexual misconduct given what they allege is a pattern in which governments and commanders promise to act, before the issue disappears from the public light and little gets done.

“What can I say about the government’s response other than it is typical and not surprising,” said Canadian Global Affairs Institute fellow Charlotte Duval-Lantoine. “There is no clear transparency to what is going to be done, how and what ‘short-term’ implementation means.”

Simon Fraser University professor Megan MacKenzie suggested the recommendations that the government has committed to, including the provision of free legal aid to victims, were low-hanging fruit and that the lack of details for implementing the others was unacceptable.

“You hear Sajjan saying: ‘Well, we need to have some time to think about how to implement,’” MacKenzie said. “And in the meantime, you know, victims are being assaulted practically every day.”

The Conservatives and NDP placed the blame for what Fish suggested was a lack of progress in eliminating sexual misconduct from the military over the past six years at the feet of the Liberals, saying that inaction has violated the trust of serving members.

“Enough is enough,” Conservative defence critic James Bezan said in a statement. “The status quo must immediately change. Our women and men in uniform deserve better than this.”

This report by The Canadian Press was first published June 1, 2021.

Lee Berthiaume, The Canadian Press