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—