Jordan Heath-Rawlings: Canada’s problem with sex assault and sexual harassment in its Armed Forces goes back about as far as we’ve had an armed forces, and the military’s efforts to do something about that problem go back almost as far. For decades now the Canadian Armed Forces has been stuck in a cycle. Here’s how it starts, an awful story emerges, either about one member’s experience or about the culture as a whole being permissive of horrific behaviour. And the story makes headlines. The military then reacts in one of 2 ways, either by insisting the incidents are isolated or, increasingly, admitting that there is a problem and promising us that they will tackle it through the military Justice system. And that answer works until an intrepid reporter digs into how the military justice system handles the problem and realizes that the military justice system is broken. And then the Canadian Armed Forces and the government promise that a wholesale fix is coming. As soon as the committee that they’ve convened delivers a report with recommendations that they will then implement and everything will get better.
And then a few years later, another story breaks. We all look back and realize that for all the reports and recommendations, nothing much has changed. And that’s how we end up in the summer of 2021 with a headline like this:
News Clip: Retired General Jonathan Vance has become the first senior officer charged in relation to the military misconduct crisis. In court documents, military police alleged Vance did willfully attempt to obstruct the course of justice in a judicial proceeding.
Jordan Heath-Rawlings: Look, this has been going on forever. It’s happening right now. We’ve long known that this system is ineffectual. We’ve been told for a long time that repairs to it were underway. So why has none of that actually worked? Why, after two and a half decades of, quote, unquote, “reform”, is Canada’s military Justice system still so broken?
I’m Jordan Heath-Rawlings. This is the big story. Marie-Danielle Smith is an Ottawa-based reporter with Maclean’s magazine. Hey, Marie-Danielle.
Marie-Danielle Smith: Hi there.
Jordan Heath-Rawlings: I’m so glad you could join us. And I’m so glad that your piece for Maclean’s didn’t just focus on the current crisis facing Canada’s military Justice system, because there’s a lot of context to this, and I thought maybe we could start there. I mean, how long has this system been a well known issue in Canada? Your Maclean’s cover story is not the first Maclean’s cover story on this issue.
Marie-Danielle Smith: It’s not. And you can argue that how long has it been known as an issue, I mean, to Canadian Armed Forces members who have dealt with misconduct. I mean, they would probably tell you even further back. But the magazine story you’re talking about was 1998 cover story in Maclean’s. And that headline was “Rape in the Military”. And that was sort of the first investigation into the the issue that brought sexual misconduct in the forces to national attention.
Jordan Heath-Rawlings: What was the culture back, and not just in 1998, but going back, as you mentioned before, that the culture around investigating and issuing discipline around sex harassment and sex assault. You talked to members of the armed forces going back decades, right?
Marie-Danielle Smith: That’s right. I spoke with people who had experienced misconduct in even the late 70s and in the 80s, and what they described was really an atmosphere of fear and an atmosphere of thinking that there would be reprisals on their own careers were they to report anything. And in some cases, they did see some kind of reprisal. One man who spoke to me said that he was sodomized with the handle of a toilet plunger in men’s bathroom not long after he started basic training in BC in 1979, and when he reported it, he was basically told to quit. He was expected to just get over with it. And if he couldn’t, then the system had no use for him, is what he told me.
Jordan Heath-Rawlings: What was the process back then when these things were reported?
Marie-Danielle Smith: Well, essentially, and this is still the case today, if somebody decides to report to the chain of command, it really depends on the personal integrity of the person they’re reporting to. That person can decide to refer the matter to military police, and we can get into that whole side of the justice system, but they can also basically decide to ignore it. Now, in the last few years since Operation Honour started, and it’s sort of wrapped up now. But since that Marie Deschamps report that came out in 2015, there has been a much bigger effort to actually report all of the allegations that come in. Before that, it was often unlikely that people would even feel comfortable coming forward. And that’s still the case today.
Jordan Heath-Rawlings: What about as we began to get a sense, I mean, Yes, from the Maclean’s cover story, but also, just as we as a culture became more aware of how prevalent sex assault and sex harassment were in the military. Leading up to the early 2000s, how did the military attempt to address what must have been, at the very least, a PR crisis and probably, hopefully, an existential crisis?
Marie-Danielle Smith: It really was. And there’s actually another event around the late 90s that is important to remember. And that was the Somalia inquiry
Jordan Heath-Rawlings: Right.
Marie-Danielle Smith: Which looked into the abuses from the Canadian Airborne Regiment in 1992 and 1993. So that Somalia Commission report came out in ’97, and it found evidence of a major institutional cover up, and it demanded many changes to the military Justice system. So that, in tandem with that first reporting on the issue of sexual assault in ’98, led to a major piece of legislation in ’98, and that bill was the biggest overhaul to the system to date. We haven’t seen any kind of huge, huge changes since then. It introduced things like the Military Police Complaints Commission and a Defence Ombudsman and so it created some of these rules that were intended to mitigate some of the problems that they saw.
Another thing they did with that bill, and this is something that’s heavily criticized now is they took sexual assaults as a criminal offence, and they made it something that the military could actually try in its own courts and in its own justice system. Before ’98, the military wasn’t allowed to do that. So that was a major change. And when we look at the way the military has investigated and prosecuted sexual assault since then, a lot of people would that that was a huge mistake.
Jordan Heath-Rawlings: Why is that?
Marie-Danielle Smith: So there are only so many courts marshal, every year, there’s 50 or 60 cases in the military that get up to that level, and sexual assault cases often don’t. There are, despite some very large numbers, StatsCan in 2018 reported that some 900 regular force members had experienced sexual assault over the preceding year, well, in the average year, there’s only three or 4 of those cases that are actually prosecuted and brought to trial. So a lot of people would say it’s a problem because the military doesn’t have a lot of experience actually litigating some of this stuff. And judges don’t have as much experience as their civilian counterparts.
Jordan Heath-Rawlings: How different is that record from the records that we have about how police handle sexual assault? I mean, we’ve reported on the Unfounded series in the Global Mail that found that kind of a similar ratio is out there, right, in terms of how many cases get brought to police attention versus how many actually end up in court.
Marie-Danielle Smith: Yeah, that’s right. Now, the Unfounded number is actually lower in the military, even though military police say that they investigate large numbers of these incidents and deem them to be founded, they only lay charges in, I think, less than a quarter of cases. So this is something that in the civilian system, there’s a lot more knowledge about. And a really important point is that the civilian system has more rights for both the accused and the complainant. So something that actually was legislated in 2019 was a military victims bill of rights. And that is not in place yet. But that is something that would allow a victim of sexual assault, for example, to make a statement at a sentencing hearing in a court marshal. As it stands now, you have judges just a couple of years ago essentially saying that if a perpetrator allowed somebody to make a statement, the victim to make a statement, that that was somehow a corroborating circumstance that looked favourably on the accused. That’s not something that happens in the civilian system, and it’s one of the things that people will point to as one of the problems with prosecuting in the military.
One final point I’ll make about this is that in the military you also have a separate code of service discipline, which includes offences like things like disgraceful conduct. So it’s stuff that’s not in the criminal, but it’s stuff that you can be prosecuted for in the military and punish for in the military. And in many cases with sexual assault, what you are seeing in the military is plea deals where somebody accused a sexual assault is pleading guilty to a lesser offence under that code of service discipline. And so they are getting punished with things like a 2,000 dollars fine or a demotion in rank. And people will say that that kind of handling of a sexual assault charge really makes it seem like it’s a lesser offence in some way than it would be in the civilian system.
Jordan Heath-Rawlings: Just before we get to the 2015 report, and the reckoning that’s come after and is still ongoing and is mostly the subject of your reporting. Another difference I’d love to know about between military court and criminal court is just, you know, how transparent is it? If I care about a sex assault trial in criminal court, I can go and follow every detail of it if I’m willing to show up in court. The reporting around the same stuff in the military doesn’t seem to make a dent in terms of the public consciousness.
Marie-Danielle Smith: Yeah, you make a really good point about that. And I did ask sources to tell me a little bit about that dynamic. And a military court marshal is actually open to the public in the same way that a civilian trial is. But people complain that if there’s a lack of transparency, it’s in sort of the last minute way that courts marshals are stood up. And one thing that could maybe, and we’ll get into this a little later, I think. But a report from the former Supreme Court Justice Morris Fish on military justice came out recently, and one thing that he suggested was that a permanent military court be set up because right now they’re mostly ad hoc. And if you have a permanent military court set up, then you would end up with a situation where people can attend and know the schedule in advance and all kinds of decisions can get made with much better efficiency.
Jordan Heath-Rawlings: So Let’s quickly maybe cover the ground between the changes that came after the 1998, ’99 crisis report, whatever we want to call it, and the 2015 report. How did the way we examine military justice, particularly around sex harassment and assault, how did it evolve and what changed over that period of time, prompting the 2015 report, which we’ll talk about in a second?
Marie-Danielle Smith: What’s interesting is that, in fact, not a whole lot changed. And it was another media report, it was another sort of major public backlash to media reporting, in L’Actualité, and again, Maclean’s in 2014, that led to, I guess, the more modern reckoning that we’re seeing. And not long after some reporting came out that suggested that the problem of sexual assault was still extremely severe in the military, then chief of defence staff asked for an external review from Marie Deschamps. And it’s her report in 2015 that sort of created the impetus for the military to get its act together on this.
Something really interesting, actually, about her mandate for that is that she was explicitly barred from looking at the military justice system. Now, nobody seems to know why that is. But some would speculate that the military preferred to sort of keep her away from looking at court marshals, from looking at the way that sexual assault is prosecuted, because perhaps that would sort of lead to an even bigger and even bigger reckoning, an even bigger problem to fix.
Jordan Heath-Rawlings: So she was looking at why it happens and how to prevent it.
Marie-Danielle Smith: She was looking at the underlying culture, which she found was hostile to women and was very permissive of sexual misconduct.
Jordan Heath-Rawlings: And this is where Project Honour came from, right?
Marie-Danielle Smith: That’s right. Operation Honour. And now when you shorten Operation Honour, you get Op Honour. And a lot of soldiers immediately started to make fun of that, right. Hop On ‘Er.
Jordan Heath-Rawlings: Oh, boy.
Marie-Danielle Smith: So it struggled from the very beginning.
Jordan Heath-Rawlings: There’s your culture problem right there.
Marie-Danielle Smith: There’s your culture problem. And so this is part of this sort of immediate reaction and should have told them that they had a much bigger problem to fix.
Jordan Heath-Rawlings: Right.
Marie-Danielle Smith: Operation Honour did try to do a few things. They set up up a sexual misconduct response center, and that is technically still within the CAF. And a lot of members say that they don’t really trust it, even though it says and I think evidence would support that the complaints that are brought there are kept confidential. There’s still this kind of perception that it’s part of the chain of command and that it shouldn’t be trusted. So there are many recommendations now to strengthen that.
Another thing that Operation Honour did was it said, okay, we’ll change the way that the military police handle complaints. So it organized sexual offence response teams. And I spoke with a military police officer who was on one of those teams. And what he told me was that they basically were a reorganization of officers who were already doing similar work. So that was kind of a superficial change. And in general, a lot of people feel that Operation Honour dealt mainly in those kind of superficial changes but didn’t do anything super different structurally, but kind of had the appearance that the military was taking action on this.
Jordan Heath-Rawlings:.And what did we learn over the few years following that, about whether or not the culture was really changing and particularly, I guess, and this is where the more recent problems have come up, particularly about the attitude from the very top of the CAF.
Marie-Danielle Smith: Right. Well, maybe I’ll bring in here an anecdote that I heard through my reporting. And it was that in the wake of the Marie Deschamps report, just a couple of months later, a military member, a current military member who had experienced sexual harassment and whose perpetrator of sexual harassment, didn’t face any charges, but was sort of let go from the military in what she alleges was sort of a tacit understanding that he had had been doing wrong. Right after the Deschamps report came out, she was offered an apology from a senior leader, a very senior leader in the CAF. And the senior leader apologized for how everything went with the investigation against the perpetrator and asked her in the meeting whether or not she thought that the issue that she faced or the harassment that she faced was part of a systemic problem, as Marie Deschamps had reported. And the current military member says that she told him Yes. But then he seemed to argue the point, and he seemed to think that it couldn’t really that, couldn’t really be his guys, right. And so I think that attitude of, oh my guys are not the problem or this isn’t really as big of a deal as it’s purported to be. That kind of attitude seems to have really been present in the senior ranks over the last few years. And the reckoning we see now with many senior leaders either stepping aside or being pushed out because of unspecified allegations of misconduct, it really drives home for a lot of people in the military and a lot of former military members that, wow, people really weren’t taking this issue seriously. And there was a lot of hypocrisy right at the top when they said that they were working to fix it.
Jordan Heath-Rawlings: So if we look at the Deschamps report and any of its recommendations, and I know you said a lot of people view it as kind of superficial in the way it was acted upon. Was there anything put forward in that report or even previous to that that really could have actually given this some teeth, could have made a difference, could have changed, if not necessarily the culture, then at least how the military responds to allegations?
Marie-Danielle Smith: That’s a really interesting question. Now the report itself didn’t look at military justice. But there are lots of things about the military justice system that would lend much greater confidence in people’s ability to report problems and to report misconduct and then to see justice. One of the things that actually a lot of people talk about right now is this idea of some kind of independent oversight body, some kind of independent investigator who could receive complaints and act on them completely outside of the chain of command in the way that military police and military judges aren’t, since those people are still currently members of the Canadian Armed Forces. And funnily enough, if we go all the way back to the Somalia Commission report, that’s where such a role was actually recommended and maybe even before that. But that’s where a role of Inspector General was very loudly recommended by the Commission. And that 1998 bill that we were talking about earlier in this conversation did not create that kind of role. They created a weaker version of that in the defence ombudsman. But a lot of people who are sitting in front of parliamentary committees today and testifying about this issue would say that that sort of independent inspector role would have actually maybe prevented some of what we’re seeing now.
Jordan Heath-Rawlings: Has our current federal government made an attempt to address this issue since 2015? And if so, what do the people you speak to think of it?
Marie-Danielle Smith: Well, the Canadian government has certainly said that it takes this issue seriously. And any actions that the Defence Department and the Canadian Armed Forces took, including setting up the Sexual Misconduct Response Center, those were under the watch of the current defence minister, right.
Jordan Heath-Rawlings: Right.
Marie-Danielle Smith: But you have a lot of people arguing that he’s been in the job for six years. He’s got countless reports and recommendations on his hands. Why hasn’t he done more than that, right? Even the stuff that he did legislate, like that Victims Bill of Rights that I mentioned before, that hasn’t been implemented yet, and that’s under his watch, too. So why is it taking more than two years for the military to go ahead with something that Parliament legislated? And you see this in lots of other areas, too. The military grievance system is broken, and there are administrative punishments and summary punishments sort of at lower levels than the court marshals we talked about before, but where commanding officers have an extreme amount of control over what happens to a soldier and all of these kind of different parts of the system that we talk about a lot less, but that are still very, very present in the lives of service men and women. All of these things could be changed with legislation, and all of these things could be changed with regulation. And that’s stuff that Minister Sajjan is ultimately responsible for. So he certainly could have done a lot more.
Jordan Heath-Rawlings: So where does that leave us in terms of what happens next? We just talked about a couple of comprehensive reports from five years ago and more than 20 years ago, and we also just talked about a lot of things that still need to be done. I guess my question is, is there already a plan that exists that needs to be acted upon or even just like a general consensus of the big steps that should be taken? Or are we almost at square one in terms of like, and I hate to say this with this government, but in terms of another Commission and another report and then see what happens.
Marie-Danielle Smith: Right. Well, now what they have basically done is, yes, is said another report. So we’ve got another former Supreme Court Justice, Louise Arbour, who has a mandate. Now it is much broader than the Deschamps mandate it is allowed to look at military justice. And so she is going to be looking at the issue of sexual misconduct in depth and providing recommendations that the government anticipates following. But even more recently than that, and something I alluded to earlier, this report from Justice Fish. It’s a review of the military justice system, a mandatory review that, by legislation, is required to happen every number of years. And so that report made 107 recommendations. I will say that every expert I talked to, from military lawyers to people on the ground to advocates for victims, everybody thinks that this report is really solid, and the government has accepted all of those recommendations in principle. So now what we need to watch for is whether those actually get done because there’s a lot of beefy stuff in that report and recommendations that could really change the military justice system and give members a lot more confidence in it. And that would go a long way towards solving this pernicious problem.
Jordan Heath-Rawlings: Is there any chance that that gets done before this election we keep talking about we’re about to have?
Marie-Danielle Smith: Doesn’t seem like it.
Jordan Heath-Rawlings: So this is going to be an election issue again, maybe.
Marie-Danielle Smith: I think it’ll be an election issue if Canadians open their eyes to the problem and maybe get beyond some of the sort of surface scandals that we’ve seen. Obviously, the issues that senior leadership are important and symbolically, really important and lead to major moral issues in the military. But if we go beyond that and we look at the structural and systemic problems and we decide as a nation that we really care about that and that we really care how we treat the people in our military who are supposed to be going out there and fighting for democracy and all kinds of things that we kind of collectively believe in. If we care about that and it is an election issue, then I guess I’ll be pleasantly surprised, unfortunately. But it certainly is on the table I think, as we look at whether we think this government has done a good enough job.
Jordan Heath-Rawlings: That’s a great answer. And maybe lastly, just to ask you to put your reporting to the side and focus on what you just said, why do you think that hasn’t happened yet? Why do you think this has never really made an impact in terms of the average Canadian voter demanding better from their military?
Marie-Danielle Smith: Well, I think, you know, the military has often appeared to act, right. You look at Operation Honour, as much as it didn’t seem to work, it looked like the military was doing something. And so I think it sort of brought attention back away from it. Another thing that I would say, and you told me to sort of set my reporting aside, but something that I learned through the process of trying to understand all this, that it’s extremely extraordinarily complicated. It’s really complex. It’s a really hard to understand system because it’s parallel to the civilian system in so many ways. But there are key differences that prove to be really, really consequential in terms of the confidence people have in it. And to understand the differences, to understand what needs to happen, to change it. It’s no small feat. And I think that it can be difficult for the public to latch on to some of this kind of more systemic stuff as an issue. Like I say, it’s possible to decide to be interested in this, but you have to do quite a bit of work to understand it. And I guess that’s where my pessimism comes from.
Jordan Heath-Rawlings: Well, I hope this conversation helps some people understand it. It certainly helped me, thank you so much, Marie-Danielle.
Marie-Danielle Smith: Thank you.
Jordan Heath-Rawlings: Marie-Danielle Smith of Maclean’s. That was The Big Story. You can find more at thebigstorypodcast.ca. You can find us tweeting away at @TheBigStoryFPN. You can email us if you’re sad or mad or happy or whatever. We’re at thebigstorypodcast, all one word, @rci.rogers.com [click here!]. You can also find us in your favourite podcast player, literally all of them, we’re there. You can find us in your smart speaker as well. Just ask it to play The Big Story Podcast.
Thanks for listening. I’m Jordan Heath-Rawlings. We’ll talk tomorrow.
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