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Military dropping policy ordering members to report sexual misconduct or racism

The Canadian military plans to scrap a controversial policy that requires its members to report all incidents of misconduct — including sexual misconduct or racism — regardless of whether they were directly affected by them, the Department of National Defence announced Wednesday.

Known as “duty to report,” the policy has long been criticized by victims of misconduct and independent observers like former Supreme Court justice Louise Arbour, who delivered a landmark report on sexual misconduct in the military last year.

They have argued that by allowing bystanders to report wrongdoing, the policy took agency away from victims who may or may not have wanted to speak up.

The policy was one of the major pillars of Operation Honour, the military’s campaign to stamp out sexual misconduct in the ranks.

“It was an inflexible and inhuman way to manage people,” said Lt.-Gen. Jennie Carignan, the military’s chief of professional conduct and culture.

Carignan announced the policy will be fully repealed this winter as the military introduces a new, modernized complaint system.

“It was thought that duty-to-report could help ensure that incidents were not ignored or minimized, and that it would enhance protections for survivors,” Carignan said Wednesday in her opening statement during a virtual media availability. The military did not permit media outlets to broadcast the event.

“We recognize that duty-to-report regulations have had unintended negative consequences for people affected by offences of an interpersonal nature, such as sexual misconduct or hateful conduct,” she added.

Although the “duty to report” has been in military regulations since the 1930s, it was given new life and extra teeth after a 2015 independent investigation into sexual misconduct found victims under-reported incidents because they feared reprisals and didn’t trust the investigation process.

A House of Commons committee report complained in 2019 that the rules on the policy were too vague. 

Retired lieutenant-colonel Rory Fowler, a former military lawyer now in private practice, also described the policy as ambiguous and difficult for the military to prosecute.

“It was a problematic policy [within the context of sexual misconduct] from the get-go,” Fowler told CBC News. “In its modified form, it was largely unenforceable.”

No one was ever charged with failure to report

Carignan said the repeal of the policy will not limit a member’s ability to report incidents. Rather, she said, it will eliminate “the obligation to report” and penalties for not reporting, and give members the opportunity to “exercise discretion and choose the best path forward.”

Failing to report incidents of misconduct and wrongdoing is punishable under military regulations. Carignan said research has shown no one was ever charged with failing to report.

She said the new system is still being designed and debated. 

“As the repeal unfolds, DND/CAF will examine whether there are specific circumstances where reporting should be mandatory and prescribed in other orders and directives,” she said.

Former Supreme Court Justice Louise Arbour releases the final report of the Independent External Comprehensive Review into Sexual Misconduct and Sexual Harassment in the Department of National Defence and the Canadian Armed Forces in Ottawa on Monday, May 30, 2022. Also in attendance are Minister of National Defence, Anita Anand, Chief of the Defence Staff, General Wayne Eyre, and Deputy Minister of National Defence, Bill Matthews.
Former Supreme Court justice Louise Arbour criticized the duty-to-report policy. (Sean Kilpatrick/The Canadian Press)

In her review of the military’s handling of sexual misconduct, Arbour recommended doing away with the policy. A separate statutory review of the overall military justice system recommended the same thing.

Carignan defended the amount of time it took for DND to take action, saying the matter needed careful consideration because no one wanted to inadvertently make the situation worse.

In addition, Carignan also cited another change announced two weeks ago by Defence Minister Bill Blair. In a statement issued earlier this month, the minister said the military will no longer stand in the way of complaints about sexual harassment and discrimination based on sex that are put before the Canadian Human Rights Commission. 

Under the former policy, a member would have to exhaust all avenues of grievance within the military before filing a complaint with the commission — a process that can sometimes take years.

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