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CANADA: Retired judge calls for overhaul of military's handling of sexual misconduct cases

The 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

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.

The 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 has been at a crossroads for the past year.

The retired judge nonetheless 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 recommends 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 confidantes reports 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 victim's 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

As for other incidents of sexual misconduct, Fish said investigations "should be conducted by the military police and not by units — except in the most minor cases and absent exceptional circumstances."

Many incidents are currently investigated by units, but Fish said they "do not present the hallmarks of independence required to reassure victims of sexual misconduct that no extraneous considerations, including protection of the chain of command, will influence the course of the investigation."

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

Lee Berthiaume, The Canadian Press