Defence Minister David McGuinty wants the military to review a trend in civilian court toward judges supporting workplaces firing Canadians for any unwanted sexual touching on the job — even if it happened once.
The Canadian Armed Forces (CAF) is launching new advisory panels this fall to discipline military members for sexually inappropriate behaviour.
The minister is supportive, his office said, of an external monitor’s recent recommendation that if the military wants to modernize its conduct process, it could look at a clear pattern in civilian court over the past decade.
“Now, more than ever, any type of non-consensual touching of a sexual nature within the context of one’s employment is likely to lead to dismissal, even for a single event and even if there are mitigating factors,” external monitor Jocelyne Therrien wrote in her June report.
Victims and experts have long raised concerns that the military has moved members involved in cases like groping to other units, given them warnings or other remedial measures. Therrien wrote that gone are the days where that’s a “viable solution” and it could expose the victim or other staff to risk.
The government hired Therrien to track the military’s progress implementing changes to try and reform its handling of sexual misconduct.
Retired Supreme Court justice Louise Arbour’s landmark 2022 report made sweeping recommendations after a series of senior military leaders were removed from prominent roles amid allegations, causing a damaging and high-profile crisis.
Therrien estimates the military is on track to meet “the intent” of Arbour’s recommendations by the end of the year. But she flags one of the biggest challenges for military is that files related to misconduct are scattered across different databases which makes it difficult to get a clearer picture of the current state of the issue.
WARNING: This video contains distressing details. Former Supreme Court justice Louise Arbour and Catherine Bergeron, who experienced sexual harassment while serving in the military, discuss whether the Canadian Armed Forces will be able to change how it treats women, especially those who experience sexual misconduct.
Therrien’s latest report said case law has “rapidly” and “significantly” evolved over the past 10 years.
“In reviewing these judgments, I note a clear trend towards supporting dismissal for any sexual touching in the workplace,” she wrote.
More civilian judges are using the logic that sexual harassment involving unwanted touching is “unequivocally” considered sexual assault which is a criminal offence in Canada, she wrote.
Changes to the Canadian Labour Code in 2021 also require federally regulated workplaces to ensure they are harassment-free. Not dismissing people in some cases can lead to liability claims, wrote Therrien.
“The fact that similar cases in the past were dealt with through administrative measures other than dismissal no longer carries any weight,” Therrien said.
The minister’s office says McGuinty supports Therrien’s recommendation that “the significant evolution in workplace harassment case law should be considered as the CAF continues modernization.”
McGuinty’s office told CBC News the minister will be looking for the upcoming panels “to yield real results.” They will include law and sexual misconduct experts, the office said.
Therrien’s report also said the military is considering launching a “scale of severity” to help determine if members should be kicked out or otherwise reprimanded.
People moved around
Megan MacKenzie, a professor at Simon Fraser University who specializes in military culture, says the CAF should adopt a one-strike-you’re-out policy for unwanted sexual touching.
“This is a really significant recommendation,” said MacKenzie.
“There is just no ambiguity for anyone in any workplace at this point in time that inappropriate touching, touching of a sexual nature, is not OK.”
In the past, these kinds of cases were often called “low-level harassing behaviours” and the military dealt with it internally including by shuffling people around as a temporary solution, she said.
“That doesn’t solve the problem,” she said. “It moves the problem to a different unit and the alleged victim and the accuser may still have interactions with each other.”
The CAF has been grappling with sexual misconduct for decades while saying it has a “zero-tolerance policy,” she said.
MacKenzie said kicking out people for unwanted touching would demonstrate that policy.
Supporting victims
Retired master corporal Sherry Bordage, who reported being groped by her superior, said it’s time for the military to act.
“Why allow predators to continue to hide within the ranks? What possible good could that serve?” she said.
Bordage reported her platoon commander touched her breast and made inappropriate comments at a mess dinner in 2010 at CFB Borden.
In military court, a Canadian Armed Forces judge stayed proceedings for the criminal sexual assault charge against Master Warrant Officer D.J. Prosser, according to the court martial documents.
Prosser pleaded guilty to a lesser military service offence for ill treatment of a subordinate, the records show.
Military judge Lt.-Col. Louis-Vincent d’Auteuil noted he took into consideration several mitigating factors, including that it was “an isolated incident” and “unusual” for Prosser who had spent 30 years serving in the military at that time, his reason for sentencing said.
The military judge gave Prosser a reprimand and a $1,500 fine — and allowed him to continue serving.
Bordage said she left the forces in 2014 because she didn’t feel safe and faced reprisals from her chain of command for reporting the incident.
She says the military should kick out members for unwanted sexual touching to keep others safe.
“This decision, had it been implemented during my time, would have been night and day,” said Bordage.
The CAF has not yet responded to a CBC News request for comment.
Therrien’s report contained a long list of findings and notes a new probationary period for recruits could help weed out problematic members early on.
