R v Christmas – Beware the Ghosts of Judgments Past
November 13, 2020

Defence Administrative Order and Directive 9005-1 – Sexual Misconduct Response

On 18 November 2020, the Canadian Forces quietly cancelled Defence Administrative Order and Directive (DAOD) 5019-5 – Sexual Misconduct and Sexual Disorders, and replaced it with DAOD 9005-1 Sexual Misconduct Response.  I use the term ‘quietly’ as, unlike other recent significant policy changes in the Canadian Forces (CF), such as the proposed changes to the ‘naval rank designations’ for junior non-commissioned members, the policy change was not initially accompanied by a public announcement through a Press Release. There was an ‘internal’ announcement on the Defence Wide Area Network (DWAN) by the Vice Chief of the Defence Staff, Lieutenant-General Mike Rouleau.

There had been prior indications (i.e. in submissions to Parliamentary committees, in CF publications) that a ‘new’ CF policy on Sexual Misconduct would be designated using the DAOD number 9005-1; however, the date for promulgation was not widely broadcast.

It is not clear why the new ‘Sexual Misconduct Response’ DAOD was re-designated in the ‘9000’ series of DAOD, rather than remaining in the ‘5019’ series, along with other DAOD relating to conduct and performance. The change appears to follow the rationale behind the creation of DAOD 9004-1 – Use of Cannabis by CAF Members. DAOD 9004-1 was created, rather than incorporating the new rules relating to cannabis into DAOD 5019-3 – Canadian Forces Drug Control Program or by creating a ‘new’ DAOD under the 5019 series relating solely to cannabis.  It is both consistent with the approach used for DAOD 9004-1 and makes about as much sense.  Perhaps the CF is planning on moving all conduct-related DAOD to the ‘9000’ series.  If that is the plan, perhaps they could improve the functions of Administrative Reviews under DAOD 5019-2 – Administrative Review.  After all, the chain of command appears intent on using Administrative Reviews, compulsory release, and Remedial Measures (DAOD 5019-4) as substitutes for the Code of Service Discipline, notwithstanding that Administrative Reviews are markedly deficient for making determinations where facts are contested.

The new Sexual Misconduct Response policy will undoubtedly raise a variety of questions, beyond why it was placed in an entirely different series of DAOD and why there was no public announcement to coincide with the change. For example, the ‘Definitions’ section of the DAOD (Section 2) defines the terms ‘sexual misconduct’ and ‘workplace’. Yet, Section 4 of the DAOD – ‘General Principles’ – includes five more definitions that apply to the DAOD: ‘complainant’, ‘consent’, ‘respondent’, ‘sexual assault’, and ‘victim’. Why these definitions were not simply included under the Section entitled ‘Definitions’ is not clear.

Neither is it clear whether the Canadian Forces will concern itself with ‘Sexual Disorders’. Unlike DAOD 5019-5, DAOD 9005-1 makes no mention of any policy relating to sexual disorders.

What is clear is that the definition of ‘sexual assault’ is incorrect.  Here is how DAOD 9005-1 defines ‘sexual assault’:

“sexual assault” refers to physical contact of a sexual nature such that the sexual integrity of a victim is violated in circumstances in which the victim has not consented. In simple terms, sexual assault is any touching of a sexual nature without consent. Sexual assault is an offence under section 271 of the Criminal Code;  …

Since this is a specific term defined under the Criminal Code, it is rather important that they get the definition correct. Sexual assault does not arise with any touching.  Sexual assault requires intentional touching for a sexual purpose. Intent is fairly important. As I have said before: words have meaning.  Particularly when they are used to define prohibited conduct and criminal offences.  DAOD are subject to legal review. I am curious why this was not corrected.

Also, there are undoubtedly ongoing processes that were initiated under the now-cancelled DAOD 5019-5. Presumably, those processes must continue to apply the DAOD that was in force at the time that the allegations of sexual misconduct were raised (or, at the very least, the portion of the DAOD that pertained to the prohibited conduct). However, that policy instrument is no longer publicly available.

Rest assured, Dear Reader, I will offer further detailed analysis of this new policy in the coming days, as it represents the latest step in the process by which the current (and, presumably, soon to retire) Chief of the Defence Staff intends to eliminate sexual misconduct from the Canadian Forces. However, even a cursory review of the new policy tends to convey a perspective that any ‘respondent’ in the new process appears to face a rebuttable presumption of guilt, rather than a truly open-minded and procedurally fair adjudication of what are often contested versions of facts.

The Canadian Forces is nothing if not consistent.  This same presumption of guilt is also reflected in the problematic Sexual Misconduct Incident Management Decision Tree.  However, it takes more than the occasional inclusion of the terms ‘procedural fairness’ and ‘due process’ in a policy instrument to ensure that a process is truly fair.

 

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