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“Women should no longer feel like guests in the Canadian Armed Forces” states former Supreme Court Justice Louise Arbour in her report released May 30, 2022 which provides 48 recommendations to address what she describes as a “deeply deficient culture” within the Canadian military.

The third report to be written on this issue in seven years concludes a year of work during a period when many senior Canadian military officers have been investigated for sexual misconduct.  The Minister of Defence has indicated that she accepts the recommendations in the report with many to be implemented in the short term. Others will require some complex analysis.

Of particular note is a call for civilian police and courts to handle all sexual assault cases against members of the military. Twenty years ago, the military was given jurisdiction to handle these cases, an exercise that Arbour concluded has been unsuccessful.  The opportunity to pursue claims in civilian courts was introduced last year on a temporary basis and is now expected to be permanent.  While, as Arbour pointed out, the civilian criminal courts are far less than perfect, they are to be preferred to the military system which has been criticized for failing to investigate and prosecute cases.

Another welcome recommendation is to allow all harassment complaints to be pursued at the Canadian Human Rights Tribunal. In past years, and in some cases, the Canadian Armed Forces has objected to the Commission’s jurisdiction on the grounds that all internal complaint mechanisms had not been exhausted. Arbour recommends that, going forward, the military should not be permitted to file an objection on these grounds.

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This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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