Military stops impeding access to human rights watchdog by CAF members facing sex discrimination

By Cristin Schmitz

Law360 Canada (August 15, 2023, 2:25 PM EDT) -- Military members who experience on-the-job sexual harassment or sex discrimination within the Canadian Armed Forces (CAF) may now complain directly to the Canadian Human Rights Commission (CHRC), without the military raising its usual jurisdictional objection that the complainant must first exhaust internal grievance and harassment processes.

Defence Minister Bill Blair announced that, effective Aug. 15, a CAF member, who complains that while they were performing their duties they faced sexual harassment, sexual misconduct, or some other form of discrimination based on sex or gender, has two options for lodging their complaints: (1) filing a complaint through the existing CAF grievance and harassment processes, or (2) skipping the internal processes and complaining directly to the CHRC — i.e. where the military says it will no longer object to the jurisdiction of the CHRC, based on section 41(1)(a) of the Canadian Human Rights Act, by arguing that internal remedies, including the CAF’s grievance process, have not been exhausted.

The Department of Defence (DND) said the move affects both new and existing complaints of sexual harassment and sex discrimination.

Defence Minister Bill Blair

Defence Minister Bill Blair

However, complaining directly to the CHRC, free from the military’s objection, is available only to CAF members, DND stipulated.

The federal department said its civilian public service employees seeking recourse for sexual misconduct must still use DND’s current internal complaint and recourse procedures for all types of discrimination and harassment, including for sexual harassment and sex discrimination.

As well, CAF members seeking recourse for harassment or discrimination, based on factors other than sex, still need to report incidents or submit formal complaints through the CAF grievance and harassment processes, DND said.

The government said the change is in line with recommendations from former Supreme Court judge Louise Arbour, whose 2022 independent review of the military’s handling of sexual discrimination and sexual misconduct within its ranks contains 48 detailed and far-reaching recommendations for reform.

DND said its decision to drop its jurisdictional objections to military members who complain directly to the human rights commission of on-the-job sexual harassment or sex discrimination “follows an extensive period of consultation and planning” between the DND/CAF and the CHRC “to ensure a robust and smooth complaint process.”

“Today’s announcement demonstrates our commitment to implementing meaningful and transformative change,” said Blair in an Aug. 15  statement. “This new pathway to justice will better support our people in uniform and provide them with the procedural fairness that they deserve.”

Former Supreme Court judge Louise Arbour

Former Supreme Court judge Louise Arbour

The CHRC’s interim chief commissioner, Charlotte-Anne Malischewski, added that the federal human rights watchdog welcomes Arbour’s recommendations “meant to ensure that CAF members experiencing sexual harassment or discrimination can choose to bring their complaint directly to the commission, without restriction, delay or repercussion. The commission hopes the implementation of these recommendations will help people access human rights justice swiftly.”

In her sweeping report, Arbour recommended that complaints related to sexual harassment or sex discrimination within the military (short of criminal conduct), or allegations of retaliation for reporting sexual harassment or sex discrimination, “should be first directed to the CHRC, should the complainant so choose.”

Arbour also recommended that the Canadian Human Rights Act's $20,000-cap on damages for pain and suffering (with a further $20,000 general damages maximum for wilful or reckless discriminatory behaviour) be increased (it has not gone up since 1998).

The Liberal government’s formal response in 2022 to Arbour’s recommendations is here

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