Since November 2021, the military has said it is committed to and has rolled out procedures to implement the recommendation of ex-Supreme Court of Canada Justice Louise Arbour (now of Montreal’s BLG) to refer sexual assault prosecutions in the military justice system to the civilian justice system. The recommendation emerged from her review of the Canadian Armed Forces’ (CAF) sexual misconduct problems.
However, the military says it gives complainants a say on such transfers. The upshot appears to be that most sexual offence cases involving the military therefore have not been transferred to the civil justice system.
Louise Arbour, BLG
Therrien, referencing information provided by the Canadian Forces Provost Marshal (top military police officer), also noted that of the 242 cases that were referred to civilian police, 58 (nearly one-quarter) “were declined” by the provinces’ civilian authorities.
(Therrien also noted that the offices of the provost marshal and Ontario’s solicitor general may agree this summer on a protocol on the transfer of cases to the civilian justice system — a possible framework agreement to be used with the other provinces — that would enable information-sharing by the civilian authorities with the CAF for disciplinary or administrative purposes, since “whether or not a criminal investigation results in prosecution, the CAF must be able to address the matter through its internal processes.”)
Other noteworthy legal aspects of the June 27, 2025, report Therrien sent to Defence Minister David McGuinty, which was unveiled by the DND July 8, 2025, include:
- Next January, DND plans to issue a “request for offers,” seeking civilian lawyers to join a planned new roster of outside legal practitioners to provide government-paid legal assistance to individuals across the country who indicate they were affected by sexual misconduct in the military and who seek to avail themselves of the free legal advice that is already on offer. Arbour recommended that complainants should get “immediate access” to legal advice from a newly created roster of government-paid civilian lawyers to assist them on “the full range of issues related to sexual misconduct in the Canadian Armed Forces.” Currently, DND’s Sexual Misconduct and Resource Centre, which provides legal information and legal assistance to those who have experienced sexual misconduct within a DND/CAF context, only reimburses such individuals for legal expenses they may incur to obtain advice from the civilian bar. However, Therrien said DND plans to implement direct government payments to civilian legal counsel, “thereby sparing victims the need to pay upfront.” (As of May 29, 2025, the centre also launched an internal “Independent Legal Assistance Program,” offering “independent” and “direct” free legal assistance to those 18 years and older who have experienced sexual misconduct in a DND or Canadian Armed Forces (CAF) “context” from a “full-time bilingual independent legal counsel with a background in the prosecution of sexual offences and knowledge of the military justice system.”)
- Arbour recommended that the military grievance process should facilitate the transfer of internal sexual harassment or sex discrimination complaints to a reformed federal human rights system authorized to award legal costs and higher pain and suffering damages to successful complainants. In response, the CAF removed the obligation for individuals to exhaust internal complaint mechanisms before having access to the Canadian Human Rights Commission (CHRC). Therrien’s report says that so far, the CHRC has received 83 complaints related to sexual harassment or discrimination in the military and, as of May 2025, 29 files were “concluded.” “The commission has recently changed part of its process to increase its efficiency and more rapidly deal with the complaints,” Therrien said.
- Therrien called attention to the Sexual Misconduct and Resource Centre’s “Restorative Engagement” initiative, implemented as a result of the $900-million Heyder-Beattie (Sexual Misconduct Class Action) final settlement agreement in 2021, a case launched by former military members against the CAF for sexual assault, sexual harassment and discrimination based on gender or sexual orientation. The voluntary program enables class members to share their experiences with senior military or departmental representatives “in a safe and respectful environment.” So far, 2,154 claimants and 286 military officials have completed their participation in the program, which has the objectives of giving the victims a voice, enabling defence officials “to acknowledge, listen and learn,” and which also “has the distinct potential to inform the organization about the root causes of the problem and to inform policy making,” Therrien said. (According to information posted by the CAF, there were about 24,000 claims approved for initial payment and/or paid, and 6,403 claimants requested to participate in restorative engagement.)
Therrien said, “One of the most critical policy changes in recent years for the CAF in terms of sexual misconduct has been the 2024 repeal of the duty-to-report (DTR) regulations that once created a legal obligation [for military members] to report any wrongdoing.” Arbour and others criticized this as a barrier to reporting. The repeal “seeks to put the victim’s needs before those of the organization,” Therrien said. “It allows a CAF member the ability to discuss their situation with other members of the CAF and receive support services without necessarily triggering a formal investigation.”
Another improvement highlighted by Therrien was a recent change in how the CAF deals with harassment among military members. Notably, the military implemented on March 1, 2025, Arbour’s recommendation to adopt the Canada Labour Code definition of harassment, to be more in line with current practice in other federal departments and with Canadian Human Rights Tribunal case law.
“This alignment is now reflected in an updated DAOD [Defence Administrative Orders and Directives] and policy manual,” Therrien said. “This is a significant change for CAF members. Up until recently, the process revolved around necessarily meeting each of six criteria in order to establish harassment. This resulted in a complicated exercise that may have led to genuine harassment situations going unreported or being determined to be unfounded. The Canada Labour Code definition is much simpler and, as a whole, focuses more on identifying and addressing workplace issues in order to prevent similar occurrences in the future.”
Therrien predicted the change may lead to more harassment complaints, along with the fact that CAF members can now go directly to a central authority to report harassment if they wish to bypass the chain of command. “This, in my view, would be a positive sign, meaning that inappropriate behaviour is now more likely to be reported,” Therrien said.
She also remarked on a new process of onboarding, probation and monitoring for incoming CAF members that was launched last December, which facilitates the early and timely removal of recruits “who demonstrate behaviours and attitudes that do not coincide with the CAF ethos.”
Therrien noted that the military is currently also planning several changes to the framework for releasing existing members from the CAF.
“If the CAF wishes to modernize its conduct process, it could start by familiarizing itself with superior court judgments and appeal tribunal decisions related to sexual misconduct over the last 10 years,” she advised. “In reviewing these judgments, I note a clear trend towards supporting dismissal for any sexual touching in the workplace,” she said. “Much of it is based on the following logic:
- Any sexual harassment that involves non-consensual touching of a sexual nature is unequivocally defined as sexual assault; and sexual assault is a Criminal Code offence.
- The mere existence of a corporate policy that prohibits sexual harassment is sufficient warning to an individual such that there is no need for a pre-emptive official warning.
- Furthermore, there is no necessity to forewarn an employee that any criminal act is grounds for dismissal.
- The fact that similar cases in the past were dealt with through administrative measures other than dismissal no longer carries any weight.”
In 2022, Arbour’s 400-plus-pages final report concluded that an “old-boy’s-club” mentality/culture permeated the CAF and that the “institutional shortcomings and structural impediments” in its operation continued to present “the high likelihood” that some of its members — often women — “are more at risk of harm, on a day-to-day basis, from their comrades than from the enemy.”
Arbour recommended that there be a review of sexual misconduct cases where the military determined, after assessing the facts, that a member be “retained without career restrictions,” even though the commanding officers may have recommended a release.
The subsequent review of 80 case files by a team of quality assurance, labour relations, victims’ services and other professionals (including a review of 50 case files from the period 2015-2021) recommended improvements to the decision-making framework for release, including using a spectrum of severe misconduct and corresponding chart of consequences. For example, “transgressions at the higher end of the spectrum,” such as Criminal Code offences (including child pornography and sexual assault), would presumptively trigger dismissal, while less serious transgressions would attract less severe consequences.
In response to one of Arbour’s key recommendations, the previous Trudeau government proposed in the Commons on March 21, 2024, the Military Justice System Modernization Act (Bill C-66), which, among other things, would have removed the court martial’s jurisdiction to try a person in relation to a Criminal Code offence alleged to have been committed in Canada and that is of a sexual nature or committed for a sexual purpose. It would also have removed the CAF’s authority to investigate a Criminal Code offence alleged to have been committed in Canada that is of a sexual nature or committed for a sexual purpose. Military police were to retain their jurisdiction to investigate and collect evidence if an alleged sexual offence happens outside Canada.
Bill C-66 died on the order paper, at second reading, when Parliament prorogued for the federal election last January.
However, the successor Liberal government, led by Prime Minister Mark Carney, appears poised to revive the military justice overhaul.
Defence Minister David McGuinty
The government said the CAF deems that 36 of Arbour’s 48 recommendations have been addressed to date. “We are continuing to make progress and, as Madame Therrien points out, we ‘are on track to meeting the intent of all 48 recommendations by the end of 2025,’” McGuinty said in a statement. “While the external monitor notes that some changes may take years to fully implement, she acknowledges the sincere willingness to make things better on the part of those involved in implementing culture change.”
Therrien’s mandate is to provide advice to the defence minister on the implementation of the Arbour recommendations while also considering those of other external reviewers, such as the 107 recommendations for military justice system reform made in 2021 by ex-Supreme Court of Canada judge Morris Fish.
“In my estimation, from all of the changes that I have surveyed these last two years, it seems that the CAF is on track to meeting the intent of all [Arbour] recommendations by the end of this year, as planned,” Therrien wrote. “It has been said that the misconduct issues that have plagued some organizations, including the CAF, are the product of a culture that is largely misogynistic, creating a work environment that allows or even encourages unprofessional conduct to persist,” she remarked. “The DND/CAF is putting a lot of effort into dismantling that environment. What remains is the matter of individuals who are unable to internalize the CAF ethos once the ‘system’ has corrected its course.”
Therrien noted that since Arbour began her review in 2021, the military has modernized its doctrinal core documents, and reconfirmed its values and its commitment to upholding those values. “It has consulted broadly, both internally and externally, to understand the nature of the problem. It has adopted the Character-Based Leadership model, which emphasizes the individual’s character when evaluating or promoting members,” she said. “It continuously provides opportunities for supervisors to better themselves in terms of optimizing their value as a leader. It also has a network of restorative and conflict-management services, which can assist in better understanding and addressing root causes.”
“The foundation is becoming increasingly solid,” the external monitor wrote.
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