The Settlement is Not Enough

 During the 16 Days Campaign, victims of sexual misconduct in the military and the Department of National Defence reached a new milestone. On November 25, 2019, the Federal Court approved a class action lawsuit settlement of up to $900 million for these victims. 

The settlement was the conclusion of 6 merged class action lawsuits, Heyder v. Canada. The cases were initiated between the end of 2016 and the beginning of 2017. The court signing the settlement assessed that the Canadian Armed Forces and the Department of National Defence had “in fact and in law” failed in their duty of care towards their employees; that the way the Canadian Defence leadership’s inaction in the face of sexual misconduct constituted breaches to section 7 (providing the “right to life, liberty and security… and the right of not to be deprived thereof”) and section 15 (freedom from discrimination) of the Charter of Rights and Freedom. 

The individuals eligible to make claims under the settlement are “all current or former” servicemembers, employees at the Department of National Defence, and “Staff of the Non-Public Funds, Canadian Forces” who have been victims of sexual misconduct and have not opted out of the settlement. 

Victims can claim from $5,000 (if were victims to discrimination or sexual harassment, or low harm “targeted or on-going or severe sexual harassment and/or sexual assault in the form od unwanted sexual touching) up to $50,000 (when the claimant has experience high harm sexual assault in the form of sexual attack or sexual activity without consent”).

Claimants can obtain additional payments of up to $100,000 if Post-Traumatic Stress Disorder or other physical or mental injuries developed as the consequence of sexual misconduct. This would be even more difficult to obtain, as, to be eligible, the claimant must have had requested disability benefit for sexual misconduct to Veterans Affairs Canada and had been denied on or after April 3, 2017. 

The government settled after having presented the controversial defence that it did not owe any duty of care to servicemembers and civilian Defence employees. This argument, as we have seen in a preceding blog, directly contradicts the Canadian Armed Forces’ doctrine. And important to note is that the government did not admit liability, despite the signatory judge viewed the plaintiffs had sufficiently proved their case.

The agreement also includes recommendations for the government to move forward on fighting sexual misconduct in the Canadian Armed Forces: consultation with the claimants and other victims regarding culture change, victim support, and gender integration and diversity; a five-year external review on the progress of Operation HONOUR; and modifications to the definitions of sexual misconduct.

To some, the settlement is not enough. In a CBC article, Dale Shewshuck, a man who had experienced sexual misconduct during his service in the Canadian Armed Forces, expressed his dissatisfaction with the outcome of the class action lawsuit.

He says “the settlement fails to take full responsibility for the harm done to victims like him and neglects concrete steps to fix the continuing culture problem in the military – action he says is necessary to make sure no other Forces member faces what he’s lived with for 20 years.” 

He said he wishes a formal apology for the government, but it is unlikely to occur. By making a claim under the settlement or by doing nothing, victims abandon all rights to sue the government in the future on the matter. Only when a person goes through the process of opting out do they keep their right to engage in a lawsuit in the future.

The Canadian Armed Forces considers that the settlement is part of the process towards culture change, and that the restorative measures listed in the agreement will also help in the process.

Whether or not the Canadian Armed Forces will follow the restorative measures listed in the settlement agreement remains to be seen. Canadian military has a history of not fully implementing recommendations, even when they have the authority of law: 

-       the Royal Commission on the Status of Women of 1970, 

-       the results of the Service Women in Non-Traditional Environments, 

-       the Canadian Human Rights Tribunal Order of 1989, 

-       the recommendations of the Canadian Human Rights Commission and of the Minister’s Advisory Board on Gender Integration in the Canadian Forces throughout the 1990s, 

-       the 2015 External Review Authority Report

-       the Auditor’s General Report of the Fall 2018 and the associated House of Commons and Senate Committees on National Defence

This history cast doubts on the capacity and willingness of the Canadian Armed Forces to use all the available tools to combat sexual misconduct and gender-based violence in its ranks. While history can be a predictor, only time will tell.