Canadian Forces soldier awarded benefits following off-duty assault, tribunal cites military’s ‘sexualized environment’

A member of 5 Canadian Mechanized Brigade Group shoots at a simulated enemy near Quebec City, on Nov. 9, 2022. Photo: Corporal Sébastien Lauzier-Labarre, Valcartier Imaging Section, Canadian Armed Forces

A Canadian Forces member who was sexually assaulted at an officer’s home at the end of her basic training has been awarded disability benefits for post-traumatic stress disorder.

The award came on appeal, and the tribunal cited the underlying sexualized culture in the military at the time of the attack in ruling in her favour.

Invitation to instructor’s home

At the end of basic training, the 20-year-old woman accepted an invitation to stay at the home of a Canadian Armed Forces instructor who had a higher rank than her.

“While she accepted an invitation to stay at his place, which was located across the road from the base, she had no reason to fear a military colleague,” the Veterans Review and Appeal Board wrote in its decision.

She was sexually assaulted that night at his home and did not report it at the time because she feared for her military career.

“In the military, hierarchy is always of importance and cannot be ignored. She socialized with him and did not fear him because of what he represented,” said the Advocate. “The Canadian Forces is a place where respect and trust are core values and should not even have to be questioned. She would not have thought one second that a military personnel can do harm to her.”

The house where the attack occurred was PMQ (permanent married quarters), which was off base but considered to be military property as they are provided to personnel and managed by the Canadian Forces Housing Agency, the Advocate said.

Service-related sexual trauma

The Advocate also pointed out that sexual trauma can be service-related even if it happens off CAF property or at a non-mandatory event; or if the aggressor was not in a position of power over the victim.

It also noted that Veterans Affairs Canada has a policy on “benefit of doubt” which states:

  • sexual trauma may be established solely on the basis of the victim’s credible statement
  • the credibility of a statement will not be adversely impacted by victim’s decision not to report the incident before applying for disability benefits
  • the victim is not required to provide corroborating evidence to substantiate that sexual trauma occurred as described in the statement, provided it is not contradicted by other available information.

Initial claims rejected

The woman’s claim for benefits, filed on Jan. 31, 2014, was denied on March 24, 2016 by Veterans Affairs Canada. It said that, while the assault happened during her service period, there was not enough information to link to “service factors.”

“Specifically, you were not on duty or performing service related activities at the time of the assault,” it said. Further, it did not occur on Canadian Forces property and the assaulter was not in a position of authority over her.

On July 17, 2018, a Veterans Review and Appeal Board (VRAB) Entitlement Review Panel upheld the denial of benefits.

It further noted she was not in the performance of her duty and made a choice to attend a private residence. She chose to stay the night, and the perpetrator — while a member of the military — was not in performance of his duties at that time.

There was no evidence she felt forced to socialize with the instructor.

“The panel concludes that just because something occurred in service, this does not necessarily make it service-related,” it said.

Claim accepted on appeal

The woman appealed that ruling. The appeal panel had to address three critical questions, it said:

  1. Is there a valid, existing diagnosis of the claimed condition?
  2. Does the claimed condition constitute a permanent disability? and,
  3. Was the claimed condition caused, aggravated or contributed to by military service?

If the answer to any of those questions was no, then the women would not have met the burden of showing that entitlement should be granted, it said.

It noted that the victim was 20 at the time of the assault and had just completed basic training. The culture of that training is “obeying anyone senior.”

While the perpetrator was not her direct commander, holding a higher rank does carry a certain amount of authority.

It also noted she did not accept a “solo” dinner invitation nor did she consider it a date. She went with another recruit, and they both stayed the night in separate bedrooms. And while the perpetrator’s residence was off the base property, it was PMQ and managed by the Canadian Forces. So while it was off base, the assault happened on military property.

The military culture at the time

Critically, the appeal board focused in at the military culture at the time the assault happened. It cited the 2015 Deschamps report, External Review into Sexual Misconduct and Sexual Harassment in the Canadian Armed Forces.

That report noted that there was an “underlying sexualized culture in the CAF that is hostile to women and LGTBQ members, and conducive to more serious incidents of sexual harassment and assault.”

“The (External Review Authority’s) consultations revealed a sexualized environment in the CAF, particularly among recruits and non- commissioned members, characterized by the frequent use of swear words and highly degrading expressions that reference women’s bodies, sexual jokes, innuendos, discriminatory comments with respect to the abilities of women, and unwelcome sexual touching,” the report said.

“Some participants further reported instances of sexual assault, including instances of dubious relationships between lower rank women and higher rank men, and date rape. At the most serious extreme, these reports of sexual violence highlighted the use of sex to enforce power relationships and to punish and ostracize a member of a unit.”

In short, there was a perception in the lower ranks that those in the chain of command either condone inappropriate sexual conduct or were willing to turn a blind eye to it.

The appeal panel ruled, given the sexualized environment in the CAF at the time of this assault, and given the unique and specific factors of this case, there was a “reasonable nexus” that the trauma arose out of service.

It awarded the woman “five-fifths entitlement for post-traumatic stress disorder for regular force service.”

The hearing was held in January 2023, and the award was issued retroactively to Jan. 1, 2020 — the first day of the month that was three years before the decision.

For more information, see 100004944617 (Re), 2023 CanLII 6239 (CA VRAB)