DAOD 9005-1 Sexual Misconduct

Vincent J. Curtis

30 Apr 21

Defense Administration Orders and Directives (DAOD) 9005-1 is entitled “Sexual Misconduct Response.”  Issued on 18 November 2020, it supersedes DAOD 5019-5, Sexual Misconduct and Sexual Disorders.  DAOD 9005-1 is an order that applies to officers and non-commissioned members of the CAF, and is the order on which the accusations of sexual misconduct against General Vance and others stand or fall.

In respect of Big Jon, they fall.

The DAOD opens with a definition of sexual misconduct: “Conduct of a sexual nature that causes or could cause harm to others, and that the person knew or ought reasonably to have known could cause harm.”

Harms includes: “actions or words that devalue others on the basis of their sex, sexuality, sexual orientation, gender identity or expression; jokes of a sexual nature, sexual remarks, advances of a sexual nature or verbal abuse of sexual nature in the workplace; harassment of a sexual nature, including initiation rites of a sexual nature; viewing, accessing, distributing or displaying sexually explicit material in the workplace; and any criminal code offense of a sexual nature…”

The order explains that a workplace is any location where work-related functions and other activities take place and work relationships exist, such as: travel, conferences, DND or CAF sanctioned instruction or training activities, and other DND or CAF sanctioned events, including social events.  There are also the usual workplaces: ships, planes, vehicles, offices, classrooms, garrisons, hangars, messes, dining halls, quarters, gyms, on-base clubs, on-line forums, and locations for sanctioned events such as holiday gatherings and course parties.

Key elements are ‘unwanted’ and workplace, with workplace drawing a line between private and professional life.  A consensual Friday night fling at the Angus Inn Motel isn’t 9005 material, but jokes in a classroom, a pin-up calendar, and unwanted attention at the Waterloo Officer’s Mess could be show-stoppers.

Vance is accused of having had several affairs.  Most notoriously, he was accused by Major Kellie Brannan of fathering two of her eight children over the course of a twenty year affair.  A long-term affair is not what is contemplated by the definition of sexual misconduct.  There is no issue about ‘unwanted’, and nothing apparent that involves criminal code violations.

Brennan further alleged that they had had consensual sex in Vance’s office and in his car, which, if true, still mightn’t meet the definition of misconduct unless they were caught in flagrante delicto by a third party who wanted to make an issue of it.  In that case, both would be guilty of misconduct, not by harming each other, but for harming the third party.  Section 129, conduct prejudicial to good order and discipline, could supply the service offence charge for violating the DAOD.

If the alleged affair were adulterous, Vance’s wife would have cause for complaint, but that’s a civil matter, not a disciplinary one.  The U.S. military has a legal prohibition of adultery, but the Canadian military does not.  (If we did, we could have lost the services of Lieutenant General Guy Simonds just before the Normandy invasion.)

A long-term affair, a succession of affairs, adulterous affairs, are not sexual misconduct as defined in the DAOD, which is all that is of military significance.  Vance knows his regs; he wasn’t making passes at everything in a skirt, which is what the DAOD foresees as misconduct.  Untethered from the DAOD, accusations of sexual misconduct are just subjective opinions of no disciplinary significance.  Besides, Vance is now released, making the administrative action mentioned in the DAOD moot.  (There is always politically motivated lawfare.)

To deflect unwanted political attention, Prime Minster Trudeau appointed Louise Arbour, another retired Supreme Court Justice, to look into and report upon the ‘culture of sexual misconduct’ in the CAF.  Arbour follows upon Marie Deschamps (passim) whose vagaries of 2015 led to Op Honour; and Michel Bastarache (passim) who wrote a stinker on the RCMP last year.

I watched Arbour get torn to pieces by Mark Steyn at a Munk Debate in 2016.  I look forward to her report.

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