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July 13, 2021
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July 28, 2021

General Jonathan Vance (retired) Charged

 

Well, the Canadian Forces National Investigation Service (CFNIS) finally managed to charge one of the General and Flag Officers (GOFO) against whom allegations have been circulating.  And it only took them 5 ½ months.  That may seem like a lengthy period of time for what appears to be a relatively straight-forward investigation; however, it is remarkably speedy for the CFNIS.

But before I get into the issues that arise form this recent news, please permit me to offer a sobering reminder.

This news will undoubtedly dominate the news cycle relating to the Canadian Forces (CF), at least for the next 24 to 48 hours.  But this is not the most pressing issue that is related, directly or indirectly, to the Canadian Forces.  Notwithstanding the criticism that I and others may offer regarding the administration of the affairs of the Canadian Forces and the military justice system, Jonathan Vance will have his day in court (assuming the charge proceeds to trial).  Notwithstanding various criticisms, Canada is still a nation that is governed (more or less) in accordance with the rule of law.

Neither Jonathan Vance, nor any other person or persons involved in any of the allegations concerning any GOFO, is at risk of being tortured and killed at the hands of what can accurately be described as savage and godless thugs.

But there are, by all accounts, dozens, if not hundreds, of Afghans and their families, who aided the Canadian Forces with our mission in Afghanistan, who face increasing risk of death and torture at the hands of the Taliban.  The news concerning General Vance (retired) will be a distraction for the news media and politicians.  It risks sidelining efforts of veterans and other Canadians who have been urging our government to take meaningful action to aid our Afghan comrades.

Do not let that issue be sidelined by news that, though salacious and, potentially, important, is not an immediate concern.  The process arising from the charge that has been laid against Jonathan Vance will unfold in the weeks and months to come.  Our Afghan colleagues face an immediate and deadly threat.  Do not let our government abandon them.  Write to your Member of Parliament today.

Now, back to the charge laid against Jonathan Vance…

 

The Charge

News broke the afternoon of 15 July 2021 that former Chief of the Defence Staff (CDS) of the Canadian Forces (CF), General Jonathan Vance (retired) was charged before a civil court of criminal jurisdiction with one count of ‘obstruct justice’ contrary to subsection 139(2) of the Criminal Code.  The maximum penalty for this offence, when it proceeds by indictment, is up to 10 years imprisonment.  The charge has not yet been tried before any court of competent jurisdiction.  Nor has any evidence been presented to such a court, or any findings made.

Based upon a report from CBC News, the particulars of the charge state that between 1 and 3 February 2021, General Vance (retired) “… did willfully attempt to obstruct the course of justice in a judicial proceeding by repeatedly contacting Mrs K.B. by phone and attempting to persuade her to make false statements about their past relationship to the Canadians Forces National Investigation Service …”.[1]

Notwithstanding that the investigation was conducted by the CFNIS, the charge was not laid under the Code of Service Discipline.  Instead, it was laid by way of information before a civil court of criminal jurisdiction.

There are two likely reasons for this action.

First, such a charge would give rise to a right to elect trial by General Court Martial (GCM), and it is practically impossible to convene a GCM Panel where the accused is a current or former CDS.  For a detailed examination of this issue, see: “Prosecuting the Chief of the Defence Staff“.  Contrary to the suggestion or insinuation in the Globe and Mail this morning (16 July 2021)[2], the Code of Service Discipline is not designed to favour senior officers at the expense of subordinates.  It is designed to be used by commanders to maintain the discipline, efficiency, and morale of the Canadian Forces: R v Généreux, [1992] 1 SCR 259; R v Moriarity, 2015 SCC 55; R v Stillman, 2019 SCC 40.  While it certainly has an inflammatory ring to suggest that the Code of Service Discipline is somehow designed to disadvantage junior personnel, that is an overstatement.  It would be correct to suggest that it is impractical to prosecute certain senior CF personnel, including the CDS, under the Code of Service Discipline.

Second, based upon the wording of the charge, it may well have arisen after Jonathan Vance retired from the CF.  Although Admiral Art McDonald had, by then succeeded General Vance as CDS, it is not clear whether General Vance was still a member of the CF on 1 to 3 February 2021.  He may have been on what is referred to as ‘terminal leave’ and, therefore, subject to the Code of Service Discipline.  Or he may have been lawfully released from the CF at that point.  There is insufficient information in the public domain to draw a definitive conclusion regarding this issue.

Initial reports by Global News indicated that the charge was laid pursuant to subsection 139(1) of the Criminal Code; however, that provision is inconsistent with the allegations.  (The offence under subsection 139(1) concerns improper conduct relating to sureties provided for judicial interim release or bail.)  It appears that these initial reports were incorrect and that the charge was actually laid pursuant to subsection 139(2) of the Criminal Code.

Based upon the reported particulars, and subsequent reports, the charge was based upon subsection 139(2) of the Criminal Code:

(2) Every person who intentionally attempts in any manner other than a manner described in subsection (1) to obstruct, pervert or defeat the course of justice is guilty of

(a) an indictable offence and liable to imprisonment for a term of not more than 10 years; or

(b) an offence punishable on summary conviction.

 

And the amplification at subsection 139(3) of the Criminal Code is also relevant:

(3) Without restricting the generality of subsection (2), every one shall be deemed wilfully to attempt to obstruct, pervert or defeat the course of justice who in a judicial proceeding, existing or proposed,

(a) dissuades or attempts to dissuade a person by threats, bribes or other corrupt means from giving evidence; …

 

I guess everyone isn’t equal under the law …

Recently, the Director of Military Prosecutions (DMP) rigorously pursued appeals in R v Edwards, et. al., 2021 CMAC 2 and R v Proulx and Cloutier, 2021 CMAC 3, adamantly arguing that all CF personnel are equal under the law (and, presumably, therefore, all CF personnel are equally subject to the Code of Service Discipline).  In judgments dated 11 June 2021 and 17 June 2021, the Court Martial Appeal Court of Canada (CMAC) overturned a total of six stays of prosecution ordered by military judges at first instance, holding that military judges are subject to the Code of Service Discipline and that, consequently, the impugned CDS ‘Designation Order’ of 2 October 2019 was not improper and did not undermine their independence.

The judgments of the CMAC were unanimous, which would require any appellant to first seek leave of the Supreme Court of Canada to bring an appeal.  No application for leave to appeal has yet been brought, although the limitation period for such an application has not yet expired.

There have been repeated allegations – raised principally in the news media – that General Vance allegedly committed one or more acts of sexual misconduct, triable under the Code of Service Discipline.

But no charges have been laid under the Code of Service Discipline.  And the charge that has been laid, by way of information before a civil court of criminal jurisdiction, is not a charge that describes sexual misconduct.

No charges have been laid directly pursuant to either of the initial allegations of ‘sexual misconduct’ that were repeatedly raised by the news media: that General Vance allegedly had an ‘inappropriate relationship’ with Major Kellie Brennan; and, that he allegedly made an inappropriate sexualized comment to an unnamed junior non-commissioned member (NCM).

As I have explained previously, an undeclared intimate and consensual relationship with a more junior CF member does not constitute sexual misconduct as it was defined under Defence Administrative Order and Directive (DAOD) 5019-5 Sexual Misconduct and Sexual Disorders (which was cancelled 18 November 2020), or as it is defined under the successor DAOD, 9005-1 Sexual Misconduct Response.  And for those who are inclined to suggest that Major Brennan was somehow coerced into an intimate relationship, or that her capacity to consent was somehow vitiated, I offer the following: (1) Even Major Brennan, in what would have to be characterized as a supportive and sympathetic interview with Mercedes Stephenson, did not go so far as to suggest that her capacity to consent had been vitiated; and, (2) if that were the case, why has no charge of sexual assault been laid?

So, notwithstanding the repeated gossip and allegations raised against Jonathan Vance, no charge has been laid in relation to either of those to allegations.  Instead, a single charge has been laid – before a civil court of criminal jurisdiction – for allegedly obstructing justice.

The Department of National Defence issued a press release stating:

… Considering the specifics of the case and in the interest of justice with due regard to the limitations of the Military Justice System identified in the findings contained in the Third Independent Review Authority report, the CFNIS decided to pursue the relevant criminal charge in the civilian justice system.

As this matter is now proceeding through the civilian justice system no further details can be released at this time …

 

I suppose that is a less ignominious way of admitting: “… in light of the fact that it is a foregone conclusion that it would be practically impossible to proceed with this charge – or any charge relating to the allegations that have been made against General Vance – under the Code of Service Discipline, we have reluctantly accepted the inevitable conclusion that we can only proceed under the civilian criminal justice system …”.

 

But the Code of Service Discipline still applies to military judges …

Ironically, however, the Code of Service Discipline still applies to our supposedly ‘independent’ military judges.  In the Third Independent Review of the National Defence Act[3], Justice Morris Fish recommended that military judges should be ‘civilianized’ – which would remove them from the jurisdiction of the Code of Service Discipline.[4]

Ironically, this circumstance tends to reinforce the consequence that, even though the Court Martial Appeal Court of Canada has held that military judges remain subject to the Code of Service Discipline, for all practical purposes, a current or former CDS likely could not be tried before a General Court Martial.  It would also be practically impossible to prosecute the Judge Advocate General of the Canadian Forces, the Director of Military Prosecutions, or the Canadian Forces Provost Marshal.  Moreover, trial of a Lieutenant-General or Vice-Admiral, particularly the Vice Chief of the Defence Staff, would also be problematic.[5]

Thus, the CMAC has held that military judges, who purportedly require robust independence from the executive in order to perform their functions in accordance with para 11(d) of the Canadian Charter of Rights and Freedoms[6], remain subject to the Code of Service Discipline, even though, from a practical perspective, several specific senior officers could not be tried under the Code of Service Discipline.

[As an aside, notwithstanding the judgments in Edwards and Proulx & Cloutier, in light of the limited pool of military judges – there are a total of four – and the object lesson arising from the failed attempt to prosecute the former Chief Military Judge, it may also be practically difficult, if not impossible, to try a military judge by court martial.]

 

Why is this proceeding in civil court?  Why only one charge?

Jonathan Vance has been charged with a single count of ‘obstruct justice’ contrary to subsection 139(2) of the Criminal Code.  This is noteworthy for a number of reasons, and not all of them auger well for the civilian prosecutor who will be responsible for prosecuting the charge.

This is the first time, to my knowledge, that a Chief of the Defence Staff of the Canadian Forces has been charged with a Criminal Code offence that is somehow linked to his military service.

He is not the first GOFO charged with a criminal or Code of Service Discipline offence.  Certainly, most people will remember the problematic prosecution that was brought against (then) Vice Chief of the Defence Staff (VCDS), Vice-Admiral Mark Norman.  Many people will likely remember that General Vance removed Vice-Admiral Norman from his position of VCDS, although, at the time, it was (apparently) improperly characterized as ‘relief from performance of military duty’.

Some may also remember that (then) Brigadier-General (BGen) Daniel Ménard, who was Task Force Commander for Task Force Kandahar (TFK), was removed from command and eventually charged with having an intimate relationship with a subordinate, contrary to Task Force Standing Orders (ironically, issued by Commander TFK), and for obstructing the efforts of his superior, Commander Canadian Expeditionary Forces Command (CEFCOM)[7], Lieutenant-General (LGen) Lessard, when he inquired about BGen Ménard’s performance of his duties as Commander TFK.  In those circumstances, BGen Ménard faced two charges under section 129 of the NDA, and he eventually pled guilty to both.  He was sentenced to a reduction in rank and a fine of $ 7,000.00: R v Ménard, 2011 CM 3007.

[Edit, 17 July 2021: A colleague kindly pointed out that, notwithstanding the published judgment, BGen Ménard was initially charged by the CFNIS with 2 x charges under s 129 of the NDA relating to inappropriate conduct arising from his interpersonal relationship with a subordinate, 1 x charge under s 139(2) of the Criminal Code pursuant to s 130 of the NDA, and 1 x charge under s 129 of the NDA relating to ‘obstructing justice’.  This archived news release provides relevant details.  However, when counsel for the Director of Military Prosecutions subsequently preferred the charges for court martial, only two charges under s 129 of the NDA were preferred: one for the interpersonal relationship, and one for ‘obstructing justice’.  No explanation for the change of charges, other than ‘prosecutorial discretion’, was offered.]

General Vance was also indirectly involved in that matter.  He was the short-notice replacement for BGen (later Colonel) Menard.  Arguably, his second tour as Commander TFK, in quick succession, was a contributing factor to General Vance’s rise to CDS.

But we have to remember that (then) BGen Ménard was prosecuted under the Code of Service Discipline.[8]  And he was prosecuted for the alleged misconduct that gave rise to the ‘obstruction’ of LGen Lessard’s ‘inquiry’.  Finally, he was not charged with ‘obstruct justice’ under section 139 of the Criminal Code, pursuant to section 130 of the NDA.  He only faced charges under section 129 of the NDA.

That is not the case here.  Jonathan Vance has not been charged with any other criminal or Code of Service Discipline offence and was not facing any charges when he allegedly tried to convince Kellie Brennan – assuming that she is the “K.B.” described in the information – not to co-operate with the CFNIS investigation.  That factor may be relevant as this matter proceeds.

If we were inclined to speak plainly and frankly about why this single charge is proceeding before a civil court of criminal jurisdiction, perhaps we would call this what it is: grasping at straws.

While the following includes some speculation, absent any explanation why charges were not laid, people will likely be inclined to speculate.  I am attempting to provide some reasoned structure to such speculation.

It was likely painfully obvious to the legal advisors to the CFNIS – and perhaps even to the CFNIS investigators themselves – that it was going to be practically impossible to prosecute General Vance (retired) for a Code of Service Discipline charge or charges under section 129 of the NDA relating to his alleged failure to declare his alleged personal relationship with Kellie Brennan.  It would also have been practically impossible to prosecute any charge under section 129 of the NDA for his alleged sexualized comment to an unnamed junior NCM.  Indeed, the marginal attention paid to that second allegation tends to suggest that the complainant was reluctant to pursue the matter or the evidence was not particularly compelling.

Kellie Brennan has also alleged that Jonathan Vance fathered at least one of her children.  Even if it is true, fathering a child out of wedlock is neither a criminal offence nor a Code of Service Discipline offence.  Nor is it sexual misconduct.

The CFNIS either concluded, or were advised, that any charges under s 129 of the NDA would likely be impossible to prosecute before a Court Martial.  After all, General Vance would have a right to elect trial by GCM, and it would not be practicable to convene a GCM where the accused is deemed to hold the rank of General.

DMP is likely of the view than an offence that is created under the Code of Service Discipline (i.e. an offence established by sections 73 to 129 of the NDA) cannot be prosecuted before a civilian court of criminal jurisdiction, including a ‘section 96 court’ such as the Superior Court of Justice for Ontario, which exercises inherent jurisdiction by virtue of section 96 of the Constitution Act, 1867.[9]  I do not necessarily share this conclusion; however, the purposes of the present discussion is to identify why only a charge under s 139(2) of the Criminal Code has been laid, and why it was laid before a civil court of criminal jurisdiction.

Therefore, if key decision-makers in the Canadian Forces (and/or the Minister of National Defence) were going to signal that they take sexual misconduct seriously, and to demonstrate that no one is ‘above the law’, the only course of action available to the CFNIS, DMP, and the Canadian Forces in general, was to try to identify a Criminal Code charge that could be laid before a civil court of criminal jurisdiction.

And they settled on ‘obstruct justice’ contrary to subsection 139(2) of the Criminal Code.  Presumably, then, no other judicial proceeding was, or could reasonably have been, within their contemplation.

 

Obstruct Justice

Often, ‘obstruct justice’ charges will be laid in conjunction with one or more additional criminal offences, which are related to the ‘obstruct justice’ charge.  For example, an accused might commit a criminal offence like robbery or assault, and then attempt to coerce, bribe, or influence a witness, through corrupt means, not to testify.

At the time of his alleged ‘obstruction’, there was no pending or existing judicial proceeding against Jonathan Vance.  An ‘obstruct justice’ charge could also be established where there is a proposed judicial proceeding.  However, apart from the single charge of ‘obstruct justice’ laid against him, there has been no other charge laid, and may not have been any other proposed proceeding.  Otherwise, presumably, other charges would have been laid.

That said, an ‘obstruct justice’ charge could relate to interference with an investigation (R v Wijesinha, [1995] 3 SCR 422).  In Wijesinha, Cory J, writing for a unanimous court, held that “the course of justice” described in subsection 139(2) of the Criminal Code applied to proceedings of a Law Society’s disciplinary process.  He relied on the definition of “judicial proceedings” at section 118 of the Criminal Code.  It does not expressly refer to investigations (e.g. by the police or Military Police).  It does, however, incorporate a proceeding in which the person presiding can administer oaths and compel evidence and where a legal right or a legal liability may be established by the tribunal.  It also includes proceedings before Parliamentary committees.

Cory J held that it applied to a Law Society investigation, relying on the persuasiveness of the Australian High Court judgment in R v Rogerson (1992), 174 CLR 268.  Cory J held:

It is apparent that s. 139(2) applies to those investigations carried out with a view to determining whether or not disciplinary proceedings should be taken by the Law Society.  That finding is sufficient for the purposes of this case.  Yet, the Court of Appeal carefully considered what the scope of the section should be and suggested a rule that a decision-making body would come within the phrase “the course of justice” if it was: (1) “a body which judges”; and (2) “[i]ts authority to do so [was] derived from a statute” (pp. 602-3).  To this I would add that the decision making body must, by the terms of its empowering statute, be required to act in a judicial manner.  It must for example, be required to investigate and to institute proceedings to enforce statutory standards of conduct, or of products or of discipline.[10]

 

In the present circumstances, it appears that a Military Police investigation had been initiated, roughly contemporaneous with the communication alleged in the information (i.e. between 1 and 3 February 2021).  However, we must remember that the Global News Report that first broke the allegations was on 2 February 2021.  At that point, Global News was alleging that the relationship dated to at least 2019.  Obviously, there would be further revelations.  But this was an inquiry by a television news program.  Based upon the information that has been made public, it is not clear whether, between 1 and 3 February 2021, a Military Police investigation had yet commenced.

Therefore, even before they proceed with testing the evidence that has presumably been collected by the CFNIS (which, thankfully, did not include any muffin wrappers) the civilian prosecutor may face a challenge with whether a “course of justice” existed on 1 to 3 February 2021.

If the prosecutor relies on the amplification at subsection 139(3) of the Criminal Code, there are other potential elements of an ‘obstruct justice’ charge brought under subsection 139(2) of the Criminal Code.  The accused must willfully dissuade or attempt to dissuade a person by threats, bribes, or other corrupt means from giving evidence in an existing or proposed judicial proceeding.  Simply asking a person not to give information to any investigators (i.e. Military Police) in the future will not meet this threshold.  There must be a threat, bribe, or other corrupt means employed to dissuade (or attempt to dissuade) a person from providing that information.

We do not know the full extent of the evidence gathered by the CFNIS in support of this charge.  It would be problematic to venture an analysis based upon the one-sided nature of the questions posed in the Global News interviews and the Standing Committee appearances.  I am therefore disinclined to offer an analysis of whether this threshold would be met.

However, the outcome of this prosecution is not a foregone conclusion.

It is likely that the CFNIS, and the military prosecutors who advised them, also had in mind the recent Supreme Court of Canada case of R v Morrow, 2021 SCC 21, aff’g R v Morrow, 2020 ABCA 407.  However, if reliance is placed upon the amplification at subsection 139(3) of the Criminal Code, that judgment does not obviate the requirement to establish a threat, bribe, or other corrupt means that, objectively, would have dissuaded a complainant from giving evidence in a judicial proceeding.

In Morrow, two of three judges of the Alberta Court of Appeal deferred to the trial judge who held that the offender had willfully sought to coerce the victim into not testifying in relation to criminal harassment charges that had been laid against the offender prior to the interaction that led to the ‘obstruct justice’ charge.  The majority of the Court held:

… The appellant knew that he had just recently been charged with harassing the complainant and that he had signed a recognizance promising not to contact her. Despite this, he went to her home to pressure her to drop the charges. He was persistent and refused to leave the home for over two hours. He sexually assaulted her. The complainant testified she was afraid. The trial judge inferred that the appellant knew his attendance at the complainant’s home would have a significant impact on her and concluded that his actions were undertaken with intent to dissuade the complainant from proceeding with the prosecution. The inference that the appellant applied pressure on the complainant for an improper purpose was available on the record. No palpable and overriding error has been demonstrated.[11]

 

Slatter J.A. dissented, observing that the trial judge accepted the victim’s uncontradicted testimony.  However, Justice Slatter also observed:

[28]           The record, however, does not support the finding that the appellant attempted “to dissuade her from giving evidence”. Neither the appellant nor the complainant testified to that. The uncontradicted evidence was that the discussion was about withdrawing the charges; obviously if the charges were withdrawn, there would be no need for anybody to testify, but that is not the same thing as trying to dissuade a witness from attending at trial and testifying. This case is not the same as R. v Crazyboy, 2011 ABPC 369 at para 40, where the accused told the complainant that if she did not show up at trial the charges would be withdrawn. The key finding in support of the conviction (given in the second last sentence of the reasons quoted above) reflects palpable and overriding error.

[29]           As noted, the Crown concedes that merely giving advice about withdrawal of charges, especially where that information was requested by the complainant, would not be an illicit attempt to obstruct justice. This is not a question about whether the appellant’s conduct was “wilful”; he clearly intended to give the complainant the information she had requested. Rather, the question is whether his attempt “to use their relationship and his affection for her as a means to convince her to have the charges dropped” is illicit or corrupt.[12]

 

On appeal to the Supreme Court of Canada, four of five judges hearing the appeal rejected the appeal with brief reasons.  In particular, they deferred to the trial judge and concluded:

In these circumstances, and having regard to the fact that survivors of domestic abuse are particularly vulnerable to acts of intimidation and manipulation, the trial judge’s verdict was reasonable. There is no basis for appellate intervention.[13]

 

Justice Côté dissented, stating:

The wording of the charge required evidence that the appellant attempted to dissuade the complainant “by threats, bribes or other corrupt means from giving evidence” … . There is no such evidence here. The appellant’s behaviour cannot, in this case, be characterized as a “corrupt means” within the meaning of s. 139(3) of the Criminal Code … . Appealing to or preying on affection are means of persuasion just like appealing to or preying on reason. Nothing in the circumstances of this case makes these means of persuasion “corrupt”. The trial judge erred in finding otherwise.[14]

 

Ultimately, this appeal, both before the Alberta Court of Appeal, and the Supreme Court of Canada, turned principally on deference to the findings of fact by the trial judge.  There is some precedential value in the contextual description of the nature and degree of intimidation that was employed by the offender to induce the victim (of other criminal acts by the offender) to withdraw an existing complaint against the offender.

In Morrow, the offender sexually assaulted the victim contemporaneous with his attempts to manipulate her into ‘withdrawing’ charges that had been laid against him, after repeatedly refusing to leave the victim’s residence.

Kellie Brennan has alleged that she surreptitiously recorded conversations that she had with Jonathan Vance and that she provided these recordings to the CFNIS.  Putting aside any issues about whether the recordings provided to the CFNIS were complete and unedited, and the extent to which they captured the discussions between Vance and Brennan, even if Vance made detailed suggestions to Brennan about what she should say, if the prosecutor relies on the provision at subsection 139(3) of the Criminal Code, it would be necessary to demonstrate that these suggestions were accompanied by a threat, bribe, or other corrupt means intended to dissuade Brennan from giving evidence in a proposed judicial proceeding.

Kellie Brennan was not a victim of sexual violence.  Jonathan Vance was not facing any criminal or Code of Service Discipline charges on 1 to 3 February 2021.  It is uncertain whether a Military Police investigation had commenced when he allegedly spoke with Brennan.  A court of competent jurisdiction has yet to hear any evidence regarding this transaction.  However, the circumstances are distinguishable from Morrow.

Even if the prosecutor relies on a “course of justice” as defined under Wijesinha, the prosecutor will have to establish what “course of justice” – what judicial proceeding – was relevant on 1 to 3 February 2021.

 

Conclusion

This represents the early stage of this proceeding.  Jonathan Vance’s ‘first appearance date’ before the Ontario Court of Justice will not occur for another two months.  [And, for those expecting to see Jonathan Vance show up at court, it would not be surprising if his counsel appears, via Video Teleconference, under a Designation of Counsel.]  There will inevitably be much more information to follow, accompanied by further analysis and speculation.

As I indicate above, the charge against Jonathan Vance was laid before a civil court of criminal jurisdiction because the Code of Service Discipline is not designed in a manner that would permit a past or serving CDS to be tried by GCM.  The Department of National Defence and Canadian Forces can distribute adroitly worded press releases to explain their rationale, but it boils down to a lack of capacity within the Code of Service Discipline.

Moreover, Jonathan Vance has not been charged in relation to the principal allegations that have been raised against him, repeatedly, in the news media.  If we are brutally frank, the CFNIS charged him with the one Criminal Code offence that they could presumably eke out of a 5 ½ month investigation that involved a single principal complainant.  And even that charge may have some potential vulnerabilities.

However, this subject will undoubtedly dominate the news cycle pertaining to the Canadian Forces over the next 24 to 48 hours.  It runs the risk of distracting media attention from the efforts of many Canadian veterans and others who are encouraging the Canadian federal government to take meaningful steps to help rescue Afghans who worked with the CF during its missions in Afghanistan, and who are at risk of death and torture if they fall into the hands of the resurgent Taliban.  Hopefully, this will not prove to be a convenient opportunity for the government to ignore those pleas.

 

[1] Murray Brewster, “Former chief of the defence staff Jonathan Vance charged with obstruction of justice“, (15 July 2021), online: CBC News <https://www.cbc.ca/news/politics/jonathan-vance-obstruction-justice-1.6104409>.  In light of the notoriety of interviews provided by Kellie Brennan to Global News and to Parliamentary Standing Committees, it is interesting that the information sworn by CFNIS investigators used initials to ‘conceal’ the identity of the complainant, even though it manifestly does not achieve that objective.

[2] Kristy Kirkup and Janice Dickson, “Former chief of defence staff Jonathan Vance faces criminal charge”, (16 July 2021), The Globe and Mail.

[3] The Honourable Morris J. Fish, CC, QC, “Report of the Third Independent Review Authority to the Minister of National Defence”, 30 April 2021.

[4] Id, Recommendation #1, 18 to19.

[5] Rory Fowler, “Breaking the Deadlock: Independence of the Military Judiciary and the Court Martial Appeal Court of Canada” (January 5, 2021), online: SSRN <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3760834>.

[6] Canadian Charter of Rights and Freedoms, s 11(d), Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter]: “11. Any person charged with an offence has the right … (d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal …”.

[7] CEFCOM was eventually combined with Canada Command (CANCOM) and Canadian Operational Support Command (CANOSCOM) to form Canadian Joint Operations Command (CJOC).

[8] And there have been other occasions, though rare, when a GOFO has been prosecuted under the Code of Service Discipline: R v Rouleau, 2016 CM 3015.  However, jurisdiction and capacity to convene a GCM were not tested in that trial.

[9] The Constitution Act, 1867 (UK), 30 & 31 Victoria, c 3.

[10] R v Wijesinha, [1995] 3 SCR 422, 442-443.

[11] R v Morrow, 2020 ABCA 407, para 17.

[12] Id, paras 28 and 29.

[13] R v Morrow, 2021 SCC 21, per Moldaver J.

[14] Id, per Côté J.

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3 Comments

  1. Bob says:

    thank you, Rory, it is an excellent and informative read. As has been said, it is felt that something has to be shown as being done in response to the trial by media.
    Perhaps this 139(2) is a civilian equivalent to a 129. As in, “we are loss on what to charge the guilty bastard with…”
    Personally, I view the biggest obstruction of justice as someone telling the media what she had told the investigators, in order to create public pressure, turned into political agenda, onto a case. Who is most at fault of obstruction of justice? If a trial had resulted on other charges, how could it have been fair?
    That said, I do see wrong in the way Vance conducted himself. But it is not for what has been stated in the media. It is for promoting the career of his girlfriend, bypassing the thousands of much more meritorious soldiers under his command, because she had sex with him.

    • Rory says:

      I am glad you enjoyed the post. I would not suggest that the charge under s 139(2) of the Criminal Code is of the same nature as a charge under s 129 of the NDA (which tends to be a ‘catch all’ for bad conduct). Rather, as I explain in the post, it was likely the only Criminal Code offence that could possibly be supported by the investigation, and there appears to be a compelling desire to ‘do something’ regarding the allegations surrounding Jonathan Vance.

      As for your other conclusions, I would be hesitant to speculate on something for which there is little or no evidence in the public domain.

  2. Bob says:

    Thank you. I believe that he did say that he became an advocate for her, or something to that effect.

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