General Vance (retired) Pleads Guilty to Obstructing Justice

 

Yesterday, 30 March 2022, General Jonathan Vance (retired) pled guilty to the single charge of obstructing justice (contrary to section 139(2) of the Criminal Code[1]) and received a conditional discharge contingent upon completing one year of probation and 80 hours of community service.  This was not a surprising outcome.  Indeed, much about this outcome, and the consequent commentary from the ‘usual suspects’ of commentators was not surprising.

But, before we delve into some of that commentary, let’s examine the circumstances and nature of the guilty plea that General Vance (retired) made yesterday.

 

Joint Submission

First, it was predicated upon a ‘joint submission’ by the defence and Crown regarding sentencing or disposition of the charge.  To those who are not familiar with such practices in the criminal justice system, a ‘joint submission’ is a negotiated outcome between the prosecuting Crown and the defence counsel (on behalf of the accused).  These are typically predicated upon an agreement by the accused to plead guilty to one or more charges that have been laid, in exchange for the certainty of the sentence or other disposition.  These are not an uncommon means of resolving criminal charges, and they represent a key constituent element of our criminal justice system’s process.  The majority of criminal charges in Canada are resolved by a guilty plea or other negotiated resolution, and only a fraction of criminal charges proceed to a trial on the facts.[2]

Criminal trials can be time-consuming mechanisms that can strain the finite resources of the criminal justice system.  In many circumstances, the Crown can bring a compelling case against an accused, and it is in the interests of the accused to mitigate against the eventual sentence through a timely guilty plea.[3]  Negotiated resolution of the charges has beneficial aspects for many of the persons and institutions involved in the process.  And these negotiated resolutions are typically predicated upon the strength of the case brought by the Crown.

A guilty plea permits certainty of outcome for both the Crown and the accused.  Where – as in the case of General Vance (retired) – that involves a joint submission on sentencing or disposition, then there is even greater certainty of outcome.  As a defence counsel, where my client faces a near certainty or a high probability of a finding of guilt, this is the best practicable outcome that I could typically achieve for my client.

In relieving the Crown’s burden of proving its case, a guilty plea also minimizes the impact on judicial and court resources.  A guilty plea that requires 30 to 60 minutes of the court’s time has a markedly lesser impact on such resources than a 3-day contested trial that will subsequently require written reasons from the presiding judge (or the deliberation of a jury).  It also obviates the requirement of witnesses to take time away from their normal routine to testify.  In particular, a complainant, who, for a variety of reasons, may be reluctant to testify, will not be required to do so.  In some matters, such testimony can be extremely stressful for a complainant, requiring him or her to relive painful experiences through testifying, as well as being cross-examined by defence counsel in order to test the witness’ testimony.  A guilty plea avoids such a stressful obligation.

What is particularly pertinent – in light of the commentary that has arisen in light of General Vance’s (retired) guilty plea – is that it was part of a joint submission.  The Crown and defence agreed not only on an ‘Agreed Statement of Facts’ for the purposes of sentencing or disposition, but on the disposition itself.  Even where the sentence or disposition is disputed, it is customary practice for the Crown and defence counsel to submit a mutually agreed-upon ‘Statement of Facts’.  This provides the key evidentiary basis for the sentencing or disposition, obviating the requirement to call witnesses.  Where there is a joint submission, the ‘Agreed Statement of Facts’ is crucial.  Crown and defence counsel may also – as was the case with General Vance (retired) – submit ‘Victim Impact Statements’ or letters of support for the accused.

Perhaps the most important factor for the public to bear in mind in this matter is that a joint submission presents a mutually agreed-upon outcome between the Crown and defence that the sentencing judge must generally respect.  While the judge is still the authority that, at law, imposes the sentence or disposition, a joint submission does fetter the judge’s discretion on sentencing.  The governing case is the Supreme Court of Canada (SCC) judgment in R v Anthony‑Cook, 2016 SCC 43.  And, frankly, before people begin to howl in outrage over the outcome of this matter, I recommend they read that unanimous judgement.

A sentencing judge may only depart from a joint submission where “… the proposed sentence would bring the administration of justice into disrepute or is otherwise contrary to the public interest.” (Anthony-Cook, para 32).  This is an undeniably high threshold, and for good reason.  (Anthony-Cook, para 34).  In Anthony-Cook, Justice Moldaver (for a unanimous SCC) offered guidance for sentencing judges at paras 49 to 60.  I will leave it to you, Dear Reader, to review Justice Moldaver’s sage conclusions.

However, I will offer this: what drives this judgment from the SCC is the recognition that, in arriving at a joint submission, the public interest and interests of justice are represented by the Crown and the interests of the accused are represented by his or her defence counsel.  Both counsel will be aware of the evidence that could be marshalled by the Crown.  They are aware of, and will present to the Court, the relevant factors for sentencing.  As Justice Moldaver observed at para 35 of Anthony-Cook: “Guilty pleas in exchange for joint submissions on sentence are a ‘proper and necessary part of the administration of criminal justice’ (Martin Committee Report, at p. 290).  When plea resolutions are ‘properly conducted [they] benefit not only the accused, but also victims, witnesses, counsel, and the administration of justice generally’ (ibid., at p. 281).”[4]

 

Disposition

General Vance (retired) was not convicted of a criminal offence.  A conviction requires a finding of guilt and consequent sentence.  General Vance (retired) was not sentenced to a punishment.  Rather, he is subject to a conditional discharge that includes one year probation and 80 hours of community service.  As part of the probation, he is prohibited from communicating with Kellie Brennan save through counsel (in light of the acknowledged paternity of one of her children).  The successful completion of the conditions will discharge his guilt without a criminal record.

A conditional discharge is a lawful disposition, pursuant to section 730 of the Criminal Code, following a finding of guilt, provided that the offence for which the accused is found guilty: (1) is not subject to a minimum punishment prescribed by law; (2) is not an offence punishable by imprisonment for 14 years or more; and, (3) it is in the best interests of the accused and not contrary to the public interest.  Other factors that may be relevant include: the absence of a criminal record; early guilty plea; post-offence conduct, including positive actions taken by the offender; and, other factors that serve the objectives of deterrence, denunciation, and rehabilitation.

Failure to satisfy the conditions of a conditional discharge can permit the court, that made the probation order, to revoke the discharge, convict the offender of the offence to which the discharge relates and impose any sentence that could have been imposed if the offender had been convicted at the time of discharge.[5]

 

Origins of the Charge

General Vance (retired) faced a single charge of obstructing justice arising from the investigation of the Canadian Forces National Investigation Service (CFNIS) into allegations that he had had an extra-marital affair with a subordinate.  It is crucial to note that he was not charged in relation to that alleged extra-marital affair.  And one of the principal reasons why he was not charged in relation to that allegation is that participating in a consensual extra-marital affair is not a criminal offence.

Nor is it, in and of itself, a Code of Service Discipline offence.  An officer or non-commissioned member of the Canadian Forces (CF) could, potentially, be charged under section 129 of the National Defence Act (NDA)[6] for failing to comply with DAOD 5019-1 Personal Relationships and Fraternization.  I have examined this issue before regarding the relationship between General Vance (retired) and Major Kellie Brennan (Some Observations on Recent Developments in the Canadian Forces); consequently, I won’t provide a detailed analysis here.  I will offer the following salient points, which remain valid:

• DAOD 5019-1 does not prohibit relationships between people of different ranks;
• DAOD 5019-1 does not directly prohibit extra-marital affairs;[7]
• Para 4.2 of DAOD 5019-1 does prohibit a CF member, who is “… in a personal relationship with another CAF member, DND employee or member of an allied force, contractor or an employee of a contractor [from being] involved, regardless of rank or authority, in …” a variety of functions involving the other person, including performance assessment, postings or other matters of personal administration.
• Para 4.3 of DAOD 5019-1 also requires all CF personnel to “… notify their chain of command of any personal relationship that could compromise the objectives of [DAOD 5019-1].”
• While we can conclude that General Vance (retired) and Kellie Brennan were in a romantic and personal relationship at some point, we have not been presented with evidence in a reliable venue that indicates that they were in a relationship that contravened para 4.2 of DAOD 5019-1 or that the obligation under para 4.3 would have been triggered.
• Assuming (for the sake of discussion) that the obligation under para 4.3 of DAOD 5019-1 had been triggered, the obligation would have applied to both General Vance (retired) and Major Brennan.

 

For further analysis, feel free to review:

What could the Minister of National Defence have investigated?

General Jonathan Vance (retired) Charged

Prosecuting the Chief of the Defence Staff

 

Public Reaction

I have noticed, in some commentary, a degree of what may be characterized as ‘outrage’ that General Vance (retired) ‘got off lightly’.  I consider that such outrage is predicated upon a misunderstanding or misconception of the circumstances and the relevant law.  It is critical to understand the nature of the proceeding in order to evaluate the nature of the outcome.

General Vance (retired) was not charged with any sexual misconduct.  As I have explained before (Some Observations on Recent Developments in the Canadian Forces), it would be a mischaracterization that involvement in a consensual sexual relationship with another CF member presumptively constitutes sexual misconduct[8].  If it contravenes DAOD 5019-1, it could be prosecuted under section 129 of the NDA, and would, therefore, represent misconduct.  But that charge was not laid or prosecuted.  The civil court of criminal jurisdiction before which General Vance (retired) pled guilty was seized with the charge before it: obstructing justice.

There has been a fair bit of commentary – in the news media and on social media – about the submissions made by the Crown prosecutor Mark Holmes as well as those of General Vance’s defence counsel, Mr. Rodney Sellar.  Both of these gentlemen are experienced criminal law advocates, each with over 30 years experience.  In particular, much has been said about the ‘rebuttal’ that Mr. Holmes offered to Mr. Sellar’s submissions.[9]  This morning’s Globe and Mail even published excerpts from Major Brennan’s ‘Victim Impact Statement’.

However, I contend that much of this was theatre for the masses.

As I indicate above, pursuant to Anthony-Cook, a sentencing judge may not depart from a joint submission save if the result would bring the administration of justice into disrepute or is otherwise contrary to the public interest.  This is a high threshold.  The judge still requires evidence before him to determine whether the sentence offered by joint submission falls within what is permitted in the administration of justice and the public interest, and this requires evidence to be presented and submissions from counsel.  As I describe above, the principal evidence was the ‘Agreed Statement of Facts’.

But neither Mr. Holmes’ nor Mr. Sellar’s submissions were going to change the outcome of the guilty plea.  Mr. Holmes (or someone from the Crown Attorney’s office) and Mr. Sellar had negotiated that outcome as part of the joint submission well before either of them appeared before Justice Wadden.

Nevertheless, their submissions were certainly fodder for reporters and commentators.

And I found some of those comments to be less than illuminating.

Consider this excerpt from this morning’s Globe and Mail:

Charlotte Duval-Lantoine, a fellow at the Canadian Global Affairs Institute who specializes in military history, said Mr. Vance’s plea to such a serious charge is precedent setting. She added that Mr. Vance’s defence used his military service as “an alleviating factor to the crime that he committed.”

“A lot of people would disagree with that. Why is it an alleviating factor when he actually went against those higher standards of ethics that he was supposed to represent?”

 

The plea was not precedent setting.  Nor was reliance on General Vance’s long military service, as a mitigating factor, improper or unusual.  But I examine this matter as a practitioner of law, not a military historian.

While it is true that obstruction of justice in his final days as Chief of the Defence Staff certainly went against the values and ethics that a senior leader in the CF must exhibit, that does not negate the relevance of several years of dedicated service to the CF and the country.  It is not uncommon for such a factor to be presented as mitigation when a CF member is found guilty of a criminal offence.  And service to the Crown is a valid factor to consider in mitigation.

Moreover, the underlying investigation, which he attempted to obstruct, was not an investigation into criminal wrongdoing.

And the conditional discharge imposed on General Vance (retired) as a result of a joint submission does not create much of a precedent.  Joint submissions are not contested sentences or dispositions.  They are the product of compromise.  Therefore, they have limited weight as a precent for future matters.

Ms Duval-Lantoine may have meant that the sentencing of a former Chief of the Defence Staff was, in itself, precedent setting in a broad sense, rather than the juridical sense.  The investigation and prosecution of a former CDS was a novel issue, notwithstanding that there have been prior circumstances in which a senior General or Flag Officer was the subject of such investigation (e.g., Vice Admiral Mark Norman (retired) was unsuccessfully prosecuted when he was Vice Chief of the Defence Staff).  But I get the impression that Ms Duval-Lantoine’s focus was on criticizing the disposition of the charge – specifically, that the absence of a conviction represented a problematic outcome.

And her unsupported assertion that “… a lot of people would disagree …” with that outcome may reflect the sentiments of some people.  However, I contend that such disagreement is likely predicated on a failure to understand the nature and character of the proceeding as well as consideration of marginal or irrelevant factors, while minimizing the impact of relevant factors.

The very public nature of the investigation and prosecution, as well as broad condemnation of General Vance (retired) in news media, is a relevant factor. It presents a degree of denunciation and deterrence that are two of the key objectives in sentencing.  The very public nature of this process has undoubtedly markedly limited Vance’s options in pursuing future employment or opportunities commensurate with what other senior public figures have done.  It would not be unreasonable to suggest that he is now viewed as ‘toxic’ in terms of any appointments or employment in the public or private sector.  And I am not suggesting that such condemnation or negative perception is not warranted.  But that negative public perception is a valid factor regarding sentencing.  Very few Canadians are subject to national news coverage similar to what General Vance (retired) has faced over the past year.

But most significantly, I return to the context of how this guilty plea arose.  The Crown agreed to the disposition.  The Crown, which has the duty as public advocate, serving the interests of justice and the public interest, agreed to the disposition.  And the Crown did so based upon the evidence available to it.  Notwithstanding that Mr. Holmes may have appeared to be contesting some of Mr. Sellar’s submissions before Justice Wadden, the Crown had agreed to the conditional discharge and its terms.  And I am not quite so willing to criticize the outcome derived from the negotiations between two experienced and respected criminal litigators, absent good reason to do so.

The same Globe and Mail article cited above concluded with this:

Elaine Craig, a law professor at Dalhousie University, who has studied how the military’s legal system responds to sexual assault, said Wednesday that it is evident from a failure of leadership by the former chief of the defence staff “that the Canadian military is thread through with sexism and misogyny at every level of the organization and that its justice system has some serious flaws.”

 

Acknowledging that Professor Craig does not control how her comments are presented by a journalist who interviews her, I will take that comment at face value.  And I disagree.

To be clear, I do not disagree that there are shortcomings in the ‘military justice system’ that should be corrected; I disagree that this prosecution supports the conclusions that Professor Craig offers.

I agree that the actions taken by General Vance (retired) represent a failure of leadership on his part.  I have observed other failures, by him and other senior decision-makers, in this Blog.  And I would go as far as to say that other senior leaders and political decision-makers have also demonstrated poor leadership.  But I disagree that this demonstrates sexism and misogyny at every level of the organization or that this prosecution demonstrates serious flaws in the military justice system.  I would tend to agree that there are examples of misogyny and sexism in the CF, but the prosecution of General Vance (retired) for obstructing justice is not clearly indicative of such issues.

As I say, Professor Craig may have been quoted out of context – it happens.  It has happened to me.  But what this represents is a failure of leadership.  It represents the impunity with which senior leaders in the CF may act, when unchecked.  And the asymmetric power imbalance arising in the Crown-soldier relationship contributes to this impunity.

And it is not restricted to examples of sexism or gender-based misconduct.  As I have repeatedly observed in this Blog (e.g., (It’s) the Impunity, Stupid and Rules are for Corporals, Not for Colonels), senior statutory decision-makers can act with impunity because their actions remain largely unchecked, and there is limited accountability.  And such impunity can arise where those senior decision-makers purport to be acting in the public interest or ‘doing the right thing’.  Indeed, we have witnessed such impunity when CF decision-makers have reacted (or over-reacted) to criticism regarding the handling of sexual misconduct.

There is not that much difference between what General Vance (retired) did and a General Officer who takes unreasonable, procedurally unfair, or unjustified actions against a subordinate when the subordinate is accused of wrongdoing.  Both subvert justice; it is just that General Vance’s (retired) actions more clearly satisfy the elements of a criminal offence.  Time and again, I have encountered CF personnel who have been subject to unreasonably excessive measures (often taken outside the Code of Service Discipline) because they are accused of wrongdoing.

The most common trend over the past few years has related to allegations of sexual misconduct (although impunity in decision-making is not limited to such matters).  Instead of laying charges, CF statutory decision-makers have repeatedly proceeded with administrative measures – frequently Notice of Intent to Recommend Release (QR&O arts 15.21, 15.22, 15.36), followed by Administrative Review, and then compulsory release.  Often, these actions are predicated upon Military Police investigations or other disciplinary investigations.  However, no charges are laid.  And, unlike with General Vance (retired), decision-makers do not face the impracticability of prosecuting the Chief of the Defence Staff.  Instead, the chain of command opts to use administrative processes that are not subject to judicial scrutiny and where the CF member does not typically have a right to make full answer and defence with the assistance of counsel.

Typically, the affected CF member will not be provided all of the relevant evidence against him or her.  Often, the affected CF member will only be provided with the investigation summary or selective statements from the investigation (if the affected CF member is provided anything remotely resembling evidence).  Certainly, in the paper process that follows, the CF member is not permitted to cross-examine witnesses or otherwise test the evidence against him or her.

Invariably, the CF member will be told that the allegations represent very serious misconduct that would warrant compulsory release, even if the CF member does not have a prior record of conviction under the Code of Service Discipline or prior remedial measures of a similar nature.  And, often, the allegations are purportedly sufficiently serious to warrant compulsory release, but not sufficiently serious to warrant prosecution under the Code of Service Discipline.  Of course, if the latter were pursued, the CF member would, potentially, be able to make full answer and defence (including an opportunity to test the evidence against him or her) with the assistance of counsel, before an independent military judge.

General Vance (retired) had an opportunity to present full answer and defence to the charge of obstructing justice before a civil court of criminal jurisdiction.  He opted, instead, to plead guilty based upon a negotiated joint submission.  However, that does not alter the fact that he had the opportunity, assisted by counsel, to make full answer and defence following the disclosure of the case against him.  That’s more than can be said for many CF personnel who, absent the glare of media scrutiny, are subject to ersatz ‘prosecution’ for alleged wrongdoing under the CF’s administrative processes.

So, I agree with Professor Craig that a failure of leadership can have an adverse impact on the application of military justice.  It can have an adverse impact on morale and cohesion.  But that failure of leadership is not, itself, indicative of broad misogyny or sexism in the CF.  It is indicative of what it is: a failure of leadership.  It is indicative of impunity.  And that failure of leadership and impunity can also be seen in the misuse of administrative processes as improper substitutes for the Code of Service Discipline.

And that particular shortcoming has yet to be resolved.

 

[1] Criminal Code, RSC 1985, c C-46, s 139(2).

[2] The charge against General Vance (retired) was disposed of before the Ontario Court of Justice.  Here is a link to the statistics compiled by that court regarding the disposition of most common charges: https://www.ontariocourts.ca/ocj/stats-crim/.

[3] Some may be inclined to suggest that the guilty plea in this case, coming 8 months after the charge was laid in the criminal justice system, was not timely.  However, in light of the COVID-19 pandemic’s effect on the administration of justice, the requirement for time to negotiate a guilty plea, and the nature of these processes, it was relatively timely.  We also do not know when the Crown completed its obligation to provide full and frank disclosure.  Certainly, the guilty plea arose before a trial was necessary, which is a key consideration.

[4] However, consider the judgment at court martial of R v Corporal Rivas, 2011 CM 2012, in which military judge Commander Lamont rejected a joint submission.  This judgment pre-dates Anthony-Cook and was a joint submission on sentence after trial before a General Court Martial.

[5] Criminal Code, n 1, s 730(4).

[6] National Defence Act, RSC 1985, c N-5 [NDA].

[7] Conceivably, obligations under DAOD 5019-1 could compel a CF member to disclose that he or she is having an extra-marital affair, or the extra-marital affair could contravene one or more “… regulations, orders or instructions published for the general information and guidance of the Canadian Forces or any part thereof …” (NDA, id, para 129(2)(b)) that prohibit interpersonal relationships of any kind in certain, narrow circumstances.  However, the misconduct that this represents arises from prohibitions on interpersonal relationships in certain narrow circumstances, not the ‘extra-marital’ nature of the relationship.

[8] And, since some people appear to be inclined to suggest that Major Brennan’s consent was somehow vitiated by the difference in rank between her and General Vance (retired), I offer this: were there evidence of such vitiation, it would have been presented.  If it were credible, it is likely that Jonathan Vance would have been charged with sexual assault contrary to s 271 of the Criminal Code, n 1.  Even Major Brennan stopped short of expressly asserting that her consent was somehow compelled.

[9] There were also some specious and irrelevant twitter comments from a journalist that the accused seemed to be appearing via video from his bathroom; however, those observations do not merit discussion.