What is the real source of outrage about General Vance (retired)?

 

Counsel for General Jonathan Vance (retired) appeared today before the Ontario Court of Justice as the ‘first appearance’ to answer a charge of ‘obstruct justice’ contrary to section 139(2) of the Criminal Code.  The matter was adjourned for a month, which is common for a first appearance.  That’s not particularly newsworthy.

However, some portions of the national news media have been abuzz over the last two days over the news that there would be no charges or proceedings under the Code of Service Discipline in relation to allegations raised by Major Kellie Brennan.

There was much gnashing of teeth and rending of clothes by some about this news.  Cries of ‘double standards’ and ‘we are not all equal before the law’ could be heard ringing off the Peace Tower.

OK … that might be a bit of an exaggeration.  But you get the point: some people appeared to have been upset that Vance would not be ‘held to account’.

But when you peel back the layers of that onion of outrage, we must ask ourselves a couple of pertinent questions:

For what should General Vance be held to account?

And how?

And in answering those questions, we may be better able to discern the source of (some) people’s outrage – and it might not be what some people believe.

 

Breaking News…

Last Wednesday evening, Global News ‘broke the story’ that General Vance (retired) would not be charged under the Code of Service Discipline and offered the purported reason why this was the case.  An online Global News post stated:

The military police investigation into whether retired Gen. Jonathan Vance broke code of service rules with an allegedly inappropriate relationship has officially ended with no charges, despite him currently facing a separate criminal charge of obstruction of justice in connection with the probe.

When pressed for an explanation as to why the probe into any possible military service violations ended on Aug. 6 with no charges, a military police spokesperson pointed to a recent report from former Supreme Court justice Morris Fish, which warned it was “legally impossible” under the current rules to try someone of Vance’s rank in the military system.[1]

 

Respectfully, it was clear even before Justice Fish released his Report of the Third Independent Review of the National Defence Act that General Vance could not be tried for an alleged contravention of section 129 of the NDA.  On 4 February 2021, your humble servant had explained that issue in detail: Prosecuting the Chief of the Defence Staff.

Whether that was really ‘news’ is debatable.  It certainly ought not have been a surprise to anyone.

This was followed up yesterday, 16 September 2021, with a further report by Global News that Jon Vance appears to have fathered a child with Kellie Brennan years after he had said their relationship had ended.[2]  A great deal was said about the paternity test.  The report also indicated – in a brief and passing statement – that although Kellie Brennan insisted that Vance fathered two of her children, the paternity test on a second child “… did not find a probability that Vance is the father.”

And while that news is prurient and salacious – in fact, I had to double check to see if Maury Povich’s name was included in the byline – what it has to do with the sole charge of ‘obstruct justice’ is debatable.  I suppose some people might suggest that it calls into question Vance’s reliability or credibility as a witness (assuming his Criminal Code matter goes to trial and whether he testifies).  However, whether such a collateral attack on credibility would even be permitted is a separate matter.  But Jon Vance’s charge under the Criminal Code is not the subject of the present Blog post.

In these reports, Global News stated that a Military Police investigation was initiated on 4 February 2021 into “… allegations of inappropriate behaviour …”.  This led to the above-mentioned Criminal Code charge laid on 15 July 2021, and the subsequent indication, on 15 September 2021, that no charges would be laid against Vance under the Code of Service Discipline.

But what were those allegations of inappropriate behaviour, and why are they significant to whether, as some people appear intent to proclaim, Jon Vance, or any CDS, is ‘above the law’?

 

Allegations of Inappropriate Conduct

There were two principal allegations raised against Jon Vance back at the start of February 2021: (a) that he made an inappropriate proposition to an unnamed female Master Corporal regarding a ‘clothing optional beach’ (or something to that effect); and, (b) that he had a long-standing romantic and intimate relationship with Kellie Brennan that started when he was a colonel and she was a captain.

The former complaint – which was only ever vaguely described – appeared to fizzle out from the public’s attention.  It may, or may not, have been the complaint that was the subject of the tense discussion between the Minister of National Defence, Harjit Sajjan, and the DND/CF Ombudsman, Gary Walbourne, in early March 2018.  It appears that the complainant was reluctant to come forward, and undoubtedly people will speculate about not only why the complainant did not wish to pursue the complaint, but also the nature of the alleged misconduct.  I am not going to join in that speculation.

The discussion of the allegations against Vance – driven largely by Global News – had typically focussed on the complaint by Kellie Brennan.  So, before we talk about the implications of a decision not to proceed under the Code of Service Discipline, let’s first review what is, and is not, a potential criminal or Code of Service Discipline offence, in the context of this complaint.

Adultery is not a criminal offence.

Neither is adultery a Code of Service Discipline offence.  Unlike our American cousins, who include ‘Adultery’ as an offence under article 134 of the Uniform Code of Military Justice (UCMJ), adultery is not a specific offence under the Code of Service Discipline, nor is it prosecuted as an act prejudicial to good order and to discipline contrary to section 129 of the NDA.

Now, some people might assert that it should be an offence.  Fill your boots.  But it isn’t, nor would such an offence likely withstand even passing scrutiny under the Canadian Charter of Rights and Freedoms (Charter).  The personal views on morality of any given person do not drive criminal law or the Code of Service Discipline.  Oh, and for a similar reason, we also don’t sew big letters ‘A’ on people who commit adultery.

Neither is fathering a child out of wedlock a criminal or Code of Service Discipline offence.

There is a body of law that does govern issues arising from adultery and paternity: we generally refer to it as ‘Family Law’.  It’s a highly emotional and stressful area of law and I am not too proud to admit that I do not have the resolve to practice in that field.  I have friends, for whom I have the utmost respect, who practice in that field, and they perform yeoman (and yeowoman) service to the women, men, and children for whom that area of law is relevant and pertinent.  In Ontario, a branch of the Superior Court of Justice – referred to as the Family Court – supervises litigation and disputes arising in Family Law.  And, again, the judges who preside over those courts have my respect and admiration.  It is a very challenging area of law.

And if Mrs. Vance has a dispute regarding her husband’s alleged infidelity, or Kellie Brennan has claims for child support, the Family Court is the appropriate court in which they can seek resolution of a dispute or claim.  Service tribunals and courts of criminal jurisdiction are not the appropriate venues.

Finally, having a romantic or intimate relationship with someone of a lower rank is also not a criminal or a Code of Service Discipline offence.  Again, we are not Puritans.  For example, the Canadian Forces (CF) does not prohibit intimate or even personal, relationships between officers and non-commissioned members (NCM).  The Canadian Forces does not prohibit marriages between officers and NCM, or between people of markedly different rank – nor would such a general prohibition withstand Charter scrutiny.

What is prohibited under Defence Administrative Order and Directive (DAOD) 5019-1 ‘Personal relationships and Fraternization’ is an ‘adverse personal relationship’.  Or, perhaps even more accurately, DAOD 5019-1 provides direction on how to avoid ‘adverse personal relationships’ in the CF working environment.  And, frankly, I covered this issue before in a Blog Post on 3 March 2021: Some Observations on Recent Developments in the Canadian Forces.  However, it appears that the message may not have gotten through, so I’ll try again.

We start with the definition of ‘personal relationship’.

‘Personal relationships’ are not limited to romantic or sexual relationships.  Under DAOD 5019-1 they include:

An emotional, romantic, sexual or family relationship, including marriage or a common-law partnership or civil union, between two CAF members, or a CAF member and a DND employee or contractor, or member of an allied force.

A parental or sibling relationship would fall within this definition.  Of course, what we are concerned with in the present discussion is a romantic and/or sexual relationship.

 

DAOD 5019-1 also establishes certain prohibitions.  For example, para 4.1 directs that:

 4.1 CAF members in a personal relationship must refrain from conduct that may be considered unprofessional in a military context. For example, a CAF member while in uniform in public with another person must not:

a.  hold hands;

b.  kiss, except in greeting and farewell; or

c.  caress or embrace in a romantic manner.

 

Now, for anyone who has seen troops depart or return from deployment, there can be a fair bit of hugging, kissing, and embracing.  This prohibition is applied contextually, and, presumably, with a degree of common sense.  Ostensibly, the prohibition at sub-para 4.1(c) is principally concerned with lascivious or sexualized embrace, as opposed to the heartfelt minutes-long embrace that a person might have for her or his spouse after a long deployment in a theatre of operations.

Further guidance is offered at para 4.2 of DAOD 5019-1, and this is what is particularly pertinent for our discussion.  This article of the DAOD states:

 4.2 A CAF member in a personal relationship with another CAF member, DND employee or member of an allied force, contractor or an employee of a contractor shall not be involved, regardless of rank or authority, in the other person’s:

a.  performance assessment or reporting, including training evaluations and audits;

b.  posting, transfer or attached posting;

c.  individual training or education;

d.  duties or scheduling for duties;

e.  documents or records;

f.  grievance process; or

g.  release proceedings.

 

Perhaps the most significant direction given regarding these ‘prohibitions’ can be found at para 4.3:

 4.3 CAF members must notify their chain of command of any personal relationship that could compromise the objectives of this DAOD.

 

Similarly, administrative intervention may be required to ensure that personnel who are in a personal relationship are not placed in a circumstance where one of the CF members is placed in direct authority over the other – in other words, sometimes action may be required to ensure that CF personnel are not placed in circumstances that would contravene para 4.2 of the DAOD.  After all, CF personnel are routinely posted or reassigned to positions in an involuntary manner.

Also, para 4.4 of the DAOD states:

 4.4 In order to protect CAF members in vulnerable situations and to ensure fair treatment, restrictions may be imposed on the duty or posting of CAF members involved in a personal relationship if the circumstances could result in:

a.  an instructor/student relationship that would have an effect on the security, morale, cohesion and discipline of a unit; or

b.  a senior/subordinate or inter-rank personal relationship in the same direct chain of command if there is a difference in rank or authority.

 

Thus, DAOD 5019-1 offers proscriptions (prohibited conduct), guidance, and prescribed obligations.  The bulk of the direction given under DAOD 5019-1 concerns guidance and administrative intervention where a personal relationship does arise between two CF personnel, particularly where it might be considered an ‘adverse personal relationship’.

Pursuant to Section 5 of the DAOD, an adverse personal relationship is one that “…  has a negative effect on the security, cohesion, discipline or morale of a unit …”.  In the event that an adverse personal relationship arises (and presumably is reported by the two participants in the relationship, pursuant to para 4.3 of the DAOD), administrative action must be taken to separate the two parties.  This separation is not intended to be punitive and there must not be a negative stigma or career implication toward either CF member.

In other words, the principal purpose of this direction is to ensure that an ‘adverse personal relationship’ is avoided and that appropriate administrative steps can be taken to do so.  And, obviously, those steps can only be taken if the appropriate authorities are informed of the ‘personal relationship’.  Some such relationships will tend to be obvious: married couples, siblings, or a parental relationship.  CF records will generally disclose such relationships.

But some are not obvious or well known.  Some romantic or intimate relationships may not be publicly known.  And to be clear – CF personnel are not absolutely obliged to disclose a personal relationship with another CF member.  They are still permitted to have private personal lives.  The obligation to disclose a ‘personal relationship’ arises when that personal relationship could compromise the objectives of DAOD 5019-1.  In other words, where article 4.2 of the DAOD is relevant, there will be an obligation to disclose the relationship.  And there may well be other catalysts – such as a claim for certain benefits, or the impact that a relationship may have on career management functions – that will oblige disclosure of a personal relationship between two CF members.

Although this direction appears to be drafted from the perspective of a personal relationship that pre-dates circumstances that would place one CF member in a position subordinate to the other CF member (where the two CF members have a ‘personal relationship’), it could also apply to a relationship that develops during the course of a posting.

Thus, it is not prohibited for one CF member to have, develop, or pursue a consensual romantic or sexual relationship with another CF member.  There is, however, a positive obligation on CF members to “… notify their chain of command of any personal relationship that could compromise the objectives of …” DAOD 5019-1.  And let’s be clear: that obligation is imposed on each CF member who is a party to a ‘personal relationship’ as defined in DAOD 5019-1.

The manner in which this obligation is characterized suggests that such notification is not limited solely to cases in which the relationship is clearly one that could compromise the objectives of the DAOD.  In other words, a CF member should ‘err on the side of caution’ and report a relationship if there is a reasonable possibility that it might do so.

Failure to comply with the DAOD could give rise to a charge under the Code of Service Discipline – specifically under section 129 of the NDA – for failure to comply with “… any regulations, orders or instructions published for the general information and guidance of the Canadian Forces or any part thereof …”.  Potentially, one might challenge whether this obligation was sufficiently precise to justify Code of Service Discipline prosecution.  However, for the sake of discussion, let’s assume that it would.

So, to be clear, regarding the nature of the alleged relationship that Jon Vance had with Kellie Brennan, based even upon what has been alleged by Kellie Brennan, the nature of that relationship did not give rise to any allegation of criminal wrong-doing.  Even the criminal offence that was charged on 15 July 2021 arose from alleged actions or comments by Jon Vance immediately before the CFNIS commenced their investigation on 4 February 2021.

And again, based upon what Kellie Brennan has alleged, the only potential Code of Service Discipline offence (other than the criminal offence that has been charged) would have arisen under section 129 of the NDA.  And that would likely turn on whether Jon Vance contravened para 4.2 or 4.3 (or both) of DAOD 5019-1.

And I want to be clear about two additional factors.  First, even if Jon Vance did contravene DAOD 5019-1 and, therefore, could have been liable to be charged under section 129 of the NDA, Kellie Brennan would not have been a victim of that offence.  The most accurate characterization would be that she was a party to the offence as one of the two people in an ‘adverse personal relationship’.  The duty to report the relationship falls to both participants in the relationship and, technically, both would be liable to be charged.  Arguably, the more senior participant in the relationship could be viewed as being more blameworthy of the two, but both persons bear the obligation, and both are potentially liable to be charged.  One thing is certain, if all that is alleged is that there was an undeclared consensual personal relationship that ought to have been reported, neither party to that relationship is a victim.

Second, even if Jon Vance and Kellie Brennan neglected to report their personal relationship – and were therefore liable to be charged under s 129 of the NDA for contravening article 4.3 of DAOD 5019-1 – that would not constitute sexual misconduct as defined under DAOD 9005-1 (or, previously, under DAOD 5019-5).  I offer that analysis in “Some Observations on Recent Developments in the Canadian Forces”, and I won’t be repeating it here.

However, some people appear to be determined to keep referring to this consensual romantic relationship as ‘sexual misconduct’.  It wasn’t.  And those who insist on characterizing it in this erroneous fashion can continue to do so if they wish.  But each time they do so, they will be as wrong as they were the preceding times that they asserted this mischaracterization.

Based upon the very limited information in the public domain, that’s the sum total of what could have been charged under the Code of Service Discipline.  Even assuming that the allegations are true that Jon Vance had an ongoing (or on and off) romantic and sexual relationship with Kellie Brennan for 20 years or more, the only Code of Service Discipline offence arising from that relationship and with which he could likely be charged is under section 129 of the NDA, an act (or conduct) prejudicial to good order and to discipline, for failing to comply with a DAOD that was issued under the authority of the CDS.  Arguably, there may have been potential variations regarding the basis of a charge under section 129 of the NDA, but it would invariably be based upon an act, conduct, or neglect to the prejudice of good order and to discipline.

It’s not a criminal offence[3].  Nor does it constitute sexual misconduct.

 

No Proceeding under the Code of Service Discipline

So, back to the gnashing of teeth and rending of clothes: some people – and I would hazard a guess that this does not extend to everyone – are upset by the revelation that Jon Vance won’t be ‘held accountable’ for this non-criminal offence that does not constitute sexual misconduct.  As I mention above, service tribunals and courts of criminal jurisdiction do not concern themselves with issues of adultery, paternity, and child support.  The Family Court does, and Jon Vance may well find himself dealing with one or more of those issues before the relevant court of competent jurisdiction.

And make no mistake, the issue is not whether he was subject to the Code of Service Discipline.  Jon Vance, as an officer of the Regular Force component of the Canadian Forces, was subject to the Code of Service Discipline throughout his career.[4]  Even as CDS, he could have been charged with a Code of Service Discipline offence.  And, notwithstanding that he retired earlier this year, he remains liable to be charged and tried under the Code of Service Discipline for any Code of Service Discipline offence that he may have committed while he was subject to the Code of Service Discipline.[5]

The problem is that it would be practically impossible to convene a General Court Martial to try him for an offence under section 129 of the NDA.  Again, I explained this on 4 February 2021: Prosecuting the Chief of the Defence Staff.

But, as I also explained when we started on this politically- and emotionally-charged journey over 7 months ago, he’s not alone in that circumstance.  The Judge Advocate General (JAG) is an officer in the Regular Force component of the CF[6] and is therefore subject to the Code of Service Discipline.  After the appeal in R v Edwards; R v Crépeau; R v Fontaine; R v Iredale, 2021 CMAC 2  – in which the Director of Military Prosecutions (DMP) infamously asserted that ‘no one is above the law’ in the Canadian Forces – the Court Martial Appeal Court of Canada (CMAC) held that military judges, as officers of the CF[7], remain subject to the Code of Service Discipline, and that this does not prevent them from constituting an independent and impartial tribunal as required under para 11(d) of the Charter.  Similarly, DMP[8], the Canadian Forces Provost Marshal (CFPM)[9] and the Vice Chief of the Defence Staff (VCDS)[10] are all officers of the Regular Force who are subject to the Code of Service Discipline.

Technically.

However, it would be practically impossible (or, at least, very difficult) to prosecute any of those officers under the Code of Service Discipline.

The JAG is responsible for the “superintendence of military justice”[11], which the JAG interprets narrowly to be ‘the Code of Service Discipline’.  How do you prosecute the officer who is responsible for superintending the very system used for that prosecution?  One now-retired JAG used to quip that, if he were ever charged with a Code of Service Discipline offence, he’d be obliged to resign.

Even though the CMAC asserted that military judges remain subject to the Code of Service Discipline, the farce that was the attempted prosecution of the former Chief Military Judge demonstrated the practical barriers of actually prosecuting a military judge under the Code of Service Discipline.  There are only four military judges, who work out of the same office.  Even a layperson can see the difficulties in identifying a military judge who would not have an apprehension of bias.  I have previously elaborated on those issues:

• Le Directeur des Poursuites Militaires c. Le Juge Militaire en Chef Adjoint: DMP’s Forlorn Hope
• Disciplining Military Judges
• ‘Bad Facts’ and Awkward Law: The Director of Military Prosecutions v Deputy Chief Military Judge, et al., 2020 FC 330
• Director of Military Prosecutions Withdraws Charges Against the Chief Military Judge of the Canadian Forces.

 

All prosecutions at court martial must be preferred by DMP (or by an officer under his direction)[12].  DMP is a colonel.  Under the Code of Service Discipline, he can only be tried by court martial.[13]  I’ll leave it to you, Dear Reader, to connect the final dots in that analysis.

Arguably, the CFPM could be prosecuted at court martial.  Unlike the JAG, DMP, or a military judge, the CFPM does not have a role to play in the actual court martial process.  But who would investigate alleged wrong-doing against the CFPM?  It could not be the Military Police; even the Canadian Forces National Investigation Service (CFNIS) would be in a conflict of interest.  So, who would investigate?  The RCMP liaison officer with the CF Military Police Group?  Investigators from an arm’s length RCMP Division?  Perhaps.  But it becomes awkward.

And the prosecution of the VCDS – or indeed, any Lieutenant-General or Vice-Admiral – for an alleged offence under section 129 of the NDA, which would give rise to a right to elect General Court Martial[14], could be problematic.  There would be very few potential officers who could be selected as the ‘Senior Member’ of the General Court Martial panel.  Some potential panel members may not be available.  Many others could be vulnerable to challenge for cause.  Most senior General Officers and Flag Officers (GOFO) know each other, and some are friends.  Some even golf together.  And, to be clear: golfing is not a Code of Service Discipline offence either.

So maybe, just maybe, DMP wasn’t entirely accurate when he argued before the CMAC that “… no one is above the law …”.  Then again, maybe we’re characterizing that too literally.

Technically, all CF personnel are subject to the Code of Service Discipline.  All could, potentially, be charged under the Code of Service Discipline (although, it would be practically impossible to obtain the mandatory pre-charge legal advice[15] if the subject of the investigation were the JAG).  The challenge is that, for a select few officers, it is practically impossible or problematic to prosecute them before a court martial.

But is that necessarily indicative of a ‘broken system’?  And, for the purposes of our present discussion, is the Code of Service Discipline the sole means for which one of those officers might ‘answer’ for any actual wrong-doing (as opposed to alleged, but unproven wrong-doing)?

 

Why does the CF have a Code of Service Discipline?

The Code of Service Discipline exists to enable the leadership of the armed forces of Her Majesty raised by Canada[16] to maintain the discipline, efficiency, and morale of the CF.[17]  That mantra is repeated in key jurisprudence regarding the Code of Service Discipline.  It is repeated so often by certain senior legal officers, whenever anyone suggests that the Code of Service Discipline might be deficient, that the meaning of the phrase increasingly becomes trite.

However, the point is that the Code of Service Discipline has specific roles in the governance of the CF, and the expectation is that it will be wielded by the ‘chain of command’.  And one of the principal roles of the Code of Service is to instill (or re-instill) the ‘habit of obedience’ in a recalcitrant member of the CF.

I have argued elsewhere that we should not focus myopically on the Code of Service Discipline as if it is the only tool to maintain discipline, efficiency, and morale of the Canadian Forces: Discretion is the Better Part of Valour Statutory Decision-Making.  Training, cultural indoctrination, and leadership functions (to name but a few) are also relevant mechanisms.  One significant group of mechanisms falls within the broad rubrique of administrative measures.  These include things like remedial measures[18], administrative reviews[19], and even more drastic actions like compulsory release[20].

I have also suggested that the CF is increasingly turning to administrative measures as improper substitutes for the Code of Service Discipline.  In some cases, the use of administrative measures as ersatz punitive regimes is both disingenuous and improper.  Even where administrative regimes are appropriate, some decision-makers do not apply these regimes properly or they try to use an ad hoc combination of disciplinary and administrative regimes.  In some cases, these do not offer procedural fairness commensurate with the impact of the eventual decision.  In other cases, the decision-maker simply, and blatantly, does not follow the proper regime.  And in some cases, the administrative regime is woefully inadequate for the use to which it is put.

I have explained previously that, in many cases of alleged misconduct, in which evidence or circumstances are not conducive to a prosecution under the Code of Service Discipline – or, perhaps more pointedly, where the chain of command does not wish to leave the decision-making to a constitutionally independent decision-maker – the chain of command will then use administrative mechanisms to ‘punish’ the alleged offender.   In other words, in order to punish a junior CF member for ‘breaking the rules’, the chain of command will often ‘bend’ the rules beyond what is reasonable: Rules are for Corporals, Not for Colonels.

Our focus, at present, is on identifying why people are ‘outraged’ that the CDS is not being ‘held to account’.  I suspect that some people may view this as a ‘double standard’: “If that had been a Corporal, he would have been charged under the Code of Service Discipline!”

Maybe.  And maybe not.

 

How can someone be ‘held accountable’?

There are two ways that any CF member can be ‘held accountable’ for misconduct or other deficiencies: Significant or specific misconduct can be dealt with under the Code of Service Discipline.  Conduct and performance deficiencies can be dealt with using administrative measures, particularly ‘Remedial Measures’.  There is clearly potential for overlap between these regimes.

However, incidents involving poor judgment, or ethical lapses will often be addressed through administrative measures rather than the Code of Service Discipline.  In part, that is because the certainty of the relevant ‘norm of conduct’ required to prosecute a breach of the Code of Service Discipline may not be satisfied when attempting to address ethical lapses. [NB: this is not the ‘certainty’ of the evidentiary determination, but the certainty of the articulated ‘norm of conduct’.]  Moreover, a remedial approach to training and professional competence is not necessarily well suited the blunt force of the Code of Service Discipline.  Finally, as I mention above, there is a trend toward using administrative measures where the chain of command wishes to avoid the ‘annoyance’ of a constitutionally independent judge insisting that there be sufficient evidence or a viable legal basis for action.

That said, there are cases in which a junior member of the CF will be prosecuted under the Code of Service Discipline for a breach of a directive or policy, ranging from CF-wide policies like DAOD, to unit Standing Orders.

The problem – the dissonance – in the circumstances surrounding Jon Vance is not just that he cannot be prosecuted under the Code of Service Discipline.  The factor that I suggest is really driving this outrage is that, now, Jon Vance is no longer subject to any measures under the NDA, including those that tend to be used when decision-makers wish to avoid scrutiny by an independent and open-minded decision-maker.

So, let’s examine both the disciplinary and the administrative options.

It’s true that, when Jon Vance was still serving as CDS, he could not, for practical reasons, be prosecuted at court martial for an alleged offence under section 129 of the NDA, even though he could technically be charged under the Code of Service Discipline.  [And, for brevity of discussion, we will put to one side the issue of whether a Superior Court of Justice, with inherent jurisdiction under section 96 of the Constitution Act, 1867, could preside over a prosecution of such an offence].  And it is true that a more junior member of the CF could be prosecuted under section 129 of the NDA.

When it comes to the prosecution of non-criminal service offences (like many prosecutions under section 129 of the NDA), the Code of Service Discipline empowers the institutional leadership of the CF to correct bad behaviour of a junior member.  It is, to coin a phrase, a function of command.

The focus of such a prosecution would not be ‘criminal punishment’, but the maintenance of discipline.  It would be about ‘re-instilling the habit of obedience’.  The focus is on using the Code of Service Discipline to correct the conduct-related deficiency so that the accused may resume being a productive member of the CF.

But is that the focus when a General Officer is alleged to have demonstrated a conduct-related deficiency?  If bad behaviour is demonstrated by a senior and experienced officer, is the focus on ‘re-instilling the habit of obedience’?  Or is the focus on determining whether that officer ought to be in that ‘command position’?

The Code of Service Discipline inherently draws distinctions based upon rank.  Officers above the rank of Lieutenant-Colonel (or the naval rank of Commander) may only be tried by court martial.  The prescribed presiding officers for summary trials of Officers and very senior NCM are different than those for personnel below the rank of Warrant Officer.  The powers of punishment of these different presiding officers differ.

The same misconduct exhibited by a young and junior NCM and by an older, experienced General Officer can take on a different nature because of that difference in rank and experience.  If a corporal demonstrates poor judgement in his or her conduct that is prejudicial to good order and to discipline, that could be grounds for a minor punishment as corrective action.  If a General Officer demonstrates poor judgment that is prejudicial to good order and to discipline, the impact is different.  Therefore, the nature of the response is different.  What warrants the brief but blunt recourse under the Code of Service Discipline for a junior NCM, might warrant more significant career action for a General Officer.

However, I hasten to add that, as a general rule, the statutory decision – whether under the Code of Service Discipline for the corporal or the removal from command of the General Officer – must be procedurally fair, reasonable, and consistent with the applicable legislative or policy regime.  It cannot be based arbitrarily upon a mere allegation or suspicion.

Jon Vance is no longer CDS.  He is no longer a member of the CF.  And, while it may be practically impossible to prosecute him under the Code of Service Discipline for the a service offence under section 129 of the NDA, he isn’t the only CF member not to be prosecuted under the Code of Service Discipline for alleged misconduct.  His circumstances are just more notorious.

There have been numerous officers and NCM who have been subject to significant administrative action, up to and including compulsory release from the CF, for alleged misconduct.  And many of those personnel were never charged under the Code of Service Discipline, even though there were not the same barriers to prosecution as there may have been for General Vance.

But, unlike a corporal, sergeant, or captain, who has faced compulsory release from the CF following an Administrative Review, Jon Vance has already retired.[21]

And this, I suggest, is the true source of frustration and outrage expressed by some people.  Jon Vance is ‘beyond reach’ of the processes that are often used to punish such ‘misconduct’, regardless of the rank of the CF member – and those processes are administrative, not the Code of Service Discipline.

He cannot be fired because he’s already retired.  Harjit Sajjan had an opportunity back in 2018 to deal with (purportedly different) allegations against Vance but chose to turn a blind eye and deaf ear: What could the Minister of National Defence have investigated?  And The DND/CF Ombudsman appeared overly focussed on trying to proceed in an anonymous manner.  Moreover, the DND/CF Ombudsman does not have a mandate to investigate allegations of disciplinary misconduct.  And, despite the calls by some that the Ombudsman should be given such powers or such a role, across various industries, Ombudsmen are not typically assigned the role to conduct disciplinary investigations.

 

Conclusion

Some people want their pound of flesh because they now view Jon Vance as ‘unfit’ to lead the CF.  But he is no longer leading the CF.  Some people might now view Vance as having demonstrated professional deficiencies, bad judgment, and poor character.  Those are not typically grounds for prosecution under the Code of Service Discipline.  They are often cited in the application of ‘Remedial Measures’ under DAOD 5019-4 or more significant administrative action.  They might be cited as ‘grounds’ to justify removing a General Officer from a particular position.  However, even though the CDS technically serves ‘at pleasure’, it is too late for the Governor in Council to remove Jon Vance from a position from which he has already retired.

And, whether people might be willing to admit it or not, I suggest that the inability to remove Jon Vance from the position of CDS is the true source of people’s outrage.  His alleged consensual affair with Kellie Brennan, if true, did not constitute sexual misconduct.  The fact that he may have fathered one of her children did not constitute a criminal or Code of Service Discipline offence.  His alleged infidelity did not constitute a criminal or Code of Service Discipline offence.

Might some people conclude that he lacks, or lacked, the morale authority to exercise control and administration of the CF pursuant to section 18 of the NDA?  I suspect so.  Might some people conclude that his ‘championing’ of Op HONOUR was hypocritical?  Again, quite possibly.  Could that be justification for removing him from the position of CDS?  Well, here’s the bad news folks: that’s irrelevant.  Jon Vance is no longer CDS.  And even if his conduct represented an objective and reasonable justification to remove him from that position (notwithstanding that it is essentially an ‘at pleasure appointment’), the time has passed for such a decision.

And punishing any other General Officer or Flag Officer – or, indeed, any CF member – because people are outraged by Jon Vance’s alleged conduct is as unreasonable as denying a corporal, a sergeant, or a captain procedural fairness and objectively reasonable adjudication of relevant facts in any statutory process affecting them.

 

[1] Mercedes Stephenson , Marc-André Cossette, and Amanda Connolly, “Vance will not face military service charges; source cites his four-star rank” (15 September 2021), online: Global News <https://globalnews.ca/news/8192806/canadian-forces-sexual-misconduct-class-action-deadline/>.

[2] Mercedes Stephenson, Marc-André Cossette, and Amanda Connolly, “Vance is 99% match with child born after he said Brennan relationship ended: paternity test”, (16 September 2021), online: Global News <https://globalnews.ca/news/8195276/canadian-forces-sexual-misconduct-crisis-jonathan-vance/>.

[3] Although such a prosecution under the Code of Service Discipline could, potentially, lead to a criminal record: National Defence Act, RSC 1985, c N-5 [NDA], s 249.27.

[4] NDA, id, para 60(1)(a).

[5] Id, s 60(2).

[6] Id, s 9.

[7] Id, s 165.21.

[8] Id, s 165.1.

[9] Id, s 18.3.

[10] Id, s 18.1.

[11] Id, s 9.2.

[12] Id, s 165.11; s 165.15.

[13] Id, para 164(1)(a) and QR&O art 108.12.

[14] Id, s 165.193.

[15] QR&O art 107.03.

[16] NDA, n 3, s 14.

[17] See, for example, R v Stillman, 2019 SCC 40; R v Moriarity, 2015 SCC 55; R v Généreux, [1992] 1 SCR 259.

[18] DAOD 5019-4 Remedial Measures.

[19] DAOD 5019-2 Administrative Review.

[20] QR&O Chapter 15.

[21] And the timing of the ‘complaint’ by Kellie Brennan is a relevant factor.