Why is Lieutenant-General Whelan being court martialed?

 

There are a lot of questions arising from Lieutenant-General (LGen) Steve Whelan’s Standing Court Martial (SCM), and very few answers have been forthcoming.

Perhaps the key initial question is: why is he being prosecuted by court martial?

And I do not ask that question in terms of jurisdiction.  It is trite law that a General Officer charged with a Code of Service Discipline offence can only be prosecuted by court martial.

Why is he being prosecuted at all?

There are other questions arising from this matter, and I pose them below.  And I am not in a position to answer many of them.  But let’s first turn to this initial question – because I do have a theory regarding that issue.

First, let’s be clear about the charge that LGen Whelan faces.  Notwithstanding the continued efforts by certain news reporters to mischaracterize this matter, it does not concern sexual misconduct.

LGen Whelan is charged under section 129 of the National Defence Act (NDA) with allegedly improperly influencing a subordinate’s annual Personal Evaluation Report (PER) when he was a colonel and the subordinate was a sergeant.  That’s it.  And no amount of mental contortion or disingenuous rationalization will alter that charge to one of sexual misconduct.

At the outset of the SCM, which commenced 25 September 2023, LGen Whelan faced two charges under s 129 of the NDA.  The other charge alleged that he sent improper emails to a subordinate.  It is uncertain if that charge could have been characterized as sexual misconduct.  It certainly wasn’t sexual assault.  And it’s largely irrelevant since that charge was unconditionally withdrawn by the Director of Military Prosecutions (DMP) at the outset of the SCM.

So, LGen Whelan stands accused of improperly influencing a PER.

And for those who might be inclined to raise allegations of improper conduct based upon snippets of information described in recent reporting on the SCM, I will say this: the offence of a conduct (or an act, or neglect) to the prejudice of good order and discipline under section 129 of the NDA can capture a broad range of alleged misconduct.  Such charges may be laid where a CF member fails to comply with “… any regulations, orders or instructions published for the general information and guidance of the Canadian Forces or any part thereof …” or “… any general, garrison, unit, station, standing, local or other orders …”.  Even if the prosecution does not have evidence of contravention of a specific order, directive, instruction, etc., it is still open to them to prove that an impugned act (or conduct, or disorder, or omission, or neglect) was prejudicial to good order and discipline of the CF.

My response to a suggestion along the lines of “… but he was clearly doing something sketchy …” is this: if the Canadian Forces National Investigation Service (CFNIS) had obtained sufficient evidence of wrong-doing over the course of their several months-long investigation, then they could have laid the relevant charge, and DMP could have preferred that charge for court martial.

But the charge before LGen Whelan’s SCM is a charge under section 129 of the NDA for allegedly improperly influencing a subordinate’s PER.  And no amount of “what if” or “what about” will alter that fact.

And I want to offer a brief tangential observation regarding the decision-making relating to this prosecution.  In my commentary below, I mention DMP from time to time.  It is clear that DMP is not personally prosecuting this matter.  The lead prosecutor is Major Max Reede.  It is Major Reede who has faced some of the pointed questions from the presiding military judge, Commander (Cdr) Martin Pelletier.  And it is Major Reede, and his “second chair”, Major Aurelie Huyquart, who are responsible for the preparation and conduct of this prosecution.

But charges for courts martial under the Code of Service Discipline are preferred by DMP (NDA, s 165).  DMP may be assisted by other barristers and advocates (NDA, s 165.15).  And that is precisely what Major Reede and Major Huyquart are doing.  But they are doing so in the name of DMP.  DMP is the statutory decision-maker.  When prosecutorial discretion is wielded, it is in DMP’s name.

We don’t know the extent to which DMP has personally reviewed this specific matter or been involved in any decision-making relating to this matter, and we probably never will.  It is a high-profile matter and I am certain that people will draw their own conclusions, regardless of the extent to which such conclusions are supported by reliable evidence.  What I conclude is that DMP is the office holder in whom Parliament, through the NDA. Has vested the relevant discretion.  The manner in which his subordinates exercise that discretion in his name is between him and his subordinates.

 

Charge Relating to PER Influence

Within the scope of my experience and knowledge, this is the first time that I have encountered a charge under the Code of Service Discipline for such an allegation.  It doesn’t mean that such allegations are not made.  It doesn’t mean that this doesn’t happen.  And it doesn’t mean that such actions are not adverse to the discipline, efficiency, and morale of the Canadian Forces (CF).

I’m simply stating that Code of Service Discipline charges for such allegations are particularly uncommon.  They are so uncommon – “rare” might be a more appropriate description – that we should be asking why this matter proceeded to court martial.

If we were to conduct a survey of the CF and veterans – and God knows, the CF and the Department of National Defence (DND) love to spend thousands and thousands of dollars on surveys of information that is difficult to verify – asking how many of the respondents believe that they have, at least once in their career, experienced a circumstance in which one or more people in their chain of command improperly influenced their PER scoring or ranking, I suspect that more than half the respondents would likely reply in the affirmative.  Many would likely assert that it happened more than once.  Heck, I’d bet my pension under the Canadian Forces Superannuation Act for the past year that such a result would arise.

And, again, that doesn’t mean that it’s OK that such ‘PER manipulation’ happens – but it does make this charge unique.

And, by way of full disclosure, something similar happened to me.  When I was a major in the Office of the Judge Advocate General (OJAG), several senior officers in the OJAG – none of whom were my direct supervisor – directed that the PER scoring and assessment prepared by my actual supervisor should be downgraded, significantly.  To put things in perspective, we’re talking about a score that lowered me from 4^th to 22^nd in the ranking with my peers.  We’re talking about a PER that would have removed me from competition for selection for promotion.

I say “would have” because I did what most people do when their chain of command starts playing silly ‘reindeer games’ with their PER – I grieved it.

Fortunately, unlike many CF personnel who grieve such misfeasance, I was successful.  I had a couple of factors on my side.  First, I was not only a legal officer, but I was a legal officer with fairly robust experience with the CF grievance process.  Ironically, during the reporting period addressed by the impugned PER I had completed my LLM in public and administrative law and my dissertation (for which I receive a grade of distinction) concerned the CF grievance process.  Second, my supervisor was willing to provide evidence to corroborate my argument in my grievance.  (He was circumspect with what he provided, but it was sufficient to make my point.)

As I say, I was successful with my grievance where many CF personnel are not.  Many of them fail because it is ultimately their word against their chain of command.  And if the chain of command meticulously “papers the file”, even if it is done disingenuously, the final authority (FA) in the CF grievance process is not going to quash an impugned PER simply because the grievor argues that he or she deserves a better score, narrative, or ranking.  And, for similar reasons, the Military Grievance External Review Committee (MGERC) is unlikely to side with the grievor; so, the grievor likely will not receive a favourable outcome from the MEGREC’s non-binding recommendations to the FA.

Ultimately, it would be very difficult for a CF member, whose PER was subject to so-called “high score controls” (whether those “high score controls” are part of formal PER direction, or much less formal and specious manipulation), to contest improper meddling in their PER.  Most CF members have a very difficult time obtaining sufficient evidence to support their claims, at least, to the point that a grievance adjudicative authority accepts such evidence.  (I also find it amusing – in a dark way – that the so-called “balance of probabilities” by which such determinations are made seems to be a very permissive threshold when a CF decision-maker wants to take adverse action against a subordinate, but it seems to be a markedly higher threshold when it is being applied to allegations by a grievor that his or her chain of command acted improperly.)

A CF member could request information under the Privacy Act and Access to Information Act.  That will likely take six months, or a year, or longer, and the information that is eventually disclosed will likely be sparse (since misfeasance by senior members of the CF is often not reduced to writing in permanent records) and will likely be heavily redacted.

The Canadian Forces National Investigation Service (CFNIS) has much more significant powers of inquiry than a junior CF member, but it is unlikely that a CFNIS investigation (or a common-or-garden-variety Military Police (MP) investigation) will be initiated because Corporal Bloggins says that Major Smith or Lieutenant-Colonel Jones improperly manipulated his PER.

Besides, if every allegation of PER manipulation were subject to an MP investigation, there would be even greater delay for MP investigations than there is now.  And that is saying something!  And remember, one of the reasons why the CF chain of command and DMP did not proceed with charges against CF personnel who refused the COVID-19 vaccination (despite the fact that there is a specific Code of Service Discipline offence to address that precise issue) was that the military justice system would have crumbled under the weight of a thousand courts martial.  And there are at least a couple of reasons why they did not proceed with any ‘representative’ charges in the context of vaccination against COVID-19.  First, they likely feared being accused of selective prosecution.  After all, how do you choose which CF members to prosecute?  But, more significantly, I suspect that they did not want to risk the applications under the Canadian Charter of Rights and Freedoms (Charter) that would inevitably have arisen.

Instead, they proceeded with coercive and punitive administrative measures as a disingenuous substitute for the Code of Service Discipline.  And, as with grievances relating to PER manipulation, many of the CF personnel affected by the Chief of the Defence Staff’s directives and decisions regarding COVID-19 vaccination submitted grievances relating to those acts and decisions in the administration of the affairs of the CF.  And the Findings and Recommendations from the MGERC on that issue were less-than flattering.

So, why then, is LGen Whelan being prosecuted for something that is typically left to the grievance process?

 

Why is this a Code of Service Discipline proceeding?

The allegation against LGen Whelan appears to have been raised, for the first time, almost a decade after the alleged incident.  At this point in time, we have no information whether the complainant grieved the PER in question – although it appears that she did not.  And a grievance submitted ten years after the impugned act or decision in the administration of the affairs of the CF would be well outside the relevant limitation period (which was six months at the time of the alleged misfeasance and was three months when the complaint was made – art 7.06 of the QR&O).

However, grievances can be submitted outside this limitation period provided that the grievor offers a sufficient explanation for the delay.  Past practice tends to indicate that the threshold to justify delay in a grievance is not unduly high.  After all, CF decision-makers these days would rather accept the grievance and then determine that the member was not aggrieved and decline to offer any remedy, rather than have the matter litigated before the Federal Court without the benefit of the “mulligan” offered by the grievance process.

I contend that LGen Whelan is being prosecuted because select CF decision-makers felt that it would be too embarrassing not to prosecute him.

How’s that working out?

When the news of the investigation against LGen Whelan leaked, he, like select other General Officers and Flag Officers (GOFO), who were not accused of sexual assault, were grouped with GOFO who were accused of sexual assault in what was characterized as an ever-growing scandal involving GOFO.

It didn’t matter than many of the allegations related to periods of time when they were not GOFO.  It didn’t matter that many of the allegations did not pertain to sexual assault.  Heck, it didn’t matter that some of the GOFO were never charged, and, in one or two cases, were not even accused of any actual offences. It was grist for the mill.

When the news of the investigation against LGen Whelan was leaked, there was a great deal that we, the public, did not know.  We did not know what the specific allegations were – although there were suggestions that it involved sexual misconduct.  We also didn’t know who leaked that information – and we still don’t.  But we do know that the Chief of the Defence Staff (CDS), General Wayne Eyre, acted decisively.  We were told that LGen Whelan “stepped aside” from his position as Chief Military Personnel (CMP).  It’s a safe bet that he was told to either step aside or he would be removed (in the same vague manner that other GOFO had been removed).

Notwithstanding that several GOFO either “stepped aside” or were “suspended”, it appears that General Eyre did not actually relieve any of them from performance of military duty under art 19.75 or art 101.09 of the Queen’s Regulations and Orders for the Canadian Forces (QR&O), even though those provisions exist for that express purpose.  But action was taken, albeit in a manner that left the legal basis vague and imprecise.

What we can say, with confidence, is that the CF chain of command and the national news media made a “BIG DEAL” out of LGen Whelan’s removal … or … suspension … or … whatever it was.  It was public.  Coverage was national in scope.  And it was certainly adverse to LGen Whelan’s interests.  And it was done two years ago.

Then, nine months later, on 20 July 2022, the CFNIS finally got around to charging LGen Whelan with two counts under section 129 of the NDA.  And remember, the investigation had commenced earlier than October 2021.  This is characteristic of the pre-charge delay that alarmed Justice Richardson in R v Harrison, 2023 ONCJ 392.  In the news release by the Canadian Forces Provost Marshal (CFPM), the military police alleged that “… the matter relate[d] to an inappropriate relationship with a subordinate.”  We now know that one of the charges – the only charge remaining before the SCM – is not an allegation of an “inappropriate relationship” with a subordinate.

In fact, the CF order that concerns proscriptions regarding interpersonal relationships between CF personnel – Defence Administrative Order and Directive (DAOD) 5019-1 Personal Relationships and Fraternization – does not use the term “inappropriate relationship” to describe prohibited relationships or circumstances.  Instead, the proper term of art is “adverse personal relationship”.  And, as Cdr Pelletier, the military judge presiding over LGen Whelan’s SCM, has consistently reminded those observing the court martial: the prohibitions concerning relationships between CF personnel are quite specific and concern a fairly narrow scope of circumstances.  And the charge before him does not allege an “adverse personal relationship” and is not predicated upon proving that such a relationship existed.

And it is important that we remember that factor (which may be one of the reasons why Cdr Pelletier keeps reminding people of it): LGen Whelan is not being prosecuted for an “adverse personal relationship” or, indeed, for any kind of relationship.  Nor is he being prosecuted for sexual misconduct.  He is being prosecuted for allegedly interfering with a subordinate’s PER for an improper purpose.

And that prosecution is not going well.

 

Prosecutorial Discretion

After so many stakeholders – particularly the chain of command and select reporters for national news media platforms – made such a big deal about the allegations against LGen Whelan, I contend that the key decision-makers feared the backlash that might arise if they did not proceed with the prosecution.

But fear of news media backlash is not one of the key factors in the exercise of prosecutorial discretion.  At least, according to the relevant law and policy, it shouldn’t be.

There are two key factors: (1) is the prosecution in the public interest; and, (2) is there a reasonable prospect of conviction?  (See, in particular, paras 30 to 40 of the DMP Policy Directive # 002/00 – Pre-Charge Screening and paras 33 to 55 of DMP Policy Directive # 003/00 – Post-Charge Review).

And, frankly, based upon what we have observed thus far, I have my doubts about whether a reasonable person could have answered yes to either of these questions, let alone both.

I have already alluded to a key factor regarding the first question.  Sometimes CF supervisors incorporate improper high-score controls or other irrelevant factors when administering PERs for subordinates.  And I suggest that sometimes supervisors can maliciously deflate PER evaluations for subordinates they don’t like, or for any of a number of other petty reasons.  Often CF subordinates grieve such acts and decisions.  Sometimes the grievances are successful.  Often, they are not.  However, those circumstances have not led to CFNIS investigations and have certainly not led to Code of Service Discipline Charges.  So why did this allegation lead to a Code of Service Discipline Charge and, eventually, preferral of charges for court martial?

Was it because the complainant alleged that it should be characterized as sexual misconduct?  Was it because of the national news media feeding frenzy concerning allegations against GOFO, regardless of the nature or merit of the allegations?  Was it because key statutory decision-makers and actors feared vilification by certain news media platforms if they exercised their duties, powers, and functions in a reasonable manner?

Why was this prosecution in the public interest, when other examples of PER manipulation purportedly did not even merit a disciplinary investigation, let alone a charge?

Consider the following “public interest criteria” listed at para 40 of DMP Policy Directive # 003/00:

• the effect on the maintenance of good order and discipline in the CAF, including the likely impact, if any, on military operations;
• the seriousness or triviality of the alleged offence;
• the degree of staleness of the alleged offence;
• the accused’s alleged degree of responsibility for the offence;
• the likely effect on public confidence in military discipline or the administration of military justice;
• whether preferring a charge would be perceived as counter-productive, for example, by bringing the administration of justice into disrepute;
• the availability and appropriateness of alternatives to preferring a charge;
• whether the consequences of preferring a charge would be disproportionately harsh or oppressive, especially considering how other persons implicated in the offence or previous similar cases have been or likely will be dealt with; and
• whether the alleged offence is of considerable public concern.

 

In particular, consider what we have seen arising in the current SCM pertaining to LGen Whelan and ask yourself this: Does this instill confidence in the Code of Service Discipline?  Or does it bring the administration of military justice into disrepute?

And upon what evidence were the charge layers and prosecutors acting?  Because Colonel Ubbens, the first witness called by the military prosecutors representing DMP, testified that the score on the impugned PER was warranted and that LGen Whelan did not participate in the preparation of the PER.  It was only after he presented the PER to the complainant that the complainant purportedly told Colonel Ubbens about allegedly inappropriate emails from LGen Whelan.  Colonel Ubbens testified that the complainant threatened to show the emails to a senior commander unless her score was improved.

Based upon the case presented by military prosecutors thus far, if LGen Whelan did, in fact, influence the complainant’s PER, it was to improve the PER so that the complainant would cease to threaten LGen Whelan with prior, embarrassing email communication.

I readily acknowledge that I do not have access to the investigative file upon which the charge is predicated.  However, I assume that the military prosecutors have presented all of the evidence to which they had access and which they believe establishes the extent to which LGen Whelan influenced the complainant’s PER.  Granted, there are a series of emails, which purportedly arose well before the impugned PER was ever drafted, and which do not appear to have anything to do, directly, with that PER.  The presiding military judge, Cdr Pelletier, barred the military prosecutors from presenting those emails.  So, we will likely never know their contents.  But we can be reasonably confident that they were not relevant to the charge before the court martial.  Otherwise, Cdr Pelletier would have permitted those emails to be presented as evidence.

The military prosecutors have presented all their evidence.  The sole remaining step in the prosecution’s case is the cross-examination of the complainant by LGen Whelan’s defence counsel.  After that, the prosecution’s evidence will be complete, and the Defence will be permitted to present evidence of their own.

And, frankly, just as I have difficulty understanding how DMP and his prosecutors concluded that they had a reasonable prospect of conviction for this charge, I have difficulty concluding that military prosecutors have even presented a prima facie case for adjudication by the military judge.

 

Likely Outcome

Acknowledging that the SCM is not yet complete, I will describe what I anticipate may arise this coming week:

1. First, in light of the weakness of the case presented by DMP, it is possible that military prosecutors will withdraw the charge when the SCM resumes. If they do so, it will be in consultation with the complainant.  They may do so in order to save the complainant the ordeal of cross-examination in support of a case that will not result in a finding of guilt.  If they do withdraw the charge, I doubt very much that they will offer much of an explanation, and they certainly won’t acknowledge that it was an ill-conceived prosecution from the outset.  However, this outcome is very much a possibility since the merit of the case against LGen Whelan will only deteriorate further once the Defence starts to present their evidence.

 

2. Even if the military prosecutors continue, and LGen Whelan’s counsel cross-examines the complainant, it is possible that the Defence will, at the close of DMP’s case, bring an application of “no prima facie case”. Such an application may be brought where the Defence asserts that, even if the evidence presented by DMP is believed, the evidence still does not establish all elements of the offence charged.  And, thus far, based upon what I have observed, the military prosecutors have not presented any evidence that, even if it is believed, LGen Whelan improperly influenced the complainant’s PER.  [That said, other than the news media reporting of this court martial, I have attended most of the proceeding “virtually”.  Unfortunately, the quality of the audio varied markedly, and I do not have the benefit of a full transcript.  So, I fully acknowledge that I may have missed portions of important testimony.]

 

3. Finally, even if the military prosecutors proceed with the prosecution, and the Defence either does not bring a “no prima facie case” application, or is unsuccessful with such an application, based upon the evidence that has been presented this far, I would be surprised – frankly, I would be shocked – if LGen Whelan were found guilty.

 

I contend that this charge should never have been the subject of a court martial.  I contend that it would have been difficult to conclude that such a prosecution was in the public interest and that there was a reasonable prospect of conviction.  I contend that the principal reason why this matter is being prosecuted is because the key decision-makers involved were afraid to resile from a prosecution built on weak evidence and a weak theory.  And I contend that they did so principally out of fear of what would be said and written by the national news media if they did so.

And that isn’t a good enough reason when statutory decision-makers wield such significant powers.

The purpose of the two-part test regarding the exercise of prosecutorial is to ensure that the exercise of such significant and coercive statutory powers does not unreasonably and unnecessarily disrupt people’s lives.  It is no small thing to charge a person with a Code of Service Discipline offence, particularly when it is done in such a publicly notorious fashion and when it precipitates other administrative outcomes.

Prosecutions are often necessary.  It is also no small thing when someone is a victim of misconduct.  And when people are victims of misconduct, statutory actors such as investigators and prosecutors owe a duty, first and foremost to the administration of justice, to ensure that they perform their duties, powers, and functions appropriately.

And investigators and prosecutors are given a degree of independence in order to ensure that those duties, powers, and functions are exercised reasonably in support of the administration of justice.

But based upon what I have observed in the LGen Whelan SCM, that is not what has arisen.

 

More Questions

Part of the problem here is that difficult questions are not being asked.  There has been such a myopic focus on “sexual misconduct” that people – including the national news media – are ignoring other matters that are just as important.  And so that my point is not lost, I am not suggesting that investigating allegations of sexual misconduct and taking appropriate actions based upon that evidence is not important.  But just as important is scrutinizing how those investigations are conducted, how those subsequent steps are taken, and why.

If a senior officer improperly manipulates a subordinate’s PER, there should be consequences.  The subordinate’s PER should be corrected to reflect the proper score and assessment.  And misfeasance by a superior should invite some form of remedial action.  But if the chain of command, up to the CDS, is not going to do it where such misfeasance is identified in a grievance, then we should know why.  And we should know why this one instance warranted action under the Code of Service Discipline, while so many others did not.

And while the manipulation of an individual’s PER will be an important issue for that subordinate and the subordinate’s supervisor, I think it is reasonable to suggest that most of us – whether we are members of the CF, members of the veteran community, or the Canadian public at large – should be very concerned when elements of military police investigations are leaked to the news media.

And no one seems to be asking many questions in relation to those leaks.  Certainly, I can understand why the news media platforms that have benefitted from such leaks may not wish to probe too deeply into that issue.  But I would have thought that the CF and DND would have been concerned.  I would have thought that the Canadian public would be concerned that people are leaking the contents of ongoing military police investigations.

And if you aren’t concerned about such leaks … if you think that such leaks are acceptable … then let me ask you this: what if you were the subject of that investigation, and the leak adversely affected your rights, privileges, and interests?  That tends to change the dynamic a wee bit, doesn’t it?

And we have heard that certain people – and one person in particular – wanted the nature of the investigations to be made public before they were completed.  We have been told that the Judge Advocate General (JAG) and the Canadian Forces Provost Marshal (CFPM) were opposed to that course of action.  And we know that, eventually, the decision was made not to make that information public at that time.  And, finally, we know that there were subsequently leaks of those investigations.

I’ll let you draw your own conclusions.

One thing is for certain: all the relevant information about those leaks has not been made public, largely because there appears to have been little or no effort to delve into how and why those leaks arose.

What is certain is that, thus far, there have been zero – ZERO – convictions relating to the various allegations against GOFO that have been grouped in the “sexual misconduct” reporting.

And, frankly, that isn’t surprising.  Some of those allegations did not lead to any charges (but they certainly led to ‘trial by media’, which is hardly a shining example of the rule of law).  General Jonathan Vance (retired) pled guilty to one count of “obstruct justice”, but he received a discharge under section 730 of the Criminal Code and was, therefore, not convicted.

I anticipate that the outcome of the SCM brought to try the charge against LGen Whelan will, like the prosecution of MGen Fortin, result in an acquittal.

We’ll see if the remaining matters involving GOFO are affected by delay.  Certainly, as we saw in the referral of criminal charges to the civilian criminal justice system in R v Harrison, 2023 ONCJ 392, problematic decision-making is not limited to charges concerning GOFO.

Therefore, in addition to asking about the unexplained leaks of military police investigations, I suggest that it is also time for people to start asking the difficult questions of the statutory decision-makers who are responsible for these problematic decisions.