What can we learn from the recent prosecutions of GOFO?

23 September 2024

 

With the acquittal of Vice Admiral (VAdm) Edmundson[1] on Monday, 16 September 2024, it is inevitable that some people will question why prosecutions of select General Officers and Flag Officers (GOFO) were pursued in the first place.  Some may suggest that the absence of any convictions is indicative that the prosecutions were improper.  Ultimately, many people may be looking for lessons that can be learned from the ordeal that the Canadian Forces (CF) has endured over the past 5 years or so.

There may be a tendency for some to declaim that the “0 for 5” record[2] in prosecutions of GOFO is indicative that charges never should have been laid.  I suggest that it would be a marked over-simplification to conclude that the acquittals necessarily indicate that the prosecutions were improper or illegitimate.  To be blunt, there can tend to be an over-simplification of issues arising from these matters.  We must remember that, in some of the more notorious matters, the evidence was never tested in court.

The recent acquittal of VAdm Edmundson has undoubtedly precipitated some reflection on both his specific case, as well as on the handling of allegations against GOFO over the past few years.  While I would like to offer specific analysis on the Edmundson acquittal, I prefer to do so with the benefit of the entire published judgment, rather than rely on the snippets offered by the news media last week.  As of the date of this Blog post, the full judgment of Justice Matthew Webber, who presided over the Edmundson trial, has not yet been posted to a public platform such as CanLII.  When, and if, the judgment is published, I will turn my attention to those specific details.

In the meantime, I will examine some of the broader lessons that might be gleaned from the past five years.

I propose to address the following issues:

1. The impact of the Class Action on Sexual Misconduct in the Canadian Forces;
2. The impact of the leaks of military police investigations;
3. The impact of missteps or chicanery by the military police;
4. The impact of prosecutorial missteps; and
5. The role of the news media.

 

Some Initial Observations

There is some utility in offering a brief summary of the specific prosecutions that we will discuss, and I will offer a couple of observations regarding the potential to rush to conclusions about the significance of various acquittals.

First, an examination of the shortcomings arising in each of the prosecutions of GOFO is warranted, and elements of those matters factor in the analysis offered below.  I have previously offered analysis for individual matters when each was concluded.  However, it would be imprudent to rush to conclusions, in the absence of supporting data or evidence, based solely upon a single commonality of outcome.  And this is particularly true where the outcomes were based upon differing factors.  It could be misleading to conclude that in all such matters the evidence did not support bringing charges in these matters.

The criminal burden of proof represents a robust threshold, and for good reason.  An oft-cited adage in our criminal justice system is that “… it is better that ten guilty parties go free than for one innocent person to be punished …” or words to that effect.  Ideally, it would be better for all guilty persons to be found guilty and punished in a manner commensurate with their wrong-doing and for all persons who are not guilty of offences to avoid punishment.  But we do not live in a perfect world.

An acquittal does not necessarily mean that the evidence was not sufficient to warrant charges or a prosecution.  The threshold for a “reasonable prospect of conviction” is markedly lower than the criminal burden of proof of “beyond a reasonable doubt”.  An acquittal is not determinative, or even indicative, that a prosecution was improper.  This is particularly true where a prosecution is stayed for delay or another jurisdictional element, before substantive evidence is even tested.

I have previously described circumstances in which CF statutory decision-makers have taken significant action outside the Code of Service Discipline or the criminal justice process – so-called ‘administrative action’ – when evidence was apparently insufficient even to reach the threshold of a ‘reasonable prospect of conviction’.  Often, these were in less notorious circumstances involving much more junior personnel.  And I repeat the observation that we ought to question why CF statutory decision-makers believe that there is sufficient evidence to warrant so-called administrative action for alleged wrong-doing, when they haven’t the courage or wherewithal to lay charges for, and prosecute, such allegations.

 

The Five Proceedings

Five GOFO faced charges either in the civil criminal justice system or under the Code of Service Discipline.  None were convicted.

General Jonathan Vance faced prosecution before a civil court of criminal jurisdiction for the criminal offence of obstructing justice (Criminal Code, s 139).  He pled guilty as part of a negotiated resolution and joint submission and received a conditional discharge.  He was therefore, found guilty, but not convicted.  And he was not charged with, or prosecuted for, anything that constituted “sexual misconduct”.

MGen Dany Fortin was charged with an historical sexual assault[3] that purportedly arose at Royal Military College St-Jean (Collège militaire royal du St-Jean) in 1988 when he, and the complainant, were Officer Cadets (OCdt).  The presiding judge held that the complainant’s identification of MGen Fortin was unreliable due to several inconsistencies in her testimony.  While the judge accepted that the complainant was sexually assaulted by someone, he held that it wasn’t Dany Fortin.

LGen Trevor Cadieu was charged – and may potentially have been tried jointly with a co-accused – for an historic allegation of sexual assault.  As with MGen Fortin, the allegations dated back to a period when he was an OCdt (in 1994 or 1995).  Due to unreasonable delay, the prosecution before a civil court of criminal jurisdiction was stayed under s 11b of the Canadian Charter of Rights and Freedoms (Charter).

LGen Steve Whelan was charged with two counts contrary to section 129 of the National Defence Act (NDA).  LGen Whelan was the sole GOFO charged and tried under the Code of Service Discipline.  One of the charges was withdrawn at the start of the court martial.  The second was withdrawn a week later, after initial testimony had been offered.  It was a problematic prosecution.

VAdm Haydn Edmundson was charged with an historical sexual assault dating from 1991 and tried before a civil court of criminal jurisdiction.  Inconsistencies in the evidence presented against VAdm Edmundson led to an acquittal.

 

However, one should remember that GOFO were not the only CF personnel accused of sexual misconduct and tried before civil courts of criminal jurisdiction or courts martial over the last 5 years.  And I suggest that we can lose sight of important issues if we focus solely on the GOFO.  Numerous more junior personnel faced such allegations.  Note, too, that some of the allegations against GOFO were alleged to have occurred when they were quite junior, or, at the very least, not yet GOFO.

And, while some of the more junior personnel accused of sexual misconduct faced trials – either before civil courts of criminal jurisdiction or courts martial – a great many did not.  Instead, they were subject to so-called ‘administrative action’ which fettered their ability to test the evidence against them or to make full answer and defence.  And the adjudications of such allegations were manifestly not before an independent and impartial decision-maker.

And many of those junior personnel, who frequently faced compulsory release from the CF as a result of the allegations, did not have sufficiently lengthy service that they would receive an immediate and unreduced annuity under the Canadian Forces Superannuation Act when their careers were suddenly terminated based upon those allegations.

 

The Impact of the Class Action on Sexual Misconduct

Most of the prosecutions of various GOFO appear to have been triggered by claims under the Class Action for Sexual Misconduct in the CF.  This is true of many allegations against other, more junior, personnel.  And, unlike the more notorious prosecutions of GOFO, some of those prosecutions did result in findings of guilt and convictions.  Other allegations resulted in acquittals.  And some allegations were never reduced to charges.  However, that did not stop CF statutory decision-makers from taking significant action against more junior personnel accused of such wrongdoing.  It was simply that such decision-making was not made after thorough testing of evidence before an independent and impartial decision-maker.

But we can safely conclude that many of the prosecutions that have grabbed the headlines over the past 5 years began as claims for the class action.  When such a claim was made, one of the first steps was to confirm whether or not the claimant had made a complaint to civilian or military police, which would have recorded information regarding the allegation(s).  Many of the complainants had not done so, and for a variety of reasons.  And many of the reasons for an absence of a prior complaint were understandable under the circumstances.  However, in order to process the claim, a complaint would need to be made, and an investigation conducted.

In some of those matters, the investigations could be characterized as cursory.  Not unlike insurance claims, it was necessary to have a police report, but the claims may not have triggered comprehensive investigations, particularly if the allegations were dated (as many were) and where there may have been barriers to comprehensive investigation.  However, some allegations, even if dated, prompted much more robust investigations, and some led to charges.

And the fact that a complaint was prompted by a claim under the Class Action does not reduce the legitimacy of the complaint or allegation.  An allegation of criminal wrongdoing, which appears valid on its face, warrants investigation regardless of what may have prompted the complainant to have come forward.

Where the alleged perpetrator was still serving in the CF, there may have been an incentive to pursue as robust an investigation as possible.  However, even if the alleged perpetrator was no longer serving, an investigation could well be warranted.  (Here, I suggest that some thought should likely have been given to whether the investigation was best carried out by a civilian law enforcement agency.)

That said, there remains an appearance that allegations against persons who were GOFO by the time the allegation was brought forward, were pursued more vigorously than others.  In the cases of MGen Fortin and LGen Cadieu, the allegations dated from the start of their careers as OCdt.  The allegations against VAdm Edmundson dated to 30 years before the charges were laid, long before he was a GOFO.

Undoubtedly, many people will perceive that these investigations and prosecutions were pursued, perhaps more vigorously than others, because of the standing of the accused at the time that they were charged.  Certainly, the news media were far more interested in these matters because of the ranks of the accused, even though the alleged wrongdoing did not purportedly arise when they held those ranks.

We do not actually know whether investigations against GOFO were pursued more vigorously than the allegations against others.  However, in light of how these allegations were handled (including the unwarranted leaks of information), and the destabilization of the senior leadership of the CF that ensued, I suggest that the members of the CF and the Canadian public more broadly, deserve to know whether there was greater emphasis placed on these investigations than others, and, if so, why.

And those answers should be derived from a proper inquiry – whether by the Military Police Complaints Commission, or another statutory body or under another statutory regime – and not simply be offered as public affairs ‘spin’ from the CF.

And this factor leads naturally into the next issue that I raise: the still unexplained leaks of military police investigations.

 

Impact of the Leaks of Military Police Investigations

I have previously commented – repeatedly – on the unexplained leaks of military police investigations.  And these leaks arose in relation to nearly all of the investigations of GOFO, including those who were not actually charged with any offences and who never had an opportunity to test the allegations against them before an independent and impartial decision-maker.  And, not only do we still have no explanation for those leaks, but there has also been no indication from any senior policymaker in National Defence of any desire to investigate this issue.

Leaks were reported regarding the allegations against MGen Fortin, LGen Whelan, VAdm Edmundson, and others.  These leaks precipitated administrative action against the subjects of the investigations or compelled them to step aside from their duties.  In some cases, such as that of MGen Fortin, the subject of the investigation learned of the investigation and the allegations from news media, rather than from the military police or the ‘chain of command’.

The unauthorized disclosure of an ongoing military police investigation is no small matter.  It can undermine the investigation.  It can adversely affect the rights, interests, and privileges of the subject of the investigation who, I am inclined to remind people, is presumed to be not guilty until guilt is proven beyond a reasonable doubt.  Leaks can also potentially adversely affect complainants and witnesses, depending upon the nature of the leaks.  That’s one of the reasons why police – whether military or civilian – upon interviewing a witness (which includes complainants and alleged victims), will typically caution the witness against discussing the matter with anyone.  And leaks can undermine the eventual process in which evidence is tested.

And yet we have heard nothing about any efforts to uncover the source and means of the leaks.  It almost as if there has been no effort to identify the source(s) and scope of the leaks, and no desire to do so.

And, from my perspective, the nature and timing of the leaks appears to have had a strategic character.  This wasn’t simply a case of an individual witness turning to the news media to try to instigate a ‘trial by media’ (though, that clearly did happen, and more than once).  There was a broad scope to the leaks, and significant details were provided.  The timing, scope, and nature of the information that appeared to have been leaked would suggest that it was from a source or sources that were well-placed to access such information and to provide such information with a high degree of ‘reliability’ for any reporter who relied upon the information.  And a cynical (or, perhaps, not-so-cynical) mind might infer specific intent behind these actions based upon the impact that the leaks had on the stability of the senior leadership of the CF.

I have my suspicions about the source or sources of the leaks, and I suspect others do as well.  But the women and men of the CF and the Canadian public deserve more than suspicion.  They deserve answers.  And those answers will only come from a thorough inquiry, conducted in an unfettered and relatively independent fashion.

 

Impact of Missteps and Chicanery by the Military Police

The military police have not covered themselves in glory in these matters.  I have observed previously that military police investigations into sexual assault have a history of shortcomings.  Many take several months to conclude, when comparable investigations from civilian police forces might take two or three weeks.  Even when one factors in some of the challenges that military police may face with geographic dispersion of potential witnesses, and operational priorities, there is little to justify investigations that take 9 to 12 months, or longer, to complete.  One of the few things as problematic as unreasonable delay in an investigation, is an investigation that is concluded too quickly because of a rush to judgment on the part of investigators and a failure to conduct an adequately thorough investigation.

But let’s look at specific failures in the recent matters that have been subject to particular notoriety.

R v Harrison, 2023 ONCJ 392 was a prosecution of a junior member of the CF.  It was not an historical claim, and it did not involve a GOFO as an accused.  However, it attained a degree of notoriety (albeit less than the prosecutions of GOFO).  And that notoriety permits a degree of public scrutiny.[4]  I have offered relevant commentary and analysis of that matter here and here.

This matter involved allegations that were investigated by the military police, and charges were initially laid under the Code of Service Discipline.  However, after considerable time had been spent in the military justice system, a decision was made to transfer the charges to the civilian criminal justice system.  The prosecution was eventually stayed due to delay.

In his judgment ordering the stay of prosecution, Justice Richardson, of the Ontario Court of Justice, observed the following regarding the initial investigative stages of the process:

[10]      Notwithstanding the complainant reported the incident on April 29, 2020, the military police investigated and conducted further interviews in August 2020.   A report regarding the DNA sample was apparently available as of October 16, 2020.

[11]      On March 29, 2021, exactly eleven months after her initial report, the military police charged Mr. Harrison with one count of sexual assault under section 130 of the National Defence Act.  How, and why, it took the Military Police eleven months to investigate this matter and commence the prosecution in the military system, would seem to be beyond belief.

[emphasis in original]

 

Justice Richardson expressed incredulity at the fact that the investigation took nearly a year.  He expressly highlighted the duration of the investigation, even though, technically, that pre-charge delay was not factored directly into the analysis under R v Jordan, 2016 SCC 27 for unreasonable delay in respect of s 11b of the Charter.  And I suggest that the source of his incredulity is that Justice Richardson is likely not familiar with the military justice system, where such delay is commonplace.  Military judges rarely express such concerns, because they are inured to such delay.  And, frankly, military judges should be more concerned about this shortcoming.

Some of the investigations of GOFO also took a long time to complete.  As noted above, the fact that certain GOFO were subject to military police investigations was leaked in early 2021.  When those leaks occurred, we were not told when the investigations had been commenced.  Based upon publicly available information, we know the following regarding the allegations against various GOFO:

MGen Fortin – The complaint against MGen Fortin was raised not later than February/March 2021.  The fact that allegations had been raised was leaked in May 2021.  MGen Fortin was charged in August 2021.  His trial commenced 19 September 2022.  These were, arguably, the charges that were laid with the least amount of delay.

LGen Cadieu – The initial complaint against LGen Cadieu was made on 4 September 2021.  He was charged 15 June 2022.  The application for the stay of prosecution was heard 5 September 2023.

LGen Whelan – The complaint was made against LGen Whelan not later than May 2021.  He stepped down from his position as Chief Military Personnel in October 2021.  He was not charged until July 2022.

VAdm Edmundson – The allegations against Edmundson were raised in early 2021.  He was charged in December 2021.

 

And remember: the investigations against these GOFO were very likely priorities for the Canadian Forces National Investigation Service.  Some of them were historic allegations, which can take longer to investigate than recent complaints (but which can still be concluded in a matter of weeks).  But the charges against Harrison were not historical allegations.  And the eleven months that the military police took to investigate, and eventually lay charges, was, I suggest, common for such investigations.  And they are not the hallmarks of an efficient, effective, or competent police force.

However, delay in laying charges is not the sole shortcoming depicted in these matters.  The prosecution of LGen Cadieu demonstrated what can arise when the military police are less than forthcoming with disclosure.

On 10 October 2023, Justice O’Brien of the Ontario Court of Justice stayed the prosecution of LGen Cadieu and a co-accused following an application by counsel for the two accused based upon unreasonable delay, contrary to s 11b of the Charter.  A significant portion of that delay was attributable to delay in disclosure.  Justice O’Brien’s judgment offered a detailed description of the delay in production of disclosure.

LGen Cadieu was first charged on 15 June 2022.  His co-accused was charged two days earlier.  Initially, the charges proceeded separately.  However, following various pre-trial conferences, the matters were joined, and a replacement information was sworn on 11 April 2023.

Before this occurred, issues had arisen regarding delays in disclosure.  Although the charges were laid in mid-June 2022, initial disclosure was not provided until 16 November, 5 months after the charges were laid.

When the stay of prosecution was announced, the Canadian Forces Provost Marshal (CFPM) tried to lay the blame at the feet of the civilian prosecutor.  What the CFPM did not mention when doing so was that there were delays by the military police in providing supplementary disclosure.

The complainant had been interviewed a total of three times by the military police.  These interviews were conducted on 4 September 2021, 19 October 2021, and 30 March 2022.  In other words, all of the statements predated the charges.

The initial disclosure that was given to the Crown, and then to defence counsel, only included the complainant’s first statement.  The second statement was only provided to the defence on 17 February 2023.  By that time, the civilian Crown prosecutor had still not received the third statement from the military police.  The third statement was only provided to the Crown, and then to defence, in early March 2023 – nine months after the charges had been laid.

The Crown explained that the initial delays in providing disclosure were due to the extensive vetting that was required.  However, no explanation was offered why the military police did not, initially, provide all of the statements earlier in the process.

We are left to speculate why there was such delay in providing full disclosure.

Delayed disclosure delays subsequent processes, many of which are intended to support efficient and effective resolution of charges.  Absent full disclosure of the case to meet, an accused and defence counsel cannot conduct adequate pre-trial analysis.  Meaningful pre-trial discussions cannot be conducted with the Crown prosecutor.  And meaningful judicial pre-trial conferences cannot be held.  For LGen Cadieu and his co-accused, by the time such meaningful discussions could be held, 9 months of delay had transpired since the charges were laid.

Justice O’Brien eventually concluded that the post-charge delay attributable to the Cown and the criminal justice process in the prosecution of LGen Cadieu (i.e., delay not attributable to the defence) totaled 19 months and 22 days.  This exceeded the 18-month presumptive ceiling established in R v Jordan.

Had there not been such excessive delay in providing disclosure – the fault of which lies principally with the military police – that threshold would likely not have been reached.

And we are still left to speculate regarding why the military police were so slow to disclose the entirety of the interviews with the complainant.

The general public is limited in its capacity to examine the merit of the evidence that the military police gathered in these matters.  And that is because the public, understandably, is not provided with that evidence.  We are limited to the information that is derived from publicly available judgments and judicial processes.  And not all of these processes have produced public judgments.

The evidence presented in these trials may differ from the evidence that was gathered by the military police.  Moreover, the public is generally not provided with transcripts of the evidence presented in these trials.  Instead, we are provided with the presiding judge’s summary of the relevant evidence (where such judgments are available), or with select information reported by news media, where there is news coverage.

Certainly, when one reviews the judgment in R c Fortin, 2022 QCCQ 10316, one is left with the impression that the evidence presented at trial – particularly the evidence from the complainant – differed markedly from the earlier statements provided to the military police investigators.  And one would be inclined to question the thoroughness and effectiveness of the military police investigation.  One might also be inclined to question whether some potential evidence was ‘avoided’, lest it undermine the strength of the case against MGen Fortin.

The judgment of Justice Meredith describes discussions that the complainant had with at least two other CF personnel (who were retired by the time of the trial): One, identified in the judgment as “C.T.”, was apparently in a relationship with the complainant at the time and the complainant testified that she had told him of the incident.  The other witness, identified as “D.C.”, was a recently retired general officer, with whom the complainant allegedly discussed the allegations, ion more than one occasion, in February and March 2021.

There was a degree of confusion regarding the evidence these two witnesses provided.  “C.T.” testified that he could not recall ever discussing the incident with the complainant.  Justice Meredith gave no probative weight to this witness’ evidence.

The evidence of “D.C.” was more illuminating of certain factors, even if Justice Meredith also gave no weight to his evidence regarding the complainant’s statements.  It was illuminating as, despite having discussed the allegations with the complainant on more than one occasion, including a face-to-face meeting with the complainant, it does not appear that the military police interviewed this witness.  Certainly, there is no mention in the judgment of any statements that he made to the military police.  In contrast, statements that “C.T.” provided to the military police were expressly put to that witness.  One is left to consider how thorough the military police investigation was, notwithstanding that it took approximately 6 months to lay any charges in this matter.

Amid the leaks of military police investigations, the lack of timely investigation, delays in providing disclosure, and questionable thoroughness, there appeared to be very little scrutiny or criticism directed at the military police.  Indeed, most discussions concerning the military police over the past five years have focused principally on reinforcing or improving their ‘independence’.

I have discussed the issue of independence previously, both in terms of the military police, and, more broadly, regarding various statutory actors in the military justice system: The Military Justice System – Use it or Lose it, 17 October 2021, is one such example.

In March 2021, when news was breaking regarding allegations against various GOFO, CBC’s The Fifth Estate aired a documentary that included an interview with a former military police sergeant.  This sergeant raised vague allegations regarding interference in military police investigations.  His allegations were short on details.  According to the CBC, he “… became frustrated with the military’s own prosecutors, who he felt sometimes had little criminal law experience.”  However, very little evidence was offered to support that claim.

The former sergeant also mischaracterized the insistence by military prosecutors to proceed within the military justice system, or to screen the charges first (a requirement under military law), as “Crown shopping”.  That is manifestly not what “Crown shopping” means.  There may have been some examples of ‘venue shopping’ – both by military police and military prosecutors – however, what that former military police investigator described did not amount to “Crown shopping”.

Moreover, if such interference did occur, I would be quite curious to see the complaints that were raised to the Judge Advocate General, the CFPM, or the Chair of the Military Police Complaints Commission under s 250.19 of the NDA.  And if no such complaints were raised, I would be curious to review the excuses for not doing so.

Thus, there has been consistent pressure to ‘improve’ the independence of military police even though the military police already enjoy a degree of independence comparable to civilian police.  Arguably, the issue isn’t their independence; the issue is competence and accountability.  And, as a general rule, the more independent an actor is, the more difficult it is to hold them accountable (or, alternatively, the more limited the scope of other statutory actors who can hold them accountable).

 

Impact of Prosecutorial Missteps

The military police are not the only military justice actors who have experienced their share of errors.  Some high-profile missteps from military prosecutors have also arisen.  And I suggest that the increased scrutiny of any matter concerning allegations of sexual misconduct has played a role in these missteps.  I contend that military prosecutors are so afraid of certain types of criticism, that they have made some questionable calls.  And, while the news media and public are likely drawn to allegations against GOFO, such myopia might cause people to disregard problematic circumstances that have arisen in matters involving more junior personnel.

Take the prosecution in R v Captain Stacey, 2019 CM 3017, which has been the subject of previous discussion in this Blog here and here.

Then there was the aforementioned prosecution in R v Harrison.  The military police took almost a year to complete their investigation and lay charges under the Code of Service Discipline.  That was ‘par for the course’.  Then, after 9 months, post-charge, of proceeding through the military justice system, the military prosecutor made the decision – with the collaboration of the military police – to shift the charges to the civilian criminal justice system (by withdrawing the charge from the military justice system and laying the same charge within the civilian criminal justice system two days later).

The motive for doing so was clearly linked to the insistence of the then Minister of National Defence (MND) that allegations of sexual misconduct by CF personnel should be prosecuted before civil courts of criminal jurisdiction.  Doing so after incurring 9 months of post-charge delay in the military justice system was imprudent.

I’d like to think that the military prosecutor did not naively believe that, by withdrawing the charge from the Code of Service Discipline and re-laying the exact same charge in the civilian criminal justice system immediately thereafter, she would reset the ‘Jordan clock’ to zero.  There was sufficient case law published at that time that would have signalled the inevitable conclusion that would be drawn by Justice Richardson.

Then there was the prosecution of LGen Whelan.

I have commented about this matter previously.

LGen Whelan was initially charged with two distinct charges under s 129 of the NDA.  One charge focused on ‘improper’ emails sent to a subordinate (the complainant).  The second charge related to “improperly influencing a Personal Evaluation Report” (PER) for that subordinate.  To be clear, the alleged ‘influence’ was that he had purportedly ordered other officers to increase or improve the complainant’s assessment.  The charges asserted that the alleged misconduct arose around 2011.

Both of these allegations were purportedly prejudicial to good order and discipline.

For some reason – and it was never fully explained when the court martial was conducted in late September 2023 (and continuing to early October) – the charge in relation to the impugned emails was withdrawn at the outset of the court marital.

It is unclear if those emails constituted sexual misconduct.  Certainly, the news media covering the court martial, and select commentators, kept insinuating that the allegations concerned sexual misconduct.  However, that charge was withdrawn.  It is not clear why that was done, and the contents of the emails were not fully explored.

But the remaining charge – allegedly influencing a PER – is not, on its face, an allegation of sexual misconduct.

Some evidence was presented at the court martial before the second charge was withdrawn.  And the withdrawal of the charges fetters discussion and scrutiny.  There is no judgment, because the charges were withdrawn.  There is no public transcript, although there are news reports that provide selective summaries of some of the evidence heard.  A transcript could, potentially, be requested from the Office of the Chief Military Judge.  The extent to which it might be redacted is another matter.

Here’s what the public generally knows about this matter:

• LGen Whelan, when he was a Colonel, communicated with the complainant via email and other messaging platforms, including Skype and telephone.
• The messages were of a personal nature. However, the full contents of those emails are not publicly known.
• There was an insinuation that the emails bordered on some form of flirtation. The complainant alleged that (then) Colonel Whelan invited her to dinner.
• The complainant stated that she initially met (then) Colonel Whelan when she was working in Ottawa supporting missions. She testified that Whelan “hand picked” her to deploy on the mission for which he was the Task Force Commander.
• When the complainant received her PER, she was not satisfied with the evaluation. A witness called by the prosecution – Lieutenant-Colonel Ubbens – testified that the complainant told him she had inappropriate emails from Whelan, and she would show them to a senior commander unless her PER score was improved.
• The complainant’s PER score was improved.

 

I will offer a couple of observations that may upset some people.  However, I consider them to be rather glaring issues that were not discussed when the charges against LGen Whelan were prosecuted, and then withdrawn.

First, there was some indication that (then) Colonel Whelan was compromised by his earlier email communication with the complainant.  Whether that communication constituted sexual misconduct remains unclear.  However, based upon the evidence that was heard, it was clear that the email and other communication between (then) Colonel Whelan and the complainant was potentially embarrassing for him.  It compromised his position.  And we can draw this conclusion based upon what then transpired when the complainant threatened to ‘go public’ if her PER was not changed.

In their myopic pursuit of “sexual misconduct” military police investigators and military prosecutors may well have disregarded valid grounds upon which they could have feasibly pursued charges against the accused.  When a senior officer conducts himself in a manner that compromises his capacity to command, such conduct can be prejudicial to good order and discipline.

I am not suggesting that (then) Colonel Whelan committed, or was guilty of, such an offence.  All the relevant evidence has not been placed before the public.  But, based upon what was disclosed in his court martial, that was likely the most feasible charge to pursue.

Second, based upon the evidence that was heard, the complainant was clearly extorting the chain of command – specifically, but not only, the commander, (then) Colonel Whelan, in order to have her PER improved.

The elements of extortion under s 346 of the Criminal Code are:

• The identity of the accused;
• The date and time of the incident (and any other jurisdictional component)
• The accused used “threats, accusations, menaces or violence” against a person;
• The accused did so to induce or attempt to induce any person (including a 3^rd party) to do anything;
• The threat is not a “threat to institute civil proceedings”;
• The accused intended to obtain something from the accused by the prohibited means (“by threats, accusations, menaces or violence”); and,
• There was no “reasonable justification or excuse” for the prohibited conduct.

 

While (then) Colonel Whelan may have compromised his position through earlier communication (and we would have required more thorough examination of the relevant evidence in order to draw definitive conclusions), there are clear indications that each element in an allegation of extortion could have been made out against the complainant.

It is still not entirely clear what prompted the military prosecutor to withdraw the first charge that was withdrawn.  Arguably, that was the more credible charge on its face.  An allegation from the complainant that her supervisors caved to her extortion and provided her with a ‘better’ PER was a problematic basis for a charge under s 129 of the NDA.  There also appeared to have been some reluctance on the part of military prosecutors to present, into evidence, the full scope of the emails that purportedly lay at the heart of the allegations for the first charge that was withdrawn.  We are left to speculate why that charge was withdrawn before any evidence was heard.

And, when the military prosecutor proceeded with the second charge – pertaining to the PER – some of the arguments that were presented to the court martial appeared to suggest that the prosecutor was still attempting to prosecute some sort of alleged sexual misconduct, notwithstanding that the remaining charge did not describe, and was not predicated upon, sexual misconduct.

I would suggest that, like the news media covering the court martial, the military prosecutor seemed unreasonably focused on the issue of ‘sexual misconduct’, rather than what the relevant evidence could establish.  Granted, in light of the lack of transparency about much of what was contained in the investigation, we are left to speculate.

However, based upon what was made public, I suggest that the nature of that matter concerned a senior officer who may have compromised his ability to command by communicating with a subordinate in an imprudent – and even improper – manner and a subordinate who appears to have extorted that senior officer, and others, in order to receive a PER that was scored higher than it would have been.

In any event, a prosecution that was subject to significant scrutiny by the news media fizzled out in a rather ignominious manner, leaving many to question why it had been commenced in the first place.

 

Role of the News Media

A hallmark of a well functioning democracy is a free and unfettered public news media.  It is vital that the news media is able to report on topics of local, provincial, and national importance.  And comprehensive reporting on national defence is as vital to the maintenance of effective national defence as training, procurement, or military justice (which, coincidentally, are often the subjects of national news reporting).

But that also means that those who report on those subjects have an obligation to the Canadian public to do so thoroughly, honestly, accurately, and objectively.

And that hasn’t always been the case on matters of military justice recently.

And, undoubtedly, my criticism of reporting on these issues may, itself, invite criticism.  Some may accuse me of harbouring my own biases.  And, frankly, I do have biases.  We all do.  Some of us acknowledge those biases when we offer public commentary; others do not.

And my criticism of some reporting on these subjects has, and will have, a chilling effect on the likelihood of reporters seeking my input on these subjects.  That has clearly already occurred.  Journalists who used to seek my input, no longer do so.  Some have even gone so far as to block me on social media, which I find odd.  But that is a risk that I am willing to take.  Were I to self-censor out of fear that my views would not be sought, that would compromise my integrity as a public commentator on military law.  It would be a disservice to the subject matter, and a disservice to those journalists who have the fortitude to seek informed opinions from people who may possess a different perspective.

For those journalists who object to criticism directed toward their reporting, I repeat what I mention above: Journalists who report on public matters serve an important public function in our democracy.  It is vital that they do so.  But it is vital that they do so with honesty, candour, accuracy, and objectivity.  Anyone offering scrutiny and criticism of public actors, will, themselves become a public actor in so doing.  They must, therefore, be prepared for similar scrutiny and criticism, and be willing to accept informed critique, if they expect the subjects of their reporting to do likewise.

It is inevitable that people will criticize reporting on any subject, particularly where the content of the reporting does not align with their particular views.  And I certainly have been guilty of taking umbrage at reporting that I believed failed to address all relevant factors or issues or which I believed was inaccurate.  As I say, we all have our biases.

But there are, nevertheless, examples where reporting has been inaccurate or insufficiently objective.  Since I am a public law practitioner, whose practice often addresses process, I tend to focus more on procedural concerns than substantive disagreement.

And one of my principal bugbears regarding the reporting on military justice is when reporters depart from objective and accurate reporting and insert themselves into the process as an advocate for a particular narrative or party.  And that can often be a challenge for investigative reporting, when the reporter encounters barriers to identifying reliable information.  However, there remains a fine line that should be respected, and sometimes isn’t.

And one consistent characteristic regarding allegations against GOFO over the past 5 years – and that includes both allegations that were tried before a competent court, and those that were not – was the tendency to ‘try’ the accused in the ‘court of public opinion’.  And in this context, there were select examples in which some reporters went beyond reporting on the subject, to acting as an advocate.  I will resist the temptation to provide a list of what I consider to be problematic reporting over the past five years.  That would lengthen an already long Blog post, and the present Blog post is focused on discussing specific issues, not calling out bad faith reporting.

The recent acquittal of VAdm Edmundson offers an example of a circumstance in which journalistic over-reach had a direct impact on the criminal prosecution.

VAdm Edmundson was charged with two offences: sexual assault and committing an indecent act.  Objectively, the more serious of these two charges was the alleged sexual assault.  In prosecuting that charge, the Crown relied upon the testimony of the complainant, as well as a friend of the complainant.

Justice Webber found the complainant’s reliability and credibility lacking in relation to the charge of ‘committing an indecent act’.  The complainant testified that she “went berserk” yelling at the accused and turning on the lights of the accused’s berth, which the complainant asserted woke his bunkmate.  However, VAdm Edmundson testified that he had no bunkmate.  And, despite the complainant identifying two persons who were possibly Edmundson’s bunkmate, military police investigators ruled them both out during their investigation.  There was no corroboration of the disruption that the complainant allegedly caused, and the judge held that such a loud outburst would have been heard by others.

Justice Webber concluded: “Either the events she described never happened, or they happened in a manner that bore very little resemblance to the act that she described …”.

The complainant alleged that the sexual assault occurred a couple of days later.  Edmundson denied that this ever occurred.  The Crown prosecutor sought to rely on the testimony of the unnamed witness, a friend of the complainant, who purportedly could corroborate elements of the complainant’s testimony regarding the circumstances of the alleged sexual assault.

During the trial, VAdm Edmundson’s counsel presented transcripts of an interview of that witness by CBC reporter, Ashley Burke.  Counsel argued that, that the witness’ reliability was tainted when Ms Burke shared with her information obtained from the complainant.

According to reporting by Mark Gollom of the CBC:

The judge agreed with the defence that this woman’s evidence was tainted. This taint, [Justice] Webber said, could have been a result of the woman meeting with [the complainant] to discuss the sexual assault allegations. He also said the evidence could have been tainted when the witness related to the court that her recollections may not have been her own. Webber suggested they could have been fed to her during an interview conducted by a CBC News reporter in March 2021.

In an email, CBC spokesperson Kerry Kelly said while the broadcaster won’t comment on the outcome of the trial, the CBC believes “we reported fairly and accurately on this story. We stand behind our journalism.”

 

However, it’s not a question of whether the reporting by the CBC has been fair and accurate (although I might be inclined to dispute that assertion), the issue is whether the journalist in question undermined the prosecution by disclosing to a witness relevant information about the allegations before the witness was interviewed by the investigating military police, or before the witness testified.

To put it more bluntly: the issue is whether the journalist departed from reporting on the matter and influenced or shaped the narrative.

I suggest that many of the allegations against GOFO over the past 5 years were the subject of ‘trial by media’, including GOFO who were never charged with any offences.  Instead, select journalists conducted extra-judicial interviews with complainants, publicizing the allegations in a process that was not designed to test such allegations fairly.

Some of those same journalists would then invite the ‘accused’ to participate in interviews, notwithstanding that they had already taken on the role of advocate, rather than reporter.  And no one accused in such a manner could have an expectation of a fair and objective opportunity to state their position.  And we must not forget that anyone so accused, and charged in any actual statutory process, would be subject to eventual prosecution.

The problem with so-called ‘trial in the court of public opinion’ is that there are few, if any, rules and little or no structure to such a process.  That is why we have courts of criminal jurisdiction.  Yet, with allegations against select GOFO – many of which related to timeframes long before they became GOFO – many reporters sought to ‘try’ such allegations through reporting. And, equally significantly, many Canadians, and senior decision-makers in National Defence – both military and political – treated such allegations as proven, rather than as what they were: untested allegations.

And, although some blame can be leveled against journalists who went beyond reporting and adopted the mantle of advocate, blame can also be directed at public decision-makers and the Canadian public who were quick to conclude guilt, rather than respect the presumption of innocence.

 

Conclusion

It is difficult to look back on the past four or five years without feeling a great deal of frustration.  I suspect that there are many victims of sexual misconduct who have felt frustration for a number of years.  They have likely encountered public decision-makers who did not give their allegations the consideration they deserved.  They were likely frustrated by indifference by public decision-makers, and delays in the investigation of their allegations.

But, as I have repeatedly observed, you do not fix one problem by creating victims of another type.

The prosecution against MGen Dany Fortin fell apart, and we are left to speculate about how weak the evidence in that matter truly was.  He reached an undisclosed settlement with the Crown following his acquittal.  In so doing, the Crown avoided the exposure that would have accompanied litigation.  The prosecution of LGen Steve Whelan disintegrated in a bizarre fashion, and we are left to speculate about why the charges were withdrawn, and about why other charges were not laid.  The prosecution of LGen Trevor Cadieu was stayed before the evidence was even tested.  And the prosecution of VAdm Haydn Edmundson resulted in an acquittal that I suggest would not have surprised any reasonable and objective observer who was following that matter.

And those are just the GOFO who were actually charged with offences, only some of whom actually had an opportunity to test the evidence against them.  And if those were the allegations that were considered to be reliable enough to proceed to a prosecution, we are left to wonder how weak the allegations were against those GOFO whose names were dragged through the mud, but who were never charged.

And those are not the only issues for which we have few, if any, answers.

Who leaked the military police investigations, and why?

And why has no one – and, specifically, we’re talking about the MND or the CDS – ordered an investigation into those leaks?  Why do senior policymakers in National Defence not seem overly concerned about these leaks?

Most of these matters were prosecuted before civil courts of criminal jurisdiction.  And that was not principally because of the direction that the MND issued to the Director of Military Prosecutions and the CFMP (notwithstanding that the MND did not have the authority to issue direction directly to those two statutory actors).  MGen Fortin, LGen Cadieu, and VAdm Edmundson were prosecuted by civil courts of criminal jurisdiction because the alleged misconduct pre-dated the change to the jurisdiction of the Code of Service Discipline under Bill C-25, and which came into force on 1 September 1999.

And LGen Whelan was prosecuted under the Code of Service Discipline because he was not charged with criminal offences.

And if the evidence against these GOFO was as weak as it appears in some of these matters, then what of the evidence against more junior personnel, who did not benefit from the opportunity to make full answer and defence before an independent and impartial court?  How confident can we be in the significant adverse ‘administrative’ decisions that have been taken against CF personnel who did not benefit from the opportunity to cross-examine their accusers and other witnesses, and whose processes were not subject to the glare of public scrutiny?

Finally, many people – including former Supreme Court of Canada Justice Louise Arbour, have suggested that the Code of Service Discipline is not fit for purpose in relation to ‘sexual offences’.  Very little explanation has been offered why it can then be trusted to prosecute other types of offences.

However, we have seen the outcomes of several prosecutions before civil courts of criminal jurisdiction.  Some of these included prosecutions of more junior personnel, although it appears that the outcomes of some less notorious prosecutions have not become fodder for the national news media.

It would be problematic to suggest that the outcomes in a handful of trials is determinative, or even indicative, of comparative merits of the civilian criminal justice system and the military justice system.  However, absent a more thorough analysis of information that is not generally publicly available, we are left to ponder if the military justice system is as problematic as some people have suggested.

We are left to ponder whether part of the problem is the rush to judgment by statutory actors when allegations become notorious, and whether prosecutions are brought, even when the evidence might not support such a prosecution, because a decision not to prosecute is untenable due to political or ‘public affairs’ considerations.

And we are left to ponder whether the principal shortcoming is in the one common factor across prosecutions in both the military and the civilian criminal justice systems: the military police.

The only way we are going to be able to answer these questions is through a thorough, independent, and public inquiry that relies upon evidence, and not anonymous anecdotal justification.

 

[1] Throughout this Blog post, I will refer to various officers, most (if not all) of whom are retired.  At various points in the processes that I will discuss, they were either serving or retired.  For ease of reference, and to avoid burdensome language, I will dispense with the used of “(retired)” following their rank and name.

[2] The reference to “0 for 5” is predicated upon the five, relatively notorious, prosecutions of: General Jonathan Vance, Major General (MGen) Dany Fortin, Lieutenant-General (LGen) Trevor Cadieu, LGen Steve Whelan, and VAdm Haydn Edmundson.  There were other GOFO accused of wrong doing, but who were never charged and never tried.

[3] I have noticed the tendency for some commentators to refer to allegations of “rape” or charges of “rape”.  Rape is no longer a criminal offence under Canadian law, and hasn’t been since 1982.  The offence is sexual assault.  And, notwithstanding that some of the matters concerned ‘historical allegations’ (i.e., allegations that occurred several years ago and were only reported and prosecuted recently), they were not so old that they fell within the ambit of rape as a criminal offence.

[4] As I have explained previously, and repeatedly, one of the problems with the so-called ‘administrative decision-making’ in response to allegations of sexual misconduct is that such processes and decisions are not generally public.  Therefore, public scrutiny and discussion of the factors arising in such processes and decisions is often not feasible.