The Decibel - A dropped case and the slow reckoning of the Canadian military

Episode Date: October 5, 2023

The trial of Lieutenant-General Steven Whelan began in late September. Only a week later, it was over, with the case before a court martial dropped. Two charges of misconduct were brought against Whelan under the National Defence Act in December 2021.Whelan’s case highlights the long reckoning against some of Canada’s top military officials, who have been accused of improper conduct and sexual assault. The Globe’s senior political reporter Marieke Walsh joins the show to talk about the case and why questions over the military’s culture continue with every new trial.Questions? Comments? Ideas? Email us at [e-mail]

The trial against Lieutenant General Stephen Whalen began only last week, but this week, the prosecution dropped the case. Two charges of misconduct had been brought against him under the National Defense Act back in December 2021. And Lieutenant General Whalen is only the latest in a long string of high military officials to have been brought before the courts. Marika Walsh is a senior political reporter with The Globe. She's on the show to help us understand

what went on in the trial against Whelan and how it fits into the broader context of how the Canadian military handles misconduct and sexual assault. I'm Maina Karaman-Wilms, and this is The Decibel from The Globe and Mail. Marika, it's so great to see you again. Thank you for being here. You too, Mainika. Thanks for having me. So who is Lieutenant General Stephen Whelan?

Lieutenant General Stephen Whelan is one of the highest ranking commanders in the military. He is ranked second only to a general as a lieutenant general. He is at sort of that just below the chief of defense staff tier. He was certainly extremely senior in the military. And when he was placed on paid leave in 2021, he was the commander of military personnel, essentially the person who was responsible for all of the people within the military. He's had several high profile deployments and command posts both overseas and in Canada. And he was charged with two counts of breach of conduct under the National Defense Act last year, which he denied at the time and continues to deny the allegations related to

those charges. And the military has now dropped that case against him entirely. Okay, so let's talk about this then, because this week, the military dropped its case against him.. Okay, so let's talk about this then, because this week the military dropped its case against him. But what were the charges? There was two charges, and it's a bit of a two-part story, because he was first charged with two counts of conduct to the prejudice of good order and discipline, which is a charge that comes under military law under the National Defense Act, not under any sort of criminal law or any law that civilians are subjected to. So this is separate. This is military law. This is separate. This is strictly something that people within the military can be charged with.

And he was charged with these two counts more than a year ago. And now we fast forward to the actual court-martial. And on the first day, the first charge was dropped. And that first charge was related to more serious allegations that he breached the code by making advances on a subordinate or by improperly communicating with a subordinate. So that was the first allegation and charge that was dropped. And then, of course, this week, the second one was dropped. And the second one was the same charge of conduct to the prejudice of good order and discipline. But in this case, the allegation was that he had changed the score of the same subordinate's personal evaluation report to avoid having her leak or report on their interactions that she has said were inappropriate and uncomfortable and overstepped, and his lawyer has said were consensual

and just sort of good-natured, friendly ribbing, which he acknowledges at times went too far. And some of these interactions were emails actually sent between Lieutenant General Stephen Whelan and the complainant. So, Marika, can you just walk us through this? So what happened with the case? The prosecution only had two witnesses. One was another person who was in Lieutenant General Whelan's command, but was more senior to the complainant who was at the center of this. He first testified, retired Colonel Ron Ubbins, and he said that he was

responsible for writing the evaluation report for this subordinate and that Lieutenant General Whalen, who at the time was a colonel and the task force commander in 2011, had sort of a role in assessing what her evaluation report should be. And that Colonel Ubbins then wrote it based on those discussions. And he says that the complainant was very upset by the report, didn't feel that it reflected her abilities. And she told him that she thought it was retaliation for her rebuffing Waylon's advances when they were deployed in Jerusalem in 2010 and 2011. Okay, so she was saying she thought this was retaliation for rebuffing his advances. What do we know about that? when they were deployed overseas, and that she rebuffed those requests and refused them.

And in doing so, she says that her work environment changed and that he treated her differently than the other people who were on this task force, and that she believed that she was being punished with that lower performance score than she thought she should be getting by refusing his advances. I think it's really important to note that Lieutenant General Whalen's defense strongly rejects this characterization and says that evidence that they would have brought forward in their defense would have shown that this was what the defense described as a reciprocal relationship that ended prior to their deployment. So because this case was dropped, we don't ever get to hear the defense's case.

But that is the challenge or where the defense disputes these allegations. And that leads us then to this question of what emails would be admitted or not, because the prosecution was trying to make the case to the judge that these emails were necessary to prove their case. And the judge ultimately rejected that assertion and did not admit these emails into evidence. Do we know why these emails were not allowed to be brought in as evidence? Part of it goes back to what we first talked about with the first charge that was dropped. The judge took a lot of umbrage with the prosecution's attempt to use these emails in this remaining charge when

they were so clearly and directly linked to the charge that was already dropped, which was related to making advances on a subordinate or improperly communicating with a subordinate. And so the judge was concerned and agreed with defense counsel's arguments that by admitting these emails, they were trying to resuscitate an already dropped charge and put on the public record something that by dropping the charge they had already acknowledged they didn't believe they could get a conviction on. Because essentially, when you drop a charge, you're doing so because you think it's not a winnable case anymore. So that sounds kind of like why that second charge was dropped. They didn't think they

had enough there. Do we know why the first charge was dropped, though? We don't really know because the prosecution never did scrums or interviews with reporters at the trial. And the military has been very sort of, I would say, tight-lipped in sending any statements to press. When we asked about the second charge being dropped, the military just noted again that they assessed the evidence and then dropped the charges. And it remains unclear what exactly fell through, what exactly changed for the prosecution. But from the outsiders watching the case, from somebody like Rory Fowler, who has represented other people at courts martial, he said that he just didn't

think that the prosecution had proved its case. So this is a military court proceeding, like we mentioned earlier, not a criminal court proceeding. What dynamics were at play because of that, that this was in a military court? Is there anything I guess that would be relevant here? There's a lot that's relevant here. So a military court martial is very different in some ways from going to regular court. And in other ways, it's not. In some ways, the setup is the same. In other ways, the camo decorated walls give a different vibe. And the lawyers and the accused and complainant are all in their military uniforms and salute the judge, for example, who was wearing his medals during the trial. And so you see sort of these undertones

of military rank, of military sort of pomp and circumstance and processes. And in this case, in particular, because as you mentioned, Left-Hand General Whelan is sort of the second from the top in terms of ranking, he far outranked the judge, who's a commander, and far, far, far outranked the complainant, and also outranked the prosecutors who were trying him. This is kind of fascinating. So the judge who is deciding is a lower rank in the military than the person who's on trial here? I mean, wouldn't that be a problem? It's an issue that has been raised with the government

at least since 2021 in Justice Morris Fish's report, which recommended a deep overhaul of the military justice system exactly because of that. And that has not yet happened. And so these questions of whether a military system can adequately prosecute, especially higher ranked officers remains. In this case, it was very interesting. The judge actually spoke to this, what he called a catch 22, in which he could either be accused of not treating the accused fairly because of the military's focus on supporting complainants of sexual misconduct and supporting and helping victims through that process in a way that the defense suggested had shifted the focus of the military away from simple due process to putting the interests of complainants first. So from that

perspective, the judge said, well, you know, I could be accused of just following the top top, aka the current chief of defense staff saying, you know, we have to put victims first. Or on the flip side, he said he could be accused of being deferential to the lieutenant general who is in front of him, because he is of such a higher rank. Wow. And so it just speaks to the problems with the fact that the system has not yet been reformed to address these conflicts, that they still exist, and we're still front and center in this case as well. We'll be back in a minute. There has been a series of cases of high-ranking military officials facing charges of misconduct, particularly sexual misconduct.

So how does this case of Stephen Whelan fit into the broader conversation and the reckoning, really, around misconduct in the military? It's creating or speaking to an even broader problem or an even more pronounced problem, according to experts I'm speaking with. So, for example, Charlotte Duval-Lantoine, who is somebody I speak to quite often when I'm covering these cases, she's with the Canadian Global Affairs Institute. And she pointed to a deep issue with a system when the complainants in a case don't feel that the system is supporting them and don't feel that they can trust the system. And on the flip side, in this case with Lieutenant General Whelan, there are such serious accusations of lack of due process and of politicization that the defense and the accused are saying about the system. And she makes the point that for a system to work, there needs to be trust in that system. And that is what so clearly

is on the ropes right now, I'll say. To sort of put a bow on where things stand with Lieutenant General Whalen, his lawyer has said that he would have shown in his defense side of the case, just the extent of the politicization of the process and the extent of the problems with the military police investigation. And by that not going ahead, by the prosecution dropping the case when it did, it means that the public doesn't hear that side. So for example, the defense lawyer was planning to call the chief of defense staff, that is the top soldier in Canada, General Wayne Ayer, to ask him about this case and to ask him about political interference. For example, the defense lawyer said that when Whelan first heard there was an investigation into him, he offered to resign. And the defense lawyer, Philip Miller, says that the chief of defense staff told him not to resign, that there was nothing to the allegations, only to then have him removed a few

months later when the Globe and Mail asked the military about this case. When it became more public, when media got involved. Exactly. And so you can see there, and again, the military has not responded to our questions about this. And there is no case for this to be tried then in court to see what actually happened, to see what the evidence shows and justifies and backs up in these claims. But to have such strong claims and criticisms about the military justice system come from Lieutenant General Whalen is significant, especially because they have in large part also already come from Major General Danny Fortin. And what this means now for that broader question of where

things are at in the military is that there is even more distrust and even more lack of clarity as to what is happening with those military police investigations. Okay, so there's a lot here. So I think we should maybe remind people too. So you mentioned Major General Danny Fortin, him and Waylon, like they are, there are two examples here of a number of men who have been charged. Can you just remind us who else in the military has faced charges here, Marika? That's right. So Major General Danny Fortin was charged with sexual assault. He was acquitted with this and is now suing the government over the case. And the Military Police Complaints Commission is also investigating the military police's handling of his case. Then we have Lieutenant General Whelan, whose case was dropped.

And then we have the person who really started this scandal in 2021, former Chief of Defense Staff General Jonathan Vance, who was accused of having an illicit affair with somebody in the military. And while General Vance was not tried in the military system, he did ultimately plead guilty to obstruction of justice in a civilian court and admitted to trying to persuade a subordinate to lie about his illicit affair. Then there are still two more who are pending trial. That's Vice Admiral Hayden Edmondson, who was charged with one count of indecent acts and

one count of sexual assault dating back to a 1991 incident. And that case is ongoing. He has pled not guilty. And then there's Lieutenant General Trevor Kadia, who has retired, but faces two counts of sexual assault dating back to 1994. These two who remain in the court system both deny the allegations. So where it goes from there in terms of proving that in court, we don't know yet. Okay, so this is a pretty widespread problem. Of course, the federal government is ultimately in charge of the military, the Minister of Defense will oversee things. So I wonder, what has the government been doing to try to tackle this problem? The federal government is in a position now where it has had very high profile, very exhaustive reports from three separate Supreme Court justices looking at different

elements of sexual harassment and sexual misconduct in the military, how the military should be reformed, how the military justice system should be reformed, and in response, an extraordinarily painfully slow process to do so is what experts describe it as. So, for example, Justice Fish, who recommended that military judges be removed from the military once they're appointed. So they essentially become civilians after having worked in and acted in the military system. Once they become judges, he said, if they became civilians, that conflict of interest we talked about earlier would be significantly lessened. That recommendation came two years ago.

It's not yet in place. The government says in order to implement that recommendation, they need to first strike a panel to look at another recommendation to establish a permanent military court in Canada. And that panel has not yet been appointed to look at that recommendation. And it sort of plays out over and over. For example, the Defense Department told me that they are now working on an implementation report to address how they will implement recommendations from two of the three reports. But those reports are now at least more than a year old. And it's still unclear when that report on how to implement the recommendations will come. Okay. So the end of this, the Whelan case doesn't really mean the end of the microscope on the military when it comes to this issue, right? So what happens now, Mariko, where do we go from here? Yeah, it's not ended on either fronts. Lieutenant General Whelan has pledged to

file a lawsuit against the government for its handling of the case. And his defense lawyer says that that lawsuit will look at all individuals who did not adequately investigate the allegations and who politicized the process. So there is that still to come in his case. on the flip side, on the broader perspective, the government has a long and lengthy to-do list of recommendations from Justice Deschamps, Justice Fish, and Justice Arbour. And the government has consistently promised that updates are coming, that action is coming. And the question is, how soon is soon? Because they don't actually put timelines on things like the implementation reports. Charlotte Duval-Antoine told me that it's almost like staring at a giant knot, and you pull on one string and another string tightens, another area tightens.

And it speaks to how challenging it is and how long it will take for this to sort of unwind a little bit at least to a more even keel where there is more trust in the system. She repeatedly pointed out to me that right now, both the accused and the complainants do not feel like there is that faith in the system. Marika, thank you so much for taking the time to go through all this today. Thanks for having me, Manika. That's it for today. I'm Manika Raman-Wells.

Michal Stein helped produce this episode. Our producers are Madeline White, Cheryl Sutherland, and Rachel Levy-McLaughlin. David Crosby edits the show. Adrienne Chung is our senior producer, and Angela Pachenza is our executive editor. Thanks so much for listening, and I'll talk to you tomorrow.