Recall of HMCS Whitehorse over misconduct allegations shows systemic problems, says retired colonel

Ottawa lawyer Michel Drapeau will be closely watching how the Royal Canadian Navy handles the fallout from its latest controversy.

The apparently unprecedented recall of a warship during a major international training exercise, which occurred after three sailors misbehaved, is expected to set quite the precedent.

Drapeau, a retired Canadian Armed Forces colonel and one Canada's leading experts on military law, believes the military justice system is dysfunctional and doubts its handling of the incidents that prompted HMCS Whitehorse to be ordered back to its home port of Esquimalt, B.C., will change his view.

Changes in recent years, forced on the armed forces by the Charter of Rights and the Somalia Affair, have improved some elements of the military's internal justice system. But Drapeau believes it is still opaque and geared to preserving control and the forces' image.

“It’s a society within a society," Drapeau said in an interview with Yahoo Canada News. "A system of law within a system of law.”

Reports surfaced Monday that HMCS Whitehorse, a coastal defence vessel taking part in the 22-nation RIMPAC naval exercise off the southern California coast, was back at CFB Esquimalt, recalled by navy boss Vice-Admiral Mark Norman.

[ Related: HMCS Whitehorse: Navy misconduct report may target booze ]

News reports said the recall was triggered by three incidents that took place while the ship, which has between three and four dozen crew members, was docked in San Diego. They include allegations of sexual assault, shoplifting and public drunkenness, though booze is thought to have been a common denominator in all three.

The sailors were arrested but turned over to Canadian military authorities, who have jurisdiction in such cases.

A Department of National Defence (DND) spokesman told Yahoo Canada News Wednesday that no further details were being released at this time, though more information would be available if charges are laid.

CTV News reported Norman sent an internal message to navy personnel explaining the recall and alluding to other discipline problems within the navy.

"While the actions of a few sailors in Whitehorse was the trigger for my decision, I recalled her home because I am troubled that across the RCN a small number of our personnel have fallen short of the timeless expectations of naval service and have failed in their roles as ambassadors of their navy and country – no matter where they serve," Norman wrote.

It's not clear what other problems the admiral was referring to, but in 2007 investigators busted a cocaine-trafficking operation run by four sailors serving aboard HMCS Saskatoon, based at Esquimalt.

A sailor from Esquimalt-based frigate HMCS Regina died while ashore in Dar Es Salaam, Tanzania, in April, and an officer from the frigate HMCS Toronto was found dead in a hotel room in the Seychelles in January, apparently from an accident. The navy has not released details in either case.

Another statement from Norman released to Yahoo Canada News said there have been instances where conduct has fallen short of the high standard the navy expects. The RCN's Naval Board was scheduled to review conduct while ashore at an upcoming meeting but "given recent incidents, and in order to ensure that the Navy stays focused on our mission, I have expedited this process," Norman said.

He appointed Commodore Craig Baines, commander of the Canadian Fleet, to conduct an internal review of the navy's policies and procedures governing conduct ashore, with findings expected by this fall.

Drapeau said recalling Whitehorse was highly unusual, something done only in extreme circumstances, such as a mutiny.

"We had troops deployed in Somalia and they tortured people and killed people," he said, referring to the scandal that resulted in the later disbanding of the Airborne Regiment.

"We didn’t call back the regiment. We repatriated some individuals under escort, which is what you would normally do, and the local commander would take care of that.

“The only thing that would change any of that is if the commander [of Whitehorse] was involved in one of the discipline issues, which is a possibility, or the higher-ups have lost confidence into the chain of command, that is, the captain or his executive officer, they feel that they didn’t have control.”

Because Whitehorse has a relatively small crew, recall could be prompted if one or more of those implicated in the incidents were an officer or senior non-commissioned officer, Drapeau suggested.

"Then all of a sudden you've got a crisis," he said.

[ Related: Military rocked by allegations of sexual assault in report ]

Drapeau, who teaches a course on military law at the University of Ottawa and has testified before Parliament and the U.S. Congress, said the closed nature of the forces' discipline and justice system make it hard to address endemic problems such as alcohol abuse and sexual assault.

“There is a huge military justice problem in the Canadian Forces," he said.

Drapeau advocates civilianizing the military justice system to make it more open, as most of Canada's NATO allies have largely done. Some, such as France and Belgium, have eliminated military tribunals and military police altogether in peacetime, with personnel subject to civilian justice.

In Canada, the military retains jurisdiction over all offenses except homicide and the kidnapping of children, he said. Prosecution of sexual assault cases was turned back into military hands in the late 1990s.

"That was a major mistake," said Drapeau. “Sexual assault, there’s nothing military about it. It’s a crime against society."

The military court system's independence and fairness in the era of the Charter of Rights was also called into question by a 1992 Supreme Court of Canada decision. It found military personnel did not get the same quality of justice as civilians.

Since then, Drapeau said, military judges have become independent of the armed forces chain of command. But military prosecutors and defence lawyers are still subject to it while other countries, including Britain, Australia and New Zealand, have civilianized the process. In Canada, DND has fought any changes tooth and nail, he said.

The military uses regulations to keep a lid on wider discussion of cases by its members.

“Basically it gives DND a carte blanche to do what they believe is required to be done to solve their issue and to protect their image," said Drapeau.

The lack of openness means issues that are in the public interest may not get the airing they deserve.

Drapeau doubts handling of the Whitehorse incidents, despite the high-profile nature of the ship's recall, will be any more transparent "unless there is a hue and cry in the media."