Sending former defence chief's case to civilian courts the only option, says expert

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OTTAWA — The decision to send former chief of the defence staff Jonathan Vance’s criminal case to a civilian court highlights what experts say is a serious problem with the military’s justice system: its inability to hold Canada’s top commander accountable.

This gap was first identified by retired Supreme Court justice Morris Fish in report on the system Canada’s military uses to discipline service members, which stated that it was impossible to court martial Canada’s defence chief.

In the report released last month, Fish noted courts martial involving senior officers require five-member panels, with one member of the panel outranking the accused — an impossibility in Canada, where no one outranks the chief of the defence staff.

“The CDS is at all times the only active member of the Canadian Armed Forces holding the rank of general or admiral,” Fish wrote. “The senior member of the panel can never be of or above the rank of the CDS.”

The Canadian Forces National Investigation Service appeared to reference this shortcoming in announcing on Thursday that Vance was being charged with one count of obstruction of justice.

“Considering the specifics of the case and in the interest of justice with due regard to the limitations of the military justice system identified in the findings contained in the (Fish) report, the CFNIS decided to pursue the relevant criminal charge in the civilian justice system,” it said.

While Fish recommended creating a pool of officers for future tribunals, or allowing some flexibility in the required ranks, retired colonel Michel Drapeau said the need to satisfy the “appearance of justice” means civilian courts is the only acceptable venue for trying top brass.

“At the end of the day, more often than not, a civilian court is the most appropriate venue for dealing with criminal charges laid against very senior military personnel as it better satisfy the ‘appearance of justice’ in deciding the defendant’s guilt or innocence at trial,” said Drapeau, who is now a lawyer and one of Canada's top experts in military law.

Court documents filed by the CFNIS allege Vance tried to obstruct the course of justice “by repeatedly contacting Mrs. K.B. by phone and attempting to persuade her to make false statements about their past relationship” to military investigators.

The documents allege those phone calls were made between Feb. 1-3.

Maj. Kellie Brennan told a parliamentary committee in April that she had turned over to military police recorded conversations of Vance instructing her to lie about their inappropriate relationship and threatening consequences if she didn’t.

Brennan has alleged the two started their relationship in 2001, and that it continued after he became Canada’s top military commander in 2015. Then, Vance was publicly leading the charge on sexual misconduct in the Armed Forces.

Global News, which first reported the allegations made by Brennan in February, has also reported that Vance allegedly sent a lewd email to a much more junior member in 2012.

Vance has declined requests for comment from The Canadian Press, but Global has reported he denies any wrongdoing. None of the allegations have been proven in court.

Retired lieutenant-colonel Rory Fowler, also now a lawyer specializing in military cases, noted that Vance has not been charged with having an inappropriate relationship while in uniform, which was the root of recent allegations against him.

He suggested in a blog post Friday that was either because investigators did not feel there was enough evidence to lay such a charge in relation to the alleged relationship with Brennan or the alleged email — or due to the gap in the military justice system.

“It was likely painfully obvious to the legal advisers to the CFNIS — and perhaps even to the CFNIS investigators themselves — that it was going to be practically impossible to prosecute retired general Vance for a Code of Service Discipline charge or charges relating to his alleged failure to declare his alleged personal relationship with Kellie Brennan,” Fowler said.

“It would also have been practically impossible to prosecute any charge under section 129 of the (National Defence Act) for his alleged sexualized comment to an unnamed junior (non-commissioned member).”

This report by The Canadian Press was first published July 16, 2021.

The Canadian Press

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