Questions of accountability are bubbling around Parliament Hill in the wake of allegations against former chief of defence staff Gen. Jonathan Vance, testing the limits of the military’s discipline structure.
Vance is currently being investigated following allegations of inappropriate behaviour with two of his female subordinates, including one regarding an alleged relationship with a woman he significantly outranked.
He denies all allegations of any inappropriate behaviour.
But the question of whether he could be punished over these allegations is proving difficult to answer as the rank-based military legal system contends with the possibility of its former top soldier facing a court martial.
First off, within this system, a senior ranking officer must serve as a referral authority for a court martial. A referral authority refers to the officer tasked with ensuring the views of the senior chain of command are taken into account in deciding whether to proceed with the charge.
In Vance’s case, he was the top-ranking officer in the military. That means there’s no one higher than him in the chain of command who could act as the referral authority – that is, except for the new chief of defence staff.
However, even if the new chief of defence staff acts as the referral authority, one military law expert said there’s a new issue that crops up. Vance would have a right to be tried by general court martial – a process that requires a panel. The senior member of that panel must be of equal or higher rank to the accused.
“Gen. Vance will be tried, if he is charged under the code of service discipline and tried by court martial, he will be tried as a general,” explained Rory Fowler, a retired lieutenant-colonel and now a lawyer who works with military service members.
“There is only one other person who holds that rank, and that’s the chief of the defence staff. And if the chief of the defence staff is the referral authority, he cannot be the senior member of the panel.”
Fowler said the court martial system simply wasn’t created to be used against the country’s top-ranked brass.
“The system that’s been put in place was designed to prosecute more junior people in the Canadian forces. It was never within their contemplation that they would have to prosecute the chief of the defence staff or one of the commanders of the command,” he said.
In addition to the issues with the panel membership, there’s the issue of finding a judge. There are only four military judges who can preside over a court martial, and three of them have been involved in a debate with Vance over judicial independence.
“I would likely be inclined to bring a motion for recusal if any of those three military judges were assigned, because there… doesn’t have to be actual bias. Apprehension of bias affecting their independence might be sufficient to succeed with such a motion,” Fowler said.
The fourth and final judge who could preside over such a case had served as legal adviser to the chief of the defence staff’s office during “part of the material time that the allegations appear to address,” Fowler added.
This means there might be no judges who can actually preside over the case.
“You’ve got an issue with respect to the referral authority, an issue with respect to a panel if it’s going to be a general court martial and an issue with respect to the apprehension of bias by the presiding military judge,” Fowler said.
“And that’s before you even start examining the reliability of any of the evidence brought to bear.”
Vance told Global News the relationship with the subordinate while he was chief of defence staff was not sexual, describing himself as a “supporter” for her as she navigated the process of joining the class-action lawsuit for victims of sexual misconduct in the military.
He suggested any evidence of sexually explicit exchanges could be fabricated.
He said he has no recollection of sending the 2012 email. He said that if he did send it, the email was meant as a joke and not as a solicitation, and that he would be willing to “apologize.”
Meanwhile, as the military court system grapples with the possibility of its former top soldier facing a court martial, many members of Parliament are asking why the allegations against Vance weren’t addressed sooner.
The military ombudsman had raised concerns with Defence Minister Harjit Sajjan in 2018 about Vance’s alleged sexual misconduct, sources have told Global News.
In an interview with The West Block’s Mercedes Stephenson, aired Sunday, Sajjan would not confirm whether he shared this information with the prime minister.
Now, members of Parliament are hoping to find answers to these questions. The House of Commons national defence committee is slated to meet on Tuesday to consider whether to study the allegations.
“The defence minister and prime minister have repeatedly refused to be transparent about when they first became aware of the allegations against former chief of defence staff General Jonathan Vance and what actions they took,” Conservative MP James Bezan, who sits on the committee, said in a statement emailed to Global News.
“Conservatives are calling on the National Defence Committee to meet to get the truth for Canadians.”
NDP MP Randall Garrison, who also sits on the committee, had similar questions.
“Did (Sajjan) tell the prime minister, and if he did and the prime minister didn’t act, then it still comes back to him. He is the minister of defence,” Garrison said.
“I don’t buy that you can just pass the buck. If he passed the buck to the prime minister and prime minister assured him he would act, then why didn’t he follow up?”
“As chief of defence staff, Gen. Vance was given responsibility for a program to root out sexual harassment in the Canadian military,” Garrison said.
“If we want women to be able to serve equally in the Canadian Forces, which I know we all say we do, then we have to have the programs and procedures in place to make sure that they can serve without being subject to sexual harassment.”
— With files from Global News’ Amanda Connolly