Military justice system’s impasse over Gen. Jonathan Vance shows urgent need for wall-to-wall reform

Click to play video: 'Exclusive: Gen. Jonathan Vance won’t face any military service charges'
Exclusive: Gen. Jonathan Vance won’t face any military service charges
Gen. Jonathan Vance, Canada's former chief of the defence staff, will not face any charges after a military police investigation into the sexual misconduct allegations against him. Mercedes Stephenson explains why the military courts can't prosecute Vance – Sep 15, 2021

The sexual misconduct crisis in the Canadian military raises deep questions about honour, morality and integrity — as well as discipline in its highest ranks.

It also raises questions about the role of justice.

Several allegations of extra-marital affairs and misconduct have been levelled against Gen. Jonathan Vance, which circulated following his retirement in January 2021. What seems to be forgotten in all of this brouhaha is that in Canada, there are no criminal sanctions for adultery, extramarital romance or relationships in its military justice system.

In many ways, allegations against Vance are akin to the consensual extramarital affair Bill Clinton once had with White House intern Monica Lewinsky, which almost forced him from the U.S. presidency. Clinton, too, faced the charge of obstruction — as well as lying under oath. His actions became political dynamite, leading to two articles of impeachment by the House of Representatives, earning him low marks for character and honesty in public opinion polls.

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Similarly, based on the information already in the public domain, criminal repercussions are highly unlikely for Vance’s alleged extra-marital activities. While inappropriate and perhaps even unethical, his alleged misconduct is well outside the requisite essential elements to be considered a ‘crime.’

However, the military needs to regulate relationships between service members, regardless of rank. Otherwise, it risks abuse of authority and the possible negative impacts upon discipline.

To that end, the Department of National Defence has issued rules against ‘fraternization’ and ‘personal relationships (DAOD 5019-1 – Fraternization and Personal Relationships). They stipulate that in a theatre of operations, a soldier cannot fraternize with another Canadian Armed Forces (CAF) member. Outside a theatre of operations, a ‘personal relationship’ between a senior military officer and subordinate in the same direct chain of command — if there is a difference in rank and authority — is restricted and an instructor-student personal relationship is frowned upon, if only out of concern for perceived impartiality, abuse of power, objectivity and good judgment. It’s important to note here that restricted doesn’t mean banned, or for that matter, criminal.

Click to play video: 'Exclusive: Vance told accuser to be ‘clear on our story’ in calls'
Exclusive: Vance told accuser to be ‘clear on our story’ in calls

Moreover, given the challenges that may arise from workplace romances, Section 129 of the Code of Service Discipline contains a catch-all disciplinary offence that covers possible disorders that may affect good order and discipline and bring discredit upon the Armed Forces. Hence, in the case of Vance, two questions will need to be addressed by military authorities. First, did his alleged affairs contravene Section 129? And, if it did, can he be charged and tried by a disciplinary court martial? This writer cannot venture an answer to the first question. However, he has no such reservation about the second one.

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Briefly stated, as currently constituted, the military justice system simply cannot try an officer with the rank of general. Why? A general court martial is composed of a military judge and a panel (jury) of five military members. Pointedly, the senior member of the panel must be an officer of or above the rank of the accused. In such an instance, the only possible candidate to preside a potential general court martial of Vance would be Gen. Wayne Eyre.

In my considered opinion, the latter’s previous subordinate relationship to Vance, as well as his current appointment as acting chief of the defence staff, would likely disqualify him from serving as an independent and fair trier of facts to decide at trial on the guilt or innocence of Vance.

Moreover, because all military judges hold a rank that is subordinate to that of general, all military judges would face the same conundrum as Eyre. Simply put, it is most unlikely that a general court martial could be convened to try Vance.

Clearly, this impasse is unacceptable. Rank should not be an impediment to responsibility or an escape from accountability. This powerfully shows the urgent need for wall-to-wall reform in the military justice system, including the creation of an inspector general position that would provide oversight over the entire military organization.

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At the end of the day, we must all rely on one important aspect of military culture: the value placed on honour. Despite its apparent superficiality, due to the possible stigma associated with the public disclosure of conduct unbecoming of the character of an officer, Vance will most certainly be bereft of any of the high regards of his compatriots derived from his rank, reputation and status.

Colonel Michel W. Drapeau retired after 34 years in the Canadian Forces. Since 2002, he has been practising law, specializing in Canadian military law. He is also an adjunct professor at the Faculty of Law, University of Ottawa and a published author of several legal texts on Canadian military law.

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