Contradictions pile up in the federal government's approach to military misconduct

Weeks of hearings and a parade of witnesses before two parliamentary committeeshave at the very least uncovered a cascade of contradictions in the Liberal government's approach tosexual misconduct in the military.

Anticipated, but sorely absent, has been the kind of"ah-ha" moment on whichso many political crises are expected to turn.

Still, the contradictions areimportant and could have long-term implications for politics and the institutions of the state,andperhapsforthe prosecution of futurecases,say theexperts.

The first and most glaring disconnectinvolves Defence Minister Harjit Sajjan's long-held claim which herepeated atTuesday's defence committee hearing that he could not look at supposed evidence of alleged misconduct involving former chief of the defence staff Gen. Jonathan Vance because doing so would insert him into the chain ofevidence for a possiblecriminal case.

WATCH: Defence Minister Harjit Sajjan defends handling of misconduct allegations

Defence minister defends handling of misconduct allegations against military commanders

4 years ago

Duration 1:53

The Commons Defence Committee is investigating allegations of sexual misconduct against two senior commanders of the Canadian Armed Forces. Defence Minister Harjit Sajjan denied ignoring those accusations, and said the scandal has broken trust in the military.

"My purpose, immediately, was to make sure whatever information the ombudsman had,I didn't want to accept it because I didn't want to possibly taint it," Sajjan said, referring to an envelope former ombudsman Gary Walbourne brought to aMarch 2018 meeting where Walbourne warned of possible sexual misconduct involving Gen.Vance.

"Based upon my own experience as a detective, I knowin investigations, when something comes forward, it can possibly go to court. The last thing you want to do is interfere with that."

Butthe Department of National Defence took the extraordinary(some would argue unprecedented)step of allowing the complainants in the ongoing military police investigations into both Vance and his successor, Admiral Art McDonald, to give media interviews possiblytainting the cases.

A spokesperson for the Department of National Defence (DND)said the decision to grant Global News' request to interview Maj. Kellie Brennan was made by the assistant deputy minister of public affairs,Laurie Kempton, while Lt. (N) Heather MacDonald was given the nod to take part inan interviewby the commander of Canadian Forces Base Esquimalt, B.C., Capt. (N) Sam Sader.

'If I were the JAG, I'd be furious'

In both instances, the military law enforcement and justice branches were left out of the loop.

The Canadian Forces National Investigation Service (CFNIS) and the Canadian Forces Judge Advocate General (JAG) "were not consulted, nor is their consent required for CAF members to conduct media interviews," said Dan Lebouthillier, DND's head of media relations.

An expert in military law said hewas left dumbfounded by the department's decision and the apparent contradiction between that decision andthe minister's pleas to protect the integrity of the investigations.

"Incredible," said retired colonel Michel Drapeau. "As a minimum, the advice of the JAG should have been first sought. If I were the JAG, I would be furious. Ditto for the NIS."

Retired colonel Rory Fowler, a former military lawyer now in private practice, said healso found it odd that the department didn't first consult with thebodies responsible for investigating and prosecuting crimes in the military.

"I would suggest that they are correct that neither the CFNIS nor the JAG must consent, but they'd be foolish not to have consulted with them," he said.

Minister kept out of the loop

By regulation, serving members of the military must seek permission from their superiors to take part in media interviews the approval by Kempton, though unusual, is allowed under the existing rules, said Lebouthillier.

Both interviews were politically sensitive even explosive. ButSajjan's office was not told in advance thatthey were coming, said Lebouthillier while the office ofthe chief of the defence staff, while not being asked to grant permission, was given a heads-up.

Fowler said keeping the minister's office out of the loop was also somewhat strange.

"There would be nothing improper about informing the [Minister of National Defence Office]or [Sajjan]," said Fowler.

A defence official, speaking on background, said the department was faced with a no-win situation because refusing to grant the interviewrequests would have looked as if the department weremuzzling the complainants.

ButDrapeau said it "goes against any concept of good governance ... and administrative law," for someone in government to grant permission to those involved in a case "to speak out or opine" on a matter which is under active investigation.

Oddly enough, MacDonaldmade a similar argument in her interview when she complained thatboth she and the admiral were being denied "due process" because some details of the allegations had beenleaked to CBC News.

"This is more than strange," Drapeau said.

Defence lawyers could end up havinga field day with the complainants'remarks, he added.

The contradictions don't end with the legal arguments.

WATCH: Ombudsman calls out "posturing" over misconduct complaints

Military ombudsman calls out "political and institutional posturing" over misconduct complaints

3 years ago

Duration 1:16

Gregory Lick spoke with MPs on the Commons defence committee Tuesday.

Military ombudsman Gregory Lick has felt compelled to twicecorrect some of Sajjan's public assertions about what Walbournecould have done with the informal misconduct complaint against Vance.

In testimony before both the Commons committee on the status of women and the defence committee, Lick pushed back at Sajjan'ssuggestion that the ombudsman's office could have conducted its own investigation and that allegations against Vancecould have been referred elsewhere.

"The ombudsman cannot look into anything of a criminal nature or that could be a Code of Service Discipline offence," Lick said Tuesday.

"The ombudsman reports directly to the Minister of National Defence. Advising the person to whom you report about problems within that person's organization is generally an expected way of proceeding."

Meanwhile in what may be more of a contrast than a contradiction the country's former top civil servant deflected criticism this weekover the fact thatinformal allegations against Vance, made in 2018, were not referred to the top national security adviser.

"I think that is a hypothetical of what might have followed," Michael Wernick told the defence committee on Tuesday. "It's not clear to me how the national security adviser would have added anything to the equation at the time."

Forthe Liberal government at thetime, the most direct route to addressing the problem with Vancewas to convince Walbourne to hand over the information he had even though hehad no authority to do so.

When the former Conservative government dealt with similar informal (and, in onecase, anonymous)complaints about Vanceprior to his appointment in 2015, the national security adviser of the day, Richard Fadden, was fully involved and at one point took part in briefing then-prime minister Stephen Harper.

The country's top security official was involved in partbecause the chief of the defence staffholds not only top Canadiansecret clearancebut NATO security clearance as well.

Wernickinsisted, however, thatthe circumstances faced by the current governmentwere unique because,given the anonymous nature of the complaint, they couldn't talk to Vance "because that would have raised the risk of reprisal."