Contradictions pile up in the federal government's approach to military misconduct
If the minister was trying to protect the chain of evidence, why did the military clear media interviews?
Weeks of hearings and a parade of witnesses before two parliamentary committees have — at the very least — uncovered a cascade of contradictions in the Liberal government's approach to sexual misconduct in the military.
Anticipated, but sorely absent, has been the kind of "ah-ha" moment on which so many political crises are expected to turn.
Still, the contradictions are important and could have long-term implications — for politics and the institutions of the state, and perhaps for the prosecution of future cases, say the experts.
The first and most glaring disconnect involves Defence Minister Harjit Sajjan's long-held claim — which he repeated at Tuesday'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 of evidence for a possible criminal case.
WATCH: Defence Minister Harjit Sajjan defends handling of misconduct allegations
"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 a March 2018 meeting where Walbourne warned of possible sexual misconduct involving Gen. Vance.
"Based upon my own experience as a detective, I know in investigations, when something comes forward, it can possibly go to court. The last thing you want to do is interfere with that."
But the 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 — possibly tainting 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 in an interview by 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 he was left dumbfounded by the department's decision — and the apparent contradiction between that decision and the 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 he also found it odd that the department didn't first consult with the bodies 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. But Sajjan's office was not told in advance that they were coming, said Lebouthillier — while the office of the 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 interview requests would have looked as if the department were muzzling the complainants.
But Drapeau 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, MacDonald made a similar argument in her interview when she complained that both she and the admiral were being denied "due process" because some details of the allegations had been leaked to CBC News.
"This is more than strange," Drapeau said.
Defence lawyers could end up having a 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 Gregory Lick has felt compelled to twice correct some of Sajjan's public assertions about what Walbourne could 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's suggestion that the ombudsman's office could have conducted its own investigation and that allegations against Vance could 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 week over the fact that informal 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."
For the Liberal government at the time, the most direct route to addressing the problem with Vance was to convince Walbourne to hand over the information he had — even though he had no authority to do so.
When the former Conservative government dealt with similar informal (and, in one case, anonymous) complaints about Vance prior 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 part because the chief of the defence staff holds not only top Canadian secret clearance but NATO security clearance as well.
Wernick insisted, however, that the circumstances faced by the current government were unique because, given the anonymous nature of the complaint, they couldn't talk to Vance "because that would have raised the risk of reprisal."
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