By Mike Blais
The title is particularly apt when one is sporting four Maple Leaf’s on their epaulettes and they have been formally appointed by the government to act as the Canadian Armed Forces Chief of Defence Staff.
Apparently one such privilege is immunity from prosecution under the military justice system. As alleged by his paramour, Major Kellie Brennan, General Jonathan Vance would have apparently been correct in telling her that he was “untouchable" and above the law in respect to the military justice system. The Canadian Forces National Investigative Service has finally concluded its investigation into the alleged, two decade, inappropriate sexual relationship between CDS Vance and Maj Brennan. Despite the volumes of public allegations, theCFNIS have come to a remarkable conclusion: Formal military service charges cannot be levied against General Vance.
According to Global News, DND sources claim this is not due to Vance's actual conduct but rather no military service charges are being laid due to the seniority of Vance’s rank.
Seriously, his rank? Yes. Seriously.
The Military Police insiders clarified their position by referring Global News to a recently submitted report penned by former Supreme Court Justice Morris Fish. Fish was invited by the federal government to conduct an extensive review of the Canadian Forces military justice system. Justice Fish pointedly noted in his report that potential military service charges against a CDS could not be adjudicated through the military courts due to the fact that an accused soldier must be judged by a Military court martial composed of officers bearing equivalent or higher rank than the accused.
There is only one Chief of Defence Staff, only one 4-Leaf general in the Canadian Armed Forces. Consequently, there are no rank equivalent or superior officers to pass judgement.
This is definitely a Catch 22 situation.
“To minimize the risk of rank-based influence, all officers of the CAF should as a general rule be judged by officers of or above their rank. How can this be done when the accused is among the highest general officers in Canada? In my view, the solution is to allow the empanelment of retired officers.",
Regrettably, the government has yet to implement the reforms Judge Fish recommended in his report. There is no "panel of retired officers" available to process potential charges against the CDS. Military fraternization regulations are not applicable to a civilian court and the consensual relationship between General Vance and Major Brennan, while clearly suspect by military standards, does not contravene civilian law.
Prime Minister Trudeau has responded to this extraordinary situation by declaring it is "absolutely unacceptable for people to be above the law because of rank." The government is purportedly waiting until reports are submitted by retired Supreme Court Justice Louise Arbour and Lieutenant General Jennie Carignan before making decisions with respect to reforming the military justice system.
General Vance, however, is not out of the legal minefield yet. During the investigation into the alleged inappropriate relationship, Major Brennan provided audio recordings to the military police allegedly revealing the CDS had attempted to influence her testimony by encouraging her to lie about their relationship. The CFNIS provided these incendiary audio recordings to a civilian prosecutor who, upon deeming the conduct potentially illegal, filed a single Obstruction of Justice charge.
This is a potentially serious criminal offence. There will be no military procedural Catch 22 this time and he will be called into account for his personal conduct. The court has remanded Vance's case until mid-October when the participants likely first convene in an Ontario courthouse.
One question begs, how can there be obstruction of justice when there have been no criminal charges laid? If no laws were broken, how can justice be obstructed? We shall see.
The inappropriate relationship cannot be disputed. Major Brennan testified before a parliamentary committee that General Vance fathered two of her eight children. Recent paternity tests cast doubts on her claims as it has been determined he is definitely not the father of one of the children. However, the child who has been identified as Vance's son or daughter was conceived during a period wherein Vance told Global News that the consensual sexual relationship between himself and Brennan had ended. Did he lie to the media and by extension the Canadian public? Is this not a case for a Conduct unbecoming to the good order and discipline of the CAF?
If Vance’s actions constituter a military infraction, we now understand, the CDS cannot be held accountable for any transgressions warranting military service charges through the current courts martial structure.
Clearly, such a situation is untenable. Urgent reforms to the military justice system are definitely required. Procedural deficiencies which provide blanket immunity from prosecution to the Chief of Defence Staff due to their rank seniority must be eliminated. Fish’s finding is no longer a hypothetical scenario. It just got real.
No Canadian should be above the law.
No soldier should be above the Military Code of Service Discipline.
Never pass a fault.
