The Department of Justice invoked a rarely used provision that restricts disclosure of national security matters and is typically used in terrorism cases and to protect classified information.Blair Gable/The Globe and Mail
The federal Justice Department invoked national security in a domestic assault case involving an elite Canadian soldier, restricting what his estranged wife could say in court about his military career and other matters.
The soldier, Master-Corporal Michael Spence, a member of Joint Task Force 2, an elite special-forces unit, pleaded guilty on Wednesday to assault and possession of illegal ammunition magazines. He received 36 months of probation after a plea deal that saw more serious charges of aggravated assault, choking and assault with bodily harm dropped. He was first charged in 2023.
Court heard that the federal government had invoked Section 38 of the Canada Evidence Act, a rarely used provision that restricts disclosure of national security matters and is typically used in terrorism cases and to protect classified information.
The victim in the case, Brittany Makort, and her lawyer accuse the federal government of using the law to avoid the embarrassment of the public knowing that an elite soldier had violently attacked his spouse, while the military says Mr. Spence has not been actively employed since 2023.
Ms. Makort read a victim-impact statement during the sentencing hearing on Wednesday, but she told the court she was being prevented from speaking fully about what had happened. She said Mr. Spence’s attack left her with severe injuries to her face and jaw, as well as traumatic brain injury.
“The Department of Justice, citing national security concerns, asserted control over the narrative of his case. They directed that key portions of my evidence be redacted and not spoken in court,” Ms. Makort said, wiping away tears, her hand shaking as she read the statement.
“In doing so, they have effectively silenced me and compromised the court’s essential role in fully and fairly assessing the evidence to uphold justice.”
She continued: “I can only conclude that the silence serves to protect the reputation of the Department of National Defence, under which Mr. Spence served.”
Ms. Makort and her lawyer told The Globe and Mail outside court that the Section 38 order covered Mr. Spence’s unit and other information Ms. Makort provided military police. They say government lawyers provided an 85-page document that detailed matters she could not talk about in court. That document is not public. The Globe has not viewed the document.
Justice Department spokesman Ian McLeod would only say that “the Attorney-General sought to protect certain information under Section 38 in this case,” and that could be harmful if publicly disclosed.
National Defence spokesperson Andrée-Anne Poulin acknowledged on Thursday the request for Section 38 came from Canadian Forces Intelligence Command, which had concerns about “some of the information in court documents.”
Ms. Poulin said Mr. Spence remains a member of the Armed Forces but has not been “actively employed” since 2023. She suggested he may face disciplinary action, but could provide no further information because of privacy laws.
“Any conduct or performance deficiency – that is, a failure to meet established standards of behaviour and performance – by a CAF member, stemming from factors within their control, must be addressed with appropriate action,“ she said. ”Depending on the circumstances, the appropriate action may involve administrative or disciplinary action, or both."
JTF2 is a highly specialized unit of the Canadian Armed Forces responsible for counterterrorism and lethal missions in conflict zones such as Iraq and Syria. A page on the federal government website describes JTF2 as a unit with “great professionalism” whose high standards are built on the “quality and exceptional ability” of its members.
The site says JTF2 is subject to “strict security measures to protect the unit and its mission.”
Nearly half of women and girls in Canada report having been a victim of intimate partner violence at some point in their lives, and a woman or girl is killed by an intimate partner about every four days. The federal government has for years made combatting intimate partner violence a priority, and Prime Minister Mark Carney included a similar pledge in this week’s Throne Speech.
Ms. Makort said Mr. Spence should not be allowed to remain with JTF2 or any unit in the Canadian military.
She said she was shocked when she learned that the Crown and Mr. Spence’s lawyer had agreed to a simple assault plea.
Mr. Spence’s lawyer, Sean May, said he could not comment on why Section 38 was invoked. Nor would he say whether the plea deal was initiated by the Justice Department and Canadian military.
Lawyer William Jaksa said neither he nor Ms. Makort were given any reason for why Section 38 was used to silence his client.
“Without an explanation of why only seems to serve to protect the reputation of the unit he worked with,” Mr. Jaksa said. “We want violent people in those positions to a certain degree. I don’t think they want the reputation that it’s being brought home to the bedroom from the battlefield.”