Lt.-Gen. Steven Whelan makes his way to a court martial proceedings on Sept. 28 in Gatineau.Adrian Wyld/The Canadian Press
E-mails between Lieutenant-General Steven Whelan and his subordinate, which the senior commander’s defence has described as “prejudicial and embarrassing” to him, will not be allowed into evidence, the court martial’s military judge has ruled.
Commander Martin Pelletier on Thursday decided to reject the prosecution’s bid after a sidebar hearing on the admissibility of the correspondence. That hearing, called a voir dire, is subject to a time-limited publication ban, which prevents journalists from reporting on the contents of the hearing or the e-mails until the trial and any subsequent appeals are completed.
Lt.-Gen. Whelan faces one count of “conduct to the prejudice of good order and discipline” under the National Defence Act. He had initially been charged with two such counts in July, 2022, but as proceedings got under way Monday, the prosecution dropped the charge connected to more serious allegations.
Under the remaining charge, the military alleges the general made improper considerations in the scoring of the performance evaluation of a subordinate – the complainant – in June, 2011, and that he acted out of fear that she would disclose their interactions to headquarters.
Defence lawyer Phillip Millar has said his client was in a personal – but not physical – relationship with the complainant. Mr. Millar said Lt.-Gen. Whelan cut off the relationship before the two deployed and says his client is the victim of politics.
Thursday’s publication ban was imposed, Cdr. Pelletier said, because the open-court principle would pose a serious risk to an important public interest: in this case, confidence in the military justice system.
He said at issue is the possibility that releasing the e-mails through a hearing on their admissibility could be seen as an abuse of process that would allow the prosecution to try Lt.-Gen. Whelan in the court of public opinion as opposed to the court of law.
“Embarrassment isn’t the issue here,” Cdr. Pelletier said during his ruling on the publication ban. Instead, he said making the e-mails public could arguably, from the perspective of someone observing the proceeding, “allow the prosecution to show sexual misconduct was committed, even in the absence of a decision on the admissibility of its evidence.”
So far, the court has heard from two witnesses in the case: the complainant and retired colonel Ron Ubbens. Mr. Ubbens was a senior officer in the same operation in Jerusalem, where the alleged incident occurred. He was senior to the complainant and also under Lt.-Gen. Whelan’s command.
The two are the only witnesses for the prosecution. Mr. Ubbens testified Monday. The complainant’s testimony began Wednesday but was paused pending the voir dire hearing on the additional e-mails.
With the judge’s decision not to admit the e-mails, the prosecution has now submitted all of its evidence. The defence will cross-examine the complainant on Monday.
The prosecution opposed Thursday’s publication ban, saying the defence’s request for one did not meet the high bar needed to circumvent the open-court principle. The Globe and Mail also presented submissions against a ban.
The prosecution had wanted to question the complainant on the e-mails between her and the accused, which date back to 2010. The prosecutor, Major Max Reede, said Wednesday that the additional e-mail evidence was needed to illustrate motive and show the complainant is credible – an effort to counter defence accusations that she is lying.
However, in those same discussions, the defence suggested the proposed evidence amounted to extortion because the underlying message was that if Lt.-Gen. Whelan pleaded guilty, “the e-mails don’t get out.”
Mr. Millar said the e-mails were like “the Sword of Damocles” hanging over Lt.-Gen. Whelan and “highly prejudicial and embarrassing.”
He also argued that the e-mails were an attempt to revive a charge the prosecution dropped on Monday. The dropped charge accused Lt.-Gen. Whelan of engaging in improper communication with a subordinate or making advances toward the subordinate.
Cdr. Pelletier said Wednesday that concern was valid and it factored into his decision for an interim publication ban. He said he was not prejudging the prosecution and senior military leadership’s motives, but said that because he was confronted with an allegation that the prosecution was acting improperly, he had to “protect the integrity of the court process.”
In reference to the dropped charge, the judge said allowing publication of the e-mails while their admissibility is debated could lead some to think “that the court has let the prosecution abuse its process by entering evidence about a charge it knew it could not get a guilty verdict on.”
The judge noted the prosecution’s policies require it to only move forward with a charge when there is a reasonable prospect of conviction.
He said the court is “uneasy” with the evidence, and asked how it would look to an informed observer to see the “prosecution seemingly entering its evidence on the withdrawn charge.”