Notwithstanding that the investigation was conducted by the Canadian Forces National Investigation Service (CFNIS), the charge was not laid under the Code of Service Discipline. This is almost certainly because such a charge would give rise to a right to elect trial by General Court Martial (GCM), and it is practically impossible to convene a GCM Panel where the accused is a current or former CDS. For a detailed examination of this issue, see: "Prosecuting the Chief of the Defence Staff". Moreover, based upon the wording of the charge, it appears to have arisen after Jonathan Vance retired (although it remains unclear whether he had been released from the CF at that point, or if he was on 'terminal leave').
The particulars of the charge state that General Vance (retired) "... did willfully attempt to obstruct the course of justice in a judicial proceeding by repeatedly contacting Mrs K.B. by phone and attempting to persuade her to make false statements about their past relationship to the Canadians Forces National Investigation Service ...". Initial reports by Global News indicated that the charge was laid pursuant to subsection 139(1) of the Criminal Code; however, that provision is inconsistent with the allegations. (The offence under subsection 139(1) concerns improper conduct relating to sureties provided for judicial interim release or bail.)
There are several noteworthy aspects arising from this news, including:
- Notwithstanding that the Director of Military Prosecutions (DMP) rigorously pursued appeal in R v Edwards, et. al., 2021 CMAC 2 and R v Proulx and Cloutier, 2021 CMAC 3, adamantly arguing that all CF personnel are equal under the law (and, presumably, the Code of Service Discipline), the charge was not laid under the Code of Service Discipline, even though it related to the conduct of one CF member (or, potentially, former CF member) to another CF member;
- Ironically, then, it would appear that 'independent' military judges remain liable to be tried under the Code of Service Discipline, but a current or former CDS is not;
- Often, 'obstruct justice' charges will be laid in conjunction with one or more additional criminal offences. That is not the case here. That factor may prove to be relevant, as it may be difficult to establish that there was a 'proposed judicial proceeding' when there has been no separate charge laid;
- One of the essential elements of an 'obstruct justice' charge under subsection 139(2) of the Criminal Code (in the circumstances described) is that the accused must willfully dissuade or attempt to dissuade a person by threats, bribes or other corrupt means from giving evidence in an existing or proposed judicial proceeding. Simply asking a person not to give information to investigating police will not meet this threshold. There appears to be insufficient information in the public sphere to draw any meaningful conclusions regarding this factor; and
- It is likely that the CFNIS, and the military prosecutors who advised them, had in mind the recent Supreme Court of Canada case of R v Morrow, 2021 SCC 21, aff'g R v Morrow, 2020 ABCA 407. However, that judgment does not obviate the requirement to establish a threat, bribe, or other corrupt means that, objectively, would have dissuaded a complainant from giving evidence in a judicial proceeding.