Lt.-Gen. Steven Whelan wiped away tears Monday morning when military prosecutors withdrew the final charge against him, bringing an end to the case.
The surprise announcement came as Whelan’s defence team was preparing to cross-examine the complainant.
“This has been a gong show from the start,” said defence lawyer Phillip Millar.
Whelan had pleaded not guilty to one count of conduct to the prejudice of good order and discipline for improperly changing a performance report. After the court martial began last week, proceedings slowed due to legal arguments about the admissibility of evidence.
“To me, there is nothing more indictable than having the charge withdrawn mid-witness,” said Millar.
“It tells you that something was going on there that shows there was no case.”
Prosecutors declined an interview request. The Defence Department has not responded to a request for comment from the chief of the defence staff.
Whelan was initially set to face a court martial on two counts, including one charge related to having an inappropriate relationship with a subordinate. Military prosecutor Maj. Max Reede dropped that charge before the court martial began.
Both charges stemmed from 2011, when Whelan was commander of Task Force Jerusalem and the complainant was under his command.
The Canadian Press is not naming the woman due to the nature of the allegations.
The court martial heard the pair had a personal relationship involving what the prosecution has called flirtatious and inappropriate emails, along with phone calls and video chats, which began the year before they deployed together.
While on deployment, the woman received a performance evaluation report written by then-lieutenant-colonel Ron Ubbens, under the direction of Whelan.
She testified last week that she believed Whelan gave her a sub-par score because she had refused an invitation to go to dinner and have a private meeting in his hotel room. Members of the task force lived in hotels during the deployment.
Ubbens testified that the woman threatened to tell senior commanders about her relationship with Whelan and said she had inappropriate emails from him. Ubbens said he never read the emails, but told Whelan about the threat.
Documents entered into evidence show Whelan asked Ubbens to “make her go away” and told him that the release of those emails could ruin his career and marriage.
The emails became the subject of a prolonged hearing last week, because Millar objected to them being entered as evidence.
The military judge, Cmdr. Martin Pelletier, ruled on Friday that they could not be admitted as evidence for the prosecution.
In his decision, Pelletier said it was established in court that “the emails are highly embarrassing personally and professionally” to Whelan, and that they were related to the sexual misconduct charge that was dropped.
The emails were under a publication ban for the duration of the court martial proceedings, but on Monday, Pelletier refused to release them.
Last Monday, Ubbens testified that after speaking with Whelan about the woman’s threat, he wrote another performance report that recommended her for immediate promotion.
The woman brought forward her complaint about Whelan in late 2021. She told the court martial last week: “It was a decision that I struggled with for several years. I believe in 2021 that I felt that it was time, partly because of what I was trying to deal with in my own healing through therapy.”
At the time, the Canadian Armed Forces was in crisis. A number of top commanders had been removed from their jobs after being accused publicly of sexual misconduct.
That includes vice-admiral Haydn Edmundson, who has pleaded not guilty to a sexual assault charge and is set to go on trial in civilian court in February. Edmundson took leave from his position as head of military personnel in May 2021, as allegations emerged. Whelan replaced him.
In October 2021, media reported that military police were investigating Whelan for alleged sexual misconduct. He was removed from his job and put on paid leave, and was formally charged in January 2022.
“When that story went out and (media) grouped him with a bunch of other officers who were charged with sexual assault, he got put in a category that it’s impossible for him to rehabilitate from,” Millar told reporters Monday.
Millar said he planned to argue that his client was a victim of political pressure. He was planning to call the chief of the defence staff, Gen. Wayne Eyre, and vice-chief of the defence staff, Frances Allen, as witnesses to question their decision to have Whelan step down.
“I think the military has to take a hard look at how they’re addressing justice and due process and not just be reactive to media stories, and aiming to please the government,” Millar said.
“It’s not over, because I have prepared all of the foundations for the civil suit that is going to bring this man justice.”
Millar said that Whelan plans to launch a civil suit against the federal government and “anyone who participated in the destruction of his career without doing their duty to investigate.”
In another case alleging a damaging political atmosphere, the government is being sued by Maj.-Gen. Dany Fortin, who was acquitted of a sexual assault charge late last year.
Fortin was dropped as the lead for Canada’s COVID-19 vaccine program in early 2021 after word of allegations against him became public.
He named 16 high-ranking officials in the lawsuit, including Prime Minister Justin Trudeau, Eyre, former defence minister Harjit Sajjan and former health minister Patty Hajdu.
A statement of claim filed with the Ontario Superior Court of Justice seeks $5 million in general damages and $1 million in punitive damages.
The document alleges Fortin suffered damages due to defamation and misfeasance in public office. It also accuses officials of negligent investigation, the inappropriate public disclosure of private facts, breach of confidence and conspiracy to cause damages.
Sarah Ritchie, The Canadian Press