Lieutenant-General Steven Whelan arrives at court in Gatineau on Sept. 25. He was charged with two counts of 'conduct to the prejudice of good order and discipline' under the National Defence Act in 2022.Sean Kilpatrick/The Canadian Press
The military dropped its case against Lieutenant-General Steven Whelan Monday in a surprise move that the prosecution said was made after reviewing the evidence available to the court.
Lt.-Gen. Whelan was charged with two counts of “conduct to the prejudice of good order and discipline” under the National Defence Act in 2022. The military dropped the charge related to more serious allegations of improperly communicating with a subordinate at the start of his trial on Sept. 25. A week later, it dropped the remaining charge, which accused the general of changing the same subordinate’s performance evaluation in 2011 out of fear that she would disclose their private interactions to headquarters.
Defence lawyer Phillip Millar said he was relieved for his client but disappointed that the abrupt end to the case means the public is left without hearing the defence’s case, including testimony from the Chief of the Defence Staff, General Wayne Eyre.
“It’s disappointing not to have the ability to get the truth out and to answer to the claims that have haunted this man,” Mr. Millar said.
The three-star general was one of several senior officers to face sexual-misconduct complaints in 2021, sparking a reckoning in the Canadian Armed Forces and accusations the federal government had failed to root out long-standing sexual harassment. The Globe and Mail first reported the investigation into Lt.-Gen. Whelan on Oct. 15, 2021. He has been on paid leave since then from his post as Chief of Military Personnel.
Mr. Millar has consistently argued that his client was a victim of politics, subjected to an incompetent and politicized investigative process and improperly lumped in with other generals who were also under investigation at the time.
The prosecution dropped the case after the presiding judge, Commander Martin Pelletier, ruled against admitting into evidence e-mails between the complainant and the accused. He also imposed a publication ban on the admissibility hearing as well as the e-mails under discussion until the trial ended.
Despite its termination Monday, he refused to release the e-mails, but the ban on the lawyers’ arguments in court was lifted.
Major Max Reede, the military’s prosecutor, told the court last week the e-mails showed inappropriate interactions over several months in 2010. He said the volume of e-mails and details in them were necessary to show the extent to which Lt.-Gen. Whelan wouldn’t have wanted those e-mails to come out when the complainant raised them in the context of what she believed was a sub-par performance review in 2011.
The court heard that she threatened to report the e-mails between her and Lt.-Gen. Whelan if her evaluation wasn’t improved.
Mr. Millar argued that they were prejudicial and embarrassing to the general and that other, less detailed evidence already showed he was concerned about the e-mails coming out and that they had the power to destroy his career and marriage.
Cdr. Pelletier ruled that the e-mails were relevant to the case, however he used his exclusionary discretion to deem them inadmissible because he found they had low probative value and the prejudice associated with admitting them would be significant.
Major Reede told the court last week the e-mails were provided by the complainant and covered correspondence with Lt.-Gen. Whelan between March and August, 2010, when they were preparing to deploy to Jerusalem.
At the time, the defence said the complainant was not under Lt.-Gen. Whelan’s command.
According to Major Reede’s submissions, the general, who at the time was a colonel, would write to the complainant calling her “sweet girl,” “special,” and “sexy.”
“Pardon my line of thought but what makes you sexy, has nothing to do with your physicality, it is your energy,” Major Reede told the court the general wrote to the complainant.
Lt.-Gen. Whelan would also send her a “word of the day” e-mail, Major Reede said. “Today’s word is palpitates,” he recited from one e-mail to the court. “His heart palpitates with excitement and anticipation when he hears her voice or receives an e-mail from her.”
In the e-mails read to court, Major Reede said the complainant sometimes responded with jokes or didn’t reply.
In one exchange between the two about the complainant baking muffins, Major Reede said the general told her to “Get in there and feed your face. I’ll tell you if your bum is bigger when I see you.”
The prosecutor said she replied that her bum would be bigger, and the general responded: “I like different kinds of bums.”
The complainant told the court last week the general made her uncomfortable and he sometimes overstepped. The defence said the e-mails don’t show the complete picture of their interactions, something the judge also agreed with when he decided to exclude them from evidence.
Mr. Millar told The Globe that the complainant in other e-mails called the general chubby, “muffin top,” and bald. In other cases he said his client’s e-mails were sent in response to phone calls they would have in which she would raise doubts about her looks or say people were being unkind to her.
“There was a lot of context that would have come out today that in isolation creates the wrong picture,” Mr. Millar said, describing the exchanges as “friendly chirping.”
The case was dropped just before Mr. Millar was set to cross-examine the complainant.
Immediately after court on Monday, Mr. Millar said his client would sue “the government and anybody who participated in the destruction of his career without doing their duty to investigate.”
He said he had planned to call Gen. Eyre to testify to ask him about political interference in the investigation and how it was handled. “Part of me can’t help but wonder how enthusiastic he was about coming here,” Mr. Millar said.
Lt.-Gen. Whelan did not give an interview Monday. In court, he was emotional as the prosecution said it would drop the case.
“I’m overwhelmed by just a sense of relief and emotion that this man can get on with his life,” Mr. Millar said about his client.
The prosecution declined to comment after the case closed on Monday, as did the military.
Major Reede told the court the prosecution’s decision was based on the “assessment of the evidence that’s been put before the court.”
Prior to the case being dropped, its merits had already been questioned by lawyer Rory Fowler, who was not involved in the case. He told The Globe he suspected it was dropped “to avoid further embarrassment by the fact that they’re prosecuting a rubbish case.”
He said the military has failed to provide a “cogent answer” as to why it pursued the prosecution at all.
However, Mount Saint Vincent University associate professor Maya Eichler called the dropped case concerning and warned it could perpetuate “the existing chilly climate awaiting those brave enough to come forward with reports of sexual misconduct and abuse of power.”
With a report from The Canadian Press
Editor’s note: A previous version of this story incorrectly referred to Maya Eichler's title. She is associate professor, political studies and women’s studies. This version has been updated.