The military has dropped a charge related to alleged sexual misconduct against Lt.-Gen. Steve Whelan, who was removed from his job as head of military personnel in 2021 after the allegations were made.
The court martial for Whelan began Monday morning in Gatineau, Que., where he was initially facing two charges of conduct to the prejudice of good order and discipline.
One of those charges, related to what the military called an inappropriate relationship with a subordinate, has been withdrawn.
Whelan has pleaded not guilty to a second charge, an allegation that he inappropriately changed a performance evaluation report for an employee. The Canadian Press is not naming the employee due to the nature of the allegations involved in the case.
In an opening statement, Maj. Max Reede told the court martial that the employee complained her evaluation report was scored too low after she rejected an invitation to dinner in Whelan's personal quarters.
"She felt this was in retaliation for her refusal to engage with the accused in a personal relationship with him," Reede said.
He said the pair had a personal relationship that included "flirtatious email exchanges," phone calls and video calls.
Prosecutors allege that her evaluation report was then changed to "outstanding" because Whelan was concerned that their relationship would become public.
Defence lawyer Phillip Millar said in his opening statement that word of the investigation was leaked to the media before it was complete and that effectively ruined his client's career.
"Lt.-Gen. Whelan was the victim of politics," he said. "The damage here is done."
Millar said that Whelan and the employee were friends when they deployed together, and that she "manipulated and charmed him to get what she wanted."
Millar said he will argue that the case against his client was influenced by the fact that the Canadian Armed Forces was embroiled in controversy at the time.
Several high-profile military members were removed from their posts as a result of allegations of sexual misconduct, including Vice-Admiral Haydn Edmundson, who held the position of head of personnel before Whelan.
The controversy led to an external review of the Armed Forces by former Supreme Court justice Louise Arbour, who called for sweeping changes to the military's culture and the way it deals with sexual misconduct cases.
The prosecution's first witness, retired Col. Ron Ubbens, took the stand Monday and answered questions about his time on Task Force Jerusalem in 2010 and 2011.
He told the court that Whelan asked him to write a performance evaluation report for the employee that year because he was overseeing where she worked.
He said Whelan told him the report should not say the employee's performance was "outstanding," and he believed that was because there were issues with the functioning of the area where she worked.
"It was no surprise to me that that should have been reflected," he said.
But the employee would not sign the report, he said, because she didn't feel it was reflective of her work. Ubbens said he revised it and improved her score but she remained unsatisfied.
Ubbens told the court that the employee felt she was being treated unfairly. She told him she had received inappropriate emails from Whelan, and she threatened to go to a senior commanding officer with the emails if the report was not changed.
"She believed that whatever transpired in those emails resulted in a bias towards her," he said.
Ubbens told the court he emailed Whelan about that threat.
In that email exchange, Whelan told Ubbens the task force was going very well. "We cannot allow this crazy person (to) muddy this mission. Make it your mission to appease this person," he wrote.
Ubbens told the court he didn't believe what the employee had told him about the sexually inappropriate emails until Whelan apologized to him in another email, saying he had failed as a leader.
Whelan wrote: "If she decides to go forward, there is nothing I can do except get used to (being) a divorced pariah in the (Canadian Armed Forces)." He also said the emails were a mistake and that the time away from home had weakened his marriage.
Ubbens said he has never seen the email exchanges between Whelan and the employee, and he did not ask Whelan for details about them.
He told the court that if he knew the details of the exchanges, he would have had a duty to report any misconduct. "I did not want to know, and I told both of them," he said.
The Canadian Armed Forces recently announced its plans to repeal its duty-to-report rules to comply with one of Arbour's recommendations.
The current rules state that Armed Forces members must "report to the proper authority any infringement of the pertinent statutes, regulations, rules, orders and instructions governing the conduct of any person subject to the Code of Service Discipline."
Arbour wrote in her report that in practice, the threat of punishment actually discourages people from disclosing misconduct.
On the stand Monday, Ubbens said that he felt Whelan had manipulated him, and he held onto that email chain from 2011 for more than 10 years as "insurance" in case there was any retaliation from Whelan. Such retaliation did not happen, he said.
During his cross-examination, Millar told Ubbens that all the allegedly inappropriate emails between Whelan and the employee were sent before the tour, when she was not under his command. Ubbens said that changed his perspective about what happened.
Two weeks have been set aside for the court martial. The chief of the defence staff, Gen. Wayne Eyre, and vice-chief of the defence staff Lt.-Gen. Frances Allen are also expected to testify.
