OTTAWA — The military judge overseeing a court martial for Lt.-Gen. Steve Whelan said he was "annoyed" by delays Tuesday that prevented him from hearing any evidence from the woman at the centre of the case.
Prosecutors wanted to introduce into evidence dozens of email chains between the accused and the complainant, but the defence is arguing some of those emails are irrelevant to the case and embarrassing to Whelan.
Whelan has pleaded not guilty to a charge of conduct to the prejudice of good order and discipline related to changing the woman's performance report while they were both deployed to Task Force Jerusalem in 2011.
He was the commanding officer on that tour at the time and the woman was a sergeant. The Canadian Press is not naming her because of the nature of the allegations.
The prosecution alleges that Whelan improved her score on the report because he wanted to stop her from releasing personal and inappropriate emails between them.
Maj. Max Reede told the court martial in his opening statement on Monday that she was given a low score in retaliation "for her refusal to engage with the accused in a personal relationship."
He said the pair had a relationship that included "flirtatious email exchanges," phone calls and video calls.
Defence lawyer Phillip Millar is arguing that Whelan previously had a close friendship with the woman that crossed the line into emotional infidelity, but that he made clear they could only have a professional relationship once they were deployed together.
Millar alleged the woman manipulated his client.
On Monday, the court was shown an email conversation between Whelan and retired Col. Ron Ubbens, who wrote the woman's performance report in consultation with Whelan.
Ubbens testified that she was not happy with her score, and she told him she felt Whelan was treating her unfairly because of their relationship. She told him she had received inappropriate emails from Whelan and threatened to show them to a senior commander.
In June 2011, after he was informed about the threat, Whelan emailed Ubbens to say that their mission, Operation Proteus, was "walking on water." Whelan asked him to "make her go away" and "make it your mission to appease this person."
Whelan also said that if the emails were released, they would ruin his marriage and career.
Ubbens told the court he did not want to know details about the emails because he didn't want to have a duty to report any alleged misconduct.
The military charged Whelan with two counts of conduct to the prejudice of good order and discipline in 2022. A charge related to having an inappropriate relationship with a subordinate was withdrawn by prosecutors a day before the trial began.
On Tuesday, Millar argued that any conversations between his client and the complainant before they were deployed together were not relevant to the case. That would include the allegedly inappropriate exchanges the complainant told Ubbens about.
He also argued that because the court martial already has evidence that Whelan was worried about potential embarrassment and damage to his career if the emails were released, the judge and the public do not need to see the emails in question.
The prosecution and defence could not agree on which evidence should be allowed, prompting the military judge to express his frustration at the delays.
"I am annoyed," said Comm. Martin Pelletier, who noted the complainant waited all day and was not called to the stand.
Pelletier asked both legal teams to be ready to discuss a possible publication ban on the proposed evidence on Wednesday morning, and to be ready to begin her testimony after that.
Whelan was among a number of high-profile military members removed from their jobs as a result of allegations of sexual misconduct in recent years.
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.
Among the 48 recommendations in her 2022 report, Arbour said the government should remove the military's jurisdiction over cases of criminal sexual misconduct and refer those cases to the civilian justice system.
The Defence Department said military police did not find evidence of Criminal Code violations in Whelan's case, so it is proceeding in the military justice system.
This report by The Canadian Press was first published Sept. 26, 2023.
Sarah Ritchie, The Canadian Press