GATINEAU, Que. — The complainant in the court martial for Lt.-Gen. Steven Whelan has told the court she believes he wrote a poor performance report for her while they were deployed together because she refused his invitation to have a private meeting in his hotel room.
Whelan has pleaded not guilty to a charge of conduct to the prejudice of good order and discipline related to improperly changing the woman's performance evaluation report in 2011.
Military prosecutors allege that Whelan improved her score on a performance report because he wanted to stop her from releasing personal and inappropriate emails between them.
The defence is arguing that the woman manipulated Whelan to get a better review and that he was charged for political reasons.
The woman, whom The Canadian Press is not naming due to the nature of the allegations, testified that she met Whelan in early 2010 while working in Ottawa. Her position involved liaising with small missions, which included Operation Proteus in Jerusalem.
At the time, Whelan was a lieutenant-colonel and was set to be the task force commander on that mission.
The witness told the court martial they began emailing about work and within a couple of months, they were talking almost daily and having personal conversations on Skype, on the phone and by email.
She said during that time Whelan "hand-picked" her to deploy on Operation Proteus, even though the position was supposed to be for someone of a higher rank.
She told the court martial that before they deployed together, Whelan's communication was at times inappropriate and flirtatious and it made her uncomfortable.
"I was conflicted. Most times I would ignore it, not address it, make light of it," she said.
She testified that once she was on tour, Whelan invited her to go to dinner and have a private meeting in his hotel.
She testified that she avoided his invitation and after that, his attitude toward her changed. "There was always an issue with me," she said, adding that she felt Whelan belittled her in front of others.
When she received her performance report later that year, the witness said she was shocked to see it was a "sub-par" score.
She said she asked then-Lt.-Col. Ron Ubbens, who gave her the report, why her score was low.
The witness said Ubbens told her Whelan had changed the report he wrote to give her a lower score. She said she told Ubbens: "(Whelan) didn't get what he wanted and this is how he is making me pay, by affecting my career."
She said Ubbens then came back with another report, which he told her was the one he originally wrote.
Ubbens, who was on the stand Monday, told the court martial in his own testimony that he wrote two performance reports for the woman, and that Whelan did not help write them. He also said the complainant signed off on a third version of the report.
He testified that he felt he gave the woman a good score in the first report but she refused to sign it because she said it wasn't reflective of her work. Ubbens said the woman then told him she had inappropriate emails from Whelan and she would show them to a senior commander unless her score was improved.
The court has also seen emails in which Whelan asked Ubbens to "make her go away" and to appease her. Whelan also said he thought that it would ruin his career and marriage if the emails he sent to the woman were to be released.
However, Ubbens said he has never read the allegedly inappropriate emails himself and it is not clear whether they will ever become public.
The military judge, Cmdr. Martin Pelletier, has not decided whether they will be admitted as evidence.
Whelan was initially charged with two counts of conduct to the prejudice of good order and discipline, including one charge for allegedly having an inappropriate relationship with a subordinate. The military dropped that charge before the trial began.
Prosecutor Maj. Max Reede argued Wednesday that even though the conversations happened before the pair was deployed together, they help establish Whelan's motive for changing the performance report by establishing that their relationship was inappropriate.
Pelletier told Reede that he is concerned because the case is no longer about sexual misconduct.
"For two years … Gen. Whelan has been known to the Canadian public as one of the general officers who is suspected of having committed sexual misconduct. You come here at the trial, you drop the sexual misconduct allegation, Day 1," Pelletier said.
"And now it seems to me that you are trying to bring the sexual misconduct back through the back door, knowing that these emails will become public, and knowing that therefore it's going to be reported and the court of public opinion will have tried Gen. Whelan if I don't get to try him for that."
Pelletier will first decide whether the emails should be subject to a publication ban.
Typically, such evidence in a judge-alone trial is available to the public, as judges are able to disregard information that does not become evidence. In a jury trial, evidence that is not admitted is not available until after the jury is sequestered, to protect jurors from being influenced by its contents.
Defence lawyer Phillip Millar asked Pelletier to impose a time-limited publication ban, which would mean the public does not have access to any of the emails that are not admitted as evidence until the court martial is over. Millar said that is to protect his client from embarrassment.
Millar argued the prosecution's case is that the complainant tried to extort his client by threatening to release the emails, and said the court would be complicit in that extortion if they are released now.
"The extortion works if there is damage or hurt to somebody," he said.
"We're sitting in a situation where this proceeding is actually affecting that damage if these emails go out to the public and they were inadmissible."
Reede argued there was no extortion scheme. "I simply do not see any grounds for ordering a publication ban," he said.
A lawyer hired by the Globe and Mail also made submissions Wednesday, citing recent Supreme Court decisions that establish that potential embarrassment is not enough to override the open court principle.
Pelletier has reserved his decision. The complainant is expected to be called back to the stand Thursday.
This report by The Canadian Press was first published Sept. 27, 2023.
Sarah Ritchie, The Canadian Press