Government probe into Vance allegations ended when ombudsman refused to hand over info: sources

The Privy Council Office review of an informal complaint of sexual misconduct against Canada's former top military commander ran into a brick wall nearly three years ago when former military ombudsman Gary Walbourne refused to turn over potentially incriminating emails and the name of the complainant, CBC News has learned.

Without those leads, senior officials appeared unable to pursue concerns raised by the former military watchdog about Gen. Jonathan Vance — but legal experts say Walbourne was under no obligation to cooperate and was ethically bound by a ministerial directive to protect a complainant who was not prepared to come forward.

Vance, the former chief of the defence staff, is under investigation by the Canadian Forces National Investigative Service (NIS) after Global News reported last week that he had an inappropriate relationship with a female subordinate while he was serving in the military's top job. It also reported on a separate allegation that the top commander sent a racy email to another woman of junior rank in 2012.

The House of Commons defence committee this week opened its own investigation into how the current Liberal government — and the former Conservative government — handled concerns and allegations about the general.

CBC News reported last week that Walbourne had alerted Defence Minister Harjit Sajjan to an informal complaint about Vance that had come to his office, and that the previous Conservative government had looked into allegations of an inappropriate relationship when the general served as deputy of NATO's southern joint task force in Naples.

That investigation of Vance's personal life — ordered by former prime minister Stephen Harper's office prior to Vance's appointment as defence chief in 2015 — was deeper and more serious than previously revealed, multiple sources tell CBC News.

Vance's relationship with a former American colonel — a woman who served with him in Naples and later became his wife — was the subject of a probe that lasted nearly six months and formally ended only days before he took over the top command.

The investigation was initiated during the process for selecting a new defence chief in the winter of 2015 and the former government was reassured enough by it to announce Vance's appointment in the spring of that year.

DND says investigation did not meet threshold 

A subsequent anonymous complainant forced the Conservatives and senior public servants to go back and look at the matter again just prior to the 2015 change of command, when a written investigation report was presented to the government.

That investigation found there had been "no Code of Service Discipline violation," according to sources who spoke with CBC News on the condition they remain anonymous because they were not authorized to speak publicly.

A statement from the Department of National Defence late Thursday confirmed the investigation "did not meet the elements of an offence to lay charges under the Code of Service Discipline or the Criminal Code of Canada."

The parliamentary committee is expected to hold three days of hearings in the near future. Sajjan will be called to answer questions about the informal complaint the government dealt with in the winter of 2018, and Walbourne might be called before the committee as well.

Sajjan has said he alerted the "appropriate authorities" — meaning the Privy Council Office — after his meeting with the ombudsman but has steadfastly refused to say whether any sort of follow-up action was taken.

In a statement to CBC News last week, a spokesman for PCO said "no information was provided to PCO which would have enabled further action to have been taken."

Walbourne, who retired early after a disagreement with Sajjan, would not comment on what sort of follow-up PCO did to obtain the emails and the identity of the woman who complained about Vance.

Through his lawyer, he issued a statement Thursday:

"During my tenure as CAF/DND ombudsman there was no obligation of directive to share the substance of complaints, either formal or informal, with PCO."

'Somebody dropped the ball': retired colonel

His position is backed up by retired colonel Michel Drapeau, an expert in military law who said the ministerial directives that established the Canadian Forces ombudsman clearly define the independence of the office and the protection afforded to complainants.

"He was obliged to operate his office in a confidential and secure manner," said Drapeau. "And it is specified that no communication or information provided to the ombudsman shall be disclosed, except where he is required to report."

The ombudsman "has no discretion in the issue," he added.

The only other way Walbourne could have cooperated, said Drapeau, would be with the complainant's permission to share the information.

He added there were a host of things Sajjan could have done aside from notifying the Privy Council, which is responsible for all governor-in-council appointments, including the defence chief.

Drapeau said Walbourne was following his mandate and it was up to the minister or the privy council to go around the ombudsman and launch a more wide-ranging workplace safety investigation, as happened with former governor general Julie Payette.

"They could have done that," said Drapeau. "Obviously, somehow, somebody dropped the ball because it doesn't seem from the public record that any investigation was ever done."

A spokesman for Sajjan said late Thursday that all of the proper procedures were followed and that the matter is now being examined.

"The Department of National Defence and the Canadian Armed Forces have investigatory bodies to investigate misconduct allegations, such as the Canadian Forces National Investigation Service and the National Defence and Canadian Armed Forces Ombudsman," said Todd Lane. "Canadians expect these offices to do the required investigations when made aware of any misconduct. That is why there will be an thorough and independent review."