Military bans use of its letterhead in court character references for soldiers convicted of crime
Series of character references from retired military members used in former top soldier's case
The Canadian Armed Forces is attempting to distance itself from senior military leaders who offer positive character references to soldiers convicted of a criminal offence.
After almost a year-long review prompted by a CBC News story, the military recently released new internal guidance on character references submitted to court to be taken into consideration by a judge during sentencing.
The guidance says that while military members have every legal right to give character references to those found guilty of crimes, it's a personal choice — and military members can't present such references as coming from the Canadian Armed Forces itself.
"CAF members providing a character reference do so as individuals … [and] shall not use letterhead representing any CAF organization," says the new guidance.
The military appears to be trying to avoid a repeat of what played out in criminal court in Ottawa almost two weeks ago when retired general Jonathan Vance, former chief of the defence staff, pleaded guilty to obstruction of justice in relation to an investigation into allegations of sexual misconduct — allegations Vance denies.
The judge granted Vance a conditional discharge with one year probation — and no criminal record. The judge said he didn't feel it was "necessary to burden" Vance with a criminal conviction. Among the factors the judge said he considered were the positive character references written by six retired military members and one Canadian Armed Forces member who is still serving. The letters praised Vance's leadership skills, performance and time in combat, including in Afghanistan.
Official letterhead used without authorization
Maj.-Gen. Guy Chapdelaine wrote his character reference for Vance using the official letterhead of the Office of the Chaplain General of the Canadian Armed Forces, even though he left that office almost four months prior and no longer served in that role. Chapdelaine is in the process of retiring and hasn't held a position with the Royal Canadian Chaplain Service since May 2021, the defence department confirms. His letter also had the official National Defence logo stamped on it.
Chapdelaine's letter, which was read out in court, described Vance as a "great leader" with a "significant vision" and said he was "honoured to work with" the former top soldier. Chapdelaine noted he is also a "close friend" with Vance's wife.
Michel Drapeau, a retired colonel and expert in military law, called Chapdelaine's character reference a misrepresentation of his current status. The use of the official letterhead made it appear as if he were speaking in an official capacity on behalf of all military chaplains working under his leadership, Drapeau said.
"You do not write a formal letter in a tribunal setting using the letterhead of the office you once occupied," said Drapeau. "It's a clear example of misrepresenting yourself."
The defence department says even though the letter predates the new guidance, it's now "collecting and reviewing information related to this specific matter to determine what actions may be required."
Chapdelaine has declined to comment to CBC News, according to the defence department. He was also connected to the Fifth Estate's reporting about a complaint the military mishandled a case involving a former military chaplain.
'Good guy syndrome'
Megan MacKenzie, professor and the Simon's Chair in International Law and Human Security at Simon Fraser University, said civilians tend to be very impressed by military accomplishments, giving character references from senior military leaders extra weight in court. She said such references have been shown to lead to lighter sentences.
"These letters can really sort of paint a picture of what I call the 'good guy syndrome'," said MacKenzie, who led an international study on sexual misconduct in militaries around the world.
"These references really can shift the attention away from the victim and focus on the apparent good nature or good character of the perpetrator."
Retired captain Annalise Schamuhn and her husband, retired major Kevin Schamuhn, know first-hand the impact that character references from senior military leaders can have on sentencing — and their experience prompted the new guidelines.
Kevin Schamuhn's former regiment and a deputy commander in its chain of command — Maj.-Gen. Peter Dawe — submitted positive character references to a judge in 2017 in criminal court after a soldier was found guilty of sexually assaulting Annalise Schamuhn.
Kevin Schamuhn said that when he confronted Dawe about it, the commander said he felt Hamilton was a "good guy" who deserved a break. The judge sentenced the offender to three years' probation rather than jail time. Dawe has since publicly apologized and was removed from his job as the commander of the Special Forces.
"The sense of betrayal that I experienced is something that I'm not sure will ever go away," said Kevin Schamuhn. "It has been far more difficult for me to process the injuries that I sustained morally through our experiences in the courts than anything I ever experienced in combat."
Leaders urged to consider impact on victims
The Canadian Armed Forces said it consulted with the Schamuhns before releasing the new military guidance on character references.
The document addresses their case by instructing those writing character references to consider their possible impact on victims, to decide if writing a reference would put them in a real or perceived conflict of interest, and to consider the effects on the "morale and cohesion" of the organization.
The guidance calls on those writing character references to present the "facts as they know them and provide their truthful opinion." It invites military members to consult a lawyer or the military's sexual misconduct response centre before writing a character reference.
The military didn't ban its members from writing character reference letters, because they're protected under the Constitution. The Canadian Charter of Rights and Freedoms says it provides for "constitutional guarantees that are meant to ensure the conduct of a fair trial," which include "the opportunity to bring forward character evidence during the sentencing phase."
When CBC asked the defence department whether military members have to use time outside of work hours to write these letters, a spokesperson said "we expect members to follow the guidance at all times, either while at work or at home."
The military said it will assess on a case-by-case basis if there will be consequences for military members who do not follow the new guidance.
In its guidance, the military "went as far as it could legally go," Annalise Schamuhn said.
"But it did stop a little bit short of explaining the difference between legal justice and moral judgment ... because it's important that we hold people, especially senior military leaders, to a higher standard than just not breaking the law."
WATCH | This military couple's painful experience prompted new guidelines:
Annalise Schamuhn, who is a culture and leadership consultant, has done some consulting work for the navy and received payment in one instance last year.
Debate over character references in sex assault cases
MacKenzie said the military should have simply barred members from providing character references to those guilty of sexual assault and other serious crimes.
She said the military argues it's taking a victim-centric approach and has publicly vowed to change its culture in response to the sexual misconduct crisis that has sidelined the careers of an unprecedented number of senior military leaders. Authorizing these letters, she said, is not in line with that public commitment.
"I think they're not inherently victim-centric," said MacKenzie of the character references. "The purpose is to shift the attention away from the incident, the crime and the victim."
WATCH | The military hasn't taken 'victim-centric' approach, expert says:
Ottawa defence lawyer Lawrence Greenspon argues character references are a vital part of the legal system and should stay.
"If the person had a life of national and international achievement and leadership and mentorship, the judge wants to know that," said Greenspon. "It's part of the Criminal Code. The judge also has to get input from the victim and it's taken into account when fashioning the appropriate sentence."
Greenspon said he believes character references did play a major role in Vance's sentence. But his guilty plea to obstruction of justice is "something that is going to follow him for the rest of his life," he added.
"The fact is, in today's world, there's the Google record," said Greenspon. "And that's never going to go away."
Greenspon says the military's new guidance doesn't give the Forces any legal protection against future lawsuits.
WATCH | Ottawa defence lawyer says character references just one part of sentencing:
Balancing 'needs of survivors' and 'rights of accused'
When the military issued its new guidance it took an "exhaustive approach" and underwent "numerous consultations" because it had to "balance the needs of survivors, the rights of accused members and the rule of law," said the Department of National Defence.
"We will continue to work towards changing our culture as we make our entire Defence Team stronger and our military forces more operationally effective and combat ready," wrote defence department spokesperson Daniel Le Bouthillier in a statement to CBC News.
Dawe has not returned to work and is continuing to report to the vice-chief of defence staff, and "engaging with the affected community to better understand how he can contribute to meaningful culture change when he returns to work," wrote Le Bouthillier.
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With files from Kristen Everson