The military judge presiding over a court martial for Lt.-Gen. Steve Whelan has decided the emails at the centre of the case will not be made public during the trial unless they are allowed as evidence.
Cmdr. Martin Pelletier said his ruling is an imperfect one, but noted he found himself in a challenging situation.
“There come times in the judiciary when you have to fly by the seat of your pants, and this is one of the cases,” Pelletier said as he read his decision Thursday afternoon.
Military prosecutors want to enter into evidence 10 packages of email correspondence between Whelan and the complainant in the case, who has been testifying this week. The defence is planning to argue that the emails are not relevant to the charge.
Whelan has pleaded not guilty to one charge of conduct to the prejudice of good order and discipline for improperly changing a performance review, while a second charge relating to sexual misconduct has been dropped.
The second charge stemmed from a complaint from a woman who said Whelan sent her inappropriate and flirtatious emails.
The Canadian Press is not naming the complainant because of the nature of the allegations.
Defence lawyer Phillip Millar had asked Pelletier to impose a time-limited publication ban on the emails so that lawyers can argue over whether they should be admitted as evidence.
Whelan is accused of having changed the complainant’s performance report in 2011 while they were on tour together in Jerusalem because she threatened to release emails that would show they were in an inappropriate relationship.
The defence has already conceded that Whelan was worried those emails could damage his career and his marriage. On Monday, the court heard that Whelan told a lieutenant-colonel on the 2011 mission: “I knew I made a mistake with those emails.”
As a result, Millar said it’s clear Whelan thought they could be damaging, and he argued on Wednesday that allowing media to print what’s in the emails could make the court complicit in what he characterized as attempted extortion by the complainant.
Military prosecutor Maj. Max Reede and a lawyer hired by the Globe and Mail argued on Wednesday that the risk of embarrassment is not a reason to override the open court principle.
“Embarrassment isn’t the issue here,” Pelletier said Thursday.
Pelletier said the court is in “a little bit of a Catch-22,” because he needs to read the emails in order to determine whether they are relevant to the prosecution’s case, and in order for him to do that, they would need to be entered into evidence and therefore would become public.
“Making these emails public by admitting them as an exhibit ... will arguably allow the prosecution to show sexual misconduct was committed even in the absence of a decision,” he said.
Pelletier ruled there is a risk that a reasonable observer may think the courts and media are being used to allow the now-withdrawn charge of sexual misconduct to be tried in the court of public opinion.
The judge is expected to decide Thursday whether the emails are relevant to the remaining charge, and if they are, they will be made public when they’re entered into evidence. Anything that is not deemed relevant will not be made public until after the proceedings have ended.
