Top military lawyer tries to block report on alleged wrongdoing

The CAF’s Judge Advocate General was found to have made an ‘adverse impact’ on the career of a subordinate who made a complaint against her

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OTTAWA – An investigation into the head of Canada’s military justice system found she had an “adverse impact” on a subordinate’s career when she inquired if a complaint they had made against her made them unsuitable for a promotion, National Post has learned.

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But Judge Advocate General (JAG) Rear-Admiral Geneviève Bernatchez is going to court to stop the federal government — her employer — from publishing the investigative report into her conduct.

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Bernatchez alleges the internal investigation by the Department of National Defence (DND) into her actions was “procedurally and judicially flawed” and “tainted with serious irregularities,” and its decision is “completely unreasonable.”

In an application for judicial review filed Wednesday, she asks a federal court judge to block DND from publishing the investigation report, affirm that DND’s investigators were not “impartial,” and reject their “illegal” decision.

The JAG is the highest-ranking military lawyer in the Canadian Armed Forces. The JAG serves as legal adviser to the minister of national defence, governor general, DND and Canadian Armed Forces (CAF), all the while overseeing and administering Canada’s military justice system.

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According to Bernatchez’s court application, she was first informed on Dec. 19, 2022 that investigators deemed a whistleblower who claimed she had interfered in the promotion of a subordinate who had complained against her to be “founded.” The subordinate’s name is not included in the court application.

“Following (the complainant’s) disclosure of wrongdoing … you made inquiries to determine whether the steps (they) took in filing that disclosure should affect (their) suitability for promotion,” reads an excerpt of a conclusion letter sent to Bernatchez on Dec. 19, which is contained in her court application.

The letter notes the investigation concluded that Bernatchez’s inquiries had an “adverse impact” on the subordinate’s career because it created “uncertainty” around their promotion and “prevented” them from obtaining a new posting in the specific location they wanted. Bernatchez eventually later approved another promotion for the complainant.

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According to Bernatchez’s lawsuit, the results of the investigation into her conduct led to Chief of Defence Staff (CDS) Gen. Wayne Eyre taking an unspecified decision on Bernatchez’s “employability” and her job being posted via a Canadian Forces General Message (CANFORGEN) on Dec. 5.

That CANFORGEN, consulted by National Post Thursday, is a solicitation of interest for the position of judge advocate general and indicates that the government is launching the process to select the “next” JAG when Bernatchez’s current appointment expires in June. The National Defence Act says a JAG can be reappointed for multiple terms.

Bernatchez was named JAG in 2017 and is serving a second, two-year appointment. She is currently on medical leave. Both her lawyers and a DND spokesperson declined to comment, citing the ongoing legal proceedings.

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Neither the investigation report into Bernatchez nor DND’s response to the court action have been filed with the courts.

According to Bernatchez’s court application, complaints against her from several of her staff began in August 2017, when she was barely two months into the job. At the time, the JAG office was in the midst of drafting a comprehensive review of the military court system and, when Bernatchez read a draft report, she considered it unpublishable because of “several shortcomings.”

She claims some authors “refused to rework the report” according to her instructions and were “very unhappy” with “significant changes” she ordered made to it.

It’s a mess. It shows me a very, very disturbing workplace

The complainants then made an access to information (ATI) request to obtain a copy of the original draft report. The Ottawa Citizen reported in 2019 that, at the time, Bernatchez’s office told the access to information directorate that the original draft report didn’t exist. However, two officers on Bernatchez’s staff wrote a memo to then CDS Gen. Jonathan Vance warning him that “the records that were requested clearly exist, and have existed since at least 21 July 2017.”

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In her court application, Bernatchez says she did not know at the time that the document requesters were part of the team that had written the original draft of the report and that they had subsequently filed complaints against her handling of the ATI request to the CDS.

Then in October 2017, she says the subordinates filed another 16 complaints against her to DND alleging she had committed “reprehensible acts” against them. Her court application says she only found out about those complaints in 2019.

“The investigation … was conducted against the plaintiff, from beginning to end, in an incompetent manner and in disregard of the principles of natural justice and fairness,” reads her court application.

She says she found out three years later, in December 2022, that one of the 16 complaints was considered founded.

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Bernatchez claims the investigation into her was “deficient” and must be discarded for a number of reasons, namely that it took two years for DND to tell her about the complaints, that, despite being francophone, she was never assigned a French-speaking investigator and that the investigation relied on translations of her written and oral submissions that were “riddled with errors” or “incomplete.”

She also argues that the complaints never should have been investigated in the first place because they were not made in good faith, and that other organizations that had received similar complaints (including the Bar of Quebec and the Office of the Information Commissioner of Canada) had rejected them.

She also argued that internal investigators couldn’t deliver an impartial report because they received legal advice from the JAG’s office.

According to veteran military law expert Michel Drapeau, regardless of who is right in this affair, the lawsuit shows a JAG office in “complete turmoil.”

“It’s a mess,” he said. “It shows me a very, very disturbing workplace and you know, the armed forces are in worse position than I thought when one of their most senior officers has to go to (civilian) court to get a sense of justice.”

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