The federal Liberal government is being urged not to reinstate Admiral Art McDonald as Canada's top military commander even though police did not lay any charges after a six-month investigation into an allegation about his conduct.
Prime Minister Justin Trudeau and Defence Minister Harjit Sajjan have not commented since the Canadian Forces National Investigation Service announced late Friday that they had decided there was not enough evidence to charge McDonald.
The government has not said whether McDonald will resume his duties as chief of the defence staff, a position he temporarily vacated in February as a result of the CFNIS investigation into an allegation of misconduct. At that time, he had been defence chief for only five weeks.
The nature of the allegation against McDonald has not been publicly confirmed, but CBC has reported that it related to an allegation of sexual misconduct dating back to his time commanding a Canadian warship in 2010.
Retired colonel Michel Drapeau, who is now a lawyer specializing in military cases, says the government must now decide whether to have McDonald return as commander of the Canadian Armed Forces, or have someone else fill the role.
Canadian Army commander Lt.-Gen. Wayne Eyre has been filling in as acting defence chief since February.
McDonald did not respond to a request for comment on Monday.
Drapeau noted chiefs of the defence staff are appointed by — and serve at the pleasure of — the government, meaning a decision not to reinstate McDonald will be unlikely to spark a successful lawsuit or other court action.
“Consideration will certainly be given whether Admiral McDonald will have the required high ‘moral authority’ to resume his duties and be trusted both by the general public as well as the military rank and file to carry the torch for the eradication of sexual harassment and violence,” he added.
“I can only assume that the bar will be set high.”
Yet some experts believe no matter where that bar is set, the fact it was military rather than civilian authorities who investigated McDonald and decided not to charge him means doubts will continue to persist about whether the case was properly handled.
“The CFNIS has been diagnosed with many flaws when it comes to sexual assault investigations, thus the legitimacy of their conclusions will always be questioned,” said Charlotte Duval-Lantoine, an expert on women in the military at the Canadian Global Affairs Institute.
“If McDonald is reinstated, it would not be surprising if service members who experienced sexual misconduct lose all faith and trust in their leadership. It will contribute to the perception that flag officers enjoy a certain level of impunity. The CAF cannot afford such large of a divide.”
The military’s top police officer, Provost Marshal Brig.-Gen. Simon Trudeau, defended the independence and professionalism of his officers in a statement Friday announcing the end of the investigation into McDonald’s conduct.
Global News has reported that navy Lt. Heather Macdonald, a navy combat systems engineer, came forward with the allegation against McDonald. Macdonald was quoted by Global on Friday as saying she was upset by the military police decision.
Drapeau agreed with the view that the entire case ultimately underscores why the military should not be allowed to investigate itself.
“For sake of transparency and the perception of independence, this complaint should, from the get go, have been investigated by an outside police force,” he said, citing the RCMP as an example.
“In the absence of an independent police investigation, in all probability a doubt will persist in the minds of the alleged victim, a portion of the public and probably many CAF members as to the propriety of the CFNIS investigation.”
Carleton University defence expert Stephen Saideman noted that the prime minister in June criticized Eyre’s decision to keep Vice-Admiral Craig Baines as commander of the Royal Canadian Navy after the latter golfed with former chief of the defence staff Jonathan Vance.
Vance at the time was being investigated by the CFNIS on allegations of sexual misconduct. He was charged last month with one count of obstruction of justice, with the case referred to civilian court.
“The (chief of the defence staff) in normal times has to be beyond reproach,” Saideman said. “In these times, much more so. Also, if Trudeau had problems with Baines returning to be head of the Navy after playing golf with Vance, how could he accept (McDonald)?”
Maya Eichler, an expert on military sexual misconduct at Mount Saint Vincent University in Halifax, suggested that the right thing for McDonald himself to do would be to permanently step aside.
“While no legal action is being taken, the situation is not resolved,” she said.
“Until there is some resolution, McDonald has no credibility to stand as CDS and lead the military culture-change agenda that is needed. I think the real question to ask is: Does anyone, including McDonald himself, think he has the moral authority to lead the CAF?”
