# Chief Military Judge Col Mario Dutil Charged



## dapaterson (25 Jan 2018)

Mercedes Stephenson is reporting multiple charges laid against Col Mario Dutil.


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## dapaterson (25 Jan 2018)

dapaterson said:
			
		

> Mercedes Stephenson is reporting multiple charges laid against Col Mario Dutil.


Article at http://www.timescolonist.com/military-police-charge-top-judge-with-fraud-two-other-counts-1.23155182


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## dapaterson (25 Jan 2018)

dapaterson said:
			
		

> Article at http://www.timescolonist.com/military-police-charge-top-judge-with-fraud-two-other-counts-1.23155182


Appears linked to a complaint from 2016

https://www.google.ca/url?sa=t&source=web&rct=j&url=http://www.cmac-cacm.ca/bulletins/documents/April_27_2016.docx&ved=2ahUKEwidp9iLiPTYAhVH2GMKHdsKAEgQFjAAegQICRAB&usg=AOvVaw0Ga7ZpJyDvQDLQnl2ektfc


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## Oldgateboatdriver (25 Jan 2018)

What?

When in hell did consensual relationships become "not permitted", other than while on oversea deployments, in the military?

And, why on earth did any investigation of any serving members over an alleged "improper relationship" ever give the Provost Marshall's troupers permission to look into travel claim items legitimacy? How on earth is that related?


Just asking.


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## dapaterson (25 Jan 2018)

If not disclosed and the individual is in your chain of command, it is prohibited.

And there is not necessarily a common nexus between the charges.


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## PuckChaser (25 Jan 2018)

Oldgateboatdriver said:
			
		

> What?
> 
> When in hell did consensual relationships become "not permitted", other than while on oversea deployments, in the military?
> 
> ...


In chain of command, went on TD together, needed claims to prove he was there at the time and then found improper claims being made. 

Judges are on TD all the time for courts martials, and perhaps the consensual partner was one of his court reporters on TD with him?


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## RCDtpr (25 Jan 2018)

Oldgateboatdriver said:
			
		

> What?
> 
> When in hell did consensual relationships become "not permitted", other than while on oversea deployments, in the military?
> 
> ...



Without knowing any details it's possible they pulled travel claims to verify the two individuals were in the same place on the same date and through that stumbled upon some discrepancies.

Not saying that's what happened....just thinking out loud.

Edit.....seems Puckchaser beat me to it on my theory....should have read every post first.


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## garb811 (25 Jan 2018)

If there was any case within my knowledge screaming, "Try the charges downtown!", this is it.

Is the thinking/argument going to be that the panel of a General Courts Martial is going to provide the independence required to keep this within the Military Justice System?  While that may hold a little bit of water for the final verdict, how is that going to play out with the motions that are inevitably going to be brought forward by the prosecution and defense before and during the Courts Martial? The Military Judge is going to be the one making a determination on those motions, most of which are critical in arguments, challenges, admission or exclusion of statements, confessions (if any) and evidence etc by both sides?

The pitfalls in this are many and I am personally skeptical that there is any possibility of finding a truely untainted Military Judge.  He has been a Military Judge since 2001 and CMJ since 2006 and it is a very, very small club.  Or are we to suspend disbelief and suddenly think Military Judges aren't human and will be 100% impartial towards their (possibly former) boss?

My biggest question though is; will he use Defense Counsel Services or opt for a private lawyer?  If he opts for a private lawyer, I suspect the demand for Defense Counsel Services is going to take a hit.  If the CMJ doesn't trust them enough for his defense, why would anyone else?


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## PuckChaser (25 Jan 2018)

ExRCDcpl said:
			
		

> Edit.....seems Puckchaser beat me to it on my theory....should have read every post first.



That's ok, it just validates that I'm at least as smart as a MP. Still uncertain if that's a good or bad thing....   ;D


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## ballz (25 Jan 2018)

garb811 said:
			
		

> My biggest question though is; will he use Defense Counsel Services or opt for a private lawyer?  If he opts for a private lawyer, I suspect the demand for Defense Counsel Services is going to take a hit.  If the CMJ doesn't trust them enough for his defense, why would anyone else?



Isn't he allowed to represent himself?


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## FJAG (25 Jan 2018)

Holy crap!

One key point here is that military judges are appointed by the Governor in Council under NDA 165.21(1) and continue in office during good behaviour failing which they can be removed by the GiC; until age 60; or they resign. They are provided with independence from the chain of command so as to be able to exercise their judicial powers freely.

To put a fine point on it DND is currently between a rock and a hard place because there is no system that I know of that would allow a civilian judge to be brought in to sit as a military judge on a court martial. The process requires that only someone who has been an "officer" for 10 years and who is a barrister with 10 years standing can be appointed a military judge.

There is a process under NDA 165.31 whereby the Court Martial Appeal Court can establish a Military Judges Inquiry Committee to look into wrongdoings my a military judge but that is not the same as conducting a court martial. I expect that this may happen here in tandem with any court martial.

I won't speculate here. There is technically nothing legally wrong with a court martial (most probably a GCM) being convened with another military judge sitting (except for the optics). I expect that a lot of people smarter than me are currently wringing their hands as to how to solve this problem. I would presume that Dutil will stand down from his duties as Chief Judge and will let the Deputy Chief take over the Chief's statutory duties (that's provided for in the Act) but beyond that . . . it's anyone's guess.

 :cheers:


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## FJAG (25 Jan 2018)

ballz said:
			
		

> Isn't he allowed to represent himself?



Yes he could just like anyone else and just like anyone else he'd be stupid to do so.

 :cheers:


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## ballz (25 Jan 2018)

FJAG said:
			
		

> Yes he could just like anyone else and just like anyone else he'd be stupid to do so.
> 
> :cheers:



Ha.. yes, well I understand why it's stupid for most people to do so... but I'm assuming he's a relatively competent lawyer so I'm not as sure why it'd be a crazy idea. If he represented himself would it automatically open him up to being cross-examined or something?

My brain is really enjoying the humour of the idea of him putting himself on the stand and trying to question himself.


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## garb811 (25 Jan 2018)

FJAG said:
			
		

> I won't speculate here. There is technically nothing legally wrong with a court martial (most probably a GCM) being convened with another military judge sitting (except for the optics). I expect that a lot of people smarter than me are currently wringing their hands as to how to solve this problem. I would presume that Dutil will stand down from his duties as Chief Judge and will let the Deputy Chief take over the Chief's statutory duties (that's provided for in the Act) but beyond that . . . it's anyone's guess.
> 
> :cheers:


I would hazard a guess and say that it is quite likely the logistics and legalities surrounding the decision to proceed via Courts Martial were debated and decided prior to laying the charges.

Would be an interesting argument for the defense to make regarding the ability of whoever is handed this present to preside over to be impartial with regard to this matter, would it not?


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## RCDtpr (25 Jan 2018)

In such a small world they obviously know each other well.  Because knowing someone well means you either like or dislike said person, to me it's a conflict of interest either way if this goes to CM.

Judges lambaste police officers all the time when they perceive a conflict of interest (such as a cop not recusing themself from a file when they should have).......I would hope judges are held to that same standard.


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## FJAG (25 Jan 2018)

ballz said:
			
		

> Ha.. yes, well I understand why it's stupid for most people to do so... but I'm assuming he's a relatively competent lawyer so I'm not as sure why it'd be a crazy idea. If he represented himself would it automatically open him up to being cross-examined or something?
> 
> My brain is really enjoying the humour of the idea of him putting himself on the stand and trying to question himself.



No. He can examine witnesses without being subject to cross-examination himself.

The moment he wants to testify, then he would be.

 :cheers:


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## SeaKingTacco (25 Jan 2018)

So does this state of affairs now open the door for those that the CMJ has stood in judgment of for the very same same offence, now have grounds for possible appeals?


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## FJAG (25 Jan 2018)

ExRCDcpl said:
			
		

> In such a small world they obviously know each other well.  Because knowing someone well means you either like or dislike said person, to me it's a conflict of interest either way if this goes to CM.
> 
> Judges lambaste police officers all the time when they perceive a conflict of interest (such as a cop not recusing themself from a file when they should have).......I would hope judges are held to that same standard.



It is a small group. The fact that they know each other is not an issue legally in that judges at the commencement of a CM take an oath as follows:



> "I .......... solemnly and sincerely promise and swear that I will impartially, honestly and faithfully, and to the best of my skill and knowledge, execute the powers and trusts reposed in me as a military judge. So help me God."



I know that doesn't mean much in a cynical world to those who are always suspicious but it does have legal consequences. On the other hand, an accused may raise an objection to a particular judge or member of the court. Legal officers are not rated by PER while they are military judges so there is no particular power that the CMJ has over them. The position is more administrative in nature than typical military leadership. That said, however, it would be naive to think that the current situation isn't problematic. I don't want to second guess what might happen here but a possible resolution would be for the CMJ to retire from his position voluntarily. It would not be impossible for him to continue to serve as a legal officer until the case is completed and even thereafter depending on the outcome.

 :cheers:


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## FJAG (26 Jan 2018)

SeaKingTacco said:
			
		

> So does this state of affairs now open the door for those that the CMJ has stood in judgment of for the very same same offence, now have grounds for possible appeals?



I don't think that they would. For most the appeal periods have run. I don't see a viable argument that says that the trial judge would have been prejudiced against someone who has done what he is accused of. If anything you would think he would be sympathetic to them. But, that said, defence counsel have filed appeals on a lot weaker cases.

 :cheers:


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## dapaterson (23 Feb 2018)

Interesting.  A Special Prosecutor, a CAF lawyer who is not a member of the Legal Branch, has been brought in.  He has impressive credentials.

https://www.canada.ca/en/department-national-defence/news/2018/02/director_of_militaryprosecutionsappointsspecialprosecutor.html


For the purposes of military prosecutions, a Special Prosecutor is an officer of the Canadian Armed Forces who is a member of the bar of a province in good standing and who is not a member of the Legal Branch.

Lieutenant-Colonel Poland is an Infantry Officer in the Reserve Force, currently serving as the Commanding Officer of the Royal Highland Fusiliers of Canada in Cambridge, Ontario. In his civilian career he is the Crown Attorney of the Waterloo Region with the Ontario Ministry of the Attorney General. Called to the bar as a member of the Law Society of Upper Canada in 2000, he holds a Master of Laws Degree in criminal law and his professional practice focuses on managing the prosecution of criminal proceedings in jury and non-jury trials and appeals both at the Ontario Court of Justice and Ontario Superior Court of Justice.


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## Oldgateboatdriver (23 Feb 2018)

That is an existing program of the CAF, BTW. And it is mostly provided through militia/reserve officers, where there is a significant number of practicing civilian lawyers who hold commission and are members of the primary reserve. In my days, I was asked to consider putting my name down for it. Since I practiced mostly in contract and administrative law but not in criminal or penal law, I declined.

In any event, it resolves the problem of having the case prosecuted by a lawyer whose career is in the hands of the Legal Branch and who has appeared or may appear in the future, before that judge (or one of his friends).

Next problem, though: Is there an issue with any currently sitting military judge hearing the matter, even purely from an appearance of fairness and lack of prejudice point of view?

If so, how to solve it? Appointing a special judge - like perhaps a retired senior JAG officer recalled specially just to hear the case, maybe? FJAG, anyone!  ;D


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## dapaterson (23 Feb 2018)

Find another Reserve Lawyer with 10 years as an officer and 10 years at the bar, appoint them as a Reserve Military Judge.


Or call in Judge Judy.


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## Navy_Pete (23 Feb 2018)

dapaterson said:
			
		

> Interesting.  A Special Prosecutor, a CAF lawyer who is not a member of the Legal Branch, has been brought in.  He has impressive credentials.
> 
> https://www.canada.ca/en/department-national-defence/news/2018/02/director_of_militaryprosecutionsappointsspecialprosecutor.html
> 
> ...



Bit of a non-sequitor, but continue to be impressed by the calibre of people that are in the reserves. I don't think if I was a professional (doctor, lawyer etc) or a skilled tradesman I'd volunteer to spend my weekends playing silly bugger or generally want to make the commitment to the reserves.

Would also be interesting to sit in on a summary trial he ran as a CO, not sure if being a lawyer helps, or makes it harder with the differences between criminal law and the ST rules.


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## FJAG (23 Feb 2018)

Some information about Mark is that is not in the release is that from around 2000 to 2010 he was a reserve Deputy Judge Advocate for South Western Ontario and subsequently with Defence Counsel Services and that his brother Brent died while serving with the RCR in Afghanistan.

He's a good guy and I've got a lot of time for him.

Mark's fuller biography is here:

https://www.rhfc.ca/officer-biographies.html

Further to OGBD's post, the NDA provides as follows:



> Reserve Force Military Judges
> 
> Panel established
> 
> ...



I don't know who, if any individuals are on the panel but I do know of several officers  who would qualify and could be appointed to the panel and then be assigned the case by the Acting Chief Military Judge. The trouble is most of them are retired and as such might possibly no longer have standing at a provincial bar. I expect there is some scrambling around going on.

 :cheers:


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## brihard (23 Feb 2018)

Navy_Pete said:
			
		

> Bit of a non-sequitor, but continue to be impressed by the calibre of people that are in the reserves. I don't think if I was a professional (doctor, lawyer etc) or a skilled tradesman I'd volunteer to spend my weekends playing silly bugger or generally want to make the commitment to the reserves.



Oh man, no kidding. I look at the troops in my unit and just shake my head sometimes. In our junior ranks mess right now I can offhand think of four Cpls who are lawyers (one of whom did his PD in anthropology before getting bored of that, going to law school, and joining the PRes), a Cpl who is a civil engineer managing eight or nine figure projects, a smattering of police/fire/paramedics, youth workers, very skilled public servants... Quite the crew of people.


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## dimsum (23 Feb 2018)

Brihard said:
			
		

> Oh man, no kidding. I look at the troops in my unit and just shake my head sometimes. In our junior ranks mess right now I can offhand think of four Cpls who are lawyers (one of whom did his PD in anthropology before getting bored of that, going to law school, and joining the PRes), a Cpl who is a civil engineer managing eight or nine figure projects, a smattering of police/fire/paramedics, youth workers, very skilled public servants... Quite the crew of people.



Exactly.  I laugh quietly at the folks who chuck crap at Reservists for not being as good as the Reg F at whatever trade they're doing.  They seem to forget that a) said Reservists usually have an actual job outside the military, and b) it's probably more important/stressful than their gig in the PRes.


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## Gunner98 (25 Feb 2018)

SeaKingTacco said:
			
		

> So does this state of affairs now open the door for those that the CMJ has stood in judgment of for the very same same offence, now have grounds for possible appeals?



I had wondered similarly if they would automatically review, to rule out prejudice/bias, all of the trials he presided over during the period of the alleged offences by him.


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## Cloud Cover (26 Feb 2018)

Poland is good people, he prosecuted some drawn out cases in London. He's definitely not going to have any I ethical or conflict of interests issues Witt this one.


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## garb811 (22 Jan 2019)

Court Martial date has been set. 
Upcoming court martial proceedings

*June 10, 2019 
Gatineau, Québec 
Dutil M. (Colonel), R. v
*
General Court Martial

Charge 1: Para. 125(a) NDA, wilfully made a false statement in a document signed by him that was required for an official purpose. 

Charge 2: Para. 125(a) NDA, wilfully made a false entry in a document signed by him that was required for an official purpose. 

Charge 3: S. 130 NDA, committed a fraud (subsection 380(1)(b) CCC). 

Charge 4: Para. 117(f), an act of a fraudulent nature not particularly specified in sections 73 to 128 of the National Defence Act. 

Charge 5: S. 129 NDA, conduct to the prejudice of good order and discipline. 

Charges 6, 7, 8: S. 129 NDA, neglect to the prejudice of good order and discipline.


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## BeyondTheNow (25 Jan 2019)

Regardless of how everything unfolds, at its basic level I don't understand how this isn't a conflict of interest. But I don't know much about the process. I'm hoping someone can weigh in. It isn't a lengthy article, but I'm interested to see how it plays out.

Top military judge to face court martial overseen by own deputy this summer



> OTTAWA - Canada's chief military judge is set to be tried in a court martial this spring that will be overseen by his own deputy...
> 
> ...The eight charges against him include two counts of fraud and four related to conduct or neglect to the prejudice of good order and discipline. None of the charges has been tested in court.



More at link

https://www.ctvnews.ca/canada/top-military-judge-to-face-court-martial-overseen-by-deputy-this-summer-1.4269278


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## PuckChaser (25 Jan 2019)

I was an orderly at a GCM presided over by d'Auteuil. His calm briefing to us about ensuring we did not treat the accused differently as he had not been convicted of any crime and answering questions from us on how the GCM was to be conducted gave me great confidence that the CM process was fair and professional. I really don't think there will be any issues.


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## paulso09 (26 Jan 2019)

yeah  :not-again:


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## BeyondTheNow (26 Jan 2019)

paulso09 said:
			
		

> yeah  :not-again:



Welcome to Army.ca. Please review our policies and guidelines found on the Army.ca Admin board. We ask that if users are going to post, they contribute to the threads with proper discussion.


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## OldSolduer (27 Jan 2019)

BeyondTheNow said:
			
		

> Regardless of how everything unfolds, at its basic level I don't understand how this isn't a conflict of interest. But I don't know much about the process. I'm hoping someone can weigh in. It isn't a lengthy article, but I'm interested to see how it plays out.
> 
> Top military judge to face court martial overseen by own deputy this summer
> 
> ...



I have the same question. Is this a conflict of interest? If not, why is it not? Thank you.


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## Fishbone Jones (27 Jan 2019)

I don't find a whole lot of difference between this and the Law Society of UC, or the College of Physicians, investigating, charging, and adjudicating cases of misconduct within their own professions.

People have always had mistrust when the professionals get to investigate, and judge themseves. I'm sure many of those verdicts have been called into question, by laymen, who perceive bias.

Just human nature.


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## BeyondTheNow (27 Jan 2019)

Hamish Seggie said:
			
		

> I have the same question. Is this a conflict of interest? If not, why is it not? Thank you.



Exactly, I want to know the “why’s” of this.

In conversation with another mbr (and I understand that it’s not the same situation as what’s mentioned in the article) it was stated that a Presiding Officer cannot preside over anything he/she was involved in laying charges on in any capacity. That’s a conflict of interest. So if that scenario is, how is this one not? I just want someone to break it down for me, because like I said, I’m not very familiar with the process.


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## JesseWZ (27 Jan 2019)

To address the example you laid out BTN, judges are not part of any charge laying or investigative process.

 That territory lies firmly with the unit or NIS in consultation with Director Military Proesecutions. If there is a conflict of interest here, it’s not on the part of judges adjuticating a matter they had a hand in for charge laying.

The reason a presiding officer cannot adjudicate a matter where they are involved in charge laying is the real need to separate the investigation (which includes all investigative actions including choosing what charges to lay or not lay.) The judge or presiding officer must be an independent arbiter or fact. One cannot do that if one is involved in the investigation. 

It is the same in civilian courts, police in consultation with the crown lay the charge following an investigation and an independent arbiter of fact and law (judge) weighs the evidence, conduct of the accused and conduct of the state (police/Crown)...


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## BeyondTheNow (27 Jan 2019)

JesseWZ said:
			
		

> To address the example you laid out BTN, judges are not part of any charge laying or investigative process.
> 
> That territory lies firmly with the unit or NIS in consultation with Director Military Proesecutions. If there is a conflict of interest here, it’s not on the part of judges adjuticating a matter they had a hand in for charge laying.
> 
> ...



Thank you for that information.


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## FJAG (28 Jan 2019)

Hamish Seggie said:
			
		

> I have the same question. Is this a conflict of interest? If not, why is it not? Thank you.



It isn't a conflict for several reasons:

1. Military judges are appointed by the Governor in Council and have to be officers with 10 years of service and 10 years as lawyers in good standing. They hold office until they retire and do not have any performance assessments made of them by the Chief Military Judge. They may only be dismissed for cause by a panel essentially made up by judges from the Court Martial Appeal Court.

2. Their compensation is determined by an independent committee that sets pay for all of them. Again the CMJ has no role in evaluating their performance as far as salary is concerned.

3. Each judge swears an oath of office that they will do their duty impartially, honestly and faithfully which is similar to what civilian judges do. Impartiality is the key component to creating an independent judiciary.

4. The CMJ's role is basically administrative such as developing rules of procedure, assigning court schedules etc

5. The CMJ has already had his duties taken over by the Deputy CMJ so that he plays no role whatsoever in these proceedings except as a defendant.

It is difficult for the outsider to see and appreciate the independence that judges both have and take very seriously. One can also appreciate that the military bench is a small one and all these judges know each other as well as all the more senior legal officers in the Forces. However, part of their job is to set such feelings aside and do their job impartially.

Note to that since the charges are under the Code of Service Discipline, the National Defence Act requires that they be tried by a military judge. As noted in point 1 above, in order to be a military judge one needs to be a serving officer and lawyer in good standing for 10 years. This makes it impossible under the law to bring an outside judge in on an ad hoc basis.

 :cheers:


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## SeaKingTacco (28 Jan 2019)

Good summary, FJAG.

About the only out that I could see to use an outside judge in this case would be to look at the PRL and see if any of them happen to be a judge in their day job and then appoint them for this trial.

But, as you also point out, it is also unneccessary. I have been to Court Martials as a spectator and a witness. They are run fairly.


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## TCM621 (28 Jan 2019)

Dimsum said:
			
		

> Exactly.  I laugh quietly at the folks who chuck crap at Reservists for not being as good as the Reg F at whatever trade they're doing.  They seem to forget that a) said Reservists usually have an actual job outside the military, and b) it's probably more important/stressful than their gig in the PRes.



The big issue with reservists is you never know if you are getting the Cpl who is a real estate developer, the MWO who stocks shelves at the grocery store or the Maj with 20 years in the regular force.


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## BeyondTheNow (28 Jan 2019)

FJAG said:
			
		

> It isn't a conflict for several reasons:
> 
> 1. Military judges are appointed by the Governor in Council and have to be officers with 10 years of service and 10 years as lawyers in good standing. They hold office until they retire and do not have any performance assessments made of them by the Chief Military Judge. They may only be dismissed for cause by a panel essentially made up by judges from the Court Martial Appeal Court.
> 
> ...



Thank you FJAG


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## FJAG (29 Jan 2019)

Tcm621 said:
			
		

> The big issue with reservists is you never know if you are getting the Cpl who is a real estate developer, the MWO who stocks shelves at the grocery store or the Maj with 20 years in the regular force.



Regardless as to whether Reg F or Res F, in order to be appointed a military judge one has to be an officer for 10 years service and 10 years as a member of a law society in good standing..



			
				SeaKingTacco said:
			
		

> Good summary, FJAG.
> 
> About the only out that I could see to use an outside judge in this case would be to look at the PRL and see if any of them happen to be a judge in their day job and then appoint them for this trial.
> 
> But, as you also point out, it is also unneccessary. I have been to Court Martials as a spectator and a witness. They are run fairly.



There is also provision in the NDA (s 165.22) for any Res F officer (not just Res F Legal Officer) to be appointed as a Reserve Force Military Judge in certain circumstances but essentially those circumstances limit it to candidates who have previously been a military judge. I'm not aware as to whether there is anyone on this panel at this time.

 :cheers:


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## OldSolduer (29 Jan 2019)

BeyondTheNow said:
			
		

> Thank you FJAG



I echo those sentiments. I’ve been called as a witness at two and they are very well run.


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## Colin Parkinson (31 Jan 2019)

My Learned wife read of the matter: 
In the hierarchy of the court system, the Supreme Court of Canada (the highest court) hears appeals from the Court Martial Appeal Court, that in turn hears matter tried in the Military Courts of first instance. Usually appellate courts do not hear matters of first instance (i.e. it only deals with appeals). However, for wrongful acts committed by a Military Court Judge, s 165.31(1) NDA  empowers the Chief Justice of the Court Martial Appeal Court to appoint 3 judges from that appeal court to form a Military Judges Inquiry Committee to hear the matter. The Inquiry Committee can under subsection (7) then recommend to the Governor in Council, that the said judge be removed if he’s found to be guilty of misconduct or has failed in due execution of his or her judicial duties.


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## FJAG (31 Jan 2019)

Colin P said:
			
		

> My Learned wife read of the matter:
> In the hierarchy of the court system, the Supreme Court of Canada (the highest court) hears appeals from the Court Martial Appeal Court, that in turn hears matter tried in the Military Courts of first instance. Usually appellate courts do not hear matters of first instance (i.e. it only deals with appeals). However, for wrongful acts committed by a Military Court Judge, s 165.31(1) NDA  empowers the Chief Justice of the Court Martial Appeal Court to appoint 3 judges from that appeal court to form a Military Judges Inquiry Committee to hear the matter. The Inquiry Committee can under subsection (7) then recommend to the Governor in Council, that the said judge be removed if he’s found to be guilty of misconduct or has failed in due execution of his or her judicial duties.



It might still come to that. A s165.31 inquiry is more in the nature of a Canadian Judicial Inquiry that determines if a judge should be censured or removed from office for some misconduct. It is not, however, a criminal trial respecting a specific offence. If convicted at atrial, a s 165.31 inquiry might very well be next.


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## The Bread Guy (10 Jun 2019)

And so it begins ...


> The court martial of Canada's chief military judge kicked off Monday with testimony about Col. Mario Dutil's close professional and "familial" relationship with the judge presiding over his trial: Dutil's own deputy.
> 
> The testimony delivered on the first day of Dutil's court martial, in which he is facing eight charges, underscored the unprecedented nature of the case -- and why the court martial is considered a test of the military justice system.
> 
> ...


More @ link


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## X Royal (11 Jun 2019)

BeyondTheNow said:
			
		

> Regardless of how everything unfolds, at its basic level I don't understand how this isn't a conflict of interest.
> Top military judge to face court martial overseen by own deputy this summer


Maybe I'm missing something as no civilian court judge would ever agree to hear a case of anyone they personally know, or even more so their former direct supervisor. 
No ruling would escape a serious court challenge. 
Hell even a juror is automatically removed by the judge if they admit to personally knowing the defendant. 
No lawyer challenge required.


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## FJAG (11 Jun 2019)

X Royal said:
			
		

> Maybe I'm missing something as no civilian court judge would ever agree to hear a case of anyone they personally know, or even more so their former direct supervisor.
> No ruling would escape a serious court challenge.
> Hell even a juror is automatically removed by the judge if they admit to personally knowing the defendant.
> No lawyer challenge required.



See my post #38 above.

That said, this is certainly starting to look unseemly. I had hoped that Dutil would have done the right and honourable thing and pled to the charges (assuming that they are factually correct) but it seems like the defence is taking the low road by challenging the court composition. 

It's very strange for the defence to challenge a judge based on the argument that he's friendly with the defendant. You'd think that should be a prosecution motion. That strikes me as problematic in that there really is no other option available to try Dutil so it looks like the defence's strategy is to push the case into a corner where it cannot be tried at all. 

Regardless of what happens here this whole issue is going to be a stain on the branch. Hopefully someone has already started drafting legislation to allow a civilian superior court be appointed as an ad hoc judge for such a court martial where the whole military trial judge panel is conflicted.

 :cheers:


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## Blackadder1916 (11 Jun 2019)

FJAG said:
			
		

> See my post #38 above.
> 
> . . .
> 
> Regardless of what happens here this whole issue is going to be a stain on the branch. Hopefully someone has already started drafting legislation to allow a civilian superior court be appointed as an ad hoc judge for such a court martial where the whole military trial judge panel is conflicted.



There does not seem to be a lot of depth from which to find a military judge who does not have a direct working relationship to the CMJ.  Besides the DCMJ, there are only three military judges.  And would most of a small Legal Branch (the senior members anyway) not fall within the same criteria of being "too close to both his client and many of the witnesses who will be called to testify".   Maybe this is one of those situations that could make use of the Supplementary Reserve, if that organization had any credibility or a usable database.


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## FJAG (11 Jun 2019)

Blackadder1916 said:
			
		

> There does not seem to be a lot of depth from which to find a military judge who does not have a direct working relationship to the CMJ.  Besides the DCMJ, there are only three military judges.  And would most of a small Legal Branch (the senior members anyway) not fall within the same criteria of being "too close to both his client and many of the witnesses who will be called to testify".   Maybe this is one of those situations that could make use of the Supplementary Reserve, if that organization had any credibility or a usable database.



We all start in the same pool of legal officers and when I first transferred to the branch (back in 84) it was a fairly intimate little group but since then the branch has been a growth industry and now numbers several hundreds and folks all know each other although that doesn't mean they are necessarily intimate friends. 

Once a legal officer is made a judge, however, they and the bulk of the branch tend to go their separate ways. That's not unlike when a civilian lawyer from a particular law society is made a judge in that province.  Unfortunately, while the legal branch is larger than PEI's bar and a bit smaller than NFLDs and a lot smaller than everyone else, it is all considered part of the same firm (with the exception of DDCS). 

Generally civilian judges will not hear cases involving lawyers from the same firm that they served in and it's not too hard to find an "untainted" judge. I expect since Dutil is fighting this thing, we'll eventually be told by the Court Martial Appeal Court as to whether the oath of office is a sufficient enough provision to rely upon. Like I said above, we need to add a legislative provision to ad hoc an outside judge for these very extreme cases (which might extend as far as all legal officer defendants and not just judges)

 :cheers:


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## Privateer (11 Jun 2019)

Here is a provision from the BC Provincial Court Act that would be a good addition to the National Defence Act to address this type of situation:



> *Temporary judge*
> 
> 8   The chief judge may appoint a person as a judge of the court for
> 
> ...


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## dapaterson (18 Jun 2019)

A spectacular implosion yesterday, as the presiding judge recused himself, and stated that the other three members of the military bench are also unable to preside.

https://www.thelawyersdaily.ca/articles/13109/court-martial-of-top-military-judge-collapses-current-military-judges-can-t-try-case


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## garb811 (18 Jun 2019)

Call me a cynic but why am I not surprised?


----------



## garb811 (18 Jun 2019)

Another really cool ruling he made was Col Dutil could choose not to have to wear DEU as the accused like the rest of us (Dutil M. (Colonel), R. v.) because being a military judge trumps being a service member and the same rules don't apply for dress either.  

Truly, "All animals are equal, but some animals are more equal than others."


----------



## FJAG (18 Jun 2019)

garb811 said:
			
		

> Another really cool ruling he made was Col Dutil could choose not to have to wear DEU as the accused like the rest of us (Dutil M. (Colonel), R. v.) because being a military judge trumps being a service member and the same rules don't apply for dress either.
> 
> Truly, "All animals are equal, but some animals are more equal than others."



If you are going to paraphrase a ruling please do it accurately. The ruling (as translated from the French by Google actually says the following:



> [ 17 ] I wish to reiterate, as someone so aptly put it, that no one is above the law, which includes a military judge. The effect of my decision is one of necessity. Independence and judicial impartiality are fundamental principles to the function of military judge and must be applied at all times by the person who has been appointed to occupy it. An authorization was given by the Chief Military Judge to military judges to apply these principles to the conduct of the CAF for military judges. In order to preserve the function of a military judge, it goes without saying, in my opinion, that the exercise of discretion based on such principles must remain applicable in the circumstances.
> 
> [ 18 ] I believe that it is necessary for any military judge to be able to exercise his discretion as to what he or she should wear before a court martial. My decision, therefore, is not to exonerate Colonel Dutil from wearing the uniform, but rather to allow him to exercise his discretion as a military judge on this issue, as would any other military judge who would appear before the court martial as an accused. It is simply a matter of making sense of the principles of independence and judicial impartiality in the exercise of the function of military judge by a CAF officer, nothing more, nothing less. This is what a proper administration of justice requires in my opinion in the circumstances.



 :cheers:


----------



## dapaterson (18 Jun 2019)

Given the train wreck over which he has presided, I will not defer to the the judge in this case.  A Court Martial is inherently a military proceeding;the only appropriate attire for a serving member who is charged is a uniform.

This farce may have irreparably damaged the military justice system; granting judges special dispensation because they are judges only worsens the issue.  Perhaps parliament will take appropriate action and abolish the military bench, and refer all court martials to the Federal Court, where we can have competent jurists exercising their role, and not the pompous, overpaid and underworked former members of the JAG with overly well developed sense of self importance.  You know, the ones who presided over ludicrous findings like those in _R v Nauss_.


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## garb811 (18 Jun 2019)

FJAG said:
			
		

> If you are going to paraphrase a ruling please do it accurately. The ruling (as translated from the French by Google actually says the following:
> 
> :cheers:


You might not agree with me, but I stand by it. 



> ...
> It is simply a matter of making sense of the principles of independence and judicial impartiality in the exercise of the function of military judge by a CAF officer, nothing more, nothing less.
> ...



He isn't exercising the function of a military judge, he is parading in front of a military judge as a CAF officer accused of some fairly significant offences. The fact that he is a military judge should have zero bearing on the decision being made; making this ruling and wording it as he did makes it very clear the military judges think they are distinct and separate from the rest of us.


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## Ostrozac (18 Jun 2019)

dapaterson said:
			
		

> A Court Martial is inherently a military proceeding



We’ve made exceptions to that, though, when we court martial civilians. Most commonly veterans, for crimes committed while in service (I remember a certain BGen who just seemed to like being court martialed, his first one while serving, his second as a civilian). But I seem to remember that members of the civil service deployed to Afghanistan were also subject to the Code of Service Discipline, and Court Martial if necessary. Do we need to remove the concept of a chain of command from Military Judges and make them a Junta or Collective of Equals — all technically Defence Civilians vice Commissioned Officers, so they can sit in judgement on each other? 

Nonetheless, this isn’t a good development. No one can be seen to be above the law.


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## garb811 (19 Jun 2019)

Those aren't exceptions, they are specifically accounted for in the NDA and do not change the nature or conduct of the CM.


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## FJAG (19 Jun 2019)

garb811 said:
			
		

> ...
> He isn't exercising the function of a military judge, he is parading in front of a military judge as a CAF officer accused of some fairly significant offences. The fact that he is a military judge should have zero bearing on the decision being made; making this ruling and wording it as he did makes it very clear the military judges think they are distinct and separate from the rest of us.





			
				Ostrozac said:
			
		

> We’ve made exceptions to that, though, when we court martial civilians. Most commonly veterans, for crimes committed while in service (I remember a certain BGen who just seemed to like being court martialed, his first one while serving, his second as a civilian). But I seem to remember that members of the civil service deployed to Afghanistan were also subject to the Code of Service Discipline, and Court Martial if necessary. Do we need to remove the concept of a chain of command from Military Judges and make them a Junta or Collective of Equals — all technically Defence Civilians vice Commissioned Officers, so they can sit in judgement on each other?
> 
> Nonetheless, this isn’t a good development. No one can be seen to be above the law.



The fact of the matter is that we have put military judges into a special category as individuals who function outside of the chain of command for very valid reasons. Specifically so that they are as immune from command influence as anyone can possibly be. 

Most of you may not remember the turmoil that followed the institution of the Charter of Rights and Freedoms and the various interpretations that existed respecting the s 11(d) requirements for an independent and impartial tribunal. There was a lot of trial and error in refining the system (both before and after R v. Genereux in the SCC https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/836/index.do?q=%22court+martial%22) that went into creating the system that we have now.

Quite frankly I'm much more concerned about the fact that our legislation does not adequately provide for an outside judge to come in when a conflict exists rather than if people are wearing the right buttons and bows in front of the court. You can't have it both ways. Either our judges are independent of the chain of command and the Chief Judge has the discretion to decide to what judges wear in certain circumstances or they are bound to obey every little whim of the chain of command such as what buttons and bows to wear. Buttons and bows are small beer in the much bigger scheme of things (and quite personally I think the Chief Judge made the wrong call in deciding to wear a suit rather than a uniform and think he did this for selfish reasons just as I think his call to fight this case in the first instance by challenging the bench is a selfish act which he ought to know would put the very system he's sworn to uphold into disrepute)

As to the idea of having the trial held by a Federal Judge all that I can say is that for all intents and purposes our military bench is already a federal court albeit one which has experience within the military and with military law which the Federal Court bench does not have (in fact much of the Federal Court bench has little or no experience with even ordinary civilian criminal law as those cases are handled primarily by the various levels of the provincial benches) One of the main reasons I personally favour a military bench is it's portability. Military judges can sit anywhere including in forward operational zones if necessary or desirable.

Let's face it folks, this case has turned into a kick in the groin for our justice system and it's undoubtedly giving us a black eye but let's not loose focus. Are military judges different from the rest of us (or you)? - damn right. They're supposed to be so that they can do their job fairly. Does it matter what the accused judge wears in court? - not one wit. Does it matter that this particular judge is taking a system for a ride because someone had forgotten to make legislative provisions for the trial of a judge- bloody hell yes. Let's fix that and quickly.

 :cheers:


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## dapaterson (19 Jun 2019)

FJAG said:
			
		

> Does it matter what the accused judge wears in court? - not one wit.



I'll respectfully disagree.  Military charges are different.  There is a concept called the profession of arms.  A Military judge remains a Military member; a court martial is in part the self regulation of the profession of arms.

If the chief Military judge has decided that he is not part and parcel of the profession of arms, then he should, respectfully, resign from the Military bench.


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## ModlrMike (19 Jun 2019)

While I agree with most of what you say, there remains the issue that Military Judges are effectively two people at the same time. They're judges, and their serving members. On the one hand, they need to remain divorced from the chain of command, but I contend that applies primarily to judicial matters. In matters of dress, comportment, or other statutory regulations under the NDA or QR&O, they should be treated like any other serving member.

This is no different than we medical folk who have complete authority on medical issues, but are still subject to the CSD, NDA, QR&O etc in all other circumstances.

Yes, military judges are special, but as serving members they're no more special than the rest of us.


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## JesseWZ (19 Jun 2019)

ModlrMike said:
			
		

> This is no different than we medical folk who have complete authority on medical issues, but are still subject to the CSD, NDA, QR&O etc in all other circumstances.



And MP's when conducting an investigation, and a host of other folks who retain some independence from the chain of command on *some* issues but are still subject to the listed above. The authority for medical folk to *be* the authority in medical matters is hard coded into orders - same with MPs conducting policing duties.

In this case, the Accused is not performing duties related to his position he's simply another service member subject to the same authorities as the rest of us - no different then if I were to attend CBRN training. CBRN training has nothing to do with my role in the machine, but the expectation is I'm properly turned out in the expected dress - not showing up in a suit and tie because *I'm special.* The *"I'm special"* attitude is dangerous, and cancerous to a professional armed force.


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## Eye In The Sky (19 Jun 2019)

dapaterson said:
			
		

> A Court Martial is inherently a military proceeding;the only appropriate attire for a serving member who is charged is a uniform.



While I don't disagree, unless I'm reading the ref's/reg's incorrectly, there is leeway for the participant (accused):

CFP 265, Ch 2, Sect 1, Para 46 "Wear of civilian robes"

46.  Ecclesiastical, judicial, and academic clothing may be worn over an appropriate order of dress, or in lieu of uniform:

b.  by judge advocates or presidents of courts martial (dress of participating members of a court martial shall be as prescribed in A-LG-007-000/AG-001, Court Martial Procedures. Guide for Participants and Members of the Public);

Court Martial Procedures Guide for participants and members of the public

*Dress*

3. Orders of dress for participating military members, listed at para 8, are as prescribed by the Chief Military Judge. For military participants, Service Dress Nº 3 (tunic with ribbons) will be worn unless otherwise specified by the military judge presiding at the court martial. Headdress is worn by participating military members until after the pleas have been entered but may be removed earlier at the discretion of the military judge. Headdress is also worn for the pronouncement of findings and sentence. At other times during the proceedings, headdress is not worn except for military witnesses who are called to testify.


Isn't this what is being discussed, a situation where the Presiding Judge said a participating military member (the Accused IAW para 8 ) *otherwise specified* dress allowed to be a suit vice Service Dress No. 3?


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## FJAG (19 Jun 2019)

Note that I've never used the word "special" (I'll leave that to the "special" forces). I have used the word "different" insofar as it applies to their independence from the chain of command which is critical to the function of their job.

What I think you are missing the point on is that their "difference" is legislatively authorized by virtue of s 165 of the NDA. They are appointed by the GiC and as was stated in the 1999 JAG Annual Report when the revisions to the system was made:



> Under the current reformed military justice system, the military judges are independent from the military chain of command, the executive and the Departmental authorities and the Judge Advocate General


 http://publications.gc.ca/collections/Collection/D1-16-2000E.pdf page 12. 

There is an entirely separate statutory system for selecting, reappointing, paying and disciplining military judges from that which applies to the rest of us. True, they are still members of the military and that's why they can be tried for a CSD offence but that's quite different from being subject to many of the details of military service imposed by the CoC. 

Remember what the trial judge in this case said about the uniform issue: it wasn't for him to give Dutil permission not to wear a uniform, what he was doing was acknowledging that Dutil was innocent until proven guilty and as such still had the discretion as the Chief Military Judge to follow the directive that he (Dutil) had previously issued about the wearing of civilian clothes by military judges as a sign of their judicial independence and impartiality. In other words, Dutil, as the OIC of an independent unit could make his own decision about the appropriate clothing to wear.

Sorry guys. I know that there are some minds that can't be changed about this and while I personally think the whole idea that wearing civilian clothes as a sign of judicial independence and impartiality is tenuous at best, I do appreciate that others (especially amongst the judges and defence counsel services) see it differently and quite frankly I would hate to see a case like this founder because a judge ordered Dutil to wear a uniform and thus in the mind of some civilian appeal judge up the chain hold that the military courts are not truly independent. Sometimes hard facts make bad law.

 :cheers:


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## dapaterson (19 Jun 2019)

Except Dutil, as an accused, is not present in court in his capacity as a military judge.  He is there in his capacity as a member of the CAF.


Agreed that bad cases make bad law.  


Hopefully this will be the impetus for another top to bottom reform, which will abolish the military judiciary and put the responsibility for courts-martial under the federal court.


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## garb811 (19 Jun 2019)

Let's try this from a different angle...

Why was the first motion brought by the defense the one on dress? Why did they not simply cut to the chase and make the motion that the military judge recuse himself due to his inability to be unbiased and impartial? What precedent was the defense setting with that motion and why was it so important that it they wanted it to be dealt with first?


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## Good2Golf (19 Jun 2019)

I am less concerned about the allowable variance to service dress for the Accused, as I am for the seeming catch-22 about judgeship. Perhaps if consideration is given for the actual charges and how ‘uniquely military’ they are (or aren’t), then consideration could be given to the NDA to allow a non-military Federal judge to preside as an exceptional case.  ???

Regards
G2G


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## Eye In The Sky (19 Jun 2019)

Question;  why is this the important issue of focus (DEU/suit)?

The CDS delegated authority to the CMJ, the CMJ further delegates to Presiding Judge.  It is authorized. Unless I'm missing some significance ( which I could be...), my mind says "who cares?".  All the "this is wrong" etc...take it up with the AFC and CAF Dress Committee, recommend the CDS revise the applic part from Ch 2.

Here's the thing;  when the CDS issues dress reg's/changes and then sub-ordinate commanders try to put their own spin on it or ignore it, we complain (eg BEARDFORGEN).  When people make decisions (like this DEU/suit one) that are authorized from the top thru clear delegation...we complain.

 :dunno:


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## Humphrey Bogart (19 Jun 2019)

Who cares about the dress. We have the top judge who may have committed fraud and we have no way of conducting a trial!

It's a joke!


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## Infanteer (19 Jun 2019)

I'm still waiting for someone to argue that we should get the RCMP to preside over military courts martial, just like we want to give them military policing too!


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## Jarnhamar (19 Jun 2019)

Treat it like a summary trial. 

He's guilty. Next


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## garb811 (19 Jun 2019)

Sorry for the crappy Google translation but...


> In my opinion, and in keeping with the logic of the uniforms and civilian clothing directive for military judges that he himself authorized, it remains essential that he continue to exercise his discretion. in this regard. Without presuming the result of this court martial in any way, the fact remains that the presumption of innocence remains until the prosecution has presented evidence that convinces the trier of fact of its guilt beyond a reasonable doubt. To allow Colonel Dutil to exercise his discretion will only be a benefit of the application of this presumption and will allow him to evaluate the most appropriate way, in his opinion, to preserve the principles of independence and independence. impartiality essential to the exercise of his function as a military judge. Indeed, why should someone be deprived of the opportunity to make the usual decisions to preserve his position simply because he is being tried before the court martial?



For me, the ruling is important because the accused was being treated differently than any other accused before a court martial from the get go, for the sole reason that he has been appointed as a military judge. Further, the presiding judge referenced a policy the accused himself had made in rendering his decision... Really? 

Again, the accused was NOT acting as a military judge and presiding at a court martial. He was the f...ing accused at his own court martial and the presiding military judge is worried about the accused being able to, "...preserve the principles of independence and independence. impartiality essential to the exercise of his function as a military judge." Sorry, that ship sailed when there were reasonable and probable grounds to charge him with service and criminal offences.  At that point he should be treated as Col Dutil, CAF, not Col Dutil, CMJ and the presiding military judge should have treated him the same way he has treated every other accused service member who has appeared before him instead of showing deference to his appointment as a military judge and deciding that warranted special treatment.

It just adds another level of the grotesquely surreal to the whole fiasco.


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## garb811 (19 Jul 2019)

And the next step is taken, the appeal has been filed to overturn the ruling. It's a short article so nothing further at the link:

Prosecutors try to get top military judge's trial back on track


> OTTAWA — Prosecutors are going to court to try to force Canada’s No. 2 military judge to name another military judge to preside over the trial of the No. 1 military judge.
> 
> A month ago, Lt.-Col. Louis-Vincent d’Auteuil removed himself from the case of his boss, Col. Mario Dutil, in the middle of a court martial, and refused to appoint a replacement.
> 
> ...


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## FJAG (19 Jul 2019)

That's a novel application of the doctrine of necessity. 

A defence of necessity is limited but not uncommon. The use of the doctrine by a state or state representative, however, is highly unusual.

 :cheers:


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## garb811 (19 Jul 2019)

FJAG said:
			
		

> That's a novel application of the doctrine of necessity.
> 
> A defence of necessity is limited but not uncommon. The use of the doctrine by a state or state representative, however, is highly unusual.
> 
> :cheers:


Any insight on how that doctrine might actually be applicable in this instance? I get the requirements pertaining to the "defence of necessity" but what is at play here?


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## FJAG (20 Jul 2019)

garb811 said:
			
		

> Any insight on how that doctrine might actually be applicable in this instance? I get the requirements pertaining to the "defence of necessity" but what is at play here?



Nope. None. I don't think it applies. This thing can be fixed with a legislation that allows the appointment of an ad hoc judge from some other jurisdiction.

 :cheers:


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## Cloud Cover (20 Jul 2019)

Different facts, same doctrine:


“Although there is a general rule that a judge who is not impartial is disqualified from hearing a case, the doctrine of necessity ‑‑ an exception to the general rule of disqualification ‑‑ allows in certain circumstances a judge who would otherwise be disqualified to hear the case nonetheless, if there is no impartial judge who can take his place.  The law recognizes that in some situations a judge who is not impartial and independent is preferable to no judge at all. The doctrine of necessity acknowledges the importance of finality and continuity in the administration of justice and sanctions a limited degree of unfairness toward the individual accused.  Given this adverse effect, the exception should be applied rarely, and with great circumspection. “


Ref. re Remuneration of Judges of Prov. Court of PEI; Ref. re Independence & Impartiality of Judges of Prov. Court of PEI; R. v. Campbell; R. v. Ekmecic; R. v. Wickman; Manitoba Prov. Judges Assn. v. Manitoba (Min. of Justice), [1998] 1 SCR 3, 1998 CanLII 833 (SCC), <http://canlii.ca/t/1fqwk>, retrieved on 2019-07-20


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## garb811 (20 Jul 2019)

Excellent, thanks much!


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## Cloud Cover (20 Jul 2019)

NP.  I would observe that many jurists, legal scholars etc have stated that  the majority decision, and more recently the Nadon decision, were wrongly decided and were self serving by “abusing the doctrine” and using the Constitution to amp up the importance of the courts, at all levels. That rather hostile view would not be engaged or applicable in the CMJ case.


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## FJAG (20 Jul 2019)

There is obviously no "defence of necessity" at play in this case. Necessity from a government action point of view is a different matter.

Perhaps the best case that I know of that relates to that is the Manitoba Language Rights Reference where the Supreme Court held that any Manitoba laws that had been passed in only the English language were invalid. In order to stop the resulting chaos that would arise out of this the Court declared the laws valid for a period of time to give the government the time needed to create and enact the required French translations.

See here for a good, comprehensive academic discussion on the issue as it relates to Canadian law:

https://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=2131&context=scholarly_works

The crux of the necessity doctrine is in my mind as follows:



> Despite the factual differences, there is a common element in all these cases: a constitutional breach has occurred (for whatever reason) that cannot be quickly repaired and that is so radical that, if not condoned, it would cause a breakdown in the legal order. The doctrine of necessity, or (according to the Canadian Court) the rule of law, provides relief against the breakdown of the legal order, at least until such time as the constitutional breach can be properly repaired.5



IMHO the current case does not meet the test of a "a constitutional breach ... that cannot be quickly repaired and that is so radical that, if condoned, it would cause a breakdown of the legal order."

Again IMHO, JAG shouldn't waste time on any further court based challenges and move swiftly to implement corrective legislation.

 :cheers:


----------



## dapaterson (20 Jul 2019)

All it would take is the appointment of a new military judge without a connection to the accused; no legislative barrier at play.


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## SeaKingTacco (20 Jul 2019)

dapaterson said:
			
		

> All it would take is the appointment of a new military judge without a connection to the accused; no legislative barrier at play.



That would be my suggestion. Simply comb the ranks of the Reserve Force for lawyers (not neccesarily only those who are military lawyers- I know several reserve force officers who have a day job as a lawyer). Create a short list of those able and and willing and then have one of the short list appointed as a military judge for the sole purpose of this trial. 

Is it that easy?


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## Blackadder1916 (20 Jul 2019)

SeaKingTacco said:
			
		

> That would be my suggestion. Simply comb the ranks of the Reserve Force for lawyers (not neccesarily only those who are military lawyers- I know several reserve force officers who have a day job as a lawyer). Create a short list of those able and and willing and then have one of the short list appointed as a military judge for the sole purpose of this trial.
> 
> Is it that easy?



Or perhaps look to see if there are still any applications on file.

https://www.fja-cmf.gc.ca/appointments-nominations/military-militaire/index-eng.html


> The Commissioner for Federal Judicial Affairs is seeking applications from barristers or advocates who meet the eligibility requirements for appointment as a Regular Force or Reserve Force Military Judge to fill Military Judge vacancies that might open up at Court Martial in the next three year period. Interested candidates are invited to submit their candidacy for consideration by the Military Judges Selection Committee no later than 4:00 pm EST on Friday 21 September 2018.


https://www.fja-cmf.gc.ca/appointments-nominations/military-militaire/guideCandidates-eng.html


> Each Application File will be kept on file for a period of three years from the date of receipt.


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## FJAG (20 Jul 2019)

Blackadder1916 is bang on and has hit on the process for appointing a Reserve Force Military Judge.

My last experience in the branch was in 2009 and at that time there was a general reluctance to seek out and appoint Reserve Force Military Judges (RFMJ). You might recall that in the post Somalia environment there were hundreds of changes in the military justice system, including within the Office of the Chief Military Judge. As a result folks were moving forward cautiously and with a heavy veneer of risk aversion. 

While there was a very heavy movement to incorporate Reserve Force Legal Officers into the prosecutor and defence counsel establishments, there was never the same hurry to appoint RFMJs. While I have no proof of where the source of that was my gut tells me that there was no great enthusiasm for RFMJs within the Office of the CMJ who already had four RegF judges (counting himself) to do the fifty or sixty odd trials a year that they do. 

Remember too that bilingualism is not one of the Reserve Force's strong points and that in order to do this particular trial any RFMJ would need to be fluent in French. That cuts down the gene pool significantly.

 :cheers:


----------



## dapaterson (29 Jan 2020)

Apparently a military judge has been watching old Sylvester Stallone movies too much, and has declared "I Am The Law".

In a little remarked ruling earlier this month, a military judge declared himself and his peers on the military bench as not being subject to the code of service discipline.



> [131]       Concluding that the judicial role of military judges prevents them from being charged and dealt with under the Code of Service Discipline while in office would not offend the principle of equality before the law as it would be both partial and temporary.  It would be partial because they could still be charged in the civilian criminal justice system as any other citizen and their conduct could be reviewed by the Military Judges Inquiry Committee, not only on standards of conduct applicable to the judiciary but also on standards applicable to officers, as interpreted by the judicial officials constituting the Committee.  It would be temporary because as for others who cannot be charged and/or dealt with under the Code of Service Discipline while in the position they hold, they could still face military discipline as officers once removed from their position.  This would not be unique: the CDS, the JAG, the DMP, the Provost Marshal and possibly the DDCS cannot be dealt with under the Code of Service Discipline while in office.
> 
> [132]       I fully realize that the impossibility of laying charges against military judges while in office may lead to strictly military offences of a minor nature, hence of insufficient gravity to warrant removal, not being addressed under the Code of Service Discipline.  This is a reasonable price to pay to protect the rights of accused to be tried before an independent and impartial military tribunal.  If there is anyone who should be exempted from such an exercise due to the function they occupy it is military judges who can hear and determine the most serious of crimes and impose the most severe of sentences.  A reasonable observer would understand that an officer holding the office of military judge must be exempt from being charged under the Code of Service Discipline and, consequently may not be fully accountable for such offences.



https://decisia.jmc-cmj.forces.gc.ca/jmc-cmj/cm/en/item/459412/index.do


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## Eye In The Sky (29 Jan 2020)

I'd like to say "I'm surprised!!" but...nothing really surprises me these days.  Just throw Military Judges in the "special snowflake" category, like so many other people view themselves as part of.

I am able to conduct UDIs and make recommendations to Charge Layers.  I should be exempt from any CSD action in how I perform any duties under a UDI because...well, I said so.  I'm sure my Sqn/Wing/Div/RCAF leadership will support that, right?  It's a _reasonable price to pay_...


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## FJAG (29 Jan 2020)

I've edited my comments on this as I was under the misapprehension that the decision quoted above came within the Dutil matter. I've just started reading the decision (which relates to a plea in bar of trial in the CM for a cpl in the 48th Highlanders) to see what it's all actually about.

Brief preliminary comment, the people at DDCS have way too much time on their hands to dream up such esoteric arguments. (I've firmly believed for a very long time that we grossly overstaff both DMP and DDCS considering their relatively minor caseload - provincial crown prosecutors would kill their own mothers in order to have such small caseloads)

 :cheers:


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## dapaterson (29 Jan 2020)

The problem is not the CAF's underworked defence lawyers wasting the court's time with absurd notions, it's the CAF's underworked judges somehow deciding that they are not military and thus not subject to the same law as all other CAF members.

If this stands, Col Dutil's charges must therefore also be tossed.


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## FJAG (29 Jan 2020)

dapaterson said:
			
		

> The problem is not the CAF's underworked defence lawyers wasting the court's time with absurd notions, it's the CAF's underworked judges somehow deciding that they are not military and thus not subject to the same law as all other CAF members.
> 
> If this stands, Col Dutil's charges must therefore also be tossed.



I've now read the whole case and understand the court's reasoning. I disagree with your characterization of the result which I admit is supported by the two paragraphs that you cherry picked out of the reasons. I think that the starting point is actually para 36 which reads:



> [36]           I conclude that the legislative provisions require that military judges be officers prior to their appointment and remain officers to keep their judicial office.  That makes them liable to be charged and dealt with under the Code of Service Discipline for any offence committed during that period of service as officers.  No legislative or regulatory provisions limit the prosecution of an officer on the basis of holding the office of military judge or on the basis of the performance of judicial duties at the time of or in relation to an alleged offence.



That means that legislatively judges, as officers, are subject to the CSD.

The court then goes off on an analysis of the concept of judicial independence and the existing legislative and regulatory system that protects it. He zeros in on two issues which I think are relevant. The first is the CDS order which appoints non-legal senior officers to be the CO of the personnel in the CMJ's office including the judges. The second is the existence of the Military Judges Inquiry Committee.

The CDS order is a real issue by virtue of NDA s161.1 which requires a charge once laid to be referred to a CO which of course by inference requires anyone subject to the CSD to have a CO. The CDS order unfortunately designates the judges' CO to be a member of the executive. This creates the problem whereby a judge can be seen to be under the influence of a senior officer within the CoC and thereby undermining the perception of impartiality. There's an interesting possibility where a charge laid by a CFNIS member can be referred to DMP where a CO decides not to proceed with a charge but that still needs an initial referral to a CO. In the case of a civilian judge there is no intervening member of the executive involved. The charges against a judge would go from the police to the prosecutors and then move forward to trial. We can cure the entire problem by having NDA s161.1 amended whereby charges in certain circumstances should go from the CFNIS directly to DMP without the need for a CO being involved.

The judge sees the MJIC as the solution. It creates a two stage process. 1.) hold an inquiry and where the "crime" is proven and sufficient to remove the judge then 2.) charge the judge once he reverts to his status as a non-judge officer. A charge could even be laid after the judge retires. The so called "immunity" only exists while the accused is in fact a judge. If delay is not desired then the matter can always be referred to a civilian prosecutor and judge.

As an aside. Note paras 123 and 124 which makes a very good argument that the CDS cannot be charged because he has no "CO" and that the JAG, DMP and Provost Marshal are also in a grey zone because their subordinates are in key roles for the investigation, legal advice and statutory power provisions in the appropriate.

Where I disagree with you is on the characterization of 





			
				dapaterson said:
			
		

> ... it's the CAF's underworked judges somehow deciding that they are not military and thus not subject to the same law as all other CAF members.
> 
> If this stands, Col Dutil's charges must therefore also be tossed.



In fact para 36 says exactly the opposite. It's the rather inadequate legislation, regulations and CDS order that create the problem. It's very difficult to have a system where a judge is to be independent of the executive but at the same time be subordinate to it one or more respects. A change to s161.1 could easily fix the CDS, JAG and judges "immunity" issues. DMP and the PM requires a much more complex fix.

Incidentally I stand by my position that this is a clear example of DDCS legal officers jerking around the system. Remember that this was not a Dutil issue but a cpl in the 48th trying to bounce the court. Reading through the arguments that the judge cites, neither of the counsel seemed to be at their best. Basically I can only see three possible outcomes for this argument: 1.) your position is bull**** Mr Defence Counsel and your plea in bar is dismissed; 2.) the CDS order interferes with the independence of the judiciary and therefore is of no force and effect and your plea in bar is dismissed; 3.) All of us judges are merely the pawns of the DVCDS and therefore you win the golden ticket and your client gets a get out of jail card. I don't think 3.) had much of a chance and I seriously doubt if young Cpl Pett would have instructed his counsel to proceed on it if he would have had to pay his lawyer a couple of thousand bucks to develop and present this failing argument. 

(As an aside I once prosecuted a bail pending appeal revocation hearing [something that's roughly a 15 minute proceeding in civilian court] which because of the procedural requirements of the CSD at the time and the defence counsel's week-long pleas in bar of trial ended up taking two weeks (one week in Germany one week in Ottawa) at a cost that I estimated well in excess of $50,000 (not counting salaries) and still ended up with the boyo going back into the hoosegow. Personally I'd cut back on both DMP and DDCS and buy the RCDs a couple more tanks and crews.

 :cheers:


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## dapaterson (29 Jan 2020)

The history of R v Dutil started with COS to JAG filing a complaint, with the MJIC rejecting the complaint because, apparently, military offences are not judicial ones - it's perfectly all right, apparently (and allegedly) for judges to carry on with subordinates to the detriment of the good order and discipline of the wider institution and not disclose that relationship, as they are required to do as members of the CAF.

The learned judges and equally learned counsel forget entirely in their pleadings that there is a profession of arms.  Professions must either self-regulate or be regulated externally.  As officers and members of the CAF, judges remain subject to the terms of that profession (as well as their own).  Carving themselves out a safe space because the evil CDS might punish them is venturing into the realm of hypotheticals and far from the actuals.  Judges, in their capacity as military members (and not as judges) require a chain of command which is able to enforce military discipline.  (This goes back to my earlier complaint - the judge who later recused himself and all other military judges permitted the accused in a military proceeding to appear in civilian clothes, rather than a uniform, showing that he fails to understand the concept of the military profession and the CSD as a tool of self-regulation for that profession.)

The judge concludes that the CSD applies to officers, but once a judge you're some odd third species still military but not really since the CSD does not apply, but if you choose to give up your lavish pay and low workload and return to being a JAG officer, well, then, you're subject to the CSD again.

To which again I say bollocks.  If military judges are indeed military, then they are subject to the same self-regulation of the military profession as any other military member.  If they are not, then they are not military.  And thus we can scrap the military bench entirely, and refer then caseload directly to the federal court to address.


The learned judge should have tossed the DDCS argument out on its ear.  Instead, he embraced it, and extended it.  Perhaps I should have said "The problem is not only the CAF's underworked defence lawyers wasting the court's time..."


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## FJAG (30 Jan 2020)

dapaterson said:
			
		

> The history of R v Dutil started with COS to JAG filing a complaint, with the MJIC rejecting the complaint because, apparently, military offences are not judicial ones - it's perfectly all right, apparently (and allegedly) for judges to carry on with subordinates to the detriment of the good order and discipline of the wider institution and not disclose that relationship, as they are required to do as members of the CAF.
> 
> The learned judges and equally learned counsel forget entirely in their pleadings that there is a profession of arms.  Professions must either self-regulate or be regulated externally.  As officers and members of the CAF, judges remain subject to the terms of that profession (as well as their own).  Carving themselves out a safe space because the evil CDS might punish them is venturing into the realm of hypotheticals and far from the actuals.  Judges, in their capacity as military members (and not as judges) require a chain of command which is able to enforce military discipline.  (This goes back to my earlier complaint - the judge who later recused himself and all other military judges permitted the accused in a military proceeding to appear in civilian clothes, rather than a uniform, showing that he fails to understand the concept of the military profession and the CSD as a tool of self-regulation for that profession.)
> 
> ...



The problem here is that DND is trying to suck and blow at the same time. Believe me that the judges and legal officers fully understand the military disciplinary system and its purposes. I sometimes think they understand it much more than the chain of command which sometimes has a cavalier attitude in balancing the constitutional rights of every citizen (including their soldiers) and the perceived needs of unit discipline.

In Canada an accused has an absolute right to be tried by an independent and impartial tribunal under s 11(d) of the Charter. As far as judges are concerned independent and impartial as defined in Valente v R [1985] 2 S.C.R. 673 as security of tenure, financial security, and institutional independence in administrative matters relevant to the functioning of the judge. If these requirements are not met any decision rendered by the tribunal can be quashed. Military trial judges are not "carving out a safe space" for themselves but are trying to predict, based on previous appellate decisions as to whether or not a particular argument before them has merit and how it will be interpreted at a higher (non military) appellate level. 

Whether or not a tribunal is independent is eventually decided by an appellate court or the SCC, however, arguments respecting judicial independence are almost always first addressed at the trial level as a pre-trial motion (or plea in bar of trial in the case of a CM) There's absolutely no value in judge holding in favour of the "disciplinary system" if the CMAC will just overturn the decision.

Military judges are pretty well off respecting the first two securities but are running a ragged edge when it comes to the 
"administrative matters" one.

Much as you might like a judge to be an officer first and a judge second, it's exactly that attitude (which is shared by a large number of your peers) that risks having military judges declared a tool of the executive and as a result their decisions invalidated. Wearing civilian clothes is a very minor symbol of independence and is well worth the bother to ensure that in fact military personnel are tried in front of judges who are part of the military, learned their craft within the system, and understand the need for military discipline.

If you insist that military judges be officers first, be subject to all the minutiae of military life and as you say be subject to a chain of command for discipline (which by inference will be a non judge CoC) then you are absolutely ensuring that a higher court will strike down the military justice system as it now stands.

We've been fine tuning the military judicial system ever since the Charter came out and we've been successful at it. But it wasn't a one time correction. We've had some major revisions but in large part it's been minor issues coming out of the woodwork that made us improve things bit by bit over time. This time we've been hit out of left field. No one ever gave thought to a judge committing an offence (we did predict improper conduct and set up a system to deal with that.)

As I said before, we can easily fix the Dutil-like issue with an amendment to s161.1 of the NDA and by providing for the calling in of an ad-hoc trial judge from a superior court to try cases where the military judges are conflicted out.

I'm actually much more concerned about how to deal with the CDS (a s161.1 fix should do) or the DMP and PM for which there is no internal workaround at the present (I expect it would need ad hoc investigators and/or special prosecutors)

Believe me when I tell you that the concepts of a chain of command and judicial independence are mutually exclusive. Civilian judges are not part of a chain of command. Chief judges are administrative leaders but have no disciplinary role over their puisne judges. judges are subject to hearings before disciplinary councils for improper conduct and the ordinary criminal legal system for crimes. There are systems in place to bring in special prosecutors and ad hoc judges when needed to prosecute and try a judge. It may take some thought within DND (now that someone is finally addressing their minds to the issue) but one should easily be able to put into play a system that would allow a military judge to be charged and tried under the CSD without the necessity of involving the chain of command. The judge in this case is suggesting a system (which incidentally I think sucks as much as you do). It should be simpler than that. Amending s161.1 is the start.

What you want is akin to pushing on a rope. If you're ever out my way we need to share a beer or two or three and rationally discuss this issue until we're both p*ssed.

 :cheers:


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## ballz (30 Jan 2020)

FJAG said:
			
		

> It may take some thought within DND (now that someone is finally addressing their minds to the issue) but one should easily be able to put into play a system that would allow a military judge to be charged and tried under the CSD without the necessity of involving the chain of command.



My whole train of thought while reading these last few posts was "surely it can't be so complicated to set up a system where a military judge can be independent and also be charged for AWOL." Seems like the CAF fails again to apply KISS and can't even figure it out when it's already been figured out civie side.



			
				FJAG said:
			
		

> The judge in this case is suggesting a system (which incidentally I think sucks as much as you do). It should be simpler than that. Amending s161.1 is the start.



I don't see how he suggested such a system. Maybe it's the selected clippings, but he seems to have given up on that idea and said instead they should be *exempt* from the Code of Service discipline and that "This is a reasonable price to pay to..."

I don't get see where he suggested a system, within the CAF, that allows the CDS, DPP, PM, or judges to be independently tried for AWOL.


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## garb811 (30 Jan 2020)

FJAG said:
			
		

> ...
> As I said before, we can easily fix the Dutil-like issue with an amendment to s161.1 of the NDA and by providing for the calling in of an ad-hoc trial judge from a superior court to try cases where the military judges are conflicted out.
> ...


The fix for a Duti-like issue already exists. The next time a "military" judge is charged with a non-CSD specific offence, MP can simply exercise our authority as Peace Officers and lay the complaint downtown. That way there will be no worries about the wagons being circled and esoteric arguments being made. And, if the "military" judge wants to show up in civies to assert his or her independence from the chain of command, no legal motions are required.

Best part is, the case law to support this deviation from CF MP Gp Orders has already been made by the "military" judges themselves.


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## FJAG (30 Jan 2020)

ballz said:
			
		

> I don't get see where he suggested a system, within the CAF, that allows the CDS, DPP, PM, or judges to be independently tried for AWOL.



The fix he suggested comes in is the two stage system. I) you make a complaint to the MJIC as a conduct complaint. 2) once the MCIJ considers him having been guilty of misconduct, recommending his judgeship be withdrawn and made an ordinary officer again then you charge him. The reason I find that silly is that it presupposes that the MJIC will do everything as required in a reasonable period of time. As dapaterson mentioned (and I don't know about this other than what he says, and I don't doubt him one bit) is that the MJIC has already decided not to hear the complaint against Dutil.



			
				garb811 said:
			
		

> The fix for a Duti-like issue already exists. The next time a "military" judge is charged with a non-CSD specific offence, MP can simply exercise our authority as Peace Officers and lay the complaint downtown. That way there will be no worries about the wagons being circled and esoteric arguments being made. And, if the "military" judge wants to show up in civies to assert his or her independence from the chain of command, no legal motions are required.
> 
> Best part is, the case law to support this deviation from CF MP Gp Orders has already been made by the "military" judges themselves.



True enough. The problem is that 1) the Forces lose disciplinary jurisdiction over the judges which, like dapaterson, I think they should have and 2) we lose all ability to try an individual for a CSD specific offence.

I still think a legislative and regulatory change can fix this although it may be too late with respect to Dutil.

My thought is that besides changing s161.1 a new Division 6.3 in the NDA  allowing for these "special" accused charges to be directed to the Chief Judge of the Federal Court Trial Division to appoint a judge and hold a CM. (Something like what Division 9 does now for the CMAC)

That still leaves a gap respecting DMP and the PM (considering their statutory roles in the investigation and prosecution of cases.)

 :cheers:


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## ballz (31 Jan 2020)

FJAG said:
			
		

> The fix he suggested comes in is the two stage system. I) you make a complaint to the MJIC as a conduct complaint. 2) once the MCIJ considers him having been guilty of misconduct, recommending his judgeship be withdrawn and made an ordinary officer again then you charge him. The reason I find that silly is that it presupposes that the MJIC will do everything as required in a reasonable period of time. As dapaterson mentioned (and I don't know about this other than what he says, and I don't doubt him one bit) is that the MJIC has already decided not to hear the complaint against Dutil.



Which is not a fix. It's a fix for big issues like this judge accused of fraud, but the judge even states "ah yeah, not worth it for AWOL though, so these guys will just be exempt from that small stuff."

That's an improvement, but it's not a fix.


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## FJAG (31 Jan 2020)

ballz said:
			
		

> Which is not a fix. It's a fix for big issues like this judge accused of fraud, but the judge even states "ah yeah, not worth it for AWOL though, so these guys will just be exempt from that small stuff."
> 
> That's an improvement, but it's not a fix.



That's one of the reasons why I don't like it.

 :cheers:


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## Cloud Cover (1 Feb 2020)

They can still be fired and sent to the Eastern Front, or Gagetown, whichever is worse.


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## The Bread Guy (4 Mar 2020)

The latest ...


> The case against Canada's chief military judge is back in limbo after a civilian judge refused to order one military judge to appoint another military judge to preside over the court martial of their commander.
> 
> Canada has only a handful of military judges and all the others who would ordinarily be eligible to handle Col. Mario Dutil's case can't do it, either.
> 
> ...


More here (Federal Court decision) or in attached PDF of decision.


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## dapaterson (11 Mar 2020)

He got away with it.

The Director of Military Prosecutions, having read the writing on the wall, is withdrawing all charges.  One can only hope that this will serve as a wake-up call to legislators and see the abolition of the military bench, sending all court martials to Federal court.

https://www.canada.ca/en/department-national-defence/news/2020/03/director-of-military-prosecutions-withdraws-all-charges-against-chief-military-judge.html


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## FJAG (11 Mar 2020)

dapaterson said:
			
		

> He got away with it.
> 
> The Director of Military Prosecutions, having read the writing on the wall, is withdrawing all charges.  One can only hope that this will serve as a wake-up call to legislators and see the abolition of the military bench, sending all court martials to Federal court.
> 
> https://www.canada.ca/en/department-national-defence/news/2020/03/director-of-military-prosecutions-withdraws-all-charges-against-chief-military-judge.html



I too am very disappointed with the result but, as you say, the writing was on the wall. The legislation was flawed and we all know that now. The problem is that the folks who wrote the legislation in the first place should have foreseen and dealt with the situation.

The good news is he retires next month I think. 

Unlike you, I'm not quite prepared to throw the baby out with the bath water. That said, I'm getting closer. One trouble is that if you think that the CM was a slow process, just wait till you deal with the Federal Court - Trial Division. Been there, done that, got the T-shirt. 

 :cheers:


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## Infanteer (12 Mar 2020)

Agree with baby:bathwater.  Doesn't the court martial work for the other 99.9% of the times it is required?


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## Fishbone Jones (22 Mar 2020)

I take it, because there was no trial, it's moot. However, if it had gone forward and he'd been found guilty, would that have any impact on any of his previous decisions? Would parties, found guilty by him, have room for appeal?


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## garb811 (22 Mar 2020)

I doubt it, just like just because a police officer is subsequently convicted of a criminal offense doesn't mean all of their cases are subject to review/appeal. The difference would be if it came out at trial that someone had been blackmailing him WRT his decisions to keep the allegations quiet.


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## FJAG (22 Mar 2020)

It would be very difficult. In the first place, it's the prosecutor who determines what part of the case he puts forward so the judge can't keep things quiet. While he would rule on whether or not certain evidence could come in, that would be subject to a decision in open court which (if inappropriate) would have given the prosecutor an opportunity to appeal. 

The same thing at the end of the day. Judges these days have to give written reasons for their findings and sentence and therefore any impropriety at that point would have been appealable at that point.

This wasn't a case respecting a judge making poor choices or acting improperly on the bench but respecting allegations about his private/social interactions with a subordinate and in documents.

 :cheers:


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## ModlrMike (22 Mar 2020)

Out of curiosity, would there be much difficulty in amending the NDA so that charges against JAG officers are heard at CM lead by a Federal Court judge? What I mean is that we import the judge rather than export the case.


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## PuckChaser (22 Mar 2020)

ModlrMike said:
			
		

> Out of curiosity, would there be much difficulty in amending the NDA so that charges against JAG officers are heard at CM lead by a Federal Court judge? What I mean is that we import the judge rather than export the case.



Would that also preclude holding a General Court Martial where there is a panel deciding on guilt or innocence?


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## ModlrMike (22 Mar 2020)

I wouldn't think so, as we would simply be taking the JAG branch out of the equation. S. 167 NDA states "A General Court Martial is composed of a military judge and a panel of five members." Where S.168 speaks to who may sit on the panel. In the end, it would mean that s.167 would need to be rewritten. It would also likely require a sub-para for s.174 regarding Standing Courts Martial.


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## Fishbone Jones (23 Mar 2020)

Thx guys.


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