Topic: Chief military judge charged

[dapaterson]

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

[dapaterson]

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

[dapaterson]

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

[Oldgateboatdriver]

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.

[dapaterson]

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.

[PuckChaser]

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.

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?

[ExRCDcpl]

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.

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.

[garb811]

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?

[PuckChaser]

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....   

[ballz]

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?

[FJAG]

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.

 

[FJAG]

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.

 

[ballz]

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

 

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.

[garb811]

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.

 

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?

[ExRCDcpl]

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.

[FJAG]

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.

 

[SeaKingTacco]

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?

[FJAG]

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.

 

[FJAG]

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.

 

[dapaterson]

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.

[Oldgateboatdriver]

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!   

[dapaterson]

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.

[Navy_Pete]

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.

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.

[FJAG]

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

165.22 (1) There is established a Reserve Force Military Judges Panel to which the Governor in Council may name any officer of the reserve force who has been an officer for at least 10 years and who

(a) is a barrister or advocate of at least 10 years’ standing at the bar of a province;

(b) has been a military judge;

(c) has presided at a Standing Court Martial or a Special General Court Martial; or

(d) has been a judge advocate at a court martial.

Reserve force military judge

(2) An officer named to the panel is referred to in this Act as a “reserve force military judge”.

. . .

Chief Military Judge

165.222 (1) The Chief Military Judge may select any reserve force military judge to perform any duties referred to in section 165.23 that may be specified by the Chief Military Judge.

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.

 

[Brihard]

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.

[Dimsum]

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.

[Simian Turner]

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.

[whiskey601]

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.