Author Topic: Chief military judge charged  (Read 14316 times)

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Offline Dimsum

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Re: Chief military judge charged
« Reply #25 on: February 23, 2018, 18:39:15 »
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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Re: Chief military judge charged
« Reply #26 on: February 25, 2018, 01:24:37 »
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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Re: Chief military judge charged
« Reply #27 on: February 26, 2018, 05:04:28 »
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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Re: Chief military judge charged
« Reply #28 on: January 22, 2019, 15:52:04 »
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.

Offline BeyondTheNow

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Top military judge to face court martial overseen by own deputy
« Reply #29 on: January 25, 2019, 14:18:26 »
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

Quote
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

« Last Edit: January 25, 2019, 14:37:03 by BeyondTheNow »
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Re: Top military judge to face court martial overseen by own deputy
« Reply #30 on: January 25, 2019, 15:29:59 »
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.

Offline paulso09

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Re: Chief military judge charged
« Reply #31 on: January 26, 2019, 16:47:19 »
yeah  :not-again:

Offline BeyondTheNow

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Re: Chief military judge charged
« Reply #32 on: January 26, 2019, 16:58:23 »
yeah  :not-again:

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Re: Top military judge to face court martial overseen by own deputy
« Reply #33 on: January 27, 2019, 10:23:55 »
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

More at link

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

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

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Re: Chief military judge charged
« Reply #34 on: January 27, 2019, 12:23:32 »
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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Offline BeyondTheNow

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Re: Top military judge to face court martial overseen by own deputy
« Reply #35 on: January 27, 2019, 15:18:58 »
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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Online JesseWZ

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Re: Chief military judge charged
« Reply #36 on: January 27, 2019, 15:27:20 »
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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Offline BeyondTheNow

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Re: Chief military judge charged
« Reply #37 on: January 27, 2019, 15:34:44 »
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)...

Thank you for that information.
« Last Edit: January 27, 2019, 15:41:21 by BeyondTheNow »
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Offline FJAG

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Re: Top military judge to face court martial overseen by own deputy
« Reply #38 on: January 28, 2019, 00:46:19 »
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.

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Re: Chief military judge charged
« Reply #39 on: January 28, 2019, 09:30:24 »
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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Re: Chief military judge charged
« Reply #40 on: January 28, 2019, 10:05:34 »
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.

Offline BeyondTheNow

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Re: Top military judge to face court martial overseen by own deputy
« Reply #41 on: January 28, 2019, 14:44:29 »
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:

Thank you FJAG
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Re: Chief military judge charged
« Reply #42 on: January 28, 2019, 23:49:18 »
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..

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.

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Re: Top military judge to face court martial overseen by own deputy
« Reply #43 on: January 29, 2019, 00:05:11 »
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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Re: Chief military judge charged
« Reply #44 on: January 31, 2019, 00:33:28 »
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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Re: Chief military judge charged
« Reply #45 on: January 31, 2019, 04:13:38 »
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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Re: Chief military judge charged
« Reply #46 on: June 10, 2019, 21:09:47 »
And so it begins ...
Quote
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.

It came as Dutil's lawyer sought to have Lt.-Col. Vincent-Louis d'Auteuil recuse himself from the trial, arguing the deputy chief military judge is too close to both his client and many of the witnesses who will be called to testify.

 Canada's top military judge since 2006, Dutil was charged last year over allegations he had a consensual but inappropriate relationship with a subordinate and knowingly signed a travel claim for $927.60 containing false information.

He is facing two counts of fraud, one of wilfully making a false entry in an official document, one of wilfully making a false statement in an official document, and four related to conduct or neglect to the prejudice of good order and discipline.

None of the charges, three of which were laid in January 2018 and the other five last June, has been tested in court.

The military's top prosecutor opted to appoint a special prosecutor to review the military-police investigation against Dutil and decide whether to recommend charges.

It's believed Dutil is the first person to be charged while serving as the chief military judge and given the unprecedented nature of the case, it wasn't clear in the months leading up to the court martial how it would proceed. That included whether one of the three other military judges he oversees would hear the case against him.

Court heard Monday that it was d'Auteuil who ultimately decided to preside over the case ...
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Re: Top military judge to face court martial overseen by own deputy
« Reply #47 on: June 11, 2019, 00:24:21 »
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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Re: Top military judge to face court martial overseen by own deputy
« Reply #48 on: June 11, 2019, 01:12:51 »
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.

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Offline Blackadder1916

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Re: Top military judge to face court martial overseen by own deputy
« Reply #49 on: June 11, 2019, 11:23:24 »
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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