Chief Military Judge Col Mario Dutil Charged

[FJAG]

...
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.

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:

 

[dapaterson]

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.

 

[ModlrMike]

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.

 

[JesseWZ]

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.

 

[Eye In The Sky]

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?

 

[FJAG]

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:

 

[dapaterson]

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.

 

[garb811]

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?

 

[Good2Golf]

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

 

[Eye In The Sky]

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:

 

[Humphrey Bogart]

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! 

 

[Infanteer]

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!

 

[Jarnhamar]

Treat it like a summary trial.

He's guilty. Next

 

[garb811]

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.

 

[garb811]

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.

Dutil was facing four charges in relation to allegations he had an inappropriate relationship with a subordinate and signed a false travel claim.

His lawyer asked d’Auteuil to recuse himself and served him with a subpoena as a witness, because the two men worked together and had a personal relationship and d’Auteuil knew important facts about the case as a result.

After considering the matter, d’Auteuil agreed and said that for similar reasons, none of the other three military judges could handle the case, either, leaving it in limbo.

Maj. Doug Keirstead, a spokesman for the Canadian Forces, said Thursday that the government is asking the Federal Court to overturn that decision.

The application says d’Auteuil was wrong to conclude that none of the other judges could take the case over, and in any event the legal doctrine of necessity demands that d’Auteuil pick the best one available no matter what.

 

[FJAG]

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:

 

[garb811]

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?

 

[FJAG]

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:

 

[Cloud Cover]

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

 

[garb811]

Excellent, thanks much!