Chief Military Judge Col Mario Dutil Charged

[Cloud Cover]

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.

 

[FJAG]

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]

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

 

[SeaKingTacco]

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?

 

[Blackadder1916]

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.

 

[FJAG]

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]

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

 

[Eye In The Sky]

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...

 

[FJAG]

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:

 

[dapaterson]

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.

 

[FJAG]

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

... 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:

 

[dapaterson]

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..."

 

[FJAG]

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..."

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:

 

[ballz]

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.

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.

 

[garb811]

...
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.

 

[FJAG]

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.

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:

 

[ballz]

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.

 

[FJAG]

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:

 

[Cloud Cover]

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

 

[The Bread Guy]

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.

Dutil was charged under military discipline with fraud, making a false statement in a document and breaking rules through a personal relationship with a subordinate.

Dutil's deputy presided over the case at first but eventually recused himself and refused to name another judge to take over because two of them have conflicts of interest and the third isn't bilingual enough.

Now Justice Luc Martineau of the Federal Court has ruled that ordering one of them in would do irreparable damage to Dutil's constitutional right to a fair trial.

Martineau says the tidiest solution would be to name an outside civilian judge to hear the case, but also that the real problem is that the law on military justice never contemplated a scenario where the military's top judge would face charges himself.

Although Dutil isn't above the law, Martineau ruled, steamrolling all the problems with naming one of his colleagues to hear his case wouldn't be right.

"Justice is not a Pandora's box that can be opened as desired to see what is hiding in it, nor a game of chance where the accused must play Russian roulette with the prosecution," Martineau's ruling says ...

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