FJAG will likely weigh in here, and I welcome his experience/perspective.
The CDS is a Governor in Council appt. Don't know what that means in terms of who has authority/responsibility/accountability to investigate misconduct for this, but those three ARA's could all have significantly different tracks/outcomes.
The fact that the CDS is a GoC appointment doesn't matter, the CDS is still a member of the CAF and standard procedures for the investigation still apply.
Before the whole Dutil thing I would have thought this matter wouldn't have been an issue but since then I've basically comes to the conclusion that there are a number of defects in the system which could be easily remedied by providing for an ad hoc superior court judge from one of the civilian criminal courts handle the case (even from the Federal Court although their criminal experience at the trial level is very limited).
I don't really see a superior officer issue because the military court is independent of the chain of command (when the CoC isn't making up dumb administrative policies which backhandedly defeat that) and the fact that the individual under investigation is now an ex-CDS.
My guess is that the investigation will continue under the CFNIS and, if appropriate, charges could be preferred through the ordinary course by either the CFNIS or DMP.
The basic premise of the NDA is exercised under the authority of the CDS, who by virtue of rank, can apply judgement to any subordinate as deemed appropriate by the findings of a CM. Should Gen Vance be court-martialed, can the current CDS exert punishment over someone of equal rank?
The superintendence of the military justice system is in the hands of the JAG under NDA s9.2(1). The chain of command has by and large been removed from the convening authority aspect of the preferral of charges to CM responsibility. Judgement as to conviction and sentence comes through the trial judge, CMAC and SCC. There are some elements that remain with the CoC (such as being review authorities after conviction under NDA s 249(1)-(4) seq.) However, with him being an ex-CDS, those don't really matter.
On the other hand, I can see the review authority provisions being a large impediment to the trial of a sitting CDS as to who would be able to exercise that function. Like I said, the Dutil issued opened up a large can of procedural worms that would apply equally to a CDS and which need resolving.
If not a CM, and they opt for a civilian option, as in the case of the GG recently, what powers does a third party have to compel testimony?
Under the current laws, there is no ability to refer to a civilian court unless the offence is one that would be a civilian offence as much as a military one and the prosecutors agree on who has jurisdiction. The allegations that I have seen in the papers do not suggest any civilian criminal offence.
I'm not much of a grab popcorn and watch guy, but may have to develop the habit.
Yeah. I see that. Bottom line - the CAF has another black eye that it will be wearing for quite a while.