Court-martial minefield: case against Canada's chief military judge exposes fatal flaws

Commentary in the 27 July edition of the Halifax Chronicle Herald

by Tim Dunne

Our military justice system is crawling through a legal minefield in the wake of charges against Col. Mario Dutil, the Canadian Armed Forces’ chief military judge. (He’s believed to be the only Canadian chief military judge ever to be the subject of a court martial.)

Col. Dutil was appointed military judge on Jan. 10, 2001, and chief military judge by cabinet on June 2, 2006.  The appointment of his deputy, Lt.-Col. Louis-Vincent d’Auteuil, followed on June 14, 2018.

The Canadian Forces’ National Investigation Service’s 26-month inquiry of Dutil began in November 2015 and resulted in charges of fraud and wilfully making a false statement in a travel claim for $927.60.

Four additional charges were laid under the infamous section 129 of the National Defence Act — for conduct to the prejudice of good order and discipline relating to an inappropriate relationship. Some of the charges were dropped at the outset of the court martial.

(Under current regulations, an “inappropriate relationship” is an offence only in the Canadian military, which means Dutil can only be tried on this charge by court martial.)

The Canadian Armed Forces operates two forms of court martial. The standing court martial is presided over by a single military judge, and the second, the general court martial, comprises a military judge and a panel of five officers who determine guilt or acquittal, similar to a jury in a civilian court.

Col. Dutil’s standing court martial opened on June 10 with his lawyer, Philippe-Luc Boutin, requesting that the presiding judge, Lt.-Col. d’Auteuil, recuse himself and subpoenaeing him as a witness for the defence.

Lt.-Col. d’Auteuil did so, concluding the court martial on June 18 without a verdict.

In his written ruling, he underscored the right to a reasonable trial guaranteed by the Canadian Charter of Rights and Freedoms and the obligation of the prosecutor to deal with the charges as quickly as circumstances allow, as required by section 162 of the National Defence Act.

Lt.-Col. d’Auteuil also acknowledged the professional and personal relationship between him and his superior. (Justice d’Auteuil became Dutil’s confidant and friend and helped him manage his relationship with the subordinate with whom he had the “inappropriate relationship.”)

The judge acknowledged that their friendship might give the appearance of bias on his part. He noted it might be difficult to set aside everything he knows about the accused to ultimately have the kind of free and open mind required to assess the matter dispassionately. A well-informed person who was to study the matter in-depth, realistically and practically, could conclude that he may be biased. (The subpoena further underscores the legalistic entanglements in this tribunal.)

Gordon Hewart, Britain’s Lord Chief Justice from 1922 to 1940, opined that “Justice should not only be done, but should manifestly and undoubtedly be seen to be done.” This leaves absolutely no room for questions to be raised about judges’ impartial adjudication of cases and the administration of justice. This was reinforced by Canadian Supreme Court Justice Gerald LeDain in Valente c. The Queen (1985).

Here’s the rub. There are five military judges in Canada.

Justice d’Auteuil indicated that there is no apparent obstacle to the selection of another military judge, nor to the appointment of another military judge from the Canadian Forces’ reserve component to preside at Dutil’s court martial.

Following Lt.-Col. d’Auteuil’s self-disqualification, the Canadian military prosecution service, assisted by the Department of Justice, reviewed the reasons for the military judge’s decision. On July 16, the director of military prosecutions filed an application for judicial review by the Federal Court of Lt.-Col. d’Auteuil’s decision not to appoint another military judge in his stead to preside over Col. Dutil’s court martial.

If the application is allowed by the Federal Court, the deputy chief military judge will be compelled to appoint another military judge to replace him.

But that wouldn’t really solve the problem.

The remaining judges are under Col. Dutil’s chain of command and know the accused, as well as the witnesses, the court administration and even many of the military lawyers who could participate in another court martial. A newly appointed military judge would also fall under Dutil’s chain of command.

All accused have the right to an independent and impartial hearing, begging the question: If the remaining judges find themselves in a difficult position because of their relation to the accused, can they recuse themselves? She or he would be forced to weigh the case against their boss, potentially calling into question the impartiality of any presiding military judge.

The conundrum itself calls into question the very raison d’être of the military justice system.