Thursday, September 24, 2020

The time has come to appoint a new Chief Military Judge (Canada)

This past Monday, 21 September 2020, marks six months since the former Chief Military Judge, Colonel Mario Dutil, retired when he reached 60 years of age, the ‘compulsory retirement age’ (CRA) for members of the Canadian Forces – even military judges.  Since that time, the Deputy Chief Military Judge, Lieutenant-Colonel Louis-Vincent d’Auteuil, has been the de jure Acting Chief Military Judge by virtue of section 165.29 of the National Defence Act

That role was not ‘new’ to Lieutenant-Colonel d’Auteuil; he had filled it for the better part of two years while Director of Military Prosecutions (DMP) attempted, unsuccessfully, to prosecute the former Chief Military Judge, including an unsuccessful application for judicial review when the Deputy Chief Military Judge declined, for compelling reasons, to assign a military judge to preside over that problematic court martial. 

Members of the Canadian Forces have been waiting for six months for the Governor in Council to appoint a new Chief Military Judge. 

Four months after the Chief Military Judge retired, the Chief of the Defence Staff (CDS), General Jonathan Vance, announced his intention to retire, once the Governor in Council named his successor. There was speculation that the CDS’ successor might be announced before the Throne Speech of 23 September 2020; however, that did not happen. 

During the past six months, the Governor in Council has not been inactive. They have appointed several Superior Court and even Federal Court judges. They have enacted regulations. The government even found the time to prorogue Parliament in order to deliver a Speech from the Throne that, frankly, was a little lacklustre and vague about specifics, even when measured against past Speeches from the Throne. 

As I discuss in this linked Blog article: What does this ongoing delay in the appointment of a new Chief Military Judge say about the current government’s commitment to the Rule of Law in the administration of military justice? And, in light of the current 'crisis' in the Code of Service Discipline regarding judicial independence, what might the continued vacancy in this position signal regarding the dialogues between the military judiciary, the leadership of the Canadian Forces, and the political decision-makers who are responsible both for appointing military judges and for enacting any legislative amendments to the Code of Service Discipline?

Wednesday, September 23, 2020

Executive Order on Combating Race and Sex Stereotyping

President Donald J. Trump has issued an Orwellian Executive Order on Combating Race and Sex Stereotyping. It applies to the uniformed services. Quaere: will the implementing agency orders called for by § 6(c)(1) be punitive orders for UCMJ purposes?

Tuesday, September 22, 2020

Trans women in Colombia do not need to certify their military status


The Colombian Constitutional Court has decided that a trans-woman does not need to have a "libreta militar", which certifies military service.  The libreta is an official Colombian document which certifies an individual's military status.  The Constitutional Court held that trans women don't need this document because it is only destined for men.  It violates the right to equality to treat a transgender woman differently from a cisgender woman as regards the requirement to serve in the military, which applies only to men.

In addition, the Constitutional Court pointed out that the right to the free development of one's personality seeks to protect the person's right to self-determination.  That is to say, the possibility of adopting a model for one's life in accord with one's own interests, without pressure and in accordance with the respect for the rights of others.

Similarly, one's sexual identity and orientation are inherent aspects of one's internal being, but they must have the possibility of being fully expressed and externalized, and recognized and respected, including by generating or excluding certain legal consequences.

New Judge Advocate General appointed in the UK

The Queen has appointed Alan Macdonald Large (at left) to be the Judge Advocate General on the advice of the Lord Chancellor, the Right Honourable Robert Buckland QC MP, with effect from 1 October 2020. This follows the retirement of HHJ Jeff Blackett (below) who has served as Judge Advocate General since 2004 and was responsible for steering the Service Justice System through the 2006 reforms. In addition, The Queen has appointed Judge Large to be a Circuit Judge on the advice of the Lord Chief Justice of England and Wales, the Right Honourable The Lord Burnett of Maldon. Therefore he will be known as His Honour Judge Large. 

Alan Macdonald Large, aged 59, was called to the Bar by the Hon. Society of the Middle Temple in 1988. He was appointed as a Recorder in 2005, as a Deputy Judge Advocate (a part time judge advocate post now in abeyance) in 2008, and as an Assistant Judge Advocate since 2010. Since the retirement of His Honour Michael Hunter as Vice Judge Advocate General in December 2019, he has served as the deputy to the Judge Advocate General. Judge Large has been responsible for leading the introduction of the Better Case Management (Court Martial) which has significantly reduced delays in the Service Justice System and was also instrumental in re-opening the Service Courts in a Covid-19 secure manner and pioneering remote and hybrid hearings in the Court Martial and Summary Appeal Court.

His Honour Judge Blackett is currently serving as President of the Rugby Football Union for the 2020-2021 season. He remains a Deputy High Court Judge. 

Regina v HM Foot Guards

Numerous media outlets (example here) in the UK have reported that 13 members of the Welsh Guards have been sentenced to 14 days in the Military Corrective Training Centre by their CO for breaking socialdistancing rules. The Guardsmen who were guarding Windsor Castle where HM The Queen and HRH The Duke of Edinburgh are shielding broke social distancing at a party by the River Thames. Four of those involved failed Compulsory Drugs Tests after the event and were discharged from HM Forces under a separate administrative procedure. 

Although the exact charge is unknown, on the face of it this is a concerning sentence, passed by a CO with no legal training in a hearing where legal representation is banded, which is far in excess of the penalty a civilian would receive for the same offence. The sentence is double that which would be expected for the offence of breach of standing orders (even when factoring in the aggravating factors of the wilful nature of the breach and therisk it exposes other members of the unit to Covid-19). If the charge was disobedience of a lawful command, then the sentence is at the bottom of the entry point for intentional disobedience. Although it would be surprising if at this stage Covid-19 procedures had not become part of standing orders and were disseminated in an ad hoc manner. Potentially this suggests overcharging. 

The key issue though, and one which has apparently caused significant anger amongst the junior ranks of the battalion, is the disparity between these sentences and how a civilian would be treated. A sentence of 14 days detention means the offender will spend 14 days without pay in an environment equivalent to a prison but with an enhanced basic training regimethrown in. A civilian could expect a small fixed financial penalty. The Armed Forces are held to a higher standard and those who serve accept that but even with that in mind it is hard to see what good service reason exists to justify treating these Guardsmen so differently to civilian employees serving HM The Queen at Windsor Castle.  

The Guardsmen have an automatic right of appeal to the Summary Appeal Court. It will be interesting to see if any of them exercise their right.