Commentary in the 27 July edition of the Halifax Chronicle Herald
by Tim Dunne
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.)
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.
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.
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.
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
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.
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.
d’Auteuil did so, concluding the court martial on June 18 without a verdict.
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.
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.”)
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
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
the rub. There are five military judges in Canada.
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.
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.
application is allowed by the Federal Court, the deputy chief military judge
will be compelled to appoint another military judge to replace him.
wouldn’t really solve the problem.
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.
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.
conundrum itself calls into question the very raison d’être of the military