Wednesday, August 7, 2019

What goes around . . .

Ottawa: The Canadian Lawyers' Daily publishes an article titled "Armed Forces prosecutors seek to compel deputy chief military judge to assign judge to try top military judge". On July 16, 2019, the Director Military Prosecutions (DMP) filed an Application before the Federal Court of Canada to compel via a mandamus, the current Deputy Chief Military Judge to assign one of the other three (3) military judges to preside over the court martial of his boss, the Chief Military Judge.

Exactly a month earlier, the Deputy Chief Military Judge, Lieutenant-Colonel Louis Vincent d'Auteuil, had concluded that he and his fellow judges were all conflicted and, as a result, could not preside over the court-martial of Chief Military Judge, Colonel Mario Dutil.

As cited by Lawyers' Daily, the DPM's position is that it was improper for the Deputy Chief Military Judge make such a wide determination.
“It is the position of the Canadian Military Prosecution Service, as expressed in the application to the Federal Court that, in making conclusions on the ability of other judges to hear the case, the deputy chief military judge went beyond his authority,  It is the purview of any judge assigned to a case to make his or her determination as to whether they can act with impartiality.”


  1. I just happen to working on appeal regarding recusal of the trial judge. I wonder if this would help answer the question--at least under the UCMJ.

    "Once recused, a military judge should not play any procedural or substantive role with regard to the matter about which he is recused." United States v. Roach, 69 M.J. 17, 20 (C.A.A.F. 2010); see also Walker v. United States, 60 M.J. 354, 358 (C.A.A.F. 2004) ("When a judge is recused, the judge should not take action to influence the appointment of his or her replacement.").

  2. Good point. Thank you.
    Section 165.25 of the National Defence Act defines the duty and functions of the Chief (or Deputy Chief) Military Judge as "assigns military judges to preside at courts martial and to perform other judicial duties under the Act. Hence, it would be likely improper for the Deputy Chief Military Judge to now play a substantive role which regard to the matter about which he recused himself.


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