A "scandalous" gap in Canada -- who will fix it?

Yesterday, Justice Luc Martineau of the Federal Court of Canada handed down the decision in Director of Military Prosecutions v. Deputy Chief Military Judge, 2020 FC 330. At issue was the validity of the Deputy Chief Military Judge's refusal, for divers reasons, to assign any of the three remaining military judges to preside over the court-martial of Chief Military Judge Col. Mario Dutil. In a painstakingly detailed, closely reasoned, and at times (e.g., ¶¶ 168, 171) eloquent opinion, Justice Martineau found that he had jurisdiction over the Director's application but that the Deputy Chief Military Judge's refusal should not be overturned by mandamus or certiorari. The decision notes, ¶ 179, that under current law a reserve military judge could have been designated, but that there are no such judges at present. (That seems easy enough to remedy.) Parliament could also enact legislation permitting the use of a civilian judge (as was once the case for a limited category of military trials, ¶ 181). Finally, Justice Martineau suggests (without deciding, ¶ 183) that even without legislation, it may be within the power of the Federal Court or the Court Martial Appeal Court of Canada to designate one of their own judges to preside over Col. Dutil's trial, which has been adjourned for a long time. The decision describes the present gap as "scandalous." ¶ 180. Dismissing the application without costs, it observes:

[184] To conclude, today we cannot have the accused bear the burden of what seems to be, unfortunately, the result of an absence of legislative or governmental lucidity. Public trust in the military justice system must be preserved. It is a key factor that we cannot appear to ignore when there is a risk of conflict of interest, apparent or real, which could shake the public trust in the administration of military justice. Justice is not a pandora’s box that can be opened as desired to see what is hiding in it, nor a game of chance where the accused must play Russian roulette with the prosecution. We are speaking of the career, the reputation, the freedom and the life in the future of an individual. There must exist a reasonable degree of probability that Colonel Dutil can benefit, in fact and in appearance, from a fair and equitable trial before the Court Martial. It is clearly not the case today. It is now up to the applicant and the military authorities concerned, including the Judge Advocate General, the defence staff and the Minister, to take note of these reasons, and, where applicable, to do what must be done in the circumstances.