‘Bad Facts’ and Awkward Law: The Director of Military Prosecutions v Deputy Chief Military Judge, et al., 2020 FC 330

On 3 March 2020, Justice Martineau of the Federal Court released a judgment terminating the awkward saga that has been the prosecution of the Chief Military Judge, Colonel (Col) M. Dutil. Unless, of course, the Director of Military Prosecutions (DMP) appeals the judgment.  In light of the absence of a clear error by Justice Martineau, as well as the observations I offer below, I suggest that an appeal of this judgment would be a problematic course of action.

This prosecution has been hampered by a variety of factors and has presented the Code of Service Discipline in a less-than-favourable light.  While the judgment, and the subject upon which it focused, will undoubtedly be scrutinized significantly over the weeks and months to come (if only within the narrow confines of the military legal community), I will attempt to highlight some of the key conclusions that we might draw from this most recent stage in the process, but which might not be obvious to the casual observer.

Undeniably, the ‘fishbowl’ nature of the military legal community was a key factor in this outcome.  As I observed in an Op Ed article: “The Canadian Forces is a small community. The military legal community is smaller still. And the military judicial community can be tallied on the fingers of one hand.”  The risk that personal bias or prior knowledge of relevant facts would preclude most, if not all, military judges from presiding over the court martial of the Chief Military Judge was high, and this ought reasonably to have been anticipated.  However, that is but one of the “highly irregular, and most unusual” factors identified by Justice Martineau. 

It is also something upon which I have previously commented, so there is little to be gained from canvassing that factor yet again in the present Blog article.

What I do wish to discuss is how this saga demonstrates the problematic nature of obiter dicta and expansive judgments, particularly when judges – military or otherwise – are forced to venture such comments due to arguments raised either in support of, or in opposition to, more narrowly construed applications.  In this regard, we can learn similar lessons from the paradigm presented by R v Dutil, 2019 CM 3003 [Dutil] and DMP v DCMJ et. al., 2020 FC 330 [DMP v DCMJ], and from the recent court martial decisions of R v MCpl Pett, 2020 CM 4002 [Pett] and R v Cpl D’Amico, 2020 CM 2002 [D’Amico].

In Dutil, defence counsel brought an application proposing that the Deputy Chief Military Judge ought to recuse himself from presiding over the court martial.  This application was eventually successful.  As indicated in his reasons, Lieutenant-Colonel (LCol) d’Auteuil, the Deputy Chief Military Judge, was a friend and, to an extent, confident of Col Dutil.  As friends and colleagues, LCol d’Auteuil was aware of many of the factual circumstances relating to the charges before the court martial and, consequently, was a potential witness.  He was even served with a subpoena to appear as a witness.  It is not surprising that he recused himself.

However, as Justice Martineau concluded in DMP v DCMJ, LCol d’Auteuil’s judgment did not, and could not, extend to making a recusal decision on behalf of the other military judges.  That would constitute a usurpation of the exercise of discretion by those military judges.  So why did LCol d’Auteuil venture factual determinations concerning the suitability of the other three military judges to preside over a court martial when the extent of his decision-making concerning the application before him was limited to the appropriateness of him presiding at the court martial?

It appears that this broader factual inquiry was prompted by counsel for DMP.  The prosecutor argued that the ‘doctrine of necessity’ (as defined by the Supreme Court of Canada in Reference re Remuneration of Judges of the Provincial Court (PEI), [1998] 1 SCR 3) obliged LCol d’Auteuil to preside over the court martial and asserted that none of the other three military judges could do so.  Make note of that argument – it will become relevant below.

Therefore, in Dutil, while LCol d’Auteuil was limited to considering his own recusal, counsel for DMP obliged him to examine whether any of the other three military judges could preside.  He appeared to conclude that, for a variety of differing reasons, none of the other judges could preside over the court martial.  However, his judgment clearly did not – and could not – extend to whether any of those judges must recuse themselves.

Instead, immediately after he delivered his judgment, he offered a separate communication – what Justice Martineau described as a ‘non assignment letter’ in DMP v DCMJ – in which LCol d’Auteuil indicated that he would not appoint any of the other military judges to preside over the court martial.  This separate communication – delivered in his capacity as (what I would describe as) a statutory administrative decision-maker – did not form part of his judgment in Dutil.  However, it was transparently and directly related to the factual determinations he had made in that judicial function.  I note, tangentially, that the 'non assignment letter' could be viewed as a departure from the course of action suggested by para 110 (the final para) of LCol d’Auteuil’s judgment in Dutil: “[The Court] ADJOURNS the proceedings of this court martial until another military judge is appointed to preside over it.” [translation]  While LCol d’Auteuil appeared to ‘leave open’ the possibility of assigning another military judge, based upon his ‘non assignment letter’ he had no intention of doing so (unless there was a significant development, such as the appointment of yet another (sixth) military judge).

In DMP v DCMJ, Justice Martineau concluded that the Deputy Chief Military Judge’s ‘non assignment’ decision was reviewable upon an application for judicial review (notwithstanding that he appeared to chastise the DMP for not first having sought leave of the Federal Court to bring the application in light of the consequence that the application unilaterally forced the Deputy Chief Military Judge into the role of respondent to the application).[1]

Justice Martineau rejected the respondent (Deputy Chief Military Judge) argument that the appropriate course of action would have been an appeal to the Court Martial Appeal Court of Canada (CMAC) under section 230.1 of the National Defence Act (NDA).  Justice Martineau questioned whether the issues raised in the application for judicial review would fall within one of the enumerated categories of statutory appeal under section 230.1 of the NDA.  Perhaps the most compelling argument against the availability of appeal is that LCol d’Auteuil’s judgment in Dutil was limited to his own recusal.  That was not at issue in DMP v DCMJ.  What was at issue was his subsequent decision, as a statutory administrative decision-maker, to refrain from appointing another military judge.

The definition of a “… federal board, commission, or other tribunal …” under section 2 of the Federal Courts Act, when given a large and liberal interpretation, would capture almost any administrative decision by any statutory decision-maker under the NDA.  And, this was clearly not a decision that could be the subject of a grievance, as it was a decision under the Code of Service Discipline.[2]

However, I suggest that it is inescapable that LCol d’Auteuil’s ‘non assignment’ decision was driven, at least in part, by DMP’s insistence on introducing the ‘doctrine of necessity’ in Dutil.  This set the stage for the application for judicial review arising in DMP v DCMJ.  However, I suggest it also set conditions for this application to be a ‘forlorn hope’.

In presenting their argument for the ‘doctrine of necessity’, counsel for DMP obliged LCol d’Auteuil to extend his factual enquiry beyond his own potential bias.  The prosecutors argued that none of the other military judges could preside over the court martial; consequently, LCol d’Auteuil must do so.  He was obliged, at the instigation of counsel for DMP, to consider the suitability of his fellow military judges to preside over that court martial.  He concluded that, for a variety and differing reasons, none of them could preside.  Consequently, and separate from his judgment in Dutil, LCol d’Auteuil made a decision to not assign a presiding judge.

Of singular note, the argument presented by the counsel for DMP (as Applicant) in the application for judicial review before the Federal Court, was diametrically contrary to the argument presented by the DMP prosecutors in Dutil.  I acknowledge that counsel for DMP (as Applicant before the Federal Court) were litigators drawn from the Department of Justice, and not military prosecutors who are subordinate to DMP.  However, DMP was still the Applicant and presumably provided instructions to his counsel.  Contrary to the argument raised before LCol d’Auteuil, counsel for DMP before Justice Martineau argued that LCol d’Auteuil had no jurisdiction – that it was an improper usurpation – to conclude that no other military judge could potentially preside over the court martial, even though the prosecutors in Dutil invited LCol d’Auteuil to make that very determination.

In concluding that LCol d’Auteuil’s ‘non assignment’ decision was reasonable, Justice Martineau offered the following preliminary observation:

However, a word of caution: This is an exceptional case. No general rule applicable to all chief justices can be distilled. What is extraordinary is also the combination of unprecedented factors. As the judge assigned to preside at the court martial of Colonel Dutil, the Deputy Chief Military Judge personally decided on the probative value of the evidence and arguments presented at the voir dire and had to consider the doctrine of necessity raised by the Director of Military Prosecutions. Under the circumstances, it became clear that the only other eligible military judges—judges Pelletier, Sukstorf and Deschênes—could not hear the case. Normally, the Chief Justice does not have this type of information when assigning a judge to hear a case (unless a judge came forward beforehand to inform the Chief Justice of a ground of incapacitation). [emphasis added][3]

A parallel can be drawn in the judgments in Pett and D’Amico.  While the judgments in both of those courts martial were considered by Justice Martineau in DMP v DCMJ, that is not the principal reason why I raise them in the present discussion.  The relevance of these two cases is that they, too, in a subtly different way, also represent the inelegant consequences when a judge is forced or invited to stray beyond the narrow parameters of an application or motion.

In both Pett and D’Amico, the issue appears to have focused on whether an order, issued by the Chief of the Defence Staff (CDS) on 2 October 2019, must be declared of no force or effect (or otherwise declared invalid) because it would impugn the independence or impartiality of a military judge, presiding alone as a Standing Court Martial.  While I was not directly involved in either proceeding, there is nothing in either judgment that appears to indicate that defence counsel expressly brought a Notice of Constitutional Question regarding any provision under the NDA or the Queen’s Regulations and Orders for the Canadian Forces (QR&O) relating to the jurisdiction of the Code of Service Discipline.  I do note that, in Pett, counsel for the accused described the impugned order “… as the symptom of what ails the status of military judges as independent judicial officers …” and “… highlighted the insufficient separation between what is described as the conflicting roles of military judges as judicial and executive officers …”.[4]

Courts Martial are statutory courts.  They do not have inherent jurisdiction.  Unlike the Court Martial Appeal Court Rules of Practice, the Court Martial Rules of Practice, promulgated under the NDA pursuant to the development of a committee composed of various ‘military justice actors’, do not expressly provide for a ‘Notice of Constitutional Question’.

However, even setting this issue aside, it does not appear that counsel for the accused in Pett and D’Amico expressly called upon the military judges to declare a specific legislative provision of no force or effect (e.g. the application of the Code of Service Discipline, pursuant to subsection 60(1) of the NDA, to all officers of the Regular Force component of the Canadian Forces, including military judges).  Rather, it appears that they called upon the military judges to conclude that they could not act as independent and impartial tribunals and, consequently, to stay the processes.  A parallel could be drawn to R v Leblanc, 2011 CMAC 2 in which the CMAC (per Justice G. Letourneau) held that the security of tenure of military judges, and thus s 11(d) of the Charter, was impugned by the provision at section 165.21 of the NDA that required military judges to be reappointed, at the discretion of the Minister, every 5 years.

The absence of a ‘Notice of Constitutional Question’, when, in fact, one or both parties to a court martial or court martial appeal present significant Charter argument can induce problematic analysis and judgments.  The CMAC judgment of R v Sgt Kipling, 2002 CMAC 1 presents an object example of what can transpire.

Sgt Kipling refused to submit to an anthrax vaccination prior to deployment, aboard one of Her Majesty’s Canadian Ships, to the Persian Gulf in 1998.  This refusal contravened section 126 of the NDA, which prohibited CF personnel from refusing “… inoculation, re-inoculation, vaccination, re-vaccination, other immunization … or treatment against any infectious disease, wilfully and without reasonable excuse …”.

While Sgt Kipling’s defence counsel expressly stated (at Court Martial and before the CMAC) that he was not impugning the validity of section 126 of the NDA in light of the Charter (specifically the right to security of the person under section 7), following presentation of evidence that required three weeks he “… made a lengthy argument as to the need for ‘informed consent’ to comply with section 7 of the Charter.” [5]

The judge at Court Martial granted a plea in bar of trial based upon this argument.

Before the CMAC, the same counsel confirmed that section 7 of the Charter required ‘informed consent’ and that it would be improper to prosecute a CF member who refused an ‘immunization order’ if he did not provide ‘informed consent’.

In reversing the trial judge’s judgment, the CMAC expressly included, verbatim, defence counsel’s summary of his argument concerning the operation of section 7 of the Charter in that case:

So we’re not attacking section 126 per se as it is now enacted. We’re not attacking the law, as such, but rather the way it was interpreted and implemented in this particular case. And I say to you, “Well, then, what was done in this particular case?” We say, Your Honour, that the command in effect, the order in effect was unlawful. And why was it unlawful? Because section 126 does not allow senior officers to say to enlisted personnel, “you must take that vaccine.” So section 126 does not say and does not authorize senior officers to say to the troops, “you must take that vaccine”, that’s not what it says. Rather, it says, “you must take that vaccine unless you have a reasonable excuse”; a reasonable excuse. And we submit that those words, “reasonable excuse”, in effect equate to informed consent. The Charter is in effect, in this case, a tool of statutory interpretation and, again, informed consent equates to reasonable excuse in the legal sense.[6]

Frankly, that sounds a great deal like an attempt to argue that, at the very least, section 126 of the NDA was inconsistent with section 7 of the Charter and, consequently, must (at the very least) be ‘read down’ accordingly.  But remember – counsel suggested at first instance and before the CMAC that he was not inviting a finding that s 126 of the NDA was inconsistent with section 7 of the Charter.

In response to this argument, (then) Strayer CJ, offered:

(At this point I feel obliged to remark, parenthetically, that it is hard to understand how the concept of “informed consent” relates to the respondent’s arguments concerning the requirements of section 7 of the Charter or section 126 of the National Defence Act. The respondent’s basic premise is that service personnel, like all Canadians, have a right to security of the person under section 7, which means inter alia that they cannot be vaccinated unless they consent. This right is a right to refuse consent for some good reason or for no reason at all. A prosecution under section 126 also is based on the refusal of a member of the forces to consent. Yet the normal use of the doctrine of “informed consent” is in situations where some form of consent has been given, and it is contended that such consent is not valid unless it was “informed”. Counsel seems to have confused these disparate concepts in order to employ the mantra of “informed consent”.)[7]

Moreover, on appeal, associate counsel for Sgt Kipling presented arguments relating to sections 12 and 15 of the Charter, which had not been raised before the military judge at first instance.

The CMAC was clearly alive to the problematic nature of counsel advancing an argument that seeks to impugn a legislative provision based upon an alleged incompatibility with the Charter, while counsel asserts that he or she is not doing precisely that.

Strayer CJ concluded, at para 31 of the CMAC judgment in Kipling:

In this case the subject-matter of the proceeding, which has often been lost sight of, is a prosecution under section 126 of the National Defence Act. While all the time insisting that he was not challenging the validity of section 126, the respondent has obtained a decision of the Standing Court Martial that a prosecution may not constitutionally proceed under this section because, apparently, it could have the forbidden effect of permitting the military command to require a vaccination and thereby subject service personnel to a possible trial where their only defence would be “reasonable excuse”. Since that is precisely what section 126 provides for, its “constitutional . . . applicability or operability”, as referred to in subsection 57(1) [of the Federal Court Act, as enacted at that time] must be in issue. Indeed, counsel for the respondent recognizes this in his memorandum of fact and law which states as follows:

It is respectfully submitted that S. 126 of the National Defence Act, which requires an individual to submit to a vaccine unless there is a reasonable excuse, must be read in a way consistent with the provisions of Section 7 of the Charter.

Counsel for the appellant recognized that an issue of constitutional applicability was involved. In argument he said that the respondent was challenging not the constitutionality of section 126 but “its application within the specific circumstances of this case”.

Ultimately, the CMAC concluded that, regardless of whether Sgt Kipling’s counsel acknowledged that he was challenging section 126 of the NDA under section 7 of the Charter, that was precisely what he was doing.  At trial, the military judge held that the prosecution of Sgt Kipling contravened section 7 of the Charter (which, frankly, would be difficult if counsel was truly not advancing a Charter argument).  However, the CMAC held that the “…conclusions of the military judge … [did] not consider whether the invasion of security of the person under section 7, which he found, was or was not in accordance with the principles of fundamental justice. This [was] an error of law in the application of a constitutional sanction.”  Essentially, the CMAC concluded that, since the presiding military judge was clearly applying the prevailing Charter law, the presiding military judge failed to apply properly the proportionality test under section 1 of the Charter. 

Determinations of law, or mixed law and fact, can become problematic if the basis for the argument is confusing or contrived.

In both Pett and D’Amico, counsel for the accused argued that the prosecution should be stayed as the impartiality (and independence – both aspects were discussed) of the presiding judge was impugned by the CDS’ order of 2 October 2019.  But there was also (at the very least) a suggestion that the mere fact that military judges are subject to the Code of Service Discipline – and the exercise of discretion by members of the executive in enforcing the Code of Service Discipline – would impugn the independence and impartiality of military judges, presiding as disciplinary tribunals, to the point that a prosecution by court martial would not permit trial before an independent and impartial tribunal, as guaranteed by section 11(d) of the Charter.

In each case, a different presiding military judge declared that the order was of no force or effect, where it pertains to any disciplinary matter involving a military judge.  These declarations were predicated upon the conclusion that “… a reasonable and well informed person …” would conclude that a military judge’s impartiality could be adversely affected by being subject to the exercise of such discretion.

However, defence counsel sought a stay of proceeding based upon the existence of the order, and the fact that military judges, as officers of the Regular Force component of the Canadian Forces, are subject to the Code of Service Discipline.  I have suggested previously that, in Pett, the military judge took the further step of concluding that military judges are not subject to the Code of Service Discipline, even though, under subsection 60(1) of the NDA, they clearly are subject to the Code of Service Discipline.  The military judge in D’Amico came to the same conclusion.

However, neither judge actually offered an express declaration that held that specific provisions under the NDA were of no force or effect, reading down the legislation, or reading in any exemption.  Both military judges simply concluded “… that the judicial role of military judges prevents them from being charged and dealt with under the Code of Service Discipline while in office … ” and that this conclusion “… would not offend the principle of equality before the law as it would be both partial and temporary.”[8]

Neither was there any ‘proportionality analysis’ under s 1 of the Charter.  Presumably, there was no ‘section 1 analysis’ because there was no actual declaration that subsection 60(1) of the NDA did not apply to military judges while they hold judicial office.  Except – that is essentially what Cdr Pelletier and Cdr Sukstorf held in Pett and D’Amico, respectively.

This conclusion permitted the military judges to reject the requested stay of proceeding, as their conclusion (without a specific declaration) that military judges are not subject to prosecution under the Code of Service Discipline while they occupy judicial office, obviated any concern about their independence or impartiality.

There is compelling logic that, in order to maintain independence and impartiality of the military bench, military judges must not be subject to prosecution under the Code of Service Discipline.  However, the manner in which this conclusion has been reached is reminiscent of the ‘half-measure Charter argument’ raised in Kipling.

If the application of specific provisions under the NDA will adversely affect the independence or impartiality of the military judiciary then it may be that those provisions should be declared of no force or effect, or read down, or have Charter-compliant interpretation read in.  However, that was not done in either Pett or D’Amico.

Granted, judges can be limited – to an extent – by the arguments presented by counsel appearing before them.  It falls to the counsel, as advocates, to advance their arguments and present the supporting law, including constitutional provisions, statute, or case law.  It is not the role of judges to formulate the arguments, but to adjudicate based upon those presented to them.  However, it remains open to a presiding judge to encourage the advocates who appear before them to address questions that the court must answer in order to render meaningful judgments.  Having appeared before both Cdr Pelletier and Cdr Sukstorf, I am in no doubt that both are able to do just that.

In D’Amico, Cdr Sukstorf observed that, as a statutory court, courts martial (and judges sitting as courts martial) are limited to the powers vested in them statutorily.  They are not ‘Section 96’ courts.[9]  She observes:

In a nutshell, the SCC decision in Lloyd limits judges not otherwise foreseen under the Constitution Act from making general declarations of invalidity of legislation passed under section 52 of the Constitution Act. However, Lloyd does clarify that courts have the power to decide on the constitutionality of laws that are properly before the court. In courts martial, military judges have the power to decide all those matters required to properly adjudicate the cases before them. If an issue arises as to the constitutional validity of a law, order or policy, a military judge has the power to determine the issue as part of its decision-making process in the particular case before them.[10]

Moreover, I suggest that, where one military judge offers reasoned conclusions for a legal determination (whether applying ordinary law or constitutional law), in the interests of judicial comity, other military judges will tend to follow in a similar vein.[11]  Cdr Sukstorf expressly makes this point in detail in D’Amico.[12]

On a tangential note, I suggest that this is an object example of the unfortunate absence in R v Stillman, 2019 SCC 40, of any judgment from the Supreme Court of Canada regarding the impact of ‘horizontal stare decisis’.  This is particularly disappointing in light of the strength of the argument presented by counsel for the Intervenor, ‘Advocates for the Rule of Law’, and the fact that the Court granted them intervenor status in order to address that very issue.

The misgivings I have concerning the, essentially identical, conclusions in Pett and D’Amico is that they are predicated, in part (and a not-insignificant part), on suggesting that Parliament created the Military Judges Inquiry Committee (MJIC) as a disciplinary regime for military judges.

I contend that this inflates the role of the MJIC.  My position is borne out, to an extent, by the judgment of Martineau J in DMP v DCMJ. 

Justice Martineau observes that not all breaches of discipline (i.e. the Code of Service Discipline) by a military judge would necessarily warrant removal from a judicial position.  These observations also point to another distinction: the MJIC functions as a statutory federal board, commission, or other tribunal.  It performs an administrative or regulatory function.  Granted, that function has constitutional significance, but it is still a regulatory or administrative function.  It is not a disciplinary function as that term of art is understood under the NDA.  While I have certainly argued that the chain of command in the CF is increasingly employing administrative measures for a disciplinary purpose, I have also argued that this is a manifestly improper use of administrative measures.

Justice Martineau’s role in DMP v DCMJ was not that of an appellate court reviewing Cdr Pelletier’s judgment in Pett.  Justice Martineau was very cautious about expressing disagreement with Cdr Pelletier’s conclusions.  However, Justice Martineau does hint at some restrained skepticism concerning the analogous comparison of the MJIC with the Code of Service Discipline:

An independent monitoring regime indeed exists for the conduct of military judges. It remains to be determined whether a broad scope should be given to the violations mentioned in subsection 165.32(7) of the NDA, and whether, where applicable, they should include behaviour in violation of the Code of Service Discipline, which Judge Pelletier seems to suggest. At first glance, and without expressing a final opinion on the topic, to the extent that the inquiry committee can actually investigate the non-compliance by a military judge of a standard governing their conduct as a Forces officer, this avenue needs to be explored and seems to comply with the judicial independence of the Office of the Chief Military Judge. The fact remains that a minor offence that would justify a commanding officer disciplining a non-commissioned member or officer is certainly not serious enough in and of itself to justify a recommendation to remove a military judge. As we can see, Pett and D’Amico considerably complicates the flow of proceedings in this file and appears, at first glance, to be an obstacle to continuing Colonel Dutil’s trial before the Court Martial, as long as the issue of the legality of the orders dated January 19, 2018, and October 2, 2019, are not resolved in final form by the Court Martial Appeal Court or another court of jurisdiction.[13]

What I find particularly noteworthy about the history of the circumstances leading to DMP v DCMJ is that it represents the inverse of the dynamic that typically unfolds between administrative and disciplinary tribunals within the context of the Canadian Forces.

While there is no absolute rule governing whether CF decision-makers will proceed first with administrative or with disciplinary processes, the typical approach is that disciplinary processes will first be exhausted (or, at least, considered) prior to proceeding with administrative processes.  For example, if a CF member is accused of contravening Op HONOUR, his or her chain of command will first typically exhaust the disciplinary processes.  There are a variety of possible outcomes.  Charges could be laid and pursued to a determination regarding guilt and, if there is a finding of guilt, sentencing.  However, ‘exhausting disciplinary processes’ could consist of considering the possibility pursuing disciplinary charges, but eventually rejecting this course of action.  I have noted recently that the chain of command appears to rely increasingly on administrative measures for a disciplinary purpose, as there is less exposure to scrutiny by constitutionally independent courts and judges.

Typically, it is only after the disciplinary processes are exhausted, concluded, or rejected, that administrative processes will be pursued.  While initial administrative action might be taken (e.g. separating the complainant and accused/respondent if they are in the same unit; placing restrictions – including restrictions on liberty – on the respondent/accused), definitive administrative action such as compulsory release, remedial measures, or the Administrative Review intended to support such decisions) will generally only be initiated when the disciplinary process es are completed.  Even the problematic ‘Sexual Misconduct Incident Management Decision Tree’ appears to indicate that, aside from ‘immediate administrative action’, disciplinary courses of action will first be exhausted or rejected before definitive administrative action is pursued.

One of the key reasons for this sequence of events is that the ‘right to make representations’ in administrative processes can often contradict a ‘right to silence’ under disciplinary processes.  Ultimately, compulsion of testimony in an administrative process or before an administrative tribunal that could lead to self-incrimination (whether by virtue of the powers of an inquisitorial tribunal, or by virtue of the nature of the administrative process) can adversely affect an accused/respondent’s rights under disciplinary processes:  Phillips v Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), 1995 CanLII 86 (SCC), [1995] 2 SCR 97 [Westray].

However, in the case of Colonel Dutil, members of the executive first pursued the administrative process in the form of the complaint to the MJIC.  After the Chair of the MJIC decided, based upon a recommendation from Judge Jocelyne Gagné (who was tasked to conduct the initial review of the ethics complaint), that there would not be a further inquiry, the executive then pursued resolution under the Code of Service Discipline by ‘continuing’ with a Military Police investigation that eventually led to the laying of several charges.

Leaving aside the speculation that this might suggest that members of the Office of the Judge Advocate General pursued the disciplinary course of action only after being ‘disappointed’ by the MJIC decision, this sequence of events also stands in stark contrast to the administrative-disciplinary dynamic for the rest of the CF.  Presumably, if the alleged misconduct was so significant that it warranted the laying of disciplinary and criminal charges, that ought to have been the first course of action, just as it is with other members of the CF.  After all, DMP appears to suggest that military judges are still commissioned officers, and, therefore, they bear the same duties and obligations of commissioned officers.

Ultimately, in what I have characterized as the ‘Dutil Saga’, we have an example not just of a specific and unique legal and factual context, but also some problematic decisions.  In short, while the law remains awkward, it was further complicated by ‘bad facts’.

The decision to pursue a prosecution under the Code of Service Discipline only after a complaint under an administrative and regulatory process failed stands in stark contrast to typical CF practice and the received wisdom following the Westray judgment.  This was compounded by the decision to prosecute the Chief Military Judge under the Code of Service Discipline, when alternative processes for prosecution were available.

I fully acknowledge that just as military judges must enjoy constitutional independence and impartiality, military police must also benefit from investigative independence if the Code of Service Discipline is to function properly (i.e. efficiently, effectively, and fairly).  As Cdr Sukstorf observed in D’Amico, we must also commence with the presumption that statutory actors will exercise their duties, powers and functions properly, fairly, and in good faith, even if our experience may cause us to question the motives of some statutory actors from time to time.  I also fully acknowledge that ‘hindsight’ offers the advantage of a 20/20 perspective.  However, one does not require multiple surveillance drones offering myriad vantage points to have identified the various barriers to prosecuting the Chief Military Judge within the ‘small pond’ that is the military justice system.

I suggest that Justice Martineau’s judgment is a product of a problematic factual history that further complicated an imperfect legislated code that has more often than not evolved principally due to the exigencies imposed by appellate courts, rather than a concerted policy effort to establish a reasonable disciplinary regime. 

With the judgments at first instance in Pett and D’Amico, we are now faced with conclusions – though not declarations – that purport to immunize military judges from the operation of the Code of Service Discipline while they hold judicial office.  I anticipate that any further similar applications or motions at first instance before other military judges will likely be met with similar conclusions, in part due to judicial comity. 

It is my understanding that a Notice of Appeal has been served in Pett.  Therefore, we will likely obtain a more definitive judgment from the CMAC concerning this issue.  Presumably, a Notice of Constitutional Question will be served, permitting a comprehensive examination of the application of the Code of Service Discipline to military judges, and avoiding the sort of confusion that arose in Kipling.

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[1] Director of Military Prosecutions v Deputy Chief Military Judge, et al, 2020 FC 330 [DMP v DCMJ], para 4.

[2] See Queen’s Regulations and Orders for the Canadian Forces [QR&O], art 7.03.

[3] DMP v DCMJ, n 1, para 135.

[4] R v MCpl Pett, 2020 CM 4002 [Pett], para 10.

[5] R v Kipling, 2002 CMAC 1 [Kipling], para 9.

[6] Ibid.  As an aside, I tend to become sceptical whenever I hear another lawyer liberally use the expression ‘per se’ in submissions.

[7] Ibid.  And, quite literally, Strayer CJ offered this ‘parenthetical comment’ bracketed by parentheses.

[8] Pett, n 4, para 131.

[9] They are not Superior Court Judges appointed by virtue of section 96 of the Constitution Act, 1867, (UK), 30 & 31 Victoria, c 3.

[10] R v D’Amico, 2020 CM 2002 [D’Amico], para 24.

[11] Compare, for example, the application of R v Jordan, 2016 SCC 27 in R v Leading Seaman Thiele, 2016 CM 4015 by Cdr Pelletier, and the subsequent judgment by LCol d’Auteuil in R v Private Cubias-Gonzalez, 2017 CM 3003.

[12] D’Amico, n 10, paras 29 to 41.

[13] DMP v DCMJ, n 1, para 42.