Although Colonel Dutil will be obliged to retire on or before 20 March 2020, when he turns 60 years of age (the compulsory retirement age for members of the Canadian Forces except officers of the Cadet Organizations Administration and Training Service, or COATS), he would still have been subject to Code of Service Discipline proceedings under the National Defence Act (NDA), even when he became a civilian. By virtue of subsection 60(2) of the NDA, “… Every person subject to the Code of Service Discipline … at the time of the alleged commission … of a service offence continues to be liable to be charged, dealt with and tried in respect of that offence under the Code of Service Discipline notwithstanding that the person may have, since the commission of that offence, ceased to be a person described in subsection (1).”
In a very brief letter, DMP withdrew the charges that had been preferred by the ‘special prosecutor’ that DMP had assigned, Second Lieutenant C. Sénécal. As mentioned, both in the judgment of Justice Martineau in The Director of Military Prosecutions v Deputy Chief Military Judge et al., 2020 FC 330, [see paras 31 and 66 to 67] and Military Judge Commander Pelletier in R v Master-Corporal Pett, 2020 CM 4002, [para 27], there is nothing particularly ‘special’ about a special prosecutor under the Code of Service Discipline. DMP can present a letter or certificate naming an advocate or barrister as a ‘Special Prosecutor’ under section 165.15 of the NDA; however, pursuant to section 165.13, the preferral and disposal of charges is done either by DMP or in his name. Despite the use of the terms ‘special’ in the title, a ‘special prosecutor’ is not – and cannot be – independent from DMP when performing these prosecutorial duties and functions.
Similar to other circumstances in which DMP (or a military prosecutor acting on behalf of DMP) has withdrawn or ‘non-preferred’ charges, the decision was communicated with very brief language and without offering any meaningful reasons.
The two paragraph (technically, two sentence) letter read (en français):
1. Le 3 août 2018, le Sous-lieutenant C. Sénécal, procureur spécial, a prononcé une mise en accusation à la référence B.
2. Conformément à la référence A, l’acte d’accusation à la référence B a été retiré le 11 mars 2020 par l’avis de retrait de mise en accusation à la référence C.
For our English-speaking colleagues, this can be translated, roughly, as:
1. On 3 August 2018, Second Lieutenant C. Sénécal, Special Prosecutor, preferred a charge sheet identified at reference B.
2. Pursuant to reference A, the charge sheet at reference B was withdrawn on 11 March 2020 by the notice of withdrawal from the indictment at reference C.
‘Reference B’ was the document preferring charges against Colonel Dutil on 3 August 2018. However, those who have been following this saga might note that the charges were first laid (as distinct from being ‘preferred’) seven months earlier on 25 January 2018. The subject matter that formed the nucleus of these charges had first been raised in a complaint dated 9 October 2015.
‘Reference C’ was a notice of withdrawal of a charge sheet, signed by Colonel MacGregor, presumably pursuant to sub-section 165.12(2) of the NDA. Also, as no trial had yet been commenced, DMP presumably did not require the leave of the court martial. Indeed, following the recusal decision by the Deputy Chief Military Judge, no subsequent court martial had been convened.
The language used in the ‘withdrawal letter’ is consistent with the justifications typically offered by military prosecutors when they either: (a) withdraw a charge after it has been preferred; or, (b) choose not to prefer a charge that has been referred to them by the chain of command or the Canadian Forces National Investigation Service (CFNIS). The latter action is often referred to as a ‘non-preferral’. These types of decisions are not uncommon. And it is rare that reasons are provided beyond the occasional cryptic statement of words to the effect of “Having concluded that there is not/no longer a reasonable prospect of conviction, it is no longer in the public interest to proceed with this trial.” This is consistent with the language offered in the DMP news release on 11 March 2020. However, it’s not just that it is not in the public interest, but DMP cannot proceed with a court martial if the Deputy Chief Military Judge will not assign a military judge to preside at court martial and the Federal Court, having concluded that his decision was reasonable, will not oblige him to do so. The ‘forlorn hope’ is now hopeless.
For those unfamiliar with the concept of ‘non-preferral’, there is no express provision in the NDA that states that a military prosecutor may ‘non-prefer’ a charge. However, a charge or charges may only proceed to court martial if, after they are laid, DMP (or a military prosecutor acting under his authority) prefers one or more charges for court martial. A non-preferral arises when DMP (or a military prosecutor acting on behalf of DM) expressly indicates, in writing, that no charges will be preferred. Article 110.05 of the Queen’s Regulations and Orders for the Canadian Forces provides direction on whom DMP must notify of any ‘non-preferral’.
What is noteworthy in this particular context is the person signing the letter: DMP. Typically, when a charge is withdrawn or non-preferred, the prosecutor who signs the letter will typically be the prosecutor with carriage of the matter or who performed the charge screening prior to preferral. In the present case, it was not Second Lieutenant Sénécal, but Colonel MacGregor, who signed the letter. Presumably, this was because of the notoriety of the matter, and perhaps to indicate that this was a decision made by the head of the Canadian Military Prosecution Service.
I suggest it was also a largely moot gesture. By virtue of Justice Martineau’s above-mentioned judgment, it was clear that, absent an appeal of the judgement, a court martial could not proceed based upon the present composition of the Canadian Forces’ military bench. Even if the Minister of National Defence appointed a new military judge – even a Reserve Force Military Judge – who would not have had a conflict of interest in presiding at court martial, Colonel Dutil’s counsel, Maître Luc Boutin, almost certainly would have brought an application for a stay of prosecution due to delay contrary to his client’s right, under subsection 11(b) the Canadian Charter of Rights and Freedoms, for trial within a reasonable time. Maître Boutin would have been in a position to present compelling arguments in support of a stay by virtue of how the principles in R v Jordan, 2016 SCC 27 have been incorporated into Code of Service Discipline [e.g. R v Leading Seaman Thiele, 2016 CM 4015; R v Private Cubias-Gonzales, 2017 CM 3003).
Similarly, pursuant to subsection 165.12(3), DMP’s decision to withdraw the charge sheet does not (absent other factors) preclude subsequent proceedings. In other words, the charge sheet is not withdrawn with prejudice. However, in light of the circumstances, any subsequent attempt to prosecute Colonel Dutil, whether under the Code of Service Discipline or before a civilian court, would almost certainly be met with the aforementioned application regarding delay, as well as an application relating to abuse of process.
Consequently, it appears that this rather problematic and embarrassing saga has now come to an uncomfortable end. However, I suggest the ramifications regarding the Code of Service Discipline, particularly regarding the independence and impartiality of the military judiciary, have yet to proceed to their eventual conclusion. As I mentioned in a previous post, we can likely anticipate appellate review regarding the independence and impartiality of military judges in the aforementioned case of Master-Corporal Pett (and any similar applications, such as R v Corporal D’Amico, 2020 CM 2002).
On a tangential note regarding the appointment of a Reserve Force Military Judge under section 165.22 of the NDA, I respectfully disagree with the conclusion drawn by Military Judge Commander Pelletier, at para 18 of his comprehensive judgment in Master-Corporal Pett: “Under current legislation, only a former military judge can be a reserve force military judge.”
That is not how I read subsection 165.22(1), which states:
165.22 (1) There is established a Reserve Force Military Judges Panel to which the Governor in Council may name any officer of the reserve force who has been an officer for at least 10 years and who
(a) is a barrister or advocate of at least 10 years’ standing at the bar of a province;
(b) has been a military judge;
(c) has presided at a Standing Court Martial or a Special General Court Martial; or
(d) has been a judge advocate at a court martial.
Based upon the construction of the provision, read in the entire context and in its grammatical and ordinary sense, harmoniously with the scheme of the NDA, the object of the NDA, and the intention of Parliament, I suggest that the four requirements in paras (a) through (d) ought to be read disjunctively. Thus, an officer of the Reserve Force, who has been both an officer (and not necessarily an officer of the Reserve Force) and an advocate or barrister for at least 10 years, could be appointed as a military judge.