The next Chief Military Judge of the Canadian Forces

The embattled (former) Chief Military Judge of the Canadian Forces, Colonel Mario Dutil, reached the mandatory retirement age of 60 on March 20th, 2020.  Consequently, on April 10th, 2020, the Canadian Forces will have been without a Chief Military Judge for three weeks.  By virtue of section 165.29 of the National Defence Act, the Deputy Chief Military Judge, Lieutenant-Colonel d'Auteuil, has been the Acting Chief Military Judge of the Canadian Forces.

During the response to the COVID-19 crisis, not only in Canada, but around the world, governments will have an ever-increasing list of priorities.  Arguably, appointing a new Chief Military Judge for the Canadian Forces won't be at the top of the list for the federal government.  However, as I explain in the blog post here, the appointment of a new Chief Military Judge is a vital step, both symbolically and practically, in reinvigorating confidence in the military bench and the administration of the Code of Service Discipline in the Canadian Forces.

In light of the problematic, and ultimately unsuccessful, prosecution of the former Chief Military Judge, combined with recent judgments by military judges that were critical of attempts by the executive to exercise control and influence over military judges, it is vital that the Governor in Council (for our non-Canadian colleagues: the federal executive) take timely and meaningful steps to reinforce confidence in the military justice system.

In response to the COVID-19 crisis, courts across Canada have had to take significant steps to ensure that the administration of justice continues, while protecting not only the health of the people who work tirelessly in the justice system, but the very health of that justice system.  In-person appearances have been curtailed significantly, while the courts proceed with 'remote' hearings via teleconferencing and video-teleconferencing.  Decisions that, from a practical perspective, limit access to justice are significant.  And, constitutionally, they must be made by judicial leadership, and not the executive.  The military justice system has responded in a manner similar to the civilian courts.  However, unlike civilian counterparts, the decisions to curtail the conduct of courts martial have been made by an Acting Chief Military Judge.

Civilian judicial appointments have continued, notwithstanding the current COVID-19 crisis.  The time has come for the Minister of National Defence to recommend, and the Governor in Council to appoint, a new Chief Military Judge.