Canada’s military justice system is falling into the dustbin of history

 “Canada’s military justice system is teetering on the verge of collapse,” Halifax-based military affairs analyst Commander (retired) Ken Hanson told this writer. And the circumstances appear to be dire.

At issue are allegations of improper conduct by both the outgoing Chief of the Defence Staff, General Jonathan Vance and his incoming replacement, Admiral Art McDonald. Admiral McDonald voluntarily stepped down on February 24 from the job he had since January 14, 2021.

Both are under investigation by the Canadian Forces National Investigation Service (CFNIS), the investigatory arm of the Canadian Military Police (MP).

Retired Sergeant Jesse Zillman, a former specially-trained sexual assault investigator, told accomplished investigative journalist Rachel Ward, that his work as a MP gave him a distrust of the military’s internal justice system. It “seems ill-equipped to deal with these types of intimate crimes, sexual assaults, sexual exploitation . . . . It doesn’t feel like that system was designed to deal with those types of offences.”

Zillman pointed a finger at commanding officers of accused service members, reproaching them for interfering with sexual assault investigations. However, like their civilian counterparts, Military Police could lay a charge of obstruction of justice when anyone impedes a MP in the execution of his/her responsibilities.

One of the responsibilities of the Military Police bosses is to ensure that Military Police personnel can do the job without hindrance, and there are tools that enable that. Among them is a charge of obstruction of justice for those who impede police work.

It is apparent that one of Zillman’s obstacles included the intransigence of his own superiors.

While the Military Police have their share of challenges, so does the Canadian military’s Judge Advocate General branch.

But in the military context, sexual misconduct can also include other forms of indecorum which can evade the more enthusiastic efforts of the Judge Advocate General branch to treat equitably.

In July 2011, Brigadier-General Daniel Menard, commander of the Canadian military force in Kandahar, Afghanistan, was found guilty in a court martial for an inappropriate personal relationship. He was reduced in rank to colonel and fined $7,000.

Jump ahead seven years to January 25, 2018, when the then newly-appointed Judge Advocate General, Navy Captain Geneviève Bernatchez (now promoted to Rear-Admiral ) announced that the CFNIS laid a series of charges against Chief Military Judge, Colonel Mario Dutil.

 
The Canadian Press reported that among the eight charges was an inappropriate relationship with a subordinate. This is an offence only in the Canadian military, mandating that the matter must be adjudicated by a court martial.

 
As Col. Dutil was the Chief Military Judge, all other judges on the military bench were within his chain of command, including Lieutenant-Colonel Louis-Vincent d’Auteuil, who presided over Dutil’s abortive court martial. He abruptly recused himself citing conflict of interest concerns.

 
Lt-Col. d’Auteuil added that neither of the remaining three judges could replace him as they each had similar circumstances or did not have the necessary language skills to preside over a court martial.

As Canada is a bilingual nation, Canadian courts martial must be conducted in the official language of the accused’s choice.

 
Col. Bruce MacGregor, Director of Military Prosecutions, brought the matter to the Federal Court in an effort to direct that one of the remaining military judges preside over Dutil’s tribunal. Federal Court Justice Luc Martineau denied the request citing potential damage to Dutil's constitutional right to a fair trial.

 
The case against Col. Dutil collapsed on March 11, 2020. Col. MacGregor stated that all Canadian military personnel “regardless of rank or appointment, are held to the same, highest standard of conduct. In this specific case, alleged wrongdoing was reported and investigated by proper authorities, charges were laid and moved forward in accordance with the law.”

 
But, the fact remains that the results of the proceedings against Brigadier-General Menard and Col. Dutil were polar opposites.

A year later, we have the two highest ranking officers of the Canadian Armed Forces facing investigations for impropriety.

Given Jesse Zillman’s distrust of the military’s internal justice system, how confident should the serving military women and men be as Military Police investigate the two highest ranking officers of the Canadian military?

Perhaps we are witnessing the collapse of Canada’s military justice system under its own weight.

Our military disciplinary system is a derivative of British military law. Military justice grew from the need to quickly deal with infractions and crimes committed by these early troops. Courts martial were created at a time when it took weeks to months to return a sailor or soldier to England to face justice for his misdeeds. But today we can return a miscreant to Canada from almost anywhere in the world within 24 hours and place him or her into the hands of the appropriate police agency for disposal by the appropriate court.

In truth, we no longer need courts martial, therefore we no longer need the military prosecution directorate, the defence counsel service and military judges. Non-criminal misconduct can be handled administratively, and the criminal courts can deal with criminal behaviour, allowing the Canadian military justice system to simply tumble into the dustbin of history.