One has to start to wonder why Canada's Governor in Council continues to refuse to designate a new Chief Military Judge.
The last Chief Military Judge, Colonel Mario Dutil, retired 20 March 2020.
As of today, 30 November 2021, the Canadian Forces has been without Chief Military Judge for 620 days - 1 year, 8 months, and 10 days.
Sure, the Canadian Forces have an Acting Chief Military Judge - by virtue of section 165.29 of the National Defence Act, the Deputy Chief Military Judge, Lieutenant-Colonel L-V d'Auteuil is the Acting Chief Military Judge. However, the prolonged vacancy of this position is beginning to undermine the military justice system.
This has been the longest standing current vacancy of any federally-appointed or designated Chief Justice or Chief Judge in Canada. A vacancy of a few weeks, or even a few months, could be considered reasonable. However, a vacancy in excess of 20 months begins to look like the Governor in Council is punishing Military Judges for judgments that they have rendered over the course of the past two years.
Designating a Chief Military Judge under section 165.24 of the National Defence Act is not an overly complicated matter. It takes an Order in Council (OiC) by the Governor in Council. Those aren't overly difficult to prepare. Last July, the Governor in Council issued an OiC reappointing the Judge Advocate General of the Canadian Forces. Last week, the Governor in Council issued two OiC in order to appoint General Wayne Eyre as Chief of the Defence Staff.
The decision cannot be that difficult. There are four Regular Force Military Judges. Conceivably, each would be eligible to be designated the Chief Military Judge (although it is possible that not all of them are interested in that position). The Governor in Council has had plenty of opportunity to designate a new Chief Military Judge. If the Governor in Council is satisfied with the performance of Lieutenant-Colonel d'Auteuil as Acting Chief Military Judge, it would be a simple matter to issue an OiC designating him the Chief Military Judge. Alternatively, if the Governor in Council would prefer to have a different Military Judge perform that role, an OiC could be issued designating a different Chief Military Judge. Arguably, the more that the Governor in Council delays, the more there is a compelling argument that this inordinate delay represents improper influence of the judiciary - through inaction - by the executive.
After all, it was clearly untenable for the Governor in Council to have an Acting Chief of the Defence Staff exercising control and administration of the Canadian Forces under section 18 of the National Defence Act. Why, then, is it acceptable for the military justice system to have only an Acting Chief Military Judge for well over a year-and-a-half?
I beg to differ. Under the current circumstances, I do not find it unusual for a recently appointed Minister of National Defence to pause before continuing with the status quo. Given the likely reforms to the Canadian military penal system it is not inconceivable to also examine the feasibility of continuing with a military judiciary as currently constituted. For example do military judge need to be serving members of the Canadian Forces? Obviously there are other considerations. Prudence dictates that careful consideration be first given to the necessary reform of the court martial system before making any additional appointment to the existing military judiciary.
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