Why do the Canadian Forces still not have a Chief Military judge?

Three years and counting without a chief military judge ...

This is a friendly reminder that, as of today, 20 March 2023, the Canadian Forces have been without a Chief Military Judge for three years.

Since the retirement of Colonel Mario Dutil, the last Chief Military Judge, on 20 March 2020, the Acting Chief Military Judge has been the Deputy Chief Military Judge, Lieutenant-Colonel (LCol) L-V. d'Auteuil.  And, while LCol d'Auteuil has been the de jure Acting Chief Military Judge by virtue of section 165.29 of the National Defence Act (NDA), that does not alter the fact that, for three years, the Governor in Council has refused (or neglected) to designate a new Chief Military Judge under section 165.24 of the NDA.

Colonel Dutil retired under a cloud after the failed attempt by the Director of Military Prosecutions (DMP) to prosecute him before a court martial, and before the subsequent unsuccessful application for judicial review by DMP when the Deputy Chief Military Judge declined to appoint another military judge to preside at court martial.  Contemporaneously, three of the four sitting military judges produced progressively more pointed judgments regarding their independence, culminating in a series of judgments that stayed prosecutions by DMP in light of concerns regarding judicial independence:

• Military Judicial Independence: I have heard of orders, and rumours of orders …, 26 September 2020
• Judgments as ‘Remedial Measures’, 6 October 2020
• R v MacPherson et. al.: Judicial Independence Redux, 27 October 2020

A reasonable person would be justified in questioning the independence of the military judiciary in this context.

Those same judgments regarding the independence of the military judiciary in the Canadian Forces eventually gave rise to the judgment from the Court Martial Appeal Court of Canada (CMAC) in R v Edwards, et al, 2021 CMAC 2.  And, while the CMAC held that the military judges were sufficiently independent, the Supreme Court of Canada recently granted leave to appeal.

Consequently, I suggest that the ongoing refusal (or neglect) to designate a new Chief Military Judge remains one of several relevant factors that should be considered by the Supreme Court of Canada in its eventual hearing of the appeal.  And, while this ongoing lacuna is certainly not the most important factor, or likely an individually determinative factor, it remains an ongoing demonstration of the disregard that the Executive Branch has regarding the Code of Service Discipline and the military judiciary.  And, I suggest that this is an entirely unnecessary demonstration of disregard.

After all, how difficult can it be to chose from among four military judges to designate a Chief Military Judge?  And, if the Governor in Council is satisfied to have LCol d'Auteuil serve as Acting Chief Military Judge, what could be the justification for not designating him the Chief Military Judge?  As I have stated, repeatedly, in this Blog, no other court comprised of federally appointed judges has gone more than 3 or 4 months without an actual Chief Judge or Chief Justice.  A three-year gap starts to look like a punitive measure.

The most charitable conclusion that could be offered is that the Governor in Council simply doesn't care enough to designate a Chief Military Judge.  And there are less charitable conclusions that could be drawn - including a subtle remonstration of the military judges for having the temerity to question their own independence.  In any event, this ongoing lacuna continues to undermine the military justice system at a time when the Governor in Council should be seeking to reinforce confidence in the Code of Service Discipline.