Chief Military Judge Col Mario Dutil Charged

[Oldgateboatdriver]

That is an existing program of the CAF, BTW. And it is mostly provided through militia/reserve officers, where there is a significant number of practicing civilian lawyers who hold commission and are members of the primary reserve. In my days, I was asked to consider putting my name down for it. Since I practiced mostly in contract and administrative law but not in criminal or penal law, I declined.

In any event, it resolves the problem of having the case prosecuted by a lawyer whose career is in the hands of the Legal Branch and who has appeared or may appear in the future, before that judge (or one of his friends).

Next problem, though: Is there an issue with any currently sitting military judge hearing the matter, even purely from an appearance of fairness and lack of prejudice point of view?

If so, how to solve it? Appointing a special judge - like perhaps a retired senior JAG officer recalled specially just to hear the case, maybe? FJAG, anyone!  ;D 

 

[dapaterson]

Find another Reserve Lawyer with 10 years as an officer and 10 years at the bar, appoint them as a Reserve Military Judge.


Or call in Judge Judy.

 

[Navy_Pete]

Interesting.  A Special Prosecutor, a CAF lawyer who is not a member of the Legal Branch, has been brought in.  He has impressive credentials.

https://www.canada.ca/en/department-national-defence/news/2018/02/director_of_militaryprosecutionsappointsspecialprosecutor.html


For the purposes of military prosecutions, a Special Prosecutor is an officer of the Canadian Armed Forces who is a member of the bar of a province in good standing and who is not a member of the Legal Branch.

Lieutenant-Colonel Poland is an Infantry Officer in the Reserve Force, currently serving as the Commanding Officer of the Royal Highland Fusiliers of Canada in Cambridge, Ontario. In his civilian career he is the Crown Attorney of the Waterloo Region with the Ontario Ministry of the Attorney General. Called to the bar as a member of the Law Society of Upper Canada in 2000, he holds a Master of Laws Degree in criminal law and his professional practice focuses on managing the prosecution of criminal proceedings in jury and non-jury trials and appeals both at the Ontario Court of Justice and Ontario Superior Court of Justice.

Bit of a non-sequitor, but continue to be impressed by the calibre of people that are in the reserves. I don't think if I was a professional (doctor, lawyer etc) or a skilled tradesman I'd volunteer to spend my weekends playing silly bugger or generally want to make the commitment to the reserves.

Would also be interesting to sit in on a summary trial he ran as a CO, not sure if being a lawyer helps, or makes it harder with the differences between criminal law and the ST rules.

 

[FJAG]

Some information about Mark is that is not in the release is that from around 2000 to 2010 he was a reserve Deputy Judge Advocate for South Western Ontario and subsequently with Defence Counsel Services and that his brother Brent died while serving with the RCR in Afghanistan.

He's a good guy and I've got a lot of time for him.

Mark's fuller biography is here:

https://www.rhfc.ca/officer-biographies.html

Further to OGBD's post, the NDA provides as follows:

Reserve Force Military Judges

Panel established

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.

Reserve force military judge

(2) An officer named to the panel is referred to in this Act as a “reserve force military judge”.

. . .

Chief Military Judge

165.222 (1) The Chief Military Judge may select any reserve force military judge to perform any duties referred to in section 165.23 that may be specified by the Chief Military Judge.

I don't know who, if any individuals are on the panel but I do know of several officers  who would qualify and could be appointed to the panel and then be assigned the case by the Acting Chief Military Judge. The trouble is most of them are retired and as such might possibly no longer have standing at a provincial bar. I expect there is some scrambling around going on.

:cheers:

 

[brihard]

Bit of a non-sequitor, but continue to be impressed by the calibre of people that are in the reserves. I don't think if I was a professional (doctor, lawyer etc) or a skilled tradesman I'd volunteer to spend my weekends playing silly bugger or generally want to make the commitment to the reserves.

Oh man, no kidding. I look at the troops in my unit and just shake my head sometimes. In our junior ranks mess right now I can offhand think of four Cpls who are lawyers (one of whom did his PD in anthropology before getting bored of that, going to law school, and joining the PRes), a Cpl who is a civil engineer managing eight or nine figure projects, a smattering of police/fire/paramedics, youth workers, very skilled public servants... Quite the crew of people.

 

[dimsum]

Oh man, no kidding. I look at the troops in my unit and just shake my head sometimes. In our junior ranks mess right now I can offhand think of four Cpls who are lawyers (one of whom did his PD in anthropology before getting bored of that, going to law school, and joining the PRes), a Cpl who is a civil engineer managing eight or nine figure projects, a smattering of police/fire/paramedics, youth workers, very skilled public servants... Quite the crew of people.

Exactly.  I laugh quietly at the folks who chuck crap at Reservists for not being as good as the Reg F at whatever trade they're doing.  They seem to forget that a) said Reservists usually have an actual job outside the military, and b) it's probably more important/stressful than their gig in the PRes.

 

[Gunner98]

So does this state of affairs now open the door for those that the CMJ has stood in judgment of for the very same same offence, now have grounds for possible appeals?

I had wondered similarly if they would automatically review, to rule out prejudice/bias, all of the trials he presided over during the period of the alleged offences by him.

 

[Cloud Cover]

Poland is good people, he prosecuted some drawn out cases in London. He's definitely not going to have any I ethical or conflict of interests issues Witt this one. 

 

[garb811]

Court Martial date has been set.
Upcoming court martial proceedings

June 10, 2019
Gatineau, Québec
Dutil M. (Colonel), R. v

General Court Martial

Charge 1: Para. 125(a) NDA, wilfully made a false statement in a document signed by him that was required for an official purpose.

Charge 2: Para. 125(a) NDA, wilfully made a false entry in a document signed by him that was required for an official purpose.

Charge 3: S. 130 NDA, committed a fraud (subsection 380(1)(b) CCC).

Charge 4: Para. 117(f), an act of a fraudulent nature not particularly specified in sections 73 to 128 of the National Defence Act.

Charge 5: S. 129 NDA, conduct to the prejudice of good order and discipline.

Charges 6, 7, 8: S. 129 NDA, neglect to the prejudice of good order and discipline.

 

[BeyondTheNow]

Regardless of how everything unfolds, at its basic level I don't understand how this isn't a conflict of interest. But I don't know much about the process. I'm hoping someone can weigh in. It isn't a lengthy article, but I'm interested to see how it plays out.

Top military judge to face court martial overseen by own deputy this summer

OTTAWA - Canada's chief military judge is set to be tried in a court martial this spring that will be overseen by his own deputy...

...The eight charges against him include two counts of fraud and four related to conduct or neglect to the prejudice of good order and discipline. None of the charges has been tested in court.

More at link

https://www.ctvnews.ca/canada/top-military-judge-to-face-court-martial-overseen-by-deputy-this-summer-1.4269278

 

[PuckChaser]

I was an orderly at a GCM presided over by d'Auteuil. His calm briefing to us about ensuring we did not treat the accused differently as he had not been convicted of any crime and answering questions from us on how the GCM was to be conducted gave me great confidence that the CM process was fair and professional. I really don't think there will be any issues.

 

[paulso09]

yeah  :not-again:

 

[BeyondTheNow]

yeah  :not-again:

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[OldSolduer]

Regardless of how everything unfolds, at its basic level I don't understand how this isn't a conflict of interest. But I don't know much about the process. I'm hoping someone can weigh in. It isn't a lengthy article, but I'm interested to see how it plays out.

Top military judge to face court martial overseen by own deputy this summer

More at link

https://www.ctvnews.ca/canada/top-military-judge-to-face-court-martial-overseen-by-deputy-this-summer-1.4269278

I have the same question. Is this a conflict of interest? If not, why is it not? Thank you.

 

[Fishbone Jones]

I don't find a whole lot of difference between this and the Law Society of UC, or the College of Physicians, investigating, charging, and adjudicating cases of misconduct within their own professions.

People have always had mistrust when the professionals get to investigate, and judge themseves. I'm sure many of those verdicts have been called into question, by laymen, who perceive bias.

Just human nature.

 

[BeyondTheNow]

I have the same question. Is this a conflict of interest? If not, why is it not? Thank you.

Exactly, I want to know the “why’s” of this.

In conversation with another mbr (and I understand that it’s not the same situation as what’s mentioned in the article) it was stated that a Presiding Officer cannot preside over anything he/she was involved in laying charges on in any capacity. That’s a conflict of interest. So if that scenario is, how is this one not? I just want someone to break it down for me, because like I said, I’m not very familiar with the process.

 

[JesseWZ]

To address the example you laid out BTN, judges are not part of any charge laying or investigative process.

That territory lies firmly with the unit or NIS in consultation with Director Military Proesecutions. If there is a conflict of interest here, it’s not on the part of judges adjuticating a matter they had a hand in for charge laying.

The reason a presiding officer cannot adjudicate a matter where they are involved in charge laying is the real need to separate the investigation (which includes all investigative actions including choosing what charges to lay or not lay.) The judge or presiding officer must be an independent arbiter or fact. One cannot do that if one is involved in the investigation.

It is the same in civilian courts, police in consultation with the crown lay the charge following an investigation and an independent arbiter of fact and law (judge) weighs the evidence, conduct of the accused and conduct of the state (police/Crown)...

 

[BeyondTheNow]

To address the example you laid out BTN, judges are not part of any charge laying or investigative process.

That territory lies firmly with the unit or NIS in consultation with Director Military Proesecutions. If there is a conflict of interest here, it’s not on the part of judges adjuticating a matter they had a hand in for charge laying.

The reason a presiding officer cannot adjudicate a matter where they are involved in charge laying is the real need to separate the investigation (which includes all investigative actions including choosing what charges to lay or not lay.) The judge or presiding officer must be an independent arbiter or fact. One cannot do that if one is involved in the investigation.

It is the same in civilian courts, police in consultation with the crown lay the charge following an investigation and an independent arbiter of fact and law (judge) weighs the evidence, conduct of the accused and conduct of the state (police/Crown)...

Thank you for that information.

 

[FJAG]

I have the same question. Is this a conflict of interest? If not, why is it not? Thank you.

It isn't a conflict for several reasons:

1. Military judges are appointed by the Governor in Council and have to be officers with 10 years of service and 10 years as lawyers in good standing. They hold office until they retire and do not have any performance assessments made of them by the Chief Military Judge. They may only be dismissed for cause by a panel essentially made up by judges from the Court Martial Appeal Court.

2. Their compensation is determined by an independent committee that sets pay for all of them. Again the CMJ has no role in evaluating their performance as far as salary is concerned.

3. Each judge swears an oath of office that they will do their duty impartially, honestly and faithfully which is similar to what civilian judges do. Impartiality is the key component to creating an independent judiciary.

4. The CMJ's role is basically administrative such as developing rules of procedure, assigning court schedules etc

5. The CMJ has already had his duties taken over by the Deputy CMJ so that he plays no role whatsoever in these proceedings except as a defendant.

It is difficult for the outsider to see and appreciate the independence that judges both have and take very seriously. One can also appreciate that the military bench is a small one and all these judges know each other as well as all the more senior legal officers in the Forces. However, part of their job is to set such feelings aside and do their job impartially.

Note to that since the charges are under the Code of Service Discipline, the National Defence Act requires that they be tried by a military judge. As noted in point 1 above, in order to be a military judge one needs to be a serving officer and lawyer in good standing for 10 years. This makes it impossible under the law to bring an outside judge in on an ad hoc basis.

:cheers:

 

[SeaKingTacco]

Good summary, FJAG.

About the only out that I could see to use an outside judge in this case would be to look at the PRL and see if any of them happen to be a judge in their day job and then appoint them for this trial.

But, as you also point out, it is also unneccessary. I have been to Court Martials as a spectator and a witness. They are run fairly.