Chief Military Judge Col Mario Dutil Charged

[TCM621]

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.

The big issue with reservists is you never know if you are getting the Cpl who is a real estate developer, the MWO who stocks shelves at the grocery store or the Maj with 20 years in the regular force.

 

[BeyondTheNow]

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:

Thank you FJAG

 

[FJAG]

The big issue with reservists is you never know if you are getting the Cpl who is a real estate developer, the MWO who stocks shelves at the grocery store or the Maj with 20 years in the regular force.

Regardless as to whether Reg F or Res F, in order to be appointed a military judge one has to be an officer for 10 years service and 10 years as a member of a law society in good standing..

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.

There is also provision in the NDA (s 165.22) for any Res F officer (not just Res F Legal Officer) to be appointed as a Reserve Force Military Judge in certain circumstances but essentially those circumstances limit it to candidates who have previously been a military judge. I'm not aware as to whether there is anyone on this panel at this time.

:cheers:

 

[OldSolduer]

Thank you FJAG

I echo those sentiments. I’ve been called as a witness at two and they are very well run.

 

[Colin Parkinson]

My Learned wife read of the matter:
In the hierarchy of the court system, the Supreme Court of Canada (the highest court) hears appeals from the Court Martial Appeal Court, that in turn hears matter tried in the Military Courts of first instance. Usually appellate courts do not hear matters of first instance (i.e. it only deals with appeals). However, for wrongful acts committed by a Military Court Judge, s 165.31(1) NDA  empowers the Chief Justice of the Court Martial Appeal Court to appoint 3 judges from that appeal court to form a Military Judges Inquiry Committee to hear the matter. The Inquiry Committee can under subsection (7) then recommend to the Governor in Council, that the said judge be removed if he’s found to be guilty of misconduct or has failed in due execution of his or her judicial duties. 

 

[FJAG]

My Learned wife read of the matter:
In the hierarchy of the court system, the Supreme Court of Canada (the highest court) hears appeals from the Court Martial Appeal Court, that in turn hears matter tried in the Military Courts of first instance. Usually appellate courts do not hear matters of first instance (i.e. it only deals with appeals). However, for wrongful acts committed by a Military Court Judge, s 165.31(1) NDA  empowers the Chief Justice of the Court Martial Appeal Court to appoint 3 judges from that appeal court to form a Military Judges Inquiry Committee to hear the matter. The Inquiry Committee can under subsection (7) then recommend to the Governor in Council, that the said judge be removed if he’s found to be guilty of misconduct or has failed in due execution of his or her judicial duties.

It might still come to that. A s165.31 inquiry is more in the nature of a Canadian Judicial Inquiry that determines if a judge should be censured or removed from office for some misconduct. It is not, however, a criminal trial respecting a specific offence. If convicted at atrial, a s 165.31 inquiry might very well be next.

 

[The Bread Guy]

And so it begins ...

The court martial of Canada's chief military judge kicked off Monday with testimony about Col. Mario Dutil's close professional and "familial" relationship with the judge presiding over his trial: Dutil's own deputy.

The testimony delivered on the first day of Dutil's court martial, in which he is facing eight charges, underscored the unprecedented nature of the case -- and why the court martial is considered a test of the military justice system.

It came as Dutil's lawyer sought to have Lt.-Col. Vincent-Louis d'Auteuil recuse himself from the trial, arguing the deputy chief military judge is too close to both his client and many of the witnesses who will be called to testify.

Canada's top military judge since 2006, Dutil was charged last year over allegations he had a consensual but inappropriate relationship with a subordinate and knowingly signed a travel claim for $927.60 containing false information.

He is facing two counts of fraud, one of wilfully making a false entry in an official document, one of wilfully making a false statement in an official document, and four related to conduct or neglect to the prejudice of good order and discipline.

None of the charges, three of which were laid in January 2018 and the other five last June, has been tested in court.

The military's top prosecutor opted to appoint a special prosecutor to review the military-police investigation against Dutil and decide whether to recommend charges.

It's believed Dutil is the first person to be charged while serving as the chief military judge and given the unprecedented nature of the case, it wasn't clear in the months leading up to the court martial how it would proceed. That included whether one of the three other military judges he oversees would hear the case against him.

Court heard Monday that it was d'Auteuil who ultimately decided to preside over the case ...

More @ link

 

[X Royal]

Regardless of how everything unfolds, at its basic level I don't understand how this isn't a conflict of interest.
Top military judge to face court martial overseen by own deputy this summer

Maybe I'm missing something as no civilian court judge would ever agree to hear a case of anyone they personally know, or even more so their former direct supervisor.
No ruling would escape a serious court challenge.
Hell even a juror is automatically removed by the judge if they admit to personally knowing the defendant.
No lawyer challenge required.

 

[FJAG]

Maybe I'm missing something as no civilian court judge would ever agree to hear a case of anyone they personally know, or even more so their former direct supervisor.
No ruling would escape a serious court challenge.
Hell even a juror is automatically removed by the judge if they admit to personally knowing the defendant.
No lawyer challenge required.

See my post #38 above.

That said, this is certainly starting to look unseemly. I had hoped that Dutil would have done the right and honourable thing and pled to the charges (assuming that they are factually correct) but it seems like the defence is taking the low road by challenging the court composition.

It's very strange for the defence to challenge a judge based on the argument that he's friendly with the defendant. You'd think that should be a prosecution motion. That strikes me as problematic in that there really is no other option available to try Dutil so it looks like the defence's strategy is to push the case into a corner where it cannot be tried at all.

Regardless of what happens here this whole issue is going to be a stain on the branch. Hopefully someone has already started drafting legislation to allow a civilian superior court be appointed as an ad hoc judge for such a court martial where the whole military trial judge panel is conflicted.

:cheers:

 

[Blackadder1916]

See my post #38 above.

. . .

Regardless of what happens here this whole issue is going to be a stain on the branch. Hopefully someone has already started drafting legislation to allow a civilian superior court be appointed as an ad hoc judge for such a court martial where the whole military trial judge panel is conflicted.

There does not seem to be a lot of depth from which to find a military judge who does not have a direct working relationship to the CMJ.  Besides the DCMJ, there are only three military judges.  And would most of a small Legal Branch (the senior members anyway) not fall within the same criteria of being "too close to both his client and many of the witnesses who will be called to testify".  Maybe this is one of those situations that could make use of the Supplementary Reserve, if that organization had any credibility or a usable database.

 

[FJAG]

There does not seem to be a lot of depth from which to find a military judge who does not have a direct working relationship to the CMJ.  Besides the DCMJ, there are only three military judges.  And would most of a small Legal Branch (the senior members anyway) not fall within the same criteria of being "too close to both his client and many of the witnesses who will be called to testify".  Maybe this is one of those situations that could make use of the Supplementary Reserve, if that organization had any credibility or a usable database.

We all start in the same pool of legal officers and when I first transferred to the branch (back in 84) it was a fairly intimate little group but since then the branch has been a growth industry and now numbers several hundreds and folks all know each other although that doesn't mean they are necessarily intimate friends.

Once a legal officer is made a judge, however, they and the bulk of the branch tend to go their separate ways. That's not unlike when a civilian lawyer from a particular law society is made a judge in that province.  Unfortunately, while the legal branch is larger than PEI's bar and a bit smaller than NFLDs and a lot smaller than everyone else, it is all considered part of the same firm (with the exception of DDCS).

Generally civilian judges will not hear cases involving lawyers from the same firm that they served in and it's not too hard to find an "untainted" judge. I expect since Dutil is fighting this thing, we'll eventually be told by the Court Martial Appeal Court as to whether the oath of office is a sufficient enough provision to rely upon. Like I said above, we need to add a legislative provision to ad hoc an outside judge for these very extreme cases (which might extend as far as all legal officer defendants and not just judges)

:cheers:

 

[Privateer]

Here is a provision from the BC Provincial Court Act that would be a good addition to the National Defence Act to address this type of situation:

Temporary judge

8  The chief judge may appoint a person as a judge of the court for

(a) a period of time set out in the appointment, or

(b) a specific case or class of cases set out in the appointment,

or both, if

(c) the appointee is a provincial court judge, as defined in the Criminal Code, in a province other than British Columbia, and

(d) the chief judge of or the person who holds the equivalent office of the chief judge of the provincial court in the other province consents to the appointment.

 

[dapaterson]

A spectacular implosion yesterday, as the presiding judge recused himself, and stated that the other three members of the military bench are also unable to preside.

https://www.thelawyersdaily.ca/articles/13109/court-martial-of-top-military-judge-collapses-current-military-judges-can-t-try-case

 

[garb811]

Call me a cynic but why am I not surprised?

 

[garb811]

Another really cool ruling he made was Col Dutil could choose not to have to wear DEU as the accused like the rest of us (Dutil M. (Colonel), R. v.) because being a military judge trumps being a service member and the same rules don't apply for dress either. 

Truly, "All animals are equal, but some animals are more equal than others."

 

[FJAG]

Another really cool ruling he made was Col Dutil could choose not to have to wear DEU as the accused like the rest of us (Dutil M. (Colonel), R. v.) because being a military judge trumps being a service member and the same rules don't apply for dress either.

Truly, "All animals are equal, but some animals are more equal than others."

If you are going to paraphrase a ruling please do it accurately. The ruling (as translated from the French by Google actually says the following:

[ 17 ] I wish to reiterate, as someone so aptly put it, that no one is above the law, which includes a military judge. The effect of my decision is one of necessity. Independence and judicial impartiality are fundamental principles to the function of military judge and must be applied at all times by the person who has been appointed to occupy it. An authorization was given by the Chief Military Judge to military judges to apply these principles to the conduct of the CAF for military judges. In order to preserve the function of a military judge, it goes without saying, in my opinion, that the exercise of discretion based on such principles must remain applicable in the circumstances.

[ 18 ] I believe that it is necessary for any military judge to be able to exercise his discretion as to what he or she should wear before a court martial. My decision, therefore, is not to exonerate Colonel Dutil from wearing the uniform, but rather to allow him to exercise his discretion as a military judge on this issue, as would any other military judge who would appear before the court martial as an accused. It is simply a matter of making sense of the principles of independence and judicial impartiality in the exercise of the function of military judge by a CAF officer, nothing more, nothing less. This is what a proper administration of justice requires in my opinion in the circumstances.

:cheers:

 

[dapaterson]

Given the train wreck over which he has presided, I will not defer to the the judge in this case.  A Court Martial is inherently a military proceeding;the only appropriate attire for a serving member who is charged is a uniform.

This farce may have irreparably damaged the military justice system; granting judges special dispensation because they are judges only worsens the issue.  Perhaps parliament will take appropriate action and abolish the military bench, and refer all court martials to the Federal Court, where we can have competent jurists exercising their role, and not the pompous, overpaid and underworked former members of the JAG with overly well developed sense of self importance.  You know, the ones who presided over ludicrous findings like those in R v Nauss.

 

[garb811]

If you are going to paraphrase a ruling please do it accurately. The ruling (as translated from the French by Google actually says the following:

:cheers:

You might not agree with me, but I stand by it.

...
It is simply a matter of making sense of the principles of independence and judicial impartiality in the exercise of the function of military judge by a CAF officer, nothing more, nothing less.
...

He isn't exercising the function of a military judge, he is parading in front of a military judge as a CAF officer accused of some fairly significant offences. The fact that he is a military judge should have zero bearing on the decision being made; making this ruling and wording it as he did makes it very clear the military judges think they are distinct and separate from the rest of us.

 

[Ostrozac]

A Court Martial is inherently a military proceeding

We’ve made exceptions to that, though, when we court martial civilians. Most commonly veterans, for crimes committed while in service (I remember a certain BGen who just seemed to like being court martialed, his first one while serving, his second as a civilian). But I seem to remember that members of the civil service deployed to Afghanistan were also subject to the Code of Service Discipline, and Court Martial if necessary. Do we need to remove the concept of a chain of command from Military Judges and make them a Junta or Collective of Equals — all technically Defence Civilians vice Commissioned Officers, so they can sit in judgement on each other?

Nonetheless, this isn’t a good development. No one can be seen to be above the law.

 

[garb811]

Those aren't exceptions, they are specifically accounted for in the NDA and do not change the nature or conduct of the CM.