Happy Anniversary to Lieutenant-Colonel L-V d’Auteuil in his role as Acting Chief Military Judge.
That may seem like an odd anniversary to recognize. Certainly, it would be more significant, and beneficial, to recognize the anniversary of someone’s appointment as, say, Chief Military Judge. However, we are not in a position to do so.
When the last Chief Military Judge – Colonel Mario Dutil – retired on 20 March 2020, the Governor in Council did not appear to be in a hurry to designate his replacement.
Two years on, the Governor in Council still has not done so.
During the past two years, the Governor in Council managed to re-appoint the Judge Advocate General (JAG), Rear-Admiral Bernatchez, for a two-year term, a few days before her tenure as JAG was due to expire. The Governor in Council managed to appoint a new Director of Military Prosecutions (DMP) when Colonel Bruce MacGregor retired in 2021. And the Governor in Council managed to appoint not one, but two, successive Chiefs of the Defence Staff (CDS) after General Jon Vance retired.
But we are still waiting for the Governor in Council to designate a new Chief Military Judge.
And it doesn’t look like it’s going to happen any time soon.
That does tend to convey the impression that the designation of a new Chief Military Judge is not as important as the appointment of the JAG, DMP, or the CDS. And I suggest that such a perspective is problematic.
It would appear that it was untenable to permit the tenure of the JAG to lapse without re-appointing her (or, alternatively, appointing a new JAG). Similarly, it appears to have ben untenable to permit the position of DMP to remain vacant. Heck, at one point, we had both a CDS and an Acting CDS simultaneously.
In comparison, it appears that it is entirely acceptable to permit the position of Chief Military Judge to remain vacant for two years (and counting).
Something that had an alliterative and cinematic impact in the classic film Casablanca is just mildly embarrassing for the Canadian Forces: we wait, and wait, and wait for the Governor in Council to designate a new Chief Military Judge.
People may wonder why this is important. After all, the Deputy Chief Military Judge has, for two years, assumed the role and responsibilities of the Acting Chief Military Judge. Nor harm, no foul … right?
In response, I suggest this: had the position of JAG, DMP, or CDS been vacant for two years, an Acting JAG, Acting DMP, or Acting CDS could assume those roles and responsibilities. Indeed, for several months, an Acting CDS performed the role of CDS while the Governor in Council dithered and misrepresented facts regarding General Vances’ successor. But that didn’t last for two years. And the CDS is not required to satisfy the hallmarks of judicial independence, including institutional independence.
What the last two years has demonstrated is that the position of Chief Military Judge is not sufficiently important for the Governor in Council to designate a permanent successor to Colonel Dutil – an officer that the DMP awkwardly and unsuccessfully attempted to prosecute at court martial. The Governor in Council signaled that it is acceptable simply to rely upon section 165.29 of the National Defence Act – which authorizes the the Deputy Chief Military Judge to “… exercise and perform the powers, duties and functions of the Chief Military Judge …” – for an extended period of time, rather than designate a new Chief Military Judge.
And that should be a concern for anyone who is brought under the jurisdiction of the Code of Service Discipline, or, indeed, anyone who is concerned about the application of the Code of Service Discipline.
The continued omission has arisen at a time when the independence of the military judiciary was the subject of repeated motions and applications at court martial. It was the subject of a series of appeals to the Court Martial Appeal Court of Canada (e.g., R v Edwards; R v Crépeau; R v Fontaine; R v Iredale, 2021 CMAC 2). And the independence of the military judiciary is the subject of an application for leave to appeal to the Supreme Court of Canada.
And we must remember that the applications at court martial regarding the independence of the military judiciary followed upon the ham-fisted attempt to prosecute the Chief Military Judge, which was only abandoned after the DMP was (not surprisingly) unsuccessful seeking judicial review of the decision by the Deputy Chief Military Judge when the latter did not (and could not reasonably) assign a judge to preside at court martial once he recused himself: see Canada (Director of Military Prosecutions) v Canada (Office of the Chief Military Judge), 2020 FC 330; R c Dutil (Colonel), 2019 CM 3003.
So, we are left with a circumstance in which the Deputy Chief Military Judge continues to serve as de facto and de jure Acting Chief Military Judge, notwithstanding the harm that such circumstance does to the independence of the military judiciary. It undermines the institutional independence of the military judiciary. It gives the impression that the Governor in Council is either holding out such designation as an incentive for a military judge who will decide cases in a manner acceptable to the Executive, or as seeming punishment for three military judges who had the temerity to conclude that their institutional independence was undermined by orders issued by the CDS.
In any event, it is unacceptable that the position of Chief Military Judge continues to remain vacant after two years. It signals that such designation is not an important issue for the Governor in Council. It tends to imply that the independence of the military judiciary, and by extension, the rule of law, is not important in the administration of the affairs of the Canadian Forces.
That is not a particularly comforting anniversary to celebrate.