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How difficult is it to appoint a Chief Military Judge?

Evidently, more difficult than prohibiting over 1,500 firearms.

And at least one Airsoft rifle.

On 20 March 2020, Colonel Mario Dutil, the former Chief Military Judge of the Canadian Forces, retired when he turned 60 years of age, the compulsory retirement age for members of the Canadian Forces (CF).

As I mentioned in a Blog article four weeks ago, this should not have come as a surprise to the senior leadership of the CF, the Minister of National Defence, or the federal cabinet (aka Governor in Council).  Colonel Dutil spent his final two years as Chief Military Judge being prosecuted by the Director of Military Prosecutions (DMP), or, perhaps, more accurately, being the subject of an unsuccessful attempt at a prosecution.

In any event, when he turned 60, he was obliged to retire from the CF and, consequently, ceased to be the Chief Military Judge.  Although this date was a clear threshold that would or should have been known to the Minister, it appears that there was no plan – or even consideration of a plan – to choose a successor.  This is all the more baffling in light of the fact that at least someone in that decision-making process must have believed that there was a possibility that Colonel Dutil may need to be replaced before he reached compulsory retirement age.  And even if DMP, the Judge Advocate General, the Chief of the Defence Staff and the Minister all saw the prosecution of Colonel Dutil as the farce that it turned into, surely the Minister realized that Colonel Dutil’s compulsory retirement age was rapidly approaching.

However, tomorrow, 8 May 2020, will mark six (6) weeks since the Chief Military Judge retired, and his replacement has still not been named.  Presumably, he would have to be replaced by one of the four serving military judges.  Presumably, the most recently appointed military judge was appointed because Colonel Dutil was not presiding over courts martial while he remained the subject of court martial proceedings and because his eventual retirement was anticipated.  It’s not like there is a large pool of potential candidates, and it’s not like the requirement for a new Chief Military Judge has come as a surprise.

Yet, here we are.

Someone did manage to update the “Organizational Structure of the Office of the Chief Military Judge” page of the government website for the Office of the Chief Military Judge on 22 April 2020 to reflect that Lieutenant-Colonel d’Auteuil, the Deputy Chief Military Judge, was, after 20 March 2020, the Acting Chief Military Judge by virtue of section 165.29 of the National Defence Act (NDA).  I had mentioned this provision in my Blog article of 9 April 2020.

I am not suggesting that this amendment of the web-page was precipitated by my Blog entry two weeks earlier.  It was likely just a coincidence.

However, the lack of action or planning regarding this key element of the military justice system can leave an impression that the military justice system and the rule of law within the CF is not important enough to warrant the attention of the Minister, who is responsible for recommending the next Chief Military Judge, or the Governor in Council, who appoints the Chief Military Judge.  After all, if the Governor in Council can prohibit over 1,500 firearms (and at least one Airsoft rifle) seemingly overnight, how difficult can it be to appoint the Chief Military Judge from a pool of four potential candidates?

 

 

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2 Comments

  1. David P says:

    The issue of “CRA” for military judges is somewhat more nuanced than you present here; CRA is a regulatory creation under QR&O chapter 15 and thus is subject to amendment through the normal regulatory processes (in this instance, under the authority of the Governor in Council).

    However, were the GiC to amend CRA for members of the CAF to some later age, military judges would still be required to leave office at age 60, due to the provisions of 165.21(4) of the NDA.

    (Of course, I am fairly certain that, were CRA to be amended / adjusted / abolished, that the militay judiciary would make strong representations for similar considerations.)

    • Rory says:

      David P: Thank you for taking the time to read the Blog article and to leave a considered reply. You are the first person to do so with this Blog (unfortunately there is no prize). I agree with you that CRA for the CF is a much more nuanced issue than is described in this Blog. It is also not something that has often been challenged. Typically, problematic military policies, regulations, and even statutory provisions are changed only if challenged before constitutionally independent courts. As I have often commented, most changes to the Code of Service Discipline arise from challenges before appellate courts, not reasoned policy development. Ironically, one of the few times that CRA has been challenged, if unsuccessfully, was by a military judge (Price v Canada, 2004 FC 164, which was decided as an interlocutory motion to dismiss, and not on its merits). And, I suggest, you can draw a straight line between subs 165.21(4) (introduced by the Security of Tenure of Military Judges Act, SC 2011, c 22, which significantly amended s 165.21 of the NDA) and Commander Price’s application for judicial review. I would also suggest that Commander Price’s grievance also gave rise to some consequential amendments to the statutory regime for the CF grievance process under Bill C-15, which came into force approximately a decade after that matter was heard.

      If my comment on CRA for judges did not seem robustly defended, it was because: (i) the article was not about CRA, whether it was defensible, and how it might be altered; (ii) the ‘received wisdom’ of both the CF and, it appears, the courts, is that CRA is a valid expression of law, both for members of the CF generally, and military judges specifically (and, in any event, benefits from the presumption of constitutionality until it is successfully challenged); and, (iii) the main point of the article was to highlight that the Governor in Council had not (and still has not) appointed a new Chief Military Judge, even though key decision-makers would have been aware of Colonel Dutil’s pending retirement.

      It will be particularly interesting to observe if a successor to General Vance is named before Colonel Dutil’s successor is named or appointed.

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