Le Directeur des Poursuites Militaires c. Le Juge Militaire en Chef Adjoint: DMP’s Forlorn Hope[1]

On Tuesday, 15 October 2019, the Federal Court will hear an application[2] by the Director of Military Prosecutions (DMP) under s 18.1 of the Federal Courts Act[3] seeking an order of mandamus obliging the Deputy Chief Military Judge, Lieutenant-Colonel (LCol) L.-V. d’Auteuil to appoint a judge to preside over the trial of the Chief Military Judge, Colonel (Col) M. Dutil.  This follows LCol d’Auteuil’s judgment in R c Dutil, 2019 CM 3003[4], granting the motion brought by the accused to have LCol d’Auteuil recuse himself from presiding.  One of the key arguments presented by the accused was that LCol d’Auteuil was a potential witness to the matter at trial.

How did we get to this bizarre juncture?

What does DMP hope to accomplish with this application for judicial review?

Well, it’s a bit of a tale, and it does not start with LCol d’Auteuil’s decision on 17 June 2019.  It’s also not the first time that DMP has sought judicial review of a decision (or omission) of the Chief Military Judge in order to compel the latter to assign a military judge to preside at court martial.[5]

I suggest that, even if DMP is successful in his application – and that is by no means a certainty – it is unlikely that this matter will ever proceed to a trial on its merits.  Hence, my reference to a ‘forlorn hope’.  What this debacle will demonstrate is that the application of the Code of Service Discipline in the Canadian Forces (CF) continues to be plagued by problems.  It will also demonstrate the double standard that arises when CF leaders use administrative measures as ‘punishment’, but only in circumstances in which they can avoid direct scrutiny by independent courts.

This episode in the administration of the Code of Service Discipline also affords us an opportunity to examine some ‘oddities’ that have arisen in this particular matter.

While I will not offer an analysis of what might unfold in the Federal Court on October 15^th – we’ll know soon enough what the presiding judge decides in that matter – I will offer a degree of insight into some of the decisions and posturing that has arisen in this matter as a means of describing some of the more interesting dynamics at play in the Code of Service Discipline.

I will provide a brief summary of the events that led to this prosecution (much of which is captured in LCol d’Auteuil’s judgement).  I will then identify some of the more interesting decisions, comments, and posturing that have arisen over the course of this matter.  I will conclude with some observations on how this episode may unfold, depending upon the judgment from the Federal Court.

 

Background

This matter does not begin with the current prosecution of the senior judge of the Canadian Forces.  It actually started with a complaint made to the Military Judges Inquiry Committee[6] (MJIC) by the (then) Chief of Staff for the Office of the Judge Advocate General of the Canadian Forces (COS JAG), Colonel Bruce Wakeham.  The complaint was made on 9 October 2015.[7]  The nature of the complaint was factually similar to the purported bases of the charges that have been brought against Colonel Dutil.

On 17 February 2016, the MJIC declined to proceed with the complaint.[8]

Consequently, the Canadian Forces National Investigation Service (CFNIS) investigated, leading to charges under the Code of Service Discipline.

On 25 January 2018, a CFNIS investigator laid charges against Colonel Dutil under the Code of Service Discipline.[9]  Shortly thereafter, Colonel Dutil ceased to perform judicial functions.  However, even though the National Defence Act (NDA) provides for the appointment of a Deputy Chief Military Judge[10] who may assume the duties of the Chief Military Judge if the latter is unable to act[11], no such appointment had been made by the Governor in Council up to that point in time.

As an aside, I find it odd that, within an organization (the Canadian Forces) which traditionally incorporates a ‘chain of command’ to ensure that there is a clear organizational structure in case the person in charge is unable to fulfil his or her duties, powers, and functions, no one bothered to suggest to the Minister, before this issue hit the front page of the Globe and Mail, that perhaps he should recommend to the Governor in Council that they appoint a Deputy Chief Military Judge.  Oh well, lesson learned.

We may safely assume that there was some administrative scrambling to appoint LCol d’Auteuil as the Deputy Chief Military Judge on 14 June 2018.[12]  After all, it would have been a little awkward, and potentially invalid, to have the Chief Military Judge, charged with several Code of Service Discipline offences, then delegate his duties, powers, and functions[13] to a military judge who would then, presumably, preside over the Chief Military Judge’s own court martial.

In his judgment in R c Dutil, LCol d’Auteuil clearly asserts that, the day following his appointment as Deputy Chief Military Judge, 15 June 2018, the Chief Military Judge delegated to LCol d’Auteuil the Chief Military Judge’s power to designate military judges to preside over courts martial and all other judicial hearings, as well as the exercise of the general management of the court martial administrator.  LCol d’Auteuil also asserted that this delegation was separate and legally distinct from (“… n’a aucun lien juridique …”) powers that would vest in the Deputy Chief Military Judge due to the incapacity or inability of the Chief Military Judge to fulfil his duties.[14]

I suggest that the more valid ground of authority for the Deputy Chief Military Judge to assume the duties of the Chief Military Judge is section 165.29 of the NDA, rather than a delegation under section 165.27 of the NDA.  However, what is clear is that, as of 15 June 2018, LCol d’Auteuil was fulfilling the duties, powers, and functions of the Chief Military Judge, insofar as assignment of military judges and direction of the Court Martial Administrator was concerned.

 

The Myth of the ‘Special Prosecutor’

Throughout this process, the media have consistently referred to the appointment of a ‘Special Prosecutor’.  There have purportedly been two ‘Special Prosecutors’ assigned to this matter: LCol Poland and Second Lieutenant (2Lt) Senécal.  Both of these officers are mentioned in R c Dutil. Purportedly, 2Lt Senécal replaced LCol Poland after the accused elected to be tried in French (the accused’s first official language).[15]  That election cannot reasonably have been a surprise to anyone involved in this process.

I find the use of the term ‘Special Prosecutor’ to be an interesting development in this matter.  I use inverted commas around that title because I find it to be disingenuous.

Shortly after the charges were laid, journalists with a focus on military affairs reported that a ‘Special Prosecutor’ “… could be brought in to decide whether the case should proceed to court martial.”[16]  It was suggested that the prosecutor would be a “… reservist who was a lawyer…”.[17]  In fact, when the decision was made to proceed to court martial, this ‘Special Prosecutor’ was described as an ‘Independent Special Prosecutor’.[18]

Presumably, the idea behind a ‘Special Prosecutor’ was that he or she would not be one of the prosecutors from the Canadian Military Prosecution Service (CMPS) who normally performed those duties under DMP’s supervision.  The prosecutor would therefore purportedly have a degree of independence.

The problem with this concept of a ‘Special Prosecutor’ – particularly an ‘Independent Special Prosecutor’ – is that it’s bupkis.  It’s nonsense.  It doesn’t exist.

The NDA makes no provision for a ‘Special Prosecutor’, and certainly not an ‘Independent Special Prosecutor’.  What the NDA does provide is that “… a person may be tried by court martial only if a charge against the person is preferred by the Director of Military prosecutions…”[19] and that it is DMP who authorizes officers to prefer charges for court martial[20].

No military prosecutor operates independent of DMP’s supervision.  It is true that, under section 165.15 of the NDA, DMP is not limited only to having assistance from barristers and advocates in the ‘Legal Officer’ Military Occupation Specification (MOS).  In other words, a reservist who is in good standing as a barrister or advocate with a Bar of a province or territory may assist or represent DMP, even if that officer is not a ‘Legal Officer’.[21]

Thus, while DMP enjoys a degree of independence as a public prosecutor[22], the prosecutors who prefer charges for, and conduct prosecutions at, court martial under the direction of DMP – as they must do – are not independent of DMP, regardless of what label DMP wants to attach to their position.

Moreover, as even a casual perusal of LCol d’Auteuil’s decision of 17 June 2019 will demonstrate, there were two prosecutors assigned to that matter: in addition to 2Lt Senécal, DMP was also represented by Major Henri Bernatchez, who is one of DMP’s regular prosecutors.

So, if I may be so bold as to make a pointed suggestion: Could we please do away with disingenuous and pointless titles like ‘Special Prosecutor’?  They run the risk of causing people to conclude, erroneously, that the prosecutors in this matter are operating independent of DMP.  But, perhaps that was the intent…

 

What was the central issue at the hearing?

Before we delve into the possible outcomes of DMP’s application for judicial review, we should first clearly state what LCol d’Auteuil decided on 17 June 2019.

LCol d’Auteuil recused himself from presiding at Col Dutil’s court martial and adjourned the proceeding until another military judge could be appointed to preside.

In his application on behalf of the accused, Me Luc Boutin (himself, a retired Legal Officer) offered five arguments why LCol d’Auteuil was obliged to recuse himself from presiding at the trial: (i) The lack of institutional independence enjoyed by the Deputy Chief Military Judge from that of the accused, the Chief Military Judge; (ii) the presence of bias due to the personal relationship between LCol d’Auteuil and the accused; (iii) LCol d’Auteuil’s personal knowledge of the facts of the two alleged incidents forming the bases of the charges before the court martial; (iv) LCol d’Auteuil’s personal knowledge of several witnesses, which would jeopardize his ability to assess their credibility and probity; and, (v) the fact that LCol d’Auteuil’s testimony would be necessary to establish Col Dutil’s defence.

We must recall that Me Boutin had served LCol d’Auteuil with a summons to appear as a witness regarding the charges before the court martial.

LCol d’Auteuil agreed with many of the arguments raised by Me Boutin.  In particular, he concluded that the summons served on him was a justified step in preparing Col Dutil’s defence and was not a contrivance to oblige LCol d’Auteuil to recuse himself.[23]

To be clear, LCol d’Auteuil’s decision in R c Dutil did not extend to asserting that no military judge could preside at the trial.  His decision was that he must recuse himself.  He went on to state:

L’impossibilité que le colonel Dutil puisse être jugé par une cour martiale en raison de ma décision n’a pas été démontrée, et de ce fait, la nécessité que je sursoie à ma décision de me récuser n’a pas à être considérée dans les circonstances de cette affaire.[24]

[My Translation] It has not been demonstrated that my decision will result in the inability to try Colonel Dutil by court martial because, and as such, my decision to recuse myself does not require me to consider whether a stay of proceedings is necessary in the circumstances of this case.

That said, there was a fairly strong implication, if in obiter, that no other military judge could preside instead of LCol d’Auteuil.  In fact, this is where the application for judicial review brought by DMP takes on an odd twist in light of the arguments raised by counsel for DMP before LCol d’Auteuil.

There are three other military judges: Commander (Cdr) M. Pelletier, Cdr S. Sukstorf, and Cdr J. Deschênes (in descending seniority on the Bench).

There are potential arguments why each of these military judges would be precluded from presiding at a Standing Court Martial over Col Dutil.  In fact, it appears that counsel for DMP suggested that, if LCol d’Auteuil recused himself, it might be impossible, in the specific context, for any of the other military judges to preside over the court martial.[25]  A cynical observer might conclude that this argument was advanced in order to present an untenable alternative balanced against the ‘justification for the existence of a separate military justice system’.  (After all, perish the thought that an application before a court martial or appeal court might pass without recourse to the ‘justification for the existence of a separate military justice system’ being raised as a bulwark against Charter rights).

Although his decision did not extend to whether or not the other military judges could preside at Col Dutil’s court martial, LCol d’Auteuil’s judgment includes many comments that could be characterized as obiter dicta.  In so doing, he offers us a glimpse of what might ensue if any of the other military judges were assigned to preside at Col Dutil’s court martial.

Cdr Pelletier has been a military judge since April 2014.[26]  Like LCol d’Auteuil, he served as a military judge during (at least part of) the material time described by the charges against Col Dutil.  Like LCol ‘d’Auteuil, Cdr Pelletier was one of the military judges informed by Col Dutil of the existence of the complaint.  Indeed, LCol d’Auteuil described in his judgment the animosity that developed between Col Dutil and Cdr Pelletier following the complaint.[27]

Cdr Sukstorf, who was appointed to the military bench February 2017, was not a military judge during the material times described in the complaint.  However, she lacks the linguistic ability to preside over Col Dutil’s court martial.[28]  (NB: I do not make this assertion myself – I simply rely on LCol d’Auteuil’s conclusion in his judgment[29]).

Cdr Deschênes is the most recently appointed military judge.  Indeed, her appointment on 23 May 2019[30], less that three weeks before the hearing of R c Dutil began, was made with relatively little fanfare.  I found this remarkable in light of the fact that, for the first time since the significant amendment of the Code of Service Discipline in 1998, the Governor in Council had chosen to bring the number of serving military judges to five.[31]

Presumably, the Governor in Council chose to appoint a fifth military judge because of the charges currently laid against Col Dutil.  Since January 2018, the military bench had, effectively, been reduced to three military judges.  Even with the initial impact of the Court Martial Appeal Court judgment in R v Beaudry, 2018 CMAC 4, which led to a 9-month quasi-interregnum[32] of proceeding with serious Criminal Code offences at court martial, Col Dutil’s absence from any judicial processes led to an increase in the workload on the military judges who were able to preside over matters.

There no absolute prohibition against the Governor in Council appointing more than four military judges, and I won’t speculate on how Col Dutil may have perceived decision to appoint a ‘replacement judge’ while his matter was still a live issue.

What I will comment on is the irony of these specific circumstances.  The Governor in Council, acting on the Advice of the Minister of National Defence, appointed[33] an (arguably) unprecedented fifth military judge this past May in light of the fact (presumably) that Col Dutil, the Chief Military Judge, has been prevented from performing his judicial duties and functions since January 2018.

This appointment was made shortly before Col Dutil’s court martial was scheduled to proceed, but approximately 3 months after Col Dutil’s counsel informed counsel for DMP that he would be challenging the assignment of the presiding military judge when the court martial commenced.[34]  However, as early as 6 September 2018, Me Boutin had advised counsel for DMP that he would object to, and seek the disqualification of, all military judges from presiding at Col Dutil’s court martial.[35]

Consequently, I suggest that DMP and the Judge Advocate General (JAG) herself must have been alive to this issue no later than September 2018.  Objectively, this should have been an issue for their consideration once the CFNIS chose to lay the charges against Col Dutil in January 2018.  In fact, in light of the fact that counsel from DMP advise the CFNIS on the laying of charges[36], I suggest that DMP should have been aware of the potential that this issue would arise even before the charges were laid.

Ironically, the most recent military judge appointed by the Governor in Council was a legal officer who had previously served as legal counsel to the Office of the Chief Military Judge from July 2012 to July 2015[37] and who subsequently served as legal counsel within the Chief of the Defence Staff Office (CDSO) prior to her appointment to the military bench[38].

Therefore, faced with the challenge arising from a 25% reduction in available military judges, as well as the foreseeable challenge of ensuring that the Chief Military Judge has a fair trial, the most recent military judge appointed by the Governor in Council was someone who would almost certainly be precluded from presiding at the Chief Military Judge’s court martial.

Now, obviously, the potential for someone to preside at a specific court martial is not a determining factor for appointment to the military bench, or, indeed, any court.  Nor should my comments here be construed as an opinion on the merit of Cdr Deschênes’ appointment to the military bench.  Such commentary is well outside the bounds of appropriate commentary by a practitioner.

I am merely indicating that, faced with a reduction in available judicial resources, and taking the unprecedented step of appointing a fifth military judge, the Canadian Forces and the Governor in Council still face an incapacity to try the Chief Military Judge at Court Martial.  And this incapacity was one of the principal arguments advanced by counsel for DMP before LCol d’Auteil!

Which brings us back to DMP’s application for judicial review, which will be heard before the Federal Court on 15 October 2019.

Although LCol d’Auteuil’s decision mentions the potential challenges to any of the other military judges presiding at Col Dutil’s court martial, his decision was limited to recusing himself.  He expressly adjourned the proceedings until another military judge could be appointed to preside (“… jusqu’à ce qu’un autre juge militaire soit nommé pour la presider.”).[39]

However, LCol d’Auteuil has not yet appointed another military judge to preside – possibly because he believes that none of the current military judges would (for one reason or another) be able to preside at the court martial, and, therefore, a 6^th military judge must be appointed.

DMP has not appealed LCol d’Auteuil’s decision of 17 June 2019.[40]

Instead, DMP has chosen to seek judicial review of the decision (or indecision) of the Deputy Chief Military Judge not to appoint another military judge to preside and to pursue writs of certiorari and mandamus before the Federal Court.  Not only that, they sought an expedited hearing.  Therefore, despite advancing arguments that, if LCol d’Auteuil recused himself, the other military judges likely would not be eligible to preside, DMP now intends to force the Deputy Chief Military Judge to assign one of those same military judges to preside.

I do not suggest that, having advanced the argument that they did at the hearing before LCol d’Auteuil, DMP and his prosecutors are now barred from seeking writs of certiorari and mandamus from the Federal Court to order the Deputy Chief Military Judge to do that which they have already argued would be problematic.  I will suggest that it’s more than a tad ironic.

 

What could arise after 15 October 2019?

I mentioned above that I do not propose to examine the merits of the arguments that DMP and the Deputy Chief Military Judge will advance before the Federal Court next week.  We will have plenty of opportunity to conduct a post mortem on the eventual judgment.  What I wish to focus on are the options that DMP will have once he obtains a judgment from the Federal Court.  Broadly speaking, there are two outcomes: (i) the Federal Court will issue an order or a writ of certiorari first and then a mandamus obliging the Deputy Chief Military Judge to assign a military judge to preside at court martial; or, (ii) the Federal Court will decline to issue the writ.

If it is the latter, the prosecution of Col Dutil will likely end.  There remains a possibility that DMP could appeal the judgment from the Federal Court (presumably, if they can identify an actual error at law), but, even then, the prosecution will be delayed until the appeal is heard.  If the Federal Court declines to grant mandamus and DMP does not appeal, then presumably Col Dutil would be permitted to return to his judicial functions.

And this is where Col Dutil’s status protects him more than any non-judicial member of the CF.  Had he been a common-or-garden variety officer accused of wrong-doing, but not convicted at court martial, then his chain of command would still have had access to a variety of administrative  punishments – oops, a thousand pardons – administrative measures that could then be imposed on him.

But Colonel Dutil is not a common-or-garden variety officer.  He is a constitutionally independent military judge.  In fact, he is the Chief Military Judge.  He commands the Office of the Chief Military Judge and no one has authority over him in terms of administrative sanction.  The Military Judges Inquiry Committee has already considered this matter and declined to act because the allegations did not, in their view, arise in the performance of his judicial functions.

Consequently, it would appear that he could then return to his judicial duties and functions, including presiding over other CF members who are tried for Code of Service Discipline and Criminal Code offences before courts martial.

But, what if DMP gets the order he is seeking?  It has happened before (albeit only after an appeal to the Federal Court of Appeal).[41] What if the Federal Court orders LCol d’Auteuil to assign a military judge to this matter?.  Presumably, it won’t be Cdr Sukstorf, due to the need for a military judge who is fluent in French.  If it were Cdr Sukstorf, we may safely assume that the intrepid Me Boutin will bring an application requesting that she recuse herself, since a linguistic limitation would surely compromise the opportunity for Col Dutil to have a fair hearing[42] and not to be deprived of his liberty except in accordance with principles of fundamental justice[43].

Presumably the assignment of either Cdr Pelletier or Cdr Deschênes would be met with similar arguments that were raised before LCol d’Auteuil – arguments that (I cannot over-state) were raised by counsel for DMP in R c Dutil.

Additionally, I suggest that it is also safe to assume that, at this point, Me Boutin will also likely bring an application for a stay of proceedings due to unreasonable delay[44].  While I will not present, here, an exhaustive analysis of the likely arguments that could potentially be brought by DMP and by Me Boutin, permit me to raise the following brief points.

First, the 18-month threshold introduced in R v Jordan[45], and subsequently adopted by military judges (including LCol d’Auteuil and Cdr Pelletier)[46], does not include delay that is attributable to the defence.  However, a reasonable application (such as the successful application brought by Me Boutin last June), is not attributable to the defence.  The delay calculated for the purposes of section 11(b) of the Charter is not just delay attributable to the Crown, but also institutional delay.

Second, this 18-month ceiling is not an absolute threshold; it is a presumptive ceiling.  It is open to the Crown (i.e. DMP) to rebut the presumption of unreasonableness if it can present evidence establishing exceptional circumstances.  These ‘exceptional circumstances’ are outside the Crown’s control if: (i) they are reasonably unforeseen or reasonably unavoidable; and, (ii) they cannot reasonably be remedied.[47]

These ‘exceptional circumstances’ can fall into two categories: discrete events and particularly complex cases.  If the exceptional circumstance relates to a discrete event (an unexpected event at trial), the delay reasonably attributable to that event can be subtracted the total delay. Where the trial judge finds that the case was particularly complex such that the time the case has taken is justified, the delay is reasonable and no stay will issue. No further analysis is required.[48]

Arguably, delay in this matter could be characterized as a ‘complex case’.  Certainly, the evidence is not particularly complex.  However, the issues arising from the trial of the Chief Military Judge could be characterized as complex issues.  Some of the facets of this issue are outside the control of DMP.

However, let’s look at how this matter unfolded.  The original complaint to the MJIC was made in late 2015.  The MJIC declined to act in February 2016.  The CFNIS then proceeded with their investigation and, assuming that it was brought to their attention shortly after the MJIC decision, they took nearly two years to lay a charge.  While Jordan, and its court martial progeny focus on post-charge delay, pre-charge delay is still relevant in applications regarding abuse of process.[49]

The ‘Special Prosecutor’ then took 11 months to decide to prefer the charges to court martial.  I suggest that the fact that the accused was the Chief Military Judge did not alter the elements of the offences.  While it does raise issues regarding who, as a military judge, might be able to preside at the court martial, the decision about who should preside does not fall within the scope of DMP’s decision-making (or that of a prosecutor working under DMP’s supervision).  None of that delay is due to the ‘complexity of the issues’ arising at court martial.

Col Dutil’s defence counsel was transparent about his intent to challenge whether any military judge could preside at Col Dutil’s court martial.  As I indicate above, even though Me Boutin alerted the ‘Special Prosecutor’ to this intent in early September 2018 – 3 months before the charge was even preferred – it would be difficult to conceive that DMP and the JAG would not have been alive to this potential issue early in the process.

Neither did the purported ‘complexity’ lead to a delay in the assignment of a presiding judge.  The Deputy Chief Military Judge assigned himself to preside approximately 1 ½ months after the ‘Special Prosecutor’ preferred the charges for court martial.

Based upon the background facts described by LCol d’Auteuil in his judgment, it appears that there was little, if any, delay attributable either to the defence or to the ‘complexity’ of this matter.  Frankly, this matter was brought to trial with all the speed (or lack thereof) that has come to be typical of prosecution at court martial.  DMP’s prosecutors were already dangerously close to the 18-month ceiling when Me Boutin’s application was heard and considered by LCol d’Auteuil.  Even if much of the delay after 17 June 2019 is attributable to ‘exceptional circumstances’, DMP will be hard pressed to justify the delay that is not captured by those exceptional circumstances.

And all of this assumes that, somewhere, there is a military judge who could preside over this court martial, in French, without presenting at least an appearance of bias.

 

Here’s an Idea:

Therefore, let me conclude with a couple of suggestions – suggestions that, arguably, could have been put to the Minister way back when DMP was first aware that the Chief Military Judge was being investigated by the CFNIS or when a prosecutor from DMP first reviewed the CFNIS investigative file before any charges were laid.

It is likely – even probable – that none of the current military judges could preside at Col Dutil’s court martial.  If you’re going to go to the trouble of seeking judicial review of the Deputy Chief Military Judge’s decision (or omission), then wouldn’t it be prudent to have a plan of action if you are actually successful?

Wouldn’t it have made sense to appoint a military judge who could actually preside?  Such an appointment runs the risk of a challenge from the intrepid Me Boutin that it is a case-specific appointment.  However, such a challenge would be difficult to bring.

What are the odds that there are some federally appointed judges who have prior (and relatively recent) experience with the Code of Service Discipline and Courts Martial, and who could be appointed, on a pro tem basis, as a military judge to preside at Col Dutil’s trial?  I suspect the odds are pretty good.

Another alternative would be to refer the charges to an appropriate provincial Superior Court of Justice, which, pursuant to section 96 of the Constitution Act 1867, has inherent jurisdiction over all offences under Acts of Parliament, not just Criminal Code offences.[50]  Of course, such a course of action exposes military decisions to truly civilian scrutiny.

After all, what’s the point of DMP’s application for judicial review if there is no judge who could be assigned to preside?  It would be a pyrrhic victory, a forlorn hope.  That may have been a romantic endeavour 200 years ago under the Duke of Wellington, but it’s a waste of limited judicial resources at the Federal Court in 2019.

 

[1] I acknowledge, Dear Reader, that the title of this Blog Article may well have been influenced by binge-watching the Sharpes’ Rifles series.  Spoiler alert: Sean Bean’s character does not die!

[2] Court File T-1151-19.

[3] RSC 1985, c F-7.

[4] R c Dutil, 2019 CM 3003 [R c Dutil].  In this Blog, I will cite to the judgment in French and will offer my own translations, as necessary.

[5] Canada (Director of Military Prosecutions) v Canada (Court Martial Administrator), 2006 FC 1532; rev’d Canada (Military Prosecutions) v Canada (Chief Military Judge), 2007 FCA 390.

[6] National Defence Act, RSC 1985, c N-5 [NDA], s 165.31.  Members are appointed by the Chief Justice of the Court Martial Appeal Court.

[7] R c Dutil, n 4, para 11.

[8] Ibid, para 18.

[9] Ibid, para 21.

[10] NDA, n 6, s 165.28.

[11] NDA, n 6, s 165.29.

[12] R c Dutil, n 4, para 25.

[13] NDA, n 6, s 165.26 and 165.27.

[14] R c Dutil, n 4, para 26.

[15] In any event, LCol Poland was appointed a judge of the Ontario Court of Justice in December 2018 and would have thereby been precluded from proceeding as a prosecutor in this matter.

[16] David Pugliese, “Canada’s top military judge charged, and one of his own staff could decide the case”, National Post (January 25, 2018), online: https://nationalpost.com/news/canada/top-military-judge-charged-and-his-own-staff-could-decide-case.

[17] Ibid.

[18] Staff, “Canadian Armed Forces’ Chief Military Judge faces new charges”, CTV News On-line, (June 11, 2018), online: https://www.ctvnews.ca/canada/canadian-armed-forces-chief-military-judge-faces-new-charges-1.3968963.

[19] NDA, n 6, subs 165(1).

[20] NDA, n 6, subs 165(2) and s 165.15.

[21] That said, I will offer this based upon my own knowledge: While LCol Poland, at the time that he was appointed a ‘Special Prosecutor’, was the commanding officer of the Royal Highland Fusiliers (RHF) of Canada (and, therefore, was an infantry officer), prior to joining the RHF (which required him to undertake select infantry training to change his MOS), LCol Poland was a Legal Officer in the Reserve Force component of the CF.  Prior to being a legal officer, he was an armoured officer with the 1^st Hussars.

[22] R v Trépanier, 2007 CM 1002, para 18; R v Trépanier, 2008 CMAC 3, para 29.

[23] R c Dutil, n 4, para 83.

[24] Ibid, para 101.

[25] Ibid, para 55.

[26] Ibid, para 6.

[27] Ibid, para 13.

[28] Ibid, para 19.

[29] Presumably, evidence of Cdr Sukstorf’s proficiency in French was presented before LCol d’Auteuil during the hearing of the Defence application.

[30] Ibid, para 37.

[31] Since 1998, and even prior to those amendments, there were consistently no more than four military judges serving at any time.

[32] Nevertheless, there remained prosecutions of offences established directly under the NDA, including some circumstances in which DMP attempted to substitute NDA offences for Criminal Code offences, with varying degrees of success.

[33] NDA, n 6, s 165.21.

[34] R c Dutil, n 5, para 33.

[35] Ibid, para 28.

[36] DMP Policy Directive 001/00, dated 1 March 2000, online: https://www.canada.ca/en/department-national-defence/corporate/policies-standards/legal-policies-directives/relationship-with-canadian-forces-national-investigation-service.html.

[37] R c Dutil, n 5, para 37.

[38] https://www.canada.ca/en/chief-military-judge/corporate-information/organizational-structure/biographies-deschenes.html.

[39] R c Dutil, n 5, para 110.

[40] That’s not surprising.  Based upon the facts described in the decision, there would be little prospect of success for such an appeal.

[41] Canada (Military Prosecutions) v Canada (Chief Military Judge), 2007 FCA 390 – albeit on markedly different facts and issues.

[42] Canadian Charter of Rights and Freedoms, s 11(d), Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

[43] Ibid, s 7.

[44] Ibid, s 11(b).

[45] [2016] 1 SCR 631, 2016 SCC 27 [Jordan].

[46] R v Thiele, 2016 CM 4015; R v Cubias-Gonzalez, 2017 CM 3003.

[47] Jordan, n 45, paras 69 to 81.

[48] Ibid, para 80.

[49] R v Perrier (2000), 198 DLR (4^th) 79, 2000 CanLII 29665 (CMAC); R v Hunt, 2017 SCC 25, rev’g 2016 NCLA 61.

[50] R v Caron, [2011] 1 SCR 78, paras 24 to 35, offers an informative summary of the extent of this inherent jurisdiction.