One Year without a Chief Military Judge
20 March 2021 marks the one-year anniversary of the retirement of last Chief Military Judge of the Canadian Forces, Colonel Mario Dutil.
The Governor in Council has yet to designate his successor.
Since Colonel Dutil’s retirement, the Deputy Chief Military Judge, Lieutenant-Colonel Louis-Vincent d’Auteuil, has been the Acting Chief Military Judge, pursuant to section 165.29 of the National Defence Act (NDA). And, quite frankly, one of the principal reasons why there is a Deputy Chief Military Judge who could serve as Acting Chief Military Judge was because of the failed prosecution of Colonel Dutil. It would not be unreasonable to conclude that the Governor in Council designated Lieutenant-Colonel d’Auteuil as the Deputy Chief Military Judge, in part, because of that prosecution. Not long before Colonel Dutil was charged on 25 January 2018, no one had been designated as Deputy Chief Military Judge (pursuant to section 165.28 of the NDA). In light of the anticipated impact that such a charge might have, it is not surprising that the Governor in Council decided, finally, to appoint a Deputy Chief Military Judge.
Over the past year, I have commented from time to time on the failure of the Governor in Council to designate a new Chief Military Judge, either as the principal focus of a Blog commentary, or as a tangential comment: here, here, here, here, here, and here.
And here we are, a year later, and the Governor in Council has yet to designate a new Chief Military Judge.
Now, some of you may be thinking: “Fair enough, Fowler, but how important an issue is this really? After all, there’s a pandemic going on. And the Canadian Forces are in crisis. The Governor in Council has more important matters to consider.”
That’s a fair question. I’d suggest that there are two key reasons why it is important, and both relate to respect for the rule of law, a foundational principle of our constitutional democracy. The first reason relates to respect for the Code of Service Discipline. The second relates to judicial independence.
Respect for the Code of Service Discipline
The Code of Service Discipline has taken a battering over the past 2 or 3 years. The JAG takes a narrow view of the definition of ‘military justice’ in terms of her statutory duty regarding “… the superintendence of the administration of military justice in the Canadian Forces.” The received wisdom of the JAG, and the Office of the JAG, is that ‘military justice’ is synonymous with the Code of Service Discipline. I take a broader view that, since the terms ‘military justice’ and ‘Code of Service Discipline’ are both used in the NDA, they must have different meanings, and the only logical interpretation is the ‘military justice’ refers to something broader, including the Code of Service Discipline, as well as other processes that help deliver ‘military justice’. And, since the disingenuous definition of ‘military justice’ presented in Bill C-77 has not yet come into force, I suggest that the proper definition of ‘military justice’ remains open for debate.
But I’m not the Judge Advocate General of the Canadian Forces, so, for the purposes of discussion here, let’s focus on the narrow definition of ‘military justice’ applied by the JAG.
In addition to military judges, the Governor in Council appoints judges to the Supreme Court of Canada, the Federal Court of Appeal, the Federal Court of Canada, the Tax Court of Canada, the Court Martial Appeal Court of Canada, all the provincial courts of appeal and all the provincial and territorial superior courts (which employ different nomenclature, such as Superior Court of Justice, Court of Queen’s Bench, or Supreme Court). The courts of appeal for the three territories are generally structured around the court of appeal for a neighbouring province.
Every single one of these courts has a Chief Justice or Chief Judge. None have had to rely on an Acting Chief Justice or Acting Chief Judge for the past year. In particular, after the former Chief Justice of the Court of Appeal of Quebec, Chief Justice N. Duval Hesler, retired on 8 April 2020 (approximately 3 weeks after Colonel Dutil retired), her successor, Chief Justice M. Savard, was appointed Chief Justice two months later on 10 June 2020.
There are four military judges. Designating a new Chief Military Judge cannot be as complicated as selecting a Chief Justice from among a bench of 30 or more judges.
One could argue that the designation of a new Chief Military Judge is not all that critical. After all, there are four military judges (the typical complement), one of whom is the de jure Acting Chief Military Judge. And, after all, the Canadian Forces are presently led by an Acting CDS. The system still functions.
However, I don’t find such arguments compelling. After all, as I mentioned previously, the Governor in Council would have been able to anticipate the compulsory retirement of Colonel Dutil. They would have had ample opportunity to decide on his successor, just as they did when selecting the successor for General Vance. Although the Canadian Forces are now led by an Acting CDS, and putting aside assertions that the vetting process for the new CDS was deficient, the principal point is that the Governor in Council wished to ensure that a new CDS was selected and appointed before General Vance retired. They were not prepared to leave the position vacant for an extended period of time. It was too important to be left vacant.
Therefore, what does that say about the regard in which military judiciary are held by the Governor in Council? What does it say when the Governor in Council is relatively quick to appoint a new Chief Justice of the Court of Appeal of Quebec within that timeframe, but is in no hurry to designate a new Chief Military Judge? What does it say when the Governor in Council considers it important to appoint a successor to the CDS, but not designate a successor to the Chief Military Judge?
What does that say about the importance of military justice?
The most significant legal issue, consistently raised in courts martial throughout 2020, was the independence of the military judiciary. While much of the discussion revolved around a Designation Order issued by the (then) Chief of the Defence Staff (CDS), General Jon Vance, there were also statutory provisions that were challenged in several of the applications (or motions) brought by various accused.
Several of the applications were brought after Colonel Dutil retired. In other words – these applications were heard while the designation of the next Chief Military Judge was undecided and remained a live issue.
Over the course of 2020, the nature of these applications escalated. The CDS continued to refuse to rescind a Designation Order that military judges had consistently held to contravene an accused’s right to trial before an independent and impartial tribunal, as guaranteed under section 11(d) of the Canadian Charter of Rights and Freedoms (Charter).
These judgments eventually escalated to judicial stays of prosecutions as remedy for the continued Charter infringement. The stays of prosecution resulted in much gnashing of teeth in the news media – particularly where the alleged offences involved sexual assault – and a series of appeals by the Director of Military Prosecutions (DMP) on behalf of the Minister of National Defence.
I have offered further commentary on the judgments leading to these appeals here, here, here, here, here, here, and here. I have also offered commentary regarding the appeals before the Court Martial Appeal Court of Canada here and here.
What should be of concern for all Canadians, and not just members of the Canadian Forces, is the implication of the continued and prolonged vacancy of the position of Chief Military Judge during which these applications, and subsequent appeals, were being heard. There is a very real risk that such delay could be perceived as an attempt by the executive to influence military judges. Or, to put it in terms of the prevailing law, whether a reasonable person, who is properly informed of the legislative context in which military judges perform their duties and functions, and viewing the matter realistically and practically, might apprehend that the independence and impartiality of those judges would be undermined by the continued refusal of the Governor in Council to designate a new Chief Military Judge.
How might this pointed inaction influence military judges?
The continued inaction by the Governor in Council – particularly when every other position of Chief Justice or Chief Judge appointed by the Governor in Council is occupied, and where there has been an appointment of a new Chief Justice of one of those other courts during the same timeframe – could easily be perceived as a latent threat or promise. It could be perceived that the Governor in Council has been waiting to see which military judge is the most deferential to the executive throughout the course of the applications regarding judicial independence that have been heard over the course of the past several months. It could also be perceived that the executive is punishing the three military judges who have had the temerity to conclude that the CDS’ Delegation Order adversely affected judicial independence and impartiality.
Is designation as Chief Military judge a sufficiently important act that the failure to do so could be perceived as a latent threat or promise?
Arguably, designation at Chief Military Judge does not carry that many more substantive perks. The Chief Military Judge makes approximately $10,000 more per year than the other military judges. If you are already making $280,000 a year, is an extra $10,000 that much of an incentive or penalty (particularly when the after-tax amount is closer to $5,000)?
The Chief Military Judge typically holds the rank of Captain (Navy)/Colonel, while the other military judges are Commanders/Lieutenant-Colonels. Although the designation as Chief Military Judge would undoubtedly come with a promotion for whomever is selected (if the selection if from among one of the current military judges), the distinction in rank can be seen as largely inconsequential. Their duties and functions are almost entirely related to the conduct of courts martial. Their rank is largely immaterial in these circumstances. It is unlikely that the increase of rank would be seen as a marked incentive for the current serving military judges.
Arguably, the most significant factor would be the prestige that might be attached to the position of Chief Military Judge. Realistically, that designation would essentially place the designated military judge as the first among four equals. And the Chief Military Judge also bears the burden of additional administrative and management functions for the Office of the Chief Military Judge. One of the principal additional authorities is the authority to assign judges to particular courts martial. However, that may not be viewed as a significant incentive.
I suggest that it would not be apt to equate ‘promotion’ from military judge to Chief Military Judge to a promotion from CO of a unit to a Commander of a Brigade or other formation.
However, designation as Chief Military Judge is a promotion that carries an increase in pay, authority, and standing within the military legal community (and the larger juridical community). And, since military judges must retire at age 60 (as with other officers of the Canadian Forces), it is conceivable that military judges will seek subsequent civilian positions of importance. For example, Colonel Kim Carter became the Ombudsperson for British Columbia after she retired from the Canadian Forces as the Chief Military Judge. Holding the position of Chief Military Judge would, objectively, carry more significance than being a military judge. There are tangible benefits to designation as Chief Military Judge.
Recently, some commentators have again called for military judges to be ‘civilianized’. They advance the argument that this would improve their independence and impartiality, as (presumably) they would no longer be subject to the Code of Service Discipline and they would not have one foot in the executive branch of government (as commissioned officers) and one foot in the judicial branch (as military judges). There is some merit to this argument.
However, I anticipate that the forthcoming judgment from the Court Martial Appeal Court of Canada (CMAC) will largely rectify that issue. While there are a variety of nuances that may arise from the (largely identical) appeals that have been heard over the past few weeks, there is a likelihood that the CMAC will conclude – and declare – that military judges are not subject to the Code of Service Discipline while they are performing their judicial functions or, perhaps more broadly, while they hold judicial office. If I am correct, and barring appeal to the Supreme Court of Canada, that will essentially terminate that specific vulnerability. It would not be necessary to civilianize the military.
However, the failure to designate a new Chief Military Judge in a reasonably timely manner – particularly during a period in which the independence of the military judiciary has consistently been called into question – remains an ongoing vulnerability.
In fairness to the Governor in Council, there are multiple possible reasons why they have not yet designated a new Chief Military Judge. These possibilities range from indifference, to inefficiency in organizing a selection committee, or distraction by other priorities or matters that receive greater focus from the news media. The reasons may tend more toward incompetence than nefarious origins. And it is entirely possible that there are multiple reasons.
However, no reasons have been offered. And the test for whether action or inaction adversely impacts judicial independence and impartiality is predicated upon what the (fictional) reasonable and well-informed person might conclude based upon the circumstances. This is predicated, in part, on the “… fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.” The perception of independence is as important as whatever reasons for delay are asserted by the executive.
Objectively, a reasonable person could conclude that this continued neglect to take any action to designate a new Chief Military Judge is being used to influence the sitting military judges. A reasonable person, informed of the legislative context of the Code of Service Discipline, and viewing the matter realistically and practically, could conclude that this represents deliberate inaction that undermines the impartiality and independence of military judges.
I am not suggesting that the Code of Service Discipline will crumble and decay to irrelevance if a new Chief Military Judge is not designated soon. I am disinclined to make such ‘doomsday prophecies’.
In the past, some commentators have suggested that the Code of Service Discipline and military justice would grind to a halt or would fall apart following judgments such as R v Trepanier, 2008 CMAC 3, R v Leblanc, 2011 CMAC 2, or Beaudry v R, 2018 CMAC 4. Certainly, each of those judgments presented disruptions to the functioning of the Code of Service Discipline. And those disruptions were not always well managed by the Canadian Forces, including key decision-makers under the Code of Service Discipline.
Following the judgment in Beaudry, various tactics were employed by DMP to avoid referring matters to the civilian criminal justice system while the issue was appealed to the Supreme Court of Canada. In some cases, non-Criminal Code charges were substituted for previous Criminal Code charges (it was not unusual to see ‘Disgraceful Conduct’ under s 93 of the NDA substituted for a Criminal Code offence). Eventually, several matters were referred to the civilian criminal justice system, albeit after incurring not-insignificant delay. Others were retained in the military justice system, sometimes with problematic results for DMP.
However, these disruptions were typically remedied either by subsequent legislative reform (which was often hastily crafted to avoid the impact of adverse Charter declarations) or by subsequent appeals to the Supreme Court of Canada. None of these judgments sounded the death knell of the Code of Service Discipline. Nor have the more recent judgments at first instance concerning the independence of the military judiciary. They represent disruptions.
However, if disruption can be avoided – and I suspect that most objectively reasonable people would agree that this would be a preferable state of affairs – why invite disruption? And why invite further factors that would undermine the confidence in the Code of Service Discipline?
And when we speak of confidence in the Code of Service Discipline, we must consider a variety of stakeholders: the rank-and-file members of the CF, the senior leadership of the CF; the legislators and policy-makers; and even the Canadian public.
There have been several instances over the past few years that have undermined the confidence that these stakeholders might have in the Code of Service Discipline. The failed prosecution for the former Chief Military Judge certainly did little to instill confidence in the functioning of courts martial. The handling of sexual misconduct in the Canadian Forces over the past few years has also done little to invite confidence in the Code of Service Discipline. Similarly, the occasional over-zealous investigation or prosecution of matters has done little to reinforce such confidence. Add to this the impracticality of prosecuting a CDS under the Code of Service Discipline, and people may start to question whether the significant amendments to the NDA in 1998 – followed by periodic adjustments precipitated by successful Charter challenges – were sufficient to bring the Code of Service Discipline in line with the Charter and the rule of law in Canada.
Arguably, some of the purported shortcomings of the Code of Service Discipline may be exaggerated. After all, the Supreme Court of Canada has, relatively consistently, upheld the justification of the enforcement of a military disciplinary system concurrent with the civilian criminal justice system. In R v Stillman, 2019 SCC 40, the Supreme Court of Canada upheld broad application of the Code of Service Discipline to criminal offences arising within Canada, even where there is only tenuous connection to the maintenance of discipline in the CF. The Court essentially put the last nails in the coffin of any requirement for a ‘military nexus test’.
But even if we put aside the cacophony of argument that the Code of Service Discipline continues to demonstrate frailties and failings, the continued inaction regarding the designation of a new Chief Military Judge serves no positive end.
The failure to designate a new Chief Military Judge sends a message that military justice is not as important as civilian justice.
The failure to designate a new Chief Military Judge sends a message that the military judiciary do not merit the same consideration as civilian judges.
The failure to designate a new Chief Military Judge leaves open an argument that the military judiciary are not sufficiently independent and impartial. And, if the CMAC delivers a judgment in the coming weeks or days that military judges are exempt from the Code of Service Discipline (at least in the performance of their judicial duties and functions), then the delay in designating a Chief Military Judge becomes a much more significant issue than whether military judges ought to be ‘civilianized’.
The failure to designate a new Chief Military Judge potentially undermines confidence in the Code of Service Discipline and can potentially become the basis for further disruption of the Code of Service Discipline. These adverse consequences are easily avoidable.
The time has come for the Governor in Council to designate a new Chief Military Judge.
 RSC 1985, c N-5 [NDA].
 Ibid, s 9.2(1).
 Including: R v Edwards, CMAC 606; R c Crépeau, CMAC 607; R c Fontaine, CMAC-608; and R v Iredale, CMAC-609. A cross-appeal was brought in R c Crépeau. The appeals were brought following judgment in in R v Edwards, 2020 CM 3006 [Edwards], R c Crépeau, 2020 CM 3007 [Crépeau], R c Fontaine, 2020 CM 3008 [Fontaine], and R v Iredale, 2020 CM 4011 [Iredale].
 R v Sussex Justices, ex parte McCarthy,  1 KB 256,  All ER Rep 233.
 For example, the judgment R v Trépanier, 2008 CMAC 3 [Trépanier] gave rise to An Act to amend the National Defence Act (court martial) and to make a consequential amendment to another Act, SC 2008, c 29 [Bill C-60]. The haste with which Bill C-60 was implemented was due, in large part, to the refusal of the CMAC to suspend its Declaration of invalidity regarding section 165.14 and 165.19(1) of the NDA. Similarly, Bill C-16, An Act to amend the National Defence Act (military judges) [Bill C-16], enacting the Security of Tenure of Military Judges Act, SC 2011, c 22 followed the judgement of the Court Martial Appeal Court of Canada in R v Leblanc, 2011 CMAC 2 [Leblanc].
 See n 8.
 R v Généreux,  1 SCR 259; R v Moriarity, 2015 SCC 55,  3 SCR 485; Stillman, n 10. However, we must also not forget that, in R v Généreux, the Supreme Court of Canada struck down provisions of the NDA, n 1, as inconsistent with the Charter, while upholding the general justification for a Code of Service Discipline that functions in parallel to the civilian criminal justice system.