So … About the Chief Military Judge

For those of you who have not been keeping track, yesterday, 20 October 2021, marks 19 months since the retirement of the last Chief Military Judge, Colonel Mario Dutil.  It also marks 19 months since the Canadian Forces last had a Chief Military Judge.  Since that date, the Deputy Chief Military Judge, Lieutenant-Colonel (LCol) L-V d’Auteuil has been the de jure Acting Chief Military Judge by virtue of section 165.29 of the National Defence Act.  I have discussed this issue previously, here, here, here, and here.

Colonel Dutil was unsuccessfully prosecuted by the Director of Military Prosecutions (DMP).  DMP’s initial attempt to pursue a court martial ended with the presiding judge, LCol d’Auteuil, recusing himself due to an apparent conflict of interest: R c Colonel Dutil, 2019 CM 3003.

The Deputy Chief Military Judge did not subsequently assign a new military judge to preside.  Since the Chief Military Judge was the accused, it fell to the Deputy Chief Military Judge to perform the functions of the Chief Military Judge and assign a presiding military judge.  Immediately after he recused himself, he provided written reasons for the decision not to assign a new judge.  DMP was also unsuccessful in seeking judicial review of the decision by the Deputy Chief Military Judge declining to assign another military judge to preside at Court Martial: Canada (Director of Military Prosecutions) v Canada (Office of the Chief Military Judge), 2020 FC 330.

Over a year-and-a-half has passed.  The Governor in Council has not designated a new Chief Military Judge.  Clearly, the Governor in Council is capable of issuing Orders in Council.  They have done so several times during the past 19 months.  Clearly, the Governor in Council is capable of appointing new judges, including Chief Judges or Justices.  They have also done so during the past 19 months.  While the Canadian Forces does not have a Permanent Standing Court, the position of the Chief Military Judge is the only federally-appointed Chief Judge or Chief Justice position that is presently vacant.  Nor has there been a comparable duration of vacancy among any federally-appointed civilian Chief Judges or Justices.

By way of comparison, the position of Chief Justice of the Court of Appeal of Quebec became vacant on 8 April 2020, when (then) Chief Justice N. Duval Hesler retired.  She retired three weeks after Colonel Dutil retired.  Chief Justice Savard succeeded Chief Justice Duval Hesler on 10 June 2020, approximately two months after Chief Justice Duval Hesler retired.

It is unclear why the Governor in Council appears to be incapable of designating a new Chief Military Judge.  Since the reforms of the Code of Service Discipline introduced in Bill C-25 in 1998, there have typically been four military judges in the Canadian Forces.  One of those judges is typically designated the Chief Military Judge.  More recently, provisions of the NDA have been amended to permit the designation of a Deputy Chief Military Judge.  LCol d’Auteuil was designated the Deputy Chief Military Judge on 14 June 2018.  As alluded to above, pursuant to section 165.29 of the National Defence Act, as the position of Chief Military Judge is vacant, the Deputy Chief Military Judge “… shall exercise and perform the powers, duties and functions of the Chief Military Judge that are not otherwise authorized to be exercised or performed by a military judge under section 165.26.”

Ostensibly, the Governor in Council could choose from among the current military judges.  They could simply designate the current Deputy Chief Military Judge to be the Chief Military Judge.  He has, in effect, been performing those functions for over a year and a half (and was also performing those functions for several months prior to Colonel Dutil’s retirement).  Or they could designate one of the other three judges.  It is not a large pool.  Perhaps they are waiting to appoint a new military judge.

It is not clear why the Governor in Council is waiting.  However, I suggest that it does not reinforce confidence in the Code of Service Discipline when the Governor in Council knowingly leaves the position of Chief Military Judge vacant for such an extended period.  Over the past two years, the issue of the independence of the military judiciary has been a central and recurring issue argued before courts martial and, more recently, the Court Martial Appeal Court of Canada (R v Edwards; R v Crépeau; R v Fontaine; R v Iredale, 2021 CMAC 2 [R v Edwards et al]).  The prolonged choice not to designate a new Chief Military Judge could be interpreted by a reasonable observer as punishment for several military judges criticizing the impugned CDS Order that was at issue in R v Edwards et al and for their decisions to stay certain prosecutions (until those judgments were over-turned on appeal).  I note, too, that leave is presently being sought for appeal to the Supreme Court of Canada.

It is singularly peculiar that the CF has gone this long without a designation of a new Chief Military Judge.  The Judge Advocate General, Rear-Admiral G. Bernatchez was reappointed for an additional two years shortly before her statutorily limited 4-year term was due to expire.  Clearly, the Governor in Council is capable of issuing Orders in Council relating to the administration of military justice in a timely manner.  And while the absence of an actual designated Chief Military Judge is not fatal to the prosecution of matters under the Code of Service Discipline and does not bar courts martial from proceeding, it does give the impression that such matters are of less importance than the civilian justice system.  At a time when legal officers of the Office of the JAG and other stakeholders in the Code of Service Discipline and military justice take great pains to assert that military justice is not a second-rate mechanism, the marked indecision and lack of action stands in stark contrast to the narrative that they purport to present.  It undermines that very message.

Hopefully, a new Chief Military Judge will be designated before the end of the current calendar year.

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