The Next Chief Military Judge

Presently, the Canadian Forces does not have a Chief Military Judge.  Lieutenant-Colonel Louis Vincent d’Auteuil, the Deputy Chief Military Judge (DCMJ), appears to be the Acting Chief Military Judge by function of statutory provision.

The question, therefore, is: When will the Minister of National Defence recommend, and when will the Governor in Council appoint, a new Chief Military Judge?

Granted, in the larger scheme of things, the appointment of a new Chief Military Judge is likely not a high priority on the ever-growing list of priorities for the Federal Cabinet.  That said, the Chief Judge or Justice of any of Canada’s courts must still be considered an important position and one that should not be left vacant for an extended period of time – whether or not we face a crisis.  Stability of government process is important, as is demonstrating such stability, particularly during a crisis.

Perhaps the Minister and Cabinet are satisfied with the current state of affairs and are content to simply permit Lieutenant-Colonel d’Auteuil to lead the Office of the Chief Military Judge as the DCMJ and, presumptively Acting Chief Military Judge.  On 3 April 2020, an order was issued by the Acting Chief Military Judge (ACMJ) suspending the convening of courts martial from 6 April to 10 May 2020.  Although this announcement on the Chief Military Judge’s website does not include his name, presumably this was ordered by Lieutenant-Colonel d’Auteuil as the Acting Chief Military Judge (which can be distinguished from his position as Deputy Chief Military Judge).  In light of the absence of any public notice that Lieutenant-Colonel d’Auteuil was appointed Acting Chief Military Judge, he is presumably acting under the authority granted by section 165.29 of the National Defence Act (NDA).

Lieutenant-Colonel d’Auteuil’s order of 3 April 2020 continued the previous order of 16 March 2020, issued by the Chief Military Judge, suspending the convening of courts martial from 16 March 2020 to 5 April 2020.  As with the subsequent order, the specific author of the earlier order, posted on the Chief Military Judge’s website, was not named.  Based upon the file number, it appears to have been authored by the Chief Military Judge.  As we know from the judgment of Martineau J in Canada (Director of Military Prosecutions) v. Canada (Office of the Chief Military Judge), 2020 FC 330 (para 45), the embattled Chief Military Judge, Colonel Dutil, was due to retire on 20 March 2020, when he turned 60 years of age.  The compulsory retirement age for all Regular Force personnel, and personnel of the Primary Reserve Sub-Component of the Reserve Force, is 60 years of age.  Presumably, the order of 16 March 2020 was one of Colonel Dutil’s last duties or functions as Chief Military Judge.

Lieutenant-Colonel d’Auteuil was appointed, by Order in Council pursuant to section 165.28 of the NDA, Deputy Chief Military Judge on 14 June 2018.  Readers may recall, from Lieutenant-Colonel d’Auteil’s judgment in R c Colonel Dutil, 2019 CM 3003 that, the following day, pursuant to section 165.26 of the NDA, Colonel Dutil delegated to Lieutenant-Colonel d’Auteuil various functions of the Chief Military Judge, including the power to designate military judges to preside over courts martial and all other judicial hearings, as well as the general direction of the Court Martial Administrator.  Frankly, the delegation on 15 June 2018 was unnecessary since Lieutenant-Colonel d’Auteuil had, the previous day, been appointed Deputy Chief Military Judge.  Objectively, by virtue of the charges against him, Colonel Dutil could have been construed to have been unable to act as Chief Military Judge, which would have triggered section 165.29 of the NDA.

I note too that Colonel Dutil eventually revoked that delegation.  However, that gesture had little or no practical impact in light of Lieutenant-Colonel d’Auteil’s appointment as Deputy Chief Military Judge.

But what was truly remarkable about those circumstances was that Colonel Dutil had been charged on 25 January 2018.  While he had voluntarily recused himself from presiding at courts martial, that was his own decision.  Presumably, this was motivated by the conclusion that, to have presided over courts martial while he was accused of one or more Code of Service Discipline offences would have jeopardized any decision or judgment in those courts martial.

But we must remember that, for nearly 5 months, while the Chief Military Judge was an ‘accused’ under the Code of Service Discipline, there was no Acting Chief Military Judge, nor was there a Deputy Chief Military Judge.  In other words, there was, arguably, an inattentiveness at the Ministerial/Cabinet level regarding the stability of the military bench.

So, here we are, in what could be described as ‘Week 4’ of the COVID-19 ‘lockdown’.  Canadian Courts at various levels and various locations have had to adapt to restrictions imposed by various chief justices.  For example, in Ontario, courts of criminal jurisdiction have postponed all but urgent matters until June (at the earliest).  With respect to criminal matters, the Ontario Court of Justice has limited itself to regularly scheduled bail courts, remand and plea courts for in-custody proceedings; plea court for urgent out-of-custody matters; and select other matters.  In particular, proceedings – such as bail hearing – are conducted remotely, via teleconference.  I am also aware that, in my own local jurisdiction, the limited number of lines available for such conference calls has proven to be an obstacle to timely administration of justice.  Chief Justices of various courts have had to make difficult decisions about the administration of justice during a health crisis that can threaten not only the health of the participants in those systems, but the ‘health’ of the systems of justice themselves.

Similarly, for the so-called ‘military justice system’, while courts martial are not being convened, “… other judicial hearing[s] may be held in accordance with the military judge’s discretion …”.  These would likely include custody review hearings pursuant to section 159 of the NDA, or similarly urgent matters.

Yet, while courts such as the Ontario Court of Justice, Superior Court of Ontario, Federal Court, and Federal Court of Appeal all have Chief Justices who have been appointed to those positions to make such those difficult decisions concerning the conduct of business by those courts, the Canadian Forces’ military bench will apparently ‘make do’ with a Deputy Chief Military Judge who is the de jure Acting Chief Military Judge.  And I do not make this statement as a slight against the Deputy Chief Military Judge.  Lieutenant-Colonel d’Auteuil has, in effect, been performing this role for most of the past two years.  I simply wish to point out that: (i) there is, at present, no Chief Military Judge; (ii) the date of Colonel Dutil’s mandatory retirement was not unknown to key decision-makers; and, (iii) decisions such as how courts will be conducted during the COVID-19 crisis cannot be made by the executive branch of government, and require decisions by the appropriate Chief Judge or Justice (based, presumably, on information made available to them by appropriate experts).

In effect, the Minister and Governor in Council missed the ‘soft’ threshold, 3 weeks ago, to appoint Colonel Dutil’s successor.  While it is safe to assume that other matters were foremost in their collective consciousness on or about 20 March 2020, it is worth pointing out that succession planning is not instantaneous.  Surely, someone involved in that process was contemplating the succession of the Chief Military Judge prior to 20 March 2020.  Even if it was not the Minister himself, surely someone on his staff or another key advisor or advisors considered the need to identify a successor at some point several weeks ago, prior to the COVID-19 crisis taking centre stage.  After all, appointments to civilian courts appear to have continued, notwithstanding the COVID-19 crisis.

So, at present, the Office of the Chief Military Judge is presided over by the Deputy Chief Military Judge as Acting Chief Military Judge.  Eventually, the Governor in Council, upon recommendation by the Minister, will appoint a new Chief Military Judge.

I would not presume to suggest who it ‘should‘ be.  However, I will offer the following observations:

1. One possibility would be the current Deputy Chief Military Judge, Lieutenant-Colonel d’Auteuil. He is the de jure Acting Chief Military Judge and has been performing these duties and functions for the better part of the past 2 years.  Also, of the four remaining military judges, he has the longest tenure as a military judge.
2. However, I also note that this is the first time in the history of the Canadian Forces that the ‘military bench’ has reached ‘gender parity’. On the presumption that any of the current incumbent military judges is capable of performing the role of Chief Military Judge, there is an opportunity for the Minister to recommend either Commander Sukstorf or Commander Deschênes to be the next Chief Military Judge.  With [soon to be] Rear-Admiral Bernatchez as Canada’s first female JAG, this government has the opportunity to appoint Canada’s second female Chief Military Judge.  (And, I note in passing, that the current Honorary Colonel of the Legal Branch is Canada’s first female Chief Justice, Beverly McLachlin). [*Edit: The original version of this Blog article incorrectly stated that, if appointed, Commander Sukstorf or Commander Deschênes would be the first female military judge.  That was both incorrect, and something I knew and ought to have realized was incorrect.  Canada’s first female Chief Military Judge was Colonel Kim Carter, Colonel Dutil’s predecessor.]

However, regardless of who is appointed, I suggest that the Governor in Council should not drag its heels too much longer in appointing a new Chief Military Judge.  Every week of delay in making that decision increases the likelihood of perception that the military bench is not important enough to warrant such consideration.

Symbolism is important, particularly in the armed forces.  In two recent decisions (R v Master Corporal Pett, 2020 CM 4002 and R v Corporal D’Amico, 2020 CM 2002), military judges Commander Pelletier and Commander Sukstorf, respectively, pushed back against executive control or influence over the military judiciary.  Combined with the problematic botched prosecution of the (now former) Chief Military Judge, reinvigorating government confidence both in the Code of Service Discipline and the military bench is vital to maintaining (or, frankly, recapturing) the confidence that the chain of command and the rank-and-file members of the Canadian Forces have in the Code of Service Discipline.  In R v Stillman, 2019 SCC 40, the Supreme Court of Canada purportedly reiterated its faith in the maintenance of a separate system of ‘military justice’ (I would be tempted to characterize the majority judgment as maintaining a ‘separate but equal’ system of justice, replete with what such nomenclature implies).

It’s time for the Governor in Council to demonstrate that the military bench is as important to the maintenance of justice as any other court.  It’s time to appoint a new Chief Military Judge.

Please follow and like us: