Canada (Director of Military Prosecutions) v. Canada (Office of the Chief Military Judge)

Canada (Director of Military Prosecutions) v. Canada (Office of the Chief Military Judge)
Court (s) Database
Federal Court Decisions
Date
2020-03-03
Neutral citation
2020 FC 330
File numbers
T-1151-19
Notes
A correction was made on March 10, 2020. A correction was made on February 26, 2021.
Decision Content
Date: 20200303
Docket: T-1151-19
Citation: 2020 FC 330
[ENGLISH TRANSLATION]
Ottawa, Ontario, March 3, 2020
PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
THE DIRECTOR OF MILITARY PROSECUTIONS
Applicant
and
DEPUTY CHIEF MILITARY JUDGE
(in his capacity as deputy judge of duties and functions set out in section 165.25 of the National Defence Act, RSC 1985, c N-5)
and
COLONEL MARIO DUTIL
Respondents
JUDGMENT AND REASONS
I. Introduction
[1] This is an unprecedented situation that has been plaguing the military justice system for some time in the Canadian Forces [Forces]. The case has caused quite a stir as the accused is in no way quidam: Colonel Mario Dutil, Chief Military Judge, was cited for a Standing Court Martial [the Court Martial]. He must defend himself against fraud and false statement charges in an official document, as well as behaviour prejudicial to good order or discipline because he allegedly had a personal relationship with a non‑commissioned officer, in this case, a court reporter who was apparently under his command [the charges].
[2] The charges were common knowledge and made headlines. The same day they were laid, on January 25, 2018, Commodore Geneviève Bernatchez [Judge Advocate General] issued a public release reaffirming the equality of each and every one before the law. However, Colonel Dutil’s trial was adjourned on June 17, 2019, following Lieutenant‑Colonel Louis‑Vincent d’Auteuil’s recusal [Deputy Chief Military Judge] (R v Dutil, 2019 CM 3003 [the recusal decision]). But no military judge was appointed by the Deputy Chief Military Judge for the reasons set out in the June 17, 2019, letter he filed in the Court Martial file [the non‑assignment decision], giving rise to this application for judicial review.
[3] The legality and reasonableness of the recusal decision are not at issue today. In this case, this applicant, the Director of Military Prosecutions, is seeking a writ of mandamus to force the Deputy Chief Military Judge, in his capacity as designate judge, with the jurisdiction to allocate set out in section 165.25 of the National Defence Act, RSC 1985, c N-5 [NDA], to assign a military judge from among the other eligible military judges to preside at the Court Martial. Alternatively, the applicant is also seeking a writ of certiorari for the purposes of setting aside the non‑assignment decision [the impugned decision].
[4] In this file, the Attorney General of Canada is protecting the applicant’s interests, if not those of the Judge Advocate General and Defence Staff, who were also involved in the decision to lay charges against the Chief Military Judge. Be that as it may, it is highly irregular, and most unusual, that the federal board was unilaterally named as the respondent in the Notice of Application for judicial review, and forced to defend itself, without the applicant having obtained prior leave of this Court (subsections 303(1) and (2) of the Federal Courts Rules, SOR/98‑106; Northwestern Utilities Ltd and al v Edmonton, [1979] 1 SCR 684 at pages 709-710).
[5] At the start of the hearing on October 15, 2019, and after hearing the oral submissions from Counsel, the Court thus added Colonel Dutil as a respondent, which resulted in an adjournment of a few weeks. The case was heard on the merits on November 27, 28 and 29, 2019. On February 3, 2020, during the Court deliberations, the parties brought to its attention the decision handed down on January 10, 2020, in R v Pett, 2020 CM 4002 [Pett], and were able to submit additional representations regarding the relevance and impact of this decision, which is currently subject to an appeal by the accused (Docket CMAC‑603).
[6] This application for judicial review is dismissed for the reasons that follow.
II. Issue
[7] Colonel Dutil is entitled to be tried within a reasonable time in a fair and public hearing by an independent and impartial tribunal (paragraphs 11(b) and (d) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, constituting Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter]).
[8] However, herein lies the problem: is there a military judge who can be assigned today by the Deputy Chief Military Judge to preside at the Court Martial without a reasonable apprehension of bias yet again arising?
[9] Furthermore, the Court Martial is governed by the provisions of the Official Languages Act, RSC 1985, c 31 [OLA]. Given that Colonel Dutil opted for his proceedings to be in French, the decision‑maker should incidentally understand French without the assistance of an interpreter (paragraph 16(1)(b) of the OLA; R v Thibeault, 2014 CM 3022).
[10] Yet, there are indeed three potential candidates from among the current contingent of military judges who are Regular Force officers (section 165.21 of the NDA): commanders Martin Pelletier (appointed military judge on April 10, 2014), Sandra Sukstorf (appointed on February 17, 2017) and Julie Deschênes (appointed on May 23, 2019) [the other eligible military judges]. Yet none were assigned by the Deputy Chief Military Judge, for the reasons set out in the impugned decision of June 17, 2019, which must be read in conjunction with the recusal decision.
III. General legal framework: the distinctiveness of military law
[11] First, so as to allow a better understanding of the issues and respective positions of the parties, it seems necessary to insist on the contextual aspects—legal and factual—that are specific and unique to this case, at the risk of prolonging the current reasons. However, it must be clear that, in addressing the specific problem of the complex questions arising around the impugned decision, this Court is in no way suggesting that it interfere in the role played by the Court Martial as a trier of facts and merits, nor interfere in the applicant exercising discretion regarding charges and military prosecutions.
A. Code of Service Discipline
[12] As the Supreme Court recently noted, the military justice system has gone from a disciplinary model centred around a command that provides poor procedural safeguards for a parallel justice system greatly similar to the penal justice system (R v Stillman, 2019 SCC 40 at paragraph 53 [Stillman]; for a detailed history, see R.A. McDonald, “The Trail of Discipline: The Historical Roots of Canadian Military Law” (1985), 1 Rev JAG 1 at pages 1-28).
[13] In effect, the purpose of the Code of Service Discipline (Part III of the NDA) is to maintain discipline, efficiency and morale of the military (R v Moriarity, 2015 SCC 55, [2015] 3 SCR 485 at paragraph 46 [Moriarity]). Section 130 of the NDA “creates an offence under the Code of Service Discipline” of violations of federal laws, including the Criminal Code, RSC 1985, c C‑46 (Moriarity at paragraph 7).
[14] Nonetheless, the Code of Service Discipline establishes a hybrid system. All officers and service members subject to the Code of Service Discipline are subject, in the case of committing service offences or offences punishable by ordinary law integrated in the Code of Service Discipline (section 130 of the NDA), to various sentences ranging in decreasing severity from imprisonment for life, imprisonment for two years or more, dismissal with disgrace from Her Majesty’s service, imprisonment for less than two years, dismissal from Her Majesty’s service, detention, reduction in rank, forfeiture of seniority, severe reprimand, reprimand, fine and minor punishments—the appropriate authority has the power to impose on the offender less punishment than the maximum punishment set out in the Code of Service Discipline (sections 139 to 146 of the NDA).
[15] The NDA is silent about the application or non‑application of the Code of Service Discipline to a military judge—including the Chief Military Judge and the Deputy Chief Military Judge. Nevertheless, at the time of their appointment, the persons appointed for this purpose must be officers (in addition to being members of a provincial bar), and serving legal officers while performing their judicial duties. It was thus recently decided that military judges are subject to the Code of Service Discipline similar to any officer or non-commissioned member described in subsection 60(1) of the NDA (Pett at paragraphs 14-15). Moreover, under section 165.231 of the NDA, a military judge has the same immunity from liability as a judge of a superior court of criminal jurisdiction. However, a military judge is not immune from liability under the Code of Service Discipline in relation to what he or she says and does outside the performance of their judicial duties (Pett at paragraphs 71-72).
[16] At first glance, there is nothing stopping Colonel Dutil from being charged, dealt with and tried before the Court Martial in respect of any service offence he may have allegedly committed while performing his duties as a military judge or Chief Military Judge, even after ceasing to be a Regular Force officer after the offence was committed (subsection 60(2) of the NDA; Pett at paragraph 21).
[17] Since the prosecution abandoned certain charges at the beginning of the trial, Colonel Dutil must now face charges of fraud and false statement in an official document as well as conduct to the prejudice of good order and discipline. The fraud charges are, in particular, connected to the Criminal Code and section 130 of the NDA, and therefore, not exclusive to the military justice system. Conversely, the charge of Conduct to the Prejudice of Good Order and Discipline (section 129 of the NDA) is unique to the Code of Service Discipline and relates to an offence of a specific order, directive DAOD 5019‑1, because Colonel Dutil allegedly had a personal relationship with a non‑commissioned officer, in this case a court reporter who was apparently under his command.
[18] In this case, if Colonel Dutil was found guilty by the Court Martial, as a maximum sentence, he risks imprisonment, not counting his dismissal with disgrace from her Majesty’s service. Therefore, in a context in which the Court Martial deals with an issue that is disciplinary in nature on having serious consequences with respect to the freedom and career of the accused in the Forces, and that the presumption of innocence plays a central role in the issue to be decided, namely, whether or not Colonel Dutil is guilty, the issue of impartiality of the military judge assigned to preside at Colonel Dutil’s Court Martial must naturally be treated with the same rigour as a judge of a superior court of criminal jurisdiction (recusal decision at paragraph 58; R v Leblanc, 2011 CMAC 2).
B. Directive DAOD 5019‑1
[19] In the civilian world, there is nothing that prevents two work colleagues—consenting adults—from entering into a romantic relationship and pursuing it outside the workplace. They do not require anyone’s permission. Such a relationship is not at all criminal in and of itself. However, in the army, there are certain nuances because a personal relationship—defined as an emotional, romantic, sexual or family relationship—must not have an adverse effect on “the security, cohesion, discipline or morale of the unit” [emphasis added].
[20] A symbolic value of the entire army, unit cohesion (“esprit de corps”) embodies this unique fraternity—transcending hierarchical levels—which ensures that members accomplish their mission, especially in combat or high‑stress situations. The issue of consent has nothing to do with it: even consensual, a romantic relationship can have an adverse effect on unit cohesion. (See Chapter 5019‑1 of the Defence Administrative Orders and Directives (DAOD) – Personal Relationships and Fraternization [directive DAOD 5019‑1]; see also Marie Deschamps, External Review into Sexual Misconduct and Sexual Harassment in the Canadian Armed Forces, March 27th 2015 at pages 41-42).
[21] It follows that CAF members must notify their chain of command of any personal relationship that could compromise the objectives of directive DAOD 5019‑1. On an administrative level, CAF members who are known to be, or have declared themselves to be involved, in a personal relationship must normally not be posted to the same unit. A CAF member in a personal relationship with another CAF member, shall not be involved, regardless of rank or authority, in the other person’s performance assessment, postings, duties or scheduling for duties. Administrative action must also be taken to separate CAF members who are involved in such a relationship (directive DAOD 5019‑1).
[22] Note that the main purpose of subsection 129(2) of the NDA is to give effect to regulations made by civilian authorities concerning “the organization, training, discipline, efficiency, administration and good government of the Canadian Forces” (section 12 of the NDA), and to enforce all orders and instructions issued by the Chief of Defence Staff that are required to give effect to the decisions and to carry out the directions of the Government of Canada or the Minister of National Defence [Minister], as mentioned in subsection 18(2) of the NDA (R v Master‑Corporal GC Steeves and ex‑Private KM Temple, 2007 CM 3021 at paragraph 12). Consequently, any member who does not comply with directive DAOD 5019‑1 may be charged with an offence and contraventions prejudicial to good order and discipline (subsection 129(2)(b) of the NDA).
[23] In this case, the Office of the Chief Military Judge is indeed a “unit” of the Forces as determined by the Chief of the Defence Staff (section 17 of the NDA; sections 2.07 and 4.091 of The Queen’s Regulations and Orders for the Canadian Forces (QR&O) [QR&O]. Directive DAOD 5019‑1 therefore applies to this unit. However, under chapter 4 of the QR&O, an officer shall report to the proper authority any infringement of the pertinent statutes, regulations, rules and instructions governing the conduct of any person subject to the Code of Service Discipline when the officer cannot deal adequately with the matter (section 4.02). We will see later on that this is what happened in this case in summer 2015, following intervention by the former legal adviser of the Office of the Chief Military Judge.
C. Court martial prosecution and convening
[24] Following investigation by military police, charges can be brought against a person subject to the Code of Service Discipline under the NDA in a Record of Disciplinary Proceedings [RDP]. The RDP is the military law equivalent of an information in the criminal law context (see R v Edmunds, 2018 CMAC 2 at paragraph 2). Moreover, note that a legal opinion from a legal officer (and therefore falling under the Judge Advocate General) is required prior to laying a charge against a military judge (subsection 164(1.3) of the NDA; section 107.03 of the QR&O; Pett at paragraph 31).
[25] Non‑compliance with an order or directive falls under the discretion of the commanding officer and immediate supervisors, as this is, first and foremost, a disciplinary matter. However, after the charges are laid in the RDP, they are referred to an officer who is a commanding officer in respect of the accused person (section 161.1 of the NDA). The commanding officer then decides whether it is worth pursuing the charges, which can be dealt with summarily by a senior commander or, if applicable, referred to the Director of Military Prosecutions. In many cases, the CAF member accused of Conduct to the Prejudice of Good Order and Discipline will be swiftly tried and punished by their commanding officer, i.e., a senior commander. However, the situation is not as simple in cases involving personnel from the Office of the Chief Military Judge, for the following reasons.
[26] The Chief Military Judge holds a rank that is not less than colonel (subsection 165.24(2) of the NDA). However, although the Chief Military Judge has the powers and jurisdiction of an officer commanding a command with respect to the Office of the Chief Military Judge, the Chief Military Judge shall not exercise the powers or jurisdiction of a commanding officer or an officer commanding a command in respect of any disciplinary matter or a grievance (section 4.091 of the QR&O). The Chief Military Judge can therefore not discipline an officer or non‑commissioned member (which includes a non‑commissioned officer) in their unit who has committed an offence under the Code of Service Discipline. The disciplinary powers in question are instead vested to the officer who is appointed from time to time to the position of commanding officer at the Forces Base (Ottawa, Gatineau), with respect to any disciplinary matter regarding an officer, except for a military judge, or a non‑commissioned member employed by the Office of the Chief Military Judge (paragraph 1c) of the order dated October 2, 2019 from General J.H. Vance, Chief of the Defence Staff [order dated October 2, 2019]). In the event that a non‑commissioned member of the Office of the Chief Military Judge has a prejudicial personal relationship, immediate action must be taken by the commanding officer against the two individuals in question. However, what happens when a military judge is involved?
[27] First, subsection 164(1.3) of the NDA expressly states that a superior commander may not try a military judge by summary trial, such that it is up to the Chief of the Defence Staff himself or herself, or even the officer commanding a command set out in subsection 18(1) of the NDA [the referral authority] to defer the charges to the Director of Military Prosecutions (section 164.2 of the NDA). The referral authority makes recommendations that he or she considers appropriate (subsection 164.2(1) of the NDA). Under the order dated October 2, 2019, the Deputy Vice Chief of the Defence Staff and the Vice Chief of the Defence Staff can respectively exercise the powers and qualifications of a commanding officer and a senior commander in respect of any disciplinary case against a military judge employed by the Office of the Chief Military Judge.
[28] Second, when charges are referred by the referral authority to the Director of Military Prosecutions, they are responsible for determining whether or not the charges must be brought before a court martial (Pett at paragraph 25). In this case, the latter cannot try a person without a formal charge. A charge is preferred when the charge sheet in respect of the charge is signed by the Director of Military Prosecutions, or an officer authorized by the Director of Military Prosecutions to do so, and filed with the Court Martial Administrator (section 165 of the NDA).
[29] Third, two types of courts martial exist: the General Court Martial and the Standing Court Martial. Both may try any person who is liable to be charged, dealt with and tried on a charge of having committed a service offence (sections 166 and 173 of the NDA). However, courts martial are unique in that they are formed and dissolved for each case. Therefore, there is no court martial provided that the Court Martial Administrator has not convened a General Court Martial or a Standing Court Martial (sections 165.19 and 165.192 of the NDA; Pett at paragraphs 33-35). That said, the administrator performs their duties under the direction of the Chief Military Judge or the military judge to whom they delegated their powers (subsection 165.191(3) and section 165.27 of the NDA).
[30] Fourth, the Court Martial Administrator appoints the members of a General Court Martial (subsection 165.191(1) of the NDA). That said, the Chief Military Judge or their delegate (other than a military judge from the reserve force) assigns a military judge to preside at courts martial (general or standing) and entrusts them to perform the other judicial duties under the Act (sections 165.25 and 165.26 of the NDA). In addition, it goes without saying that the Chief Military Judge or their delegate must step back from any external interference regarding questions directly concerning the judicial duties of courts martial, including assigning military judges.
[31] Fifth, legal officers from the Office of the Judge Advocate General and Office of the Director of Military Prosecutions are called upon daily to process files that can result in a court martial and to represent the prosecution, where applicable. However, under the terms of DMP Policy Directive Nos 016/17, when there is a risk of a conflict of interest, either apparent or real, in terms of prosecution that could undermine public trust in the administration of military justice, a special prosecutor must be appointed. Nevertheless, appointing a special prosecutor does nothing to change the legislated situation, such that only the Director of Military Prosecutions is granted the authority to decide who is brought before a court martial and on what charges (Pett at paragraph 27).
[32] Lastly, it is necessary to make an aside on the role of Judge Advocate General that Judge Pelletier described in Pett as “all encompassing” (Pett at paragraph 29). Under subsection 9.1(2) of the NDA, the Judge Advocate General—who holds a rank that is not less than brigadier‑general (section 9.4 of the NDA)—has the superintendence of the administration of military justice in the Canadian Forces. For all practical purposes, the Judge Advocate General acts as legal adviser to the Governor General, the Minister, the Department and the Canadian Forces in matters relating to military law, even though it is understood that this is not in derogation of the authority of the Minister of Justice and Attorney General of Canada (sections 9.1 and 10.1 of the NDA). That said, the Director of Military Prosecutions acts under the general supervision of the Judge Advocate General (subsection 165.17(1) of the NDA).
D. Independence of the Office of the Chief Military Judge
[33] It is also important that military tribunals be as free as possible from the interference of the members of the military hierarchy, that is, the persons who are responsible for maintaining the discipline, efficiency and morale of the Armed Forces (R v Généreux, [1992] 1 SCR 259 at paragraphs 83, 98 [Généreux]). The issue of independence of courts martial and military judges is a complex issue which has generated much debate since 1992, and which still exists in 2020: public trust, and especially that of military personnel, toward the military justice system rests on, among other things, the independence of the Office of the Chief Military Judge.
[34] Prior to Généreux, the Judge Advocate General had full authority to assign the judge advocate who would preside at a court martial from among their personnel, all the while knowing that the individual would return to their duties under their direction once the trial was completed. In spite of the concerns regarding judicial independence raised in Généreux, it was not until 2011 that military judges “held office during good behaviour” until the age of retirement (from 1998 to 2011, military judges held office “during good behaviour” for a five‑year term, renewable on the recommendation of an Inquiry Committee established under regulations made by the Governor in Council) (section 2 of the Security of Tenure of Military Judges Act, SC 2011, c 22). In practice, unless they are “removed” in accordance with the procedure set out in the Act, military judges hold office until the age of 60 years, unless they resign in the interim (subsections 165.21(3), (4) and (5) of the NDA).
[35] Since the 2013 reform (Strengthening Military Justice in the Defence of Canada Act, SC 2013, c 24), there are now two types of military judge: 1) a military judge who is an officer in the Regular Force (subsection 165.21(1) of the NDA); and 2) a military judge who is an officer in the Reserve Force (subsection 165.22(1) of the NDA). However, in the latter case, there are currently no names on the Reserve Force Military Judges Panel.
[36] As with civilian judges, the conduct of military judges may be subject to a complaint before an independent executive judicial body and the Chief of the Defence Staff. In particular, “having been guilty of misconduct” “manquement à l’honneur et à la dignité”, “having being placed […] in a position incompatible with the due execution of his or her judicial duties” “un manquement aux devoirs de la charge du juge militaire, ou encore une situation d’incompatibilité”, may constitute separate grounds rendering the military judge—including the Chief Military Judge—incapacitated or disabled from the due execution of his or her duties (subparagraphs 165.32(7)(a)(ii), (iii) and (iv) of the NDA).
[37] Although the passing of an act is not necessary to remove a military judge, as is the case for a federal or provincial civilian judge, the Military Judges Inquiry Committee may recommend to the Governor in Council that the military judge be removed (subsection 165.32(7) of the NDA), or to remove the name of a reserve force military judge from the panel (subsection 165.221(1) of the NDA). In such cases, the inquiry committee is comprised of three judges of the Court Martial Appeal Court (CMAC), including one chair, appointed by his or her Chief Justice (subsection 165.31(1)). The Inquiry Committee investigates in the following cases: 1) if the Minister of Defence [Minister] so asks (subsection 165.32(1) of the NDA); or 2) if he decides to commence an inquiry following a complaint or charge from a person other than the Minister (subsection 165.32(2) of the NDA). In the second case, the chair of the inquiry committee may designate one of the members to examine the complaint or charge, and to recommend whether the Committee commences the inquiry.
[38] As can be seen above, the existence of an independent inquiry system of the conduct of military judges is such that it strengthens the institutional independence of the Office of the Chief Military Judge. That was also the main reason invoked in January 2020 by the court martial in Pett, for refusing to order a stay of the proceedings of a non‑commissioned member who contested the impartiality and independence of the military judges on the grounds that they, themselves, could be cited for a court martial (Pett at paragraphs 89-102 and 145-149).
[39] In this case, the accused filed a notice of appeal against that decision on February 12, 2020. Yet why must we therefore refer to Pett?
[40] The reason is that, in the decision handed down by Judge Pelletier in Pett, based on the powers vested in the Court Martial under section 179 of the NDA, it was also determined that the order dated October 2, 2019, by General J.H. Vance, Chief of the Defence Staff, that allows the Deputy Vice Chief of the Defence Staff and the Vice Chief of the Defence Staff to respectively exercise the powers and qualifications of a commanding officer and a senior commander, is inoperative in respect of any disciplinary case against a military judge employed by the Office of the Chief Military Judge. It should be noted, in passing, that the October 2, 2019, order is an update to the order issued on January 19, 2018, a few days before the charges laid against Colonel Dutil were referred to the Director of Military Prosecutions. In that case, Judge Pelletier found that the orders in question violate the judicial independence of military judges and raise reasonable apprehension of bias of the fact that, while they were on exercise, they could be brought before a court martial following charges authorized by a member of the military hierarchy, even if the NDA outlines an independent mechanism for complaints and removal of military judges through an inquiry committee comprised of three CMAC judges (Pett at paragraphs 43, 47, 48, 59, 60-62, 100, 102, 110, 116, 128, 131-133, 144 and 145-149).
[41] A few weeks after the decision of Judge Pelletier, Judge Sukstorf had to decide the same question in the case R v D’Amico, 2020 CM 2002 [D’Amico]. While raising certain issues regarding the applicability of the Criminal Code to military judges when they are outside Canada, Judge Sukstorf essentially concludes, like Judge Pelletier, that the order of October 2, 2019 infringes protected rights of an accused under paragraph 11(d) of the Charter and encroaches on the jurisdiction of the Inquiry Committee (D’Amico at paras 40, 41, 53, 56-64, 78-80). In doing so, Judge Sukstorf, by virtue of the powers conferred on a Court Martial in section 179 of the NDA, declares of no force or effect the order of October 2, 2019, while refusing to order a stay of the proceedings because there is an independent investigative mechanism for military judges.
[42] An independent monitoring regime indeed exists for the conduct of military judges. It remains to be determined whether a broad scope should be given to the violations mentioned in subsection 165.32(7) of the NDA, and whether, where applicable, they should include behaviour in violation of the Code of Service Discipline, which Judge Pelletier seems to suggest. At first glance, and without expressing a final opinion on the topic, to the extent that the inquiry committee can actually investigate the non‑compliance by a military judge of a standard governing their conduct as a Forces officer, this avenue needs to be explored and seems to comply with the judicial independence of the Office of the Chief Military Judge. The fact remains that a minor offence that would justify a commanding officer disciplining a non‑commissioned member or officer is certainly not serious enough in and of itself to justify a recommendation to remove a military judge. As we can see, Pett and D’Amico considerably complicates the flow of proceedings in this file and appears, at first glance, to be an obstacle to continuing Colonel Dutil’s trial before the Court Martial, as long as the issue of the legality of the orders dated January 19, 2018, and October 2, 2019, are not resolved in final form by the Court Martial Appeal Court or another court of jurisdiction.
IV. Factual background: chronology and proceedings
[43] What is also exceptional in this case is the amount of extrinsic evidence—known as contextual evidence (Association of Universities and Colleges of Canada v Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22 at paragraph 20)—entered in the record before this Court by the parties. The recusal decision, including the voir dire before the Court Martial, all the proceedings preliminary to the preferring of charges against respondent Dutil—including the Record of Disciplinary Proceedings and the letter of application for referral to a court martial—, the recordings, and all the records of the coordination conferences and pre-trial conferences (where the reasons for recusal and the charges in issue are discussed in great detail by counsel and the presiding judge) are part of the record of the Federal Court.
A. History
[44] Since he was called to the Quebec Bar in 1983, respondent Dutil already has a long and impressive track record in the Forces. In 1984, he started out as a legal officer in the Office of the Judge Advocate General. He was then successively employed as a deputy judge advocate, at the director level within the Office of the Judge Advocate General and the Office of the Department of National Defence/Canadian Forces Legal Advisor, and a senior counsel, before being appointed a military judge on January 10, 2001, and Chief Military Judge on June 2, 2006.
[45] The offences alleged against Colonel Dutil took place in 2014 and 2015. But another three years passed before the Chief Military Judge was charged, in January 2018, with violating the Code of Service Discipline. Even though Colonel Dutil chose, in the meantime, to remain in office and not to resign, these charges had the practical effect of preventing him, until now, from acting as Chief Military Judge, from presiding at a court martial, and from performing other judicial duties (all these duties were, in the interim, delegated to the Deputy Chief Military Judge). The fact remains that, by operation of law, Colonel Dutil will automatically cease to hold office as a military judge on March 20, 2020, the date of his sixtieth birthday (subsection 165.21(4) of the NDA). No extension of military service beyond that age was requested or granted by the Chief of Defence Staff. Colonel Dutil will be released from the Forces according to the normal procedure on the date of his birthday in accordance with subsection 5(a), service completed - retirement age, from the table in section 15.01 of the QR&O.
[46] However, this retirement will not nullify the present charges in the Court Martial. There is nothing to limit the sentence that may be imposed under subsection 139(1) of the NDA in respect of a retired member of the Forces who was subject to the Code of Service Discipline at the time of the commission of the offense. If the dismissal with disgrace sentence from Her Majesty’s service were to be imposed, the reason for release from paragraph 5(a), service completed - retirement age, from the table in section 15.01 of the QR&O would be amended for paragraph 1(a), misconduct - sentenced to dismissal, from the table of the same article. Not only is a dismissal with disgrace an indelible stain in the file of the accused convicted of an offense leading to imprisonment (section 140.1 of the NDA), but it goes without saying that it will irreparably jeopardize his future chances of employment in the army or elsewhere, not to mention the fact that he will no longer be able to use the rank title with the mention “retired”. Similarly, reduction in rank could affect the accused’s retirement pension (section 140.2 of the NDA). As we can see, even if Colonel Dutil will leave the Forces on March 20 to retire, the present case is not moot.
[47] According to the summary of facts in the recusal decision, Warrant Officer Annie Dorval (A.D. on the preferred charge sheet) joined the Office of the Chief Military Judge in the fall of 2013. She became a certified court reporter in March 2014. As explained by Colonel Dutil at the voir dire, in December 2014, he informed the Court Martial Administrator, Simone Morrissey, of his relationship with Warrant Officer Dorval (voir dire transcript at page 74). In addition, he informed Judge d’Auteuil of the relationship in January 2015. That month, Warrant Officer Dorval went on sick leave and she was absent from the Office of the Chief Military Judge on an ongoing basis until her transfer to the Joint Personnel Support Unit, which at the time was meant to help members of the military make the career transition to civilian life and the civilian workforce. She was released from the Forces in February 2016 (paragraph 9 of the recusal decision).
[48] For his part, before becoming a military judge, Judge Deschênes was a legal adviser at the Office of the Chief Military Judge from July 2012 to July 2015, so at the time of the Chief Military Judge’s alleged personal relationship with Warrant Officer Dorval. During that period, Judge Deschênes was called upon, on a daily basis, to advise the Court Martial Administrator, Ms. Morrissey, on all legal matters. She also personally witnessed the events related to the charges (paragraph 37 of the recusal decision; pages 118-120 of the voir dire transcripts).
[49] What is more, in November 2019, at the hearing of this application for judicial review, counsel for respondent Dutil informed this Court that Judge Deschênes communicated directly with the military police regarding the case before the Court martial. This communication took place on June 21, 2019, a month after she became a military judge. The disclosure document in question (document 60# 2105 23542) was entered by consent but with the following caveat from counsel for the applicant: it cannot be used to determine the reasonableness of the impugned decision. Nonetheless, in our view, this evidence is relevant to understanding the course of events, and it should be considered also with respect to the remedies and the exercise of the Court’s discretion.
[50] As reported in the narrative and the emails that the prosecution communicated to the defence on June 26, 2019, Judge Deschênes communicated directly with the military police to provide details about the specific facts reported by the Deputy Chief Military Judge at paragraph 37 of the recusal decision. Even though her involvement was apparently very limited, Judge Deschênes felt the need to disclose to the military police an email dated May 20, 2015, that she had addressed to herself when she was at the Office of the Chief Military Judge. In this email, she states that on May 9, 2015, she saw the Chief Military Judge with Warrant Officer Dorval in a pub in Chelsea, thus confirming the rumours already circulating at the Office of the Chief Military Judge about their personal relationship. The Chief Military Judge stared at her and reportedly gave her a [translation] “dark” look that “shocked” her a lot.
[51] In fact, on May 12 or 13, 2015, Judge Deschênes reported the incident in question to the Court Martial Administrator. The latter supposedly reassured her by informing her that administrative action had already been taken to transfer Warrant Officer Dorval to Bagotville, which would create separation. In addition, Judge Deschênes mentions having also approached Judge Pelletier, on May 15, 2015, to discuss the situation. He apparently told her that there was insufficient evidence to establish wrongdoing.
[52] Lastly, Judge Deschênes mentions having herself also sought independent legal advice from a legal adviser she trusted. The latter apparently confirmed that there was insufficient evidence to conclude that an “offence” had been committed. Under the circumstances, Judge Deschênes felt that she had absolved herself of any obligation she may have as an officer under Chapter 4 of the QR&O (Volume I – Duties and Responsibilities of Officers). In July 2015, Judge Deschênes was posted to the Directorate of Law/Military Personnel.
B. Ethics complaint against the Chief Military Judge
[53] It is an important aspect in the current file: at the outset, the Office of the Judge Advocate General favoured formulating an ethics complaint formally before the Inquiry Committee, rather than initiating charges in court martial proceedings. During the voir dire, the Court Martial Administrator testified before the Court Martial that she had been approached by Colonel Bruce J. Wakeham, Chief of Staff of the Judge Advocate General, in September 2015. He wished to obtain her collaboration, because he planned to make a complaint to the Inquiry Committee. She refused, it seems, because it was not her role in the circumstances (paragraph 10 of the recusal decision).
[54] On October 9, 2015, Colonel Wakeham filed a complaint with the Inquiry Committee [the ethics complaint]. As Colonel Dutil confirmed during the voir dire of June 2019, the charges made against him today have the same factual basis as the ethics complaint with respect to the personal relationship he allegedly had in 2014 and 2015 with Warrant Officer Dorval (page 68 of the voir dire transcripts).
[55] The ethics complaint was not filed at the Court Martial, but the Deputy Chief Military Judge mentioned it in the recusal decision (paragraphs 10-13, 18 and 37 of the recusal decision). Indeed, during the voir dire of June 2019, Colonel Dutil identified Warrant Officer Dorval, retired Petty Officer 1st Class Smith and another person whom he identified, following the proceedings of the Special Prosecutor, as Judge Deschênes, as being the persons involved in the ethics complaint (voir dire transcr