2020 FC 330, 2020 FC 330

T-1151-19 2020 FC 330 The Director of Military Prosecutions ( applicant ) v. 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 , R.S.C., 1985, c. N-5 ) and Colonel Mario Dutil ( respondents ) Indexed as: Canada (Director of Military Prosecutions) v. Canada (Office of the Chief Military Judge) Federal Court, Justice Martineau—Ottawa, October 15, November 27–29, 2019, and March 3, 2020.

Armed Forces –– Judicial review of decision adjourning trial of respondent Colonel Dutil (respondent), Chief Military Judge, following Deputy Chief Military Judge ’s recusal without military judge being appointed by Deputy Chief Military Judge –– Applicant seeking writ of mandamus forcing Deputy Chief Military Judge, with jurisdiction to allocate set out in National Defence Act ( NDA ), s. 165.25 to assign military judge from among other eligible military judges to preside at Court Martial –– Alternatively, applicant seeking writ of certiorari for purposes of setting aside non-assignment decision –– Respondent cited for Standing Court Martial (Court Martial) –– Having to defend himself against fraud, false statement charges in official document, as well as behaviour prejudicial to good order or discipline because allegedly had personal relationship with non-commissioned officer, a court reporter who was apparently under his command –– While respondent entitled to be tried within reasonable time in fair, public hearing by independent, impartial tribunal under Canadian Charter of Rights and Freedoms ( Charter ), ss. 11(b) ,(d), issue arising as to whether there was a military judge who could be assigned by Deputy Chief Military Judge to preside at Court Martial without reasonable apprehension of bias arising –– In addition, respondent had opted for proceedings to be in French –– Three potential candidates from current contingent of military judges –– Applicant adopting clear, frank, unequivocal position allowing federal board, commission or other tribunal no discretion whatsoever: Deputy Chief Military Judge had legal obligation, under NDA, s. 165.25 , to appoint replacement from other military judges, regardless of whether there were recusal reasons or insufficient language skills for each of them –– Respondents challenging application for judicial review, submitting that impugned decision not reviewable, that Federal Court having no jurisdiction pursuant to Federal Courts Act , s. 18.5 –– Main issues: whether Federal Court having jurisdiction under Federal Courts Act , s. 18.5 ; whether impugned decision reviewable; what was correct

interpretation of NDA, s. 165.25 ; whether impugned decision reasonable; whether Court having to exercise its judicial discretion with respect to issuance of writ of mandamus, remedial action –– Under Federal Courts Act, ss. 18, 18.1, Federal Court having exclusive original jurisdiction to issue, among other things, certiorari, mandamus orders against any federal board, commission or other tribunal, which applicant seeking in present case –– Although military judge having same immunity from liability as judge of superior court of criminal jurisdiction ( NDA, s. 165.231 ), not persons appointed under Constitution Act, 1867, s. 96 –– Since decision to assign military judge to preside at court martial constituting presumed exercise of jurisdiction set out in NDA, s. 165.25 , Deputy Chief Military Judge’s decision not to assign another military judge on June 17, 2019, reviewable by Federal Court — As for recusal decision, not falling under one of reasons listed in NDA, s. 230.1 providing for Minister’s right to appeal to Court Martial Appeal Court –– Since Federal Courts Act, s. 18.5 mentioning that it is “ if

an Act of Parliament expressly provides for an appeal ”, would be contrary to wording of Act, to interest of administration of justice for Federal Court not to exercise its jurisdiction under Federal Courts Act , ss. 18 , 18.1 –– It was therefore necessary to dismiss any declinatory exception to jurisdiction based on Federal Courts Act , s. 18.5 –– Applicant’s narrow, restrictive

interpretation of power under NDA, s. 165.25 , namely, that s. 165.25 not granting any discretion, that assignment of military judge automatic not agreed with –– Constitutional

interpretation of NDA, s. 165.25 had to implicitly include legal limitation that exercise of power to assign must be consistent with Canadian Charter of Rights and Freedoms , not result in miscarriage of justice for accused –– Impugned decision reasonable in all respects; not otherwise containing reviewable error of law or fact affecting ultimate result, justifying Court’s intervention –– Evidence in record amply supported apprehension of bias or injustice raised by Deputy Chief Military Judge –– With respect to doctrine of necessity, could not apply in context of criminal or military justice where fundamental rights of accused may have been irreparably compromised –– Concerning rule of law, if Deputy Chief Military Judge made concrete decision to adjourn matter before Court Martial, to not assign replacement judge, such decision was first, foremost to ensure rule of law, to preserve accused’s right to fair trial before impartial, independent tribunal –– In short, no excess of jurisdiction or usurpation of power committed by Deputy Chief Military Judge; challenged decision reasonable in all respects –– Consequently, no need to grant writ of certiorari or writ of mandamus — All remedies sought by applicant disallowed in order to ensure rule of law, to avoid committing flagrant injustice, to protect respondent as accused from irreparable damage –– Application dismissed.

Federal Court Jurisdiction –– Respondents challenging judicial review of decision adjourning trial of respondent Colonel Dutil, Chief Military Judge, following recusal of Deputy Chief Military Judge, but without military judge being appointed by Deputy Chief Military Judge — According to respondents, impugned decision not reviewable, Federal Court not otherwise having jurisdiction under Federal Courts Act , s. 18.5 –– Whether Federal Court having jurisdiction under Federal Courts Act , s. 18.5 –– Whether impugned decision reviewable –– Under Federal Courts Act, ss. 18, 18.1, Federal Court has exclusive original jurisdiction to issue, among other things, certiorari, mandamus orders against any federal board, commission or other tribunal, which applicant seeking in this case –– Broad definition found in Federal Courts Act , s. 2 applied to impugned decision, encompassed exercise (even non-exercise) of all jurisdiction or power set out in a federal Act –– Although military judges having same immunity from liability as judges of superior court of criminal jurisdiction, not persons appointed under Constitution Act, 1867, s. 96 –– Since decision assigning military judge to preside at court martial, to conduct judicial hearings constituting presumed exercise of jurisdiction set out in National Defence Act ( NDA ), s. 165.25, Deputy Chief Military Judge’s decision not to assign another military judge reviewable by Federal Court –– Furthermore, not clear that recusal decision itself appealable under NDA –– Since Parliament took trouble to mention in Federal Courts Act , s. 18.5 that if Act of Parliament expressly providing for appeal , would be contrary to wording of Act, to interest of administration of justice for Federal Court not to exercise jurisdiction under Federal Courts Act , ss. 18 , 18.1 because right of appeal could implicitly exist under NDA .

Judges and Courts — Respondent Colonel Dutil (respondent), Chief Military Judge, cited for Standing Court Martial (Court Martial) –– Respondent having to defend himself against fraud, false statement charges in official document, as well as behaviour prejudicial to

good order or discipline because allegedly had personal relationship with non-commissioned officer, a court reporter who was apparently under his command –– Respondent`s trial adjourned following recusal of Deputy Chief Military Judge, but without military judge being appointed by Deputy Chief Military Judge — Whether military judge existing who could be assigned by Deputy Chief Military Judge to preside at Court Martial without reasonable apprehension of bias arising –– Furthermore, respondent opted for his proceedings to be in French –– Applicant adopting clear, frank, unequivocal position allowing federal board, commission or other tribunal no discretion whatsoever: Deputy Chief Military Judge having legal obligation, under NDA, s. 165.25 , to appoint replacement from other military judges, regardless of whether recusal reasons or insufficient language skills existing for each of them — Although military judges have same immunity from liability as judges of superior court of criminal jurisdiction ( NDA, s. 165.231 ), not persons appointed under Constitution Act, 1867, s. 96 –– Since decision to assign military judge to preside at court martial constituting presumed exercise of jurisdiction set out in NDA, s. 165.25 , Deputy Chief Military Judge’s decision not to assign another military judge on June 17, 2019, reviewable by Federal Court —Applicant’s narrow, restrictive

interpretation of power under NDA, s. 165.25 not agreed with, that is, that s. 165.25 not granting any discretion, that assignment of military judge automatic — Evidence in record amply supporting apprehension of bias or injustice raised by Deputy Chief Military Judge –– With respect to doctrine of necessity, could not apply in context of criminal or military justice where fundamental rights of accused may have been irreparably compromised –– Concerning rule of law, if Deputy Chief Military Judge made concrete decision to adjourn matter before Court Martial, to not assign replacement judge, it was first, foremost to ensure rule of law, to preserve accused’s right to fair trial before impartial, independent tribunal.

This was an application for judicial review of a decision to adjourn the trial of respondent Colonel Dutil (respondent), Chief Military Judge, following the recusal of the Deputy Chief Military Judge, but without a military judge being appointed by the Deputy Chief Military Judge. The applicant was 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 (the NDA ), to assign a military judge from among the other eligible military judges to preside at the Court Martial. Alternatively, the applicant was also seeking a writ of certiorari for the purposes of setting aside the non-assignment decision. The respondent 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 respondent’s trial was adjourned on June 17, 2019, following the recusal of the Deputy Chief Military Judge. The Chief Military Judge’s reasons for not appointing a military judge were set out in the June 17, 2019 letter that was filed in the Court Martial file.

Although the respondent was entitled to be tried within a reasonable time in a fair and public hearing by an independent and impartial tribunal under paragraphs 11(

b) and (

d) of the Canadian Charter of Rights and Freedoms , the issue was whether there was a military judge who could be assigned by the Deputy Chief Military Judge to preside at the Court Martial without a reasonable apprehension of bias arising. In addition, the respondent had opted for his proceedings to be in French and according to the Official Languages Act , the decision maker should moreover understand French without the assistance of an interpreter.

There were indeed three potential candidates from among the current contingent of military judges who are Regular Force officers, yet none was assigned by the Deputy Chief Military Judge for the reasons set out in the impugned decision. The offences alleged against the respondent took place in 2014 and 2015. But another three years passed before he was charged, in January 2018, with violating the Code of Service Discipline. These charges had the practical effect of preventing the respondent from acting as Chief Military Judge.

In this application for judicial review, the applicant adopted a clear, frank and unequivocal position that allows the federal board, commission or other tribunal no discretion whatsoever. The Deputy Chief Military Judge —to whom the respondent delegated his powers pursuant to sections 165.26 and 165.27 of the NDA — had the legal obligation, under

section 165.25 of the NDA , to appoint a replacement from the other military judges, regardless of whether there were recusal reasons or insufficient language skills for each of them. The applicant submitted that he was entitled to a writ of mandamus . Alternatively, the impugned decision was also unreasonable and had to be set aside. As for the respondents, they challenged the application for judicial review. They argued that the impugned decision was not reviewable because it fell under the exercise of a judicial office specific to a superior court. Otherwise, the Federal Court had no jurisdiction pursuant to

section 18.5 of the Federal Courts Act . Alternatively, they claimed that the Deputy Chief Military Judge did not usurp his powers under

section 165.25 of the NDA and the impugned decision was reasonable, whereas the conditions for issuing a writ of mandamus had not been met. The main issue was whether the Federal Court had jurisdiction under

section 18.5 of the Federal Courts Act and whether the impugned decision was reviewable; what was the correct

interpretation of

section 165.25 of the NDA ; whether the impugned decision was reasonable; and whether the Court should exercise its judicial discretion with respect to the issuance of a writ of mandamus and remedial action. Held , the application should be dismissed. Under sections 18 and 18.1 of the Federal Courts Act , the Federal Court has exclusive original jurisdiction to issue, among other things, certiorari and mandamus orders against any federal board, commission or other tribunal, which the applicant was seeking in this case. The broad definition found in

section 2 of the Federal Courts Act applied to the impugned decision and encompassed the exercise — and even the non-exercise — of all jurisdiction or power set out in a federal Act. Although military judges have the same immunity from liability as judges of a superior court of criminal jurisdiction (section 165.231 of the NDA ), they are not persons appointed under

section 96 of the Constitution Act, 1867 . Since the decision to assign a military judge to preside at a court martial and conduct judicial hearings constitutes a presumed exercise of a jurisdiction set out in

section 165.25 of the NDA , the Deputy Chief Military Judge’s decision not to assign another military judge on June 17, 2019, was reviewable by the Federal Court. Furthermore, it was not clear that the recusal decision was, itself, appealable because it did not seem to fall under one of the reasons listed in

section 230.1 of the NDA that governs the Minister’s right to appeal to the Court Martial Appeal Court. Since Parliament took the trouble of mentioning in

section 18.5 of the Federal Courts Act that it is if

an Act of Parliament expressly provides for an appeal , it would be contrary to the wording of the Act and to the interest of the administration of justice for this Court not to exercise its jurisdiction under sections 18 and 18.1 of the Federal Courts Act because a right of appeal could implicitly exist under the Act. Therefore, any declinatory exception to jurisdiction based on

section 18.5 of the Federal Courts Act had to be dismissed.

Section 165.25 of the NDA was examined and interpreted. The applicant’s narrow and restrictive

interpretation of the power under

section 165.25 was not agreed with; that is, that this

section does not grant any discretion and that the assignment of a military judge is automatic—it is an absolute legal obligation. The text of

section 165.25 of the NDA must be interpreted not only in accordance with the rules governing bilingual statutes but within the larger framework of the modern rule. Here, the English version cannot be read so as to compel the Chief Military Judge to assign a military judge if a valid reason for not doing so exists or for waiting a certain time before doing so . No obligation exists in absolute terms. To be legal, an obligation has to be consistent with the Constitution, which is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect. In this case, a constitutional

interpretation of

section 165.25 of the NDA had to implicitly include the legal limitation that the exercise of the power to assign must be consistent with the Charter and not result in a miscarriage of justice for the accused. The impugned decision was reasonable in all respects and did not otherwise contain a reviewable error of law or fact affecting the ultimate result and justifying the intervention of this Court. The evidence in the record amply supported the apprehension of bias or injustice raised by the Deputy Chief Military Judge. However, this was an exceptional case.

No general rule applicable to all chief justices could be distilled. In addition, with respect to previous relationships with court reporters and the Court Martial Administrator, these were external factors that could contribute to a reasonable apprehension of bias not only on the part of the Deputy Chief Military Judge but also on the part of the other eligible military judges; hence the decision not to assign them. This conclusion was not unreasonable.

With respect to the doctrine of necessity, the Deputy Chief Military Judge concluded in the recusal decision that the doctrine of necessity did not oblige him to continue to preside over the trial. The Supreme Court of Canada established certain scales for the application of the doctrine of necessity, and stated that it will not apply in circumstances where its application would involve positive and substantial injustice. Otherwise, this would gravely undermine the guarantee of an impartial and independent tribunal provided by

section 11(

d) of the Charter . In this case, the doctrine of necessity could not apply in a context of criminal or military justice where the fundamental rights of the accused may have been irreparably compromised. Concerning the rule of law, if the Deputy Chief Military Judge made the concrete decision, on June 17, 2019, to adjourn the matter before the Court Martial and to not assign a replacement judge among the three eligible military judges, it was not

an act that was taken lightly. Quite the contrary. It was first and foremost to ensure the rule of law and to preserve the accused’s right to a fair trial before an impartial and independent tribunal. In short, there was no excess of jurisdiction or usurpation of power by the Deputy Chief Military Judge, and the challenged decision was reasonable in all respects. Consequently, there was no need to grant a writ of certiorari or a writ of mandamus . The balance of convenience favoured retaining the status quo.

In short, all of the remedies sought by the applicant were disallowed in order to ensure the rule of law and to avoid committing a flagrant injustice and to protect the respondent as the accused from irreparable damage. STATUTES AND REGULATIONS CITED

An Act to amend the National Defence Act and to make consequential amendments to other Acts , S.C. 1998, c. 35. An Act to amend the National Defence Act (court martial) and to make a consequential amendment to another Act , S.C. 2008, c. 29 . Canadian Charter of Rights and Freedoms , being

Part I of the Constitution Act, 1982 ,

Schedule B, Canada Act 1982 , 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 11 ( b ),( d ). Constitution Act, 1867 , 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982 , 1982, c. 11 (U.K.),

Schedule to the Constitution Act, 1982 , Item 1) [R.S.C., 1985, Appendix II, No. 5], s. 96 . Constitution Act, 1982 ,

Schedule B, Canada Act 1982 , 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 52(1). Criminal Code , R.S.C., 1985, c. C-46, s. 380(1) (b). Federal Courts Act , R.S.C., 1985, c. F-7, ss. 2 , 18 , 18.1 , 18.4(1) , 18.5 , 50 . Federal Courts Rules , SOR/98-106 , rr. 302(1),(2).

Interpretation Act , R.S.C., 1985, c. I-21, s. 11 . National Defence Act , R.S.C. 1970, c. N-4, s. 155. National Defence Act , R.S.C., 1985, c. N-5 ,

Part III, ss. 9.1, 9.4, 10.1, 12, 17, 18(1),(2), 18.3, 18.5, 60(1),(2), 73–128, 117, 125(a), 129, 130, 138, 139–146, 140.1, 140.2, 155, 161.1, 164(1.3), 164.2, 165, 165.15, 165.17(1), 165.19, 165.191(1),(3), 165.192, 165.2, 165.21, 165.22, 165.24, 165.25, 165.26, 165.27, 165.28, 165.221(1), 165.223, 165.231, 165.31(1), 165.32(1),(2),(3),(7), 166, 173, 178, 179, 186, 202.121(7), 230.1. Official Languages Act , R.S.C., 1985 (4th Supp.), c. 31, ss. 3(2) , 16 . Queen’s Regulations and Orders (QR&O), art. 2.07, 4.02, 4.091, 15.01, 15.17. Queen’s Regulations and Orders (QR&

O) Vol. II – Disciplinary, art. 107.03, 110.08, 112.05(3)(b), 112.14(6). Security of Tenure of Military Judges Act , S.C. 2011, c. 22, s. 2 . Strengthening Military Justice in the Defence of Canada Act , S.C. 2013, c. 24 . CASES CITED APPLIED:

Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65; Ref. re Remuneration of Judges of Prov. Court of PEI; Ref.re Independence & Impartiality of Judges of Prov. Court of PEI; R. v. Campbell; R. v. Ekmecic; R. v. Wickman; Manitoba Prov. JudgesAssn. v. Manitoba (Min. of Justice), (SCC), [1998] 1 S.C.R. 3; Lukacs v. Canada (Transportation Agency), 2016 FCA202. DISTINGUISHED: Canada (Military Prosecutions) v. Canada (Chief Military Judge), 2007 FCA 390; Société des Acadiens v. Association of Parents, (SCC), [1986] 1 S.C.R. 549. CONSIDERED: R. v. Pett, 2020 CM 4002 ; R. v.

Moriarity, 2015 SCC 55, [2015] 3 S.C.R. 485; R. v. Généreux, (SCC), [1992]1 S.C.R. 259; R. v. D’Amico, 2020 CM 2002 ; R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631; R. v. Dutil, 2019 CM 3002; R. v. Tremblay (1985), 41 Sask. R. 49, (Q.B.). REFERRED TO: Northwestern Utilities Ltd. and al. v. Edmonton, (SCC), [1979] 1 S.C.R. 684; R. v. Thibeault, 2014 CM 3022 ;R. v. Stillman, 2019 SCC 40; R. v. Leblanc, 2011 CMAC 2; R. v. Master-Corporal G.C. Steeves and ex-Private K.M. Temple, 2007 CM3021 ; R. v. Edmunds, 2018 CMAC 2; Association of Universities and Colleges of Canada v.

Canadian Copyright LicensingAgency (Access Copyright), 2012 FCA 22; R. v. Thiele, 2016 CM 4015 ; Apotex Inc. v. Canada (Attorney General), (FCA), [1994] 1 F.C. 742, [1993] F.C.J. No. 1098 (QL) (C.A.); Turp v. Canada (Foreign Affairs), 2018 FC 12; MacMillanBloedel Ltd. v. Simpson, [1995] 4 S.C.R. 725, ; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190;Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC 26, [2018] 1 S.C.R. 750; Canada (AttorneyGeneral) v. TeleZone Inc., 2010 SCC 62, [2010] 3 S.C.R. 585; Rushnell v.

Canada (Attorney General), 2001 FCT 199, [2001] F.C.J.No. 366 (QL); Forsyth v. Canada (Attorney General), 2002 FCT 643, [2003] 1 F.C. 96; Kourtessis v. M.N.R., [1993] 2 S.C.R. 53, ; Elitis Pharma inc. c. RX Job inc., 2012 QCCA 1348; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009]1 S.C.R. 339; MacKeigan v. Hickman, (SCC), [1989] 2 S.C.R. 796; Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1S.C.R. 395; B.C.G.E.U. v. British Columbia (Attorney General), [1988] 2 S.C.R. 214, ; El-Alloul v. Procureure généraledu Québec, 2018 QCCA 1611; Girouard v.

Canada (Attorney General), 2019 FC 1282, [2020] 2 F.C.R. 199; R. v. Beaulac, [1999] 1S.C.R. 768, ; R. v. Tomczyk, 2012 CMAC 4; Canada v. Bannister, 2019 CMAC 2; Wewaykum Indian Band v. Canada,2003 SCC 45, [2003] 2 S.C.R. 259; Apotex Inc. v. Sanofi-Aventis Canada Inc., 2008 FCA 394; Valente v. The Queen, (SCC), [1985] 2 S.C.R. 673; Harelkin v. University of Regina, [1979] 2 S.C.R. 561, , ; Committee forJustice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369, ; Bilodeau-Massé v. Canada (AttorneyGeneral), 2017 FC 604, [2018] 1 F.C.R. 386; R. v. Trépanier, 2008 CMAC 3; Strickland v.

Canada (Attorney General), 2015 SCC 37,[2015] 2 S.C.R. 713; R. v. Caron, 2011 SCC 5, [2011] 1 S.C.R. 78; United Nurses of Alberta v. Alberta (Attorney General), (SCC), [1992] 1 S.C.R. 901; Canada (Human Rights Commission) v. Canadian Liberty Net, [1998] 1 S.C.R. 626, ;MacMillan Bloedel Ltd. v. Simpson, [1995] 4 S.C.R. 725, ; Trial Lawyers Association of British Columbia v. BritishColumbia (Attorney General), 2014 SCC 59, [2014] 3 S.C.R. 31. AUTHORS CITED Canada. National Defence. Personal Relationship and Fraternization, DAOD 5019-1, July 11, 2014. Canadian Judicial Council. Ethical Principles for Judges, 2004.

Deschamps, Marie. External Review into Sexual Misconduct and Sexual Harassment in the Canadian Armed Forces, March 27, 2015. DMP Policy Directive # 016/17. Appointment of Special Prosecutors, 12 April 2017, updated 15 December 2017. Laskin, Bora. The British Tradition in Canadian Law, London: Stevens, 1969. MacDonald, R. A. “The Trail of Discipline: The Historical Roots of Canadian Military Law” (1985), 1 JAG Journal 1. Zhou, Han-Ru. “Erga Omnes or Inter Partes? The Legal Effects of Federal Courts’ Constitutional Judgments” (2019), 97 Can. B. Rev.275. APPLICATION for judicial review of a decision (R. v.

Dutil, 2019 CM 3003 ) adjourning respondent Colonel Dutil’s trial inJune 2019 following the Deputy Chief Military Judge’s recusal without a military judge being appointed by the Deputy Chief MilitaryJudge. Application dismissed. APPEARANCES Bernard Letarte, Vincent Veilleux and Pavol Janura for applicant. Guy J. Pratte and Geneviève Fauteux for respondent Deputy Chief Military Judge. Philippe-Luc Boutin for respondent Colonel Mario Dutil. SOLICITORS OF RECORD Deputy Attorney General of Canada for applicant. Borden, Ladner, Gervais LLP, Ottawa, for respondent Deputy Chief Military Judge.

Philippe-Luc Boutin, Dolbeau-Mistassini, Québec, for respondent Colonel Mario Dutil. The following is the English version of the reasons for judgment and judgment rendered by Martineau J.: 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 aStanding Court Martial (the Court Martial).

He must defend himself against fraud and false statement charges in an official document, aswell as behaviour prejudicial to good order or discipline because he allegedly had a personal relationship with a non-commissionedofficer, 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, CommodoreGeneviève 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 theDeputy Chief Military Judge for the reasons set out in the June 17, 2019, letter he filed in the Court Martial file (the non-assignmentdecision), 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 MilitaryProsecutions, is seeking a writ of mandamus to force the Deputy Chief Military Judge, in his capacity as designate judge, with thejurisdiction to allocate set out in

section 165.25 of the National Defence Act, R.S.C., 1985, c. N-5 (NDA), to assign a military judge fromamong the other eligible military judges to preside at the Court Martial. Alternatively, the applicant is also seeking a writ of certiorarifor 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 andDefence Staff, who were also involved in the decision to lay charges against the Chief Military Judge.

Be that as it may, it is highlyirregular, and most unusual, that the federal board was unilaterally named as the respondent in the notice of application for judicialreview, and forced to defend itself, without the applicant having obtained prior leave of this Court (subsections 303(1) and (2) of theFederal Courts Rules, SOR/98-106; Northwestern Utilities Ltd. and al. v.

Edmonton, (SCC), [1979] 1 S.C.R. 684, atpages 709–710). [5] At the start of the hearing on October 15, 2019, and after hearing the oral submissions from counsel, the Court thus addedColonel Dutil as a respondent, which resulted in an adjournment of a few weeks. The case was heard on the merits on November 27, 28and 29, 2019. On February 3, 2020, during the Court deliberations, the parties brought to its attention the decision handed down onJanuary 10, 2020, in R. v.

Pett, 2020 CM 4002 (Pett), and were able to submit additional representations regarding therelevance and impact of this decision, which is currently subject to an appeal by the accused (Docket CMAC-603 [Master Corporal K.G.Pett v. Her Majesty the Queen]). [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, being

Part I of the Constitution Act, 1982,

Schedule B,Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44] (Charter)). [8] However, herein lies the problem: is there a military judge who can be assigned today by the Deputy Chief Military Judge topreside 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, R.S.C., 1985, c. 31 (OLA). Giventhat Colonel Dutil opted for his proceedings to be in French, the decision maker should moreover understand French without theassistance 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 Forceofficers (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 wereassigned by the Deputy Chief Military Judge, for the reasons set out in the impugned decision of June 17, 2019, which must be read inconjunction 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 thecontextual aspects—legal and factual—that are specific and unique to this case, at the risk of prolonging the current reasons.

However, itmust be clear that, in addressing the specific problem of the complex questions arising around the impugned decision, this Court is in noway suggesting that it interfere in the role played by the Court Martial as a trier of facts and merits, nor interfere in the applicantexercising 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 commandthat provides poor procedural safeguards for a parallel justice system greatly similar to the penal justice system (R. v. Stillman,2019 SCC 40, 436 D.L.R. (4th) 193 (Stillman), at paragraph 53; for a detailed history, see R. A.

McDonald, “The Trail of Discipline: TheHistorical Roots of Canadian Military Law” (1985), 1 JAG Journal 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 ofthe military (R. v. Moriarity, 2015 SCC 55, [2015] 3 S.C.R. 485 (Moriarity), at paragraph 46).

Section 130 of the NDA “creates anoffence under the Code of Service Discipline” of violations of federal laws, including the Criminal Code, R.S.C., 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 ofService Discipline are subject, in the case of committing service offences or offences punishable by ordinary law integrated in the Codeof 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 minorpunishments—the appropriate authority has the power to impose on the offender less punishment than the maximum punishment set outin the Code of Service Discipline (sections 139–146 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 theChief Military Judge and the Deputy Chief Military Judge.

Nevertheless, at the time of their appointment, the persons appointed for thispurpose must be officers (in addition to being members of a provincial bar), and serving legal officers while performing their judicialduties. 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 theNDA, a military judge has the same immunity from liability as a judge of a superior court of criminal jurisdiction.

However, a militaryjudge is not immune from liability under the Code of Service Discipline in relation to what he or she says and does outside theperformance 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 inrespect 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 andfalse statement in an official document as well, 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, thecharge of conduct to the prejudice of good order and discipline (section 129 of the NDA) is unique to the Code of Service Discipline andrelates to an offence of a specific order, directive DAOD [Defence Administrative Orders and Directives] 5019-1 [Personal Relationshipand Fraternization], because Colonel Dutil allegedly had a personal relationship with a non-commissioned officer, in this case a courtreporter 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 countinghis dismissal with disgrace from her Majesty’s service.

Therefore, in a context in which the Court Martial deals with an issue that isdisciplinary in nature having serious consequences with respect to the freedom and career of the accused in the Forces, and that thepresumption of innocence plays a central role in the issue to be decided, namely, whether or not Colonel Dutil is guilty, the issue ofimpartiality of the military judge assigned to preside at Colonel Dutil’s Court Martial must naturally be treated with the same rigour as ajudge of a superior court of criminal jurisdiction (recusal decision, at paragraph 58; R. v. Leblanc, 2011 CMAC 2, 281 C.C.C. (3d) 451).

B. Directive DAOD 5019-1 [19] In the civilian world, there is nothing that prevents two work colleagues—consenting adults—from entering into a romanticrelationship and pursuing it outside the workplace. They do not require anyone’s permission. Such a relationship is not at all criminal inand of itself.

However, in the army, there are certain nuances because a personal relationship—defined as an emotional, romantic, sexualor family relationship—must not have an adverse effect on “the security, cohesion, discipline or morale of a unit” (emphasis added) [atparagraph 5.1]. [20] A symbolic value of the entire army, unit cohesion (“esprit de corps”) embodies this unique fraternity—transcending hierarchicallevels—which ensures that members accomplish their mission, especially in combat or high-stress situations.

The issue of consent hasnothing to do with it: even consensual, a romantic relationship can have an adverse effect on unit cohesion. (See

Chapter 5019-1 of theDefence Administrative Orders and Directives (DAOD) – Personal Relationships and Fraternization (directive DAOD 5019-1); see alsoMarie Deschamps, External Review into Sexual Misconduct and Sexual Harassment in the Canadian Armed Forces, March 27, 2015, atpages 41–42). [21] It follows that CAF [Canadian Armed Forces] members must notify their chain of command of any personal relationship thatcould compromise the objectives of directive DAOD 5019-1.

On an administrative level, CAF members who are known to be, or havedeclared themselves to be involved, in a personal relationship must normally not be posted to the same unit. A CAF member in a personalrelationship with another CAF member, shall not be involved, regardless of rank or authority, in the other person’s performanceassessment, postings, duties or scheduling for duties.

Administrative action must also be taken to separate CAF members who areinvolved 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 authoritiesconcerning “the organization, training, discipline, efficiency, administration and good government of the Canadian Forces” (section 12 ofthe NDA), and to enforce all orders and instructions issued by the Chief of Defence Staff that are required to give effect to the decisionsand to carry out the directions of the Government of Canada or the Minister of National Defence (Minister), as mentioned insubsection 18(2) of the NDA (R. v.

Master-Corporal G.C. Steeves and ex-Private K.M. 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 ( paragraph 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 ; articles 2.07 and 4.091 of the Queen’s Regulations and Orders (QR&

O) for the Canadian Forces (QR&O). Directive DAOD 5019-1 therefore applies to this unit. However, under

chapter 4 [articles 4.01–4.61] 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 (article 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 ;

article 107.03 of the QR&O [Vol. II – Disciplinary]; 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 (article 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 [Director of Military Prosecutors] Policy Directive # 016/17 [ Appointment of Special Prosecutors ], 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 “allencompassing” (Pett, at paragraph 29). Under subsection 9.1(2) of the NDA, the Judge Advocate General—who holds a rank that is notless than brigadier-general (section 9.4 of the NDA)—has the superintendence of the administration of military justice in the CanadianForces.

For all practical purposes, the Judge Advocate General acts as legal adviser to the Governor General, the Minister, theDepartment and the Canadian Forces in matters relating to military law, even though it is understood that this is not in derogation of theauthority of the Minister of Justice and Attorney General of Canada (sections 9.1 and 10.1 of the NDA). That said, the Director ofMilitary 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, (SCC), [1992] 1 S.C.R. 259 (Généreux), at paragraphs 83, 98 ).

The issue of independence of courts martial and militaryjudges is a complex issue which has generated much debate since 1992, and which still exists in 2020: public trust, and especially that ofmilitary personnel, in the military justice system is based on, among other things, the independence of the Office of the Chief MilitaryJudge. [34] Prior to Généreux, the Judge Advocate General had full authority to assign the judge advocate who would preside at a courtmartial from among their personnel, all the while knowing that the individual would return to their duties under their direction once thetrial was completed.

In spite of the concerns regarding judicial independence raised in Généreux, it was not until 2011 that militaryjudges “held office during good behaviour” until the age of retirement (from 1998 to 2011, military judges held office “during goodbehaviour” for a five-year term, renewable on the recommendation of an Inquiry Committee established under regulations made by theGovernor in Council) (section 2 of the Security of Tenure of Military Judges Act, S.C. 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, S.C. 2013, c. 24), there are now two typesof 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 judgewho is an officer in the Reserve Force (subsection 165.22(1) of the NDA).

However, in the latter case, there are currently no names onthe 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 judicialbody 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 dela 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 civilianjudge, 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 theNDA). In such cases, the inquiry committee is comprised of three judges of the Court Martial Appeal Court (CMAC), including onechair, appointed by his or her Chief Justice (subsection 165.31(1)).

The Inquiry Committee investigates in the following cases: (1) if theMinister of Defence (Minister) so asks (subsection 165.32(1) of the NDA); or (2) if he decides to commence an inquiry following acomplaint or charge from a person other than the Minister (subsection 165.32(2) of the NDA).

In the second case, the chair of the inquirycommittee may designate one of the members to examine the complaint or charge, and to recommend whether the Committeecommences 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 strengthensthe institutional independence of the Office of the Chief Military Judge.

That was also the main reason invoked in January 2020 by thecourt martial in Pett, for refusing to order a stay of the proceedings of a non-commissioned member who contested the impartiality andindependence of the military judges on the grounds that they, themselves, could be cited for a court martial (Pett, at paragraphs 89–102and 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 toPett? [40] The reason is that, in the decision handed down by Judge Pelletier in Pett, based on the powers vested in the Court Martial undersection 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 andqualifications of a commanding officer and a senior commander, is inoperative in respect of any disciplinary case against a military judgeemployed by the Office of the Chief Military Judge. It should be noted, in passing, that the October 2, 2019, order is an update to theorder issued on January 19, 2018, a few days before the charges laid against Colonel Dutil were referred to the Director of MilitaryProsecutions.

In that case, Judge Pelletier found that the orders in question violate the judicial independence of military judges and raisereasonable apprehension of bias of the fact that, while they were on exercise, they could be brought before a court martial followingcharges authorized by a member of the military hierarchy, even if the NDA outlines an independent mechanism for complaints andremoval 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 paragraphs 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 , 428 N.R. 297, 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 and

article 15.17 of the QR&O). 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

article 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

article 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 [articles 4.01–4.61] 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 1 st 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 transcript, at pages 87–88; recusal decision, at paragraph 37). [ 56 ] The factual context surrounding the ethics complaint proves to be not only relevant to understand why the Deputy Chief Military Judge recused himself on June 17, 2019 (paragraphs 38, 55, 75, 84 and 94), but also , why he did not assign the other eligible military judges, particularly Judges Deschênes and Pelletier (paragraphs 11–15 of the non-assignment decision). [ 57 ] It was on November 5, 2015, that Colonel Dutil learned of the existence of the ethics complaint during a pre-trial conference with the counsel involved in a court martial.

The same day, he informed the military judges on duty of the existence of this complaint (Colonel Dutil’s testimony during the voir dire , at page 74; Simone Morrissey’s testimony during the voir dire , at page 54; paragraphs 11 and 12 of the recusal decision). [ 58 ] According to Colonel Dutil’s testimony, after the ethics complaint, his relations with Judge Pelletier gradually degenerated ( voir dire transcript, at pages 105–108), to such a point that the Deputy Chief Military Judge concluded on June 17, 2019, that the prosecution had shown that there could be reasons that could justify a recusal request with respect to Judge Pelletier (paragraph 94 of the recusal decision; paragraph 12 of the non-assignment decision). [ 59 ] Pursuant to subsection 165.32(3) of the NDA , Judge Jocelyne Gagné was designated by the Chairperson of the Inquiry Committee, Chief Justice B.

Richard Bell, to review the ethics complaint and determine if an inquiry should be started. According to the news release of April 27, 2016, which was published on the CMAC website and a copy of which was given to the Court during the application for judicial review hearing, this complaint specifically concerned allegations of the breach of directive DAOD 5019-1. [ 60 ] On February 29, 2016, the Chairperson of the Inquiry Committee advised Colonel Wakeham that no inquiry would be started and that the file would be closed following the acceptance by the Inquiry Committee of the recommendation of Judge Gagné.

In the news release of April 27, 2016, it was mentioned that the ethics complaint was dismissed for the reason that it did not raise any cause for removal mentioned in subsection 165.32(7) of the NDA . C. Record of disciplinary proceedings and application to refer charges to a court martial [ 61 ] After the dismissal of the ethics complaint in February 2016, the military police continued its inquiry or took it up again (paragraph 17 of the recusal decision).

It should be noted that the military police are under the command of the Canadian Forces Provost Marshall, who in turn acts under the general supervision of the Vice Chief of the Defence Staff (sections 18.3 and 18.5 of the NDA ).

[ 62 ] To the charge of having conducted a personal relationship to the prejudice of good order and discipline (

section 129 of the NDA ), the military police gathered other evidence enabling them to lay charges of fraud ( paragraph 117 (

a) of the NDA ) and making a false statement in an official document ( paragraph 125 (

a) of the NDA ), as evidenced by the RDP dated January 25, 2018, prepared by an investigator from the Canadian Forces National Investigation Service. Thus, in September 2015, the Chief Military Judge allegedly unduly claimed travel expenses and defrauded the government of an amount of less than $1 000 with respect to a claim that he reportedly made because of a temporary duty that he carried out as a military judge regarding a court martial that he presided at in August 2015.

In this last case, Warrant Officer Dorval and retired Warrant Officer Michaud—a former court reporter with whom the accused had travelled—could be called as witnesses (see the RDP). [ 63 ] Pursuant to an order dated January 19, 2018, the officer who is appointed to the position of Chief of Programme (C Prog) and who holds a rank not below Major General/Rear-Admiral 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.

As previously mentioned, the order dated January 19, 2018, was repealed and replaced by the order dated October 2, 2019, the same order which was declared inoperative in 2020 by Judges Pelletier and Sukstorf in the decisions Pett and D’Amico. It was the first time that military judges had been specifically targeted so as to confer disciplinary powers on those designated as commanding officer and senior commander of military judges. [ 64 ] On February 5, 2018, Lieutenant-General J.A.J.

Parent, Acting Vice Chief of the Defence Staff (the referral authority), approved the RDP and the recommendation made on January 30, 2018, by Major-General Jean-Marc Lanthier, Chief of Programme (the commanding officer), to defer the charges to the Director of Military Prosecutions [referral application letter]. In this case, the personal relationship that Colonel Dutil reportedly had in 2014–2015 allegedly adversely affected the cohesion of the unit, which allegedly caused prejudice to the good order and discipline of the unit. For its part, the fraudulent claim allegedly constituted an abuse of trust.

By asking the Director of Military Prosecutions to bring Colonel Dutil to a court martial, the referral authority therefore wished to ensure that if Colonel Dutil were found guilty, it would be understood that senior officers of the Forces are subject to the same standards of discipline as the officers and service members of the ranks under their command. In short, a conviction of Colonel Dutil by court martial would therefore send a clear, strong message of general dissuasion to all units of the Forces, including the Office of the Chief Military Judge (referral application letter at paragraph 8). D.

Risk of conflict of interest in military prosecution [ 65 ] On January 30, 2018, pursuant to

section 165.15 of the NDA and DMP Policy Directive # 016/17 [ Appointment of Special Prosecutors , April 12, 2017, updated December 15, 2017], Colonel B. W.

MacGregor, acting in his capacity as Director of Military Prosecutions, appointed Lieutenant-Colonel Mark Poland—a member of the Reserve Force and a former Crown counsel of the Attorney General of Ontario (he has since become a judge of the Ontario Court of Justice)—as Special Prosecutor (the former Special Prosecutor). [ 66 ] Therefore, no legal officer from the office of the Director of Military Prosecutions or the Office of the Judge Advocate General signed the preferred charge sheet.

Nevertheless, the Special Prosecutor is required to apply all Director of Military Prosecutions policy directives at all steps of the pre-charge screening, post-charge review and court martial process unless the policy would require the Special Prosecutor to take action that would be inappropriate in the circumstances (section 14 of DPM Policy Directive # 016/17). [ 67 ] On July 31, 2018, following Colonel Dutil’s choice concerning the language of proceedings (article 110.08 of the QR&O [Vol.

II – Disciplinary]), Second Lieutenant Cimon Senécal—a member of the reserve Force and Crown counsel at the office of the Director of Criminal and Penal Prosecutions of Quebec—replacing Lieutenant-Colonel Poland, was appointed Special Prosecutor (the new Special Prosecutor). Furthermore, a legal officer from the Canadian Military Prosecution Service, Major Henri Bernatchez, was also designated by the Director of Military Prosecutions to assist the new Special Prosecutor. E. Preferred charge sheet [ 68 ] On June 10, 2018, pursuant to

section 165 of the NDA , the former Special Prosecutor filed with the Court Martial Administrator preferred charges in English, including eight counts, six months after the charges were laid by the defence staff. [ 69 ] One month later, on August 3, 2018, the new Special Prosecutor filed a new preferred charge sheet in French to the same effect as the previous one: (

a) The first four counts related to charges of making a false entry in an official document in contravention of paragraph 125 (

a) of the NDA (first and second counts), of fraud in contravention of

section 130 of the NDA and paragraph 380(1) (

b) of the Criminal Code , R.S.C., 1985, c. C-46 (third count), and

an act of a fraudulent nature not particularly specified in sections 73 to 128 of the NDA in contravention of

section 117 of the NDA (fourth count) following the travel expense claim in September 2015. (

b) The four other counts that follow relate to charges of conduct or negligence to the prejudice of good order and discipline in contravention of

section 129 of the NDA , following the personal relationship that Colonel Dutil allegedly had in 2014 and 2015 with Warrant Officer Dorval (fifth, sixth, seventh and eighth counts). [ 70 ] Of course, they were only charges that would have to be proved beyond all doubt by the prosecution during the trial of Colonel Dutil before the Court Martial. At the risk of repeating it, not only must Colonel Dutil be presumed innocent until proven guilty, but he has the right to be judged according to law in a fair and public hearing by an independent and impartial tribunal ( paragraph 11(

d) of the Charter ). F. Conflict of interest risk of the Chief Military Judge [ 71 ] On June 14, 2018, Lieutenant-Colonel d’Auteuil (appointed military judge on May 18, 2006) became the Deputy Chief Military Judge. On June 15, 2018, following the filing of the preferred charge sheet in English, the Chief Military Judge delegated to the Deputy Chief Military Judge his authority to assign military judges to preside at courts martial and all other judicial hearings as well as all general supervision of the Court Martial Administrator (double delegation of authority pursuant to sections 165.26 and 165.27 of the

NDA ). [ 72 ] Such a delegation clearly had the purpose of avoiding a conflict of interest, real or apparent, of the Chief Military Judge and protecting the judicial independence of the Office of the Chief Military Judge. There is no doubt that if Colonel Dutil had presided when charges were outstanding, an accused person could have requested his recusal because of the pressure exerted on him and the appearance of partiality that this situation was likely to create ( Pett , at paragraphs 47–48, 61–62, and 107–110 ). The delegation of authority of June 15, 2018, was not revoked by the Chief Military Judge.

Moreover, it does not seem that the Deputy Chief Military Judge assigned the Chief Military Judge to preside at courts martial or any other judicial hearings since he was charged, the last indexed decision being dated December 4, 2017. [ 73 ] As Colonel Dutil specified during the voir dire , if he delegated his authority as Chief Military Judge to Judge d’Auteuil, it was not because he had been appointed Deputy Chief Military Judge a few days earlier. Rather, it was because it was Judge d’Auteuil ( voir dire transcripts, at page 67). And it was not the first time.

Such delegations of authority—later revoked—had previously been carried out in this file (recusal decision, at paragraphs 12 and 22). G. Conflict of interest risk of the Court Martial Administrator [ 74 ] We noted it above. The Court Martial Administrator acts under the general supervision of the Chief Military Judge (subsection 165.19(3) of the NDA ). However, Ms.

Morrissey, the current Court Martial Administrator, was personally involved in this file (she is the one who reportedly took measures to transfer Warrant Officer Dorval to another unit) and would be called as a witness by the prosecution (paragraph 82 of the recusal decision). All of this creates an appearance of a conflict of interest. [ 75 ] Pursuant to

section 165.2 of the NDA , the Court Martial Administrator therefore authorized another person from the Office of the Chief Military Judge, Michel Saindon (Acting Administrator) to carry out the duties of the Court Martial Administrator in this file on an acting basis. H.

Coordination conferences and pre-trial conferences [ 76 ] On September 21, 2018, the prosecution, by mutual agreement with the defence, set the date of the convening of Colonel Dutil before the Court Martial at June 10, 2019, or nine months later (transcript of the conference of September 21, 2018, at pages 8–13). [ 77 ] Colonel Dutil has always been transparent in terms of his intentions. [ 78 ] All the coordinating and pre-trial conferences were held without prejudice to the right of the accused to request at the opening of the trial his recusal and that of any other military judge then on duty (transcript of the conference of September 6, 2018, at pages 16–20; transcript of the conference of September 21, 2018, at pages 2–3). [ 79 ] Furthermore, Colonel Dutil also made it known that he was going to assign military judges as witnesses, notably to come and explain to the Court Martial the functioning of the Office of the Chief Military Judge and how it worked in practice (transcript of the conference of S

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