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Military judge will not face court guns

Thursday, June 09, 2016 @ 8:00 PM | By Cristin Schmitz

In the first known case under a unique judicial discipline process, an inquiry committee struck by the Court Martial Appeal Court (CMAC) has dismissed a potentially explosive complaint against Canada’s top military judge that was lodged by the chief of staff of the Judge Advocate General (JAG).

The appellate body composed of civilian judges, which is the only court in Canada to oversee the professional conduct of the judges whose decisions it reviews — recently posted on its website, under the heading of “What’s New,” a surprising four-line notice dated April 27.

The appeal court revealed that its “Military Judges Inquiry Committee” (composed of three of its judges, including CMAC Chief Justice Richard Bell) had dismissed a complaint against Chief Military Judge Mario Dutil that was made by Col. Bruce Wakeham, the chief of staff to Maj.-Gen. Blaise Cathcart, the JAG and the Canadian Armed Forces’ senior legal officer, who advises the government and superintends the administration of military justice.

The Lawyers Weekly has learned that Wakeham, stating that he was acting pursuant to his regulatory responsibilities, notified Chief Justice Bell in writing months ago that Wakeham had received information alleging that Chief Judge Dutil might have committed a service offence in that he might not have complied with the military’s administrative order and directives on personal relationships between two members of the Armed Forces, or between a Forces member and a civilian employee or contractor.

In particular, Wakeham had information alleging that Chief Judge Dutil might have engaged in a personal relationship with a subordinate under the chief judge’s command — a relationship that the chief judge might not have reported to the chain of command, contrary to the military rules binding all Forces members. Thus the chief judge might have committed a service offence (punishable by up to two years in jail). Wakeham noted those rules aim to safeguard the integrity of command, maintain operational effectiveness, protect Forces members in vulnerable situations and ensure fair treatment of all military members.

He said the information he was provided indicated that the alleged relationship of the chief judge and the chief judge’s subordinate could compromise the objective of the rules and that neither the chief judge nor his subordinate had reported the alleged relationship.

Wakeham also said he would normally have referred the matter to military police for assessment and investigation, as they determined appropriate.

The complaint against Chief Judge Dutil was particularly sensitive, and potentially explosive given that it arose in the aftermath of last year’s damning report by retired Supreme Court Justice Marie Deschamps finding that the Forces have an “underlying sexualized culture” that is hostile to women and subjects some of them to exploitation, harassment, and abuse, including sexual assault — much of which people in the lower ranks contended is condoned or ignored by senior military leaders.

The Military Judges Inquiry Committee’s description of the complaint and why it was dismissed is somewhat cryptic: “The complaint concerned allegations of infringement to the Defence Administrative Order and Directives (DAOD) 5019-1, Personal Relationships and Fraternization. After considering all the issues in this case, the complaint was dismissed on the basis that it did not raise any issue of judicial conduct as referred to in subsection 165.32(7) of the National Defence Act and therefore did not warrant consideration by the Military Judges Inquiry Committee.”

Subsection 165.32(7) stipulates that an inquiry committee, composed of three judges, may recommend to the government that a military judge be removed if, in its opinion, the military judge has become incapacitated or disabled from the due execution of his or her judicial duties, for a number of reasons, including: “Having been guilty of misconduct; having failed in the due execution of his or her judicial duties; or having been placed by his or her conduct or otherwise, in a position incompatible with the due execution of his or her judicial duties.”

At press time, Chief Judge Dutil had not immediately responded to e-mail and voicemail messages. The veteran Quebec jurist has spent 32 years with the Forces as a lawyer and as a judge, and has a civil law degree from Laval University, as well as a master of laws from the University of Ottawa. He was appointed a military judge 15 years ago and became chief judge in 2006.