Sexual assault charges stay as independence issues rock military justice system
A military judge has stayed sexual assault charges against a captain of the Canadian Armed Forces in British Columbia following a long-standing dispute over judicial independence that rocked Canada’s military justice system.
The judge, Cmdr. Martin Pelletier, stay of court martial proceedings against Captain Mark Iredale last month after discovering the officer could not be guaranteed his right to a trial by an independent and impartial tribunal.
The judges concluded that Vance’s order meant that the judiciary could be interfered with by the military executive – denying an accused the right to a fair trial.
In response, Vance suspended his order two weeks ago and the suspended business, including Iredale’s, have all been appealed.
The situation highlights the complexities of a military justice system that is different and separate from its civilian counterpart. Courts martial have been held for years, but Vance’s order revealed an issue that was hidden from view, said Michel Drapeau, a lawyer and retired Armed Forces colonel.
Drapeau said the situation had effectively crippled the military justice system.
“Whether it’s deleted or suspended, I don’t think it changes anything. Military judges are first and foremost military officers. They are subject to the Code of Service Discipline, they are subject to orders and instructions issued by the chain of command, so they cannot be considered independent and impartial, ”he said.
“It almost means that right now the military is unable to deliver justice to the victims and those accused. So is it a big deal? Yes it is.”
Contacted on Thursday, the armed forces did not comment at the time of publication.
“ Justice is not a Pandora’s box ”
Canada has only four military judges, all of whom are officers of the Regular Armed Forces. Vance’s order established that they can be sanctioned by the same Armed Forces executive as the men and women who are accused before them. Critics say this implies that a judge could be sidelined or punished for a decision that displeases a superior.
Beyond clarifying the chain of command, the rationale for Vance’s order is unclear. It is also not certain that the bell can be triggered.
The chief of defense staff suspended the order, but observers say it’s not the same as canceling it. And one of the appeals challenges the constitutionality of the provisions of the National Defense Act that originally made the order possible.
The conflict has its roots in a failed effort to prosecute former Chief Military Judge Col. Mario Dutil, who faced fraud and misrepresentation costs in 2018, as well as behavior prejudicial to good order or discipline under the Code of Service Discipline of the army.
The allegations concerned an allegedly inappropriate relationship with a subordinate.
Vance issued the first of two orders specifically targeting military judges days before the charges against Dutil were referred to the Director of Military Prosecutions. He published a second in October 2019.
The charges against Dutil were abandoned earlier this year when the military could not find an impartial judge to hold a court martial.
Of the four judges, Dutil’s deputy recused himself, two others had conflicts of interest and the third did not speak French well enough to supervise the proceedings.
Dutil’s case ended up in Federal Court, where Judge Luc Martineau sent a strong warning to politicians and the military about a looming crisis.
The charges were dropped and Dutil retired, but Vance’s order remained.
“Public confidence in the military justice system must be preserved. This is a key factor that we cannot seem to ignore when there is a risk of a conflict of interest, apparent or real, which could undermine public confidence in the administration of military justice, ”Wrote Martineau.
“Justice is not a Pandora’s box that can be opened at will to see what is hidden there, nor a game of chance where the accused has to play Russian roulette with the prosecution. We are talking about career. , reputation, freedom and life in the future of an individual. ”
“ Sexual assault is a lightning rod ”
Iredale was charged in December 2019 with three counts of sexual assault in connection with allegations of sexual touching and inappropriate language directed against another police officer. For safe videos check it here dirty roulette
The incidents reportedly occurred between May 2016 and December in places like Langley, Squamish and Surrey.
Pelletier acknowledged the impact a stay of proceedings would have on an alleged victim who is part of a military organization that has struggled in recent years to tackle the issue of sexual misconduct.
“I considered the interest of society to see that the officers … be made to answer for their acts”, writes Pelletier.
“I am also aware that a stay of proceedings would prevent a complainant from making her allegations of wrongdoing heard.”
But the military judge concluded he had no choice.
The Iredale decision was preceded by a stay in the cases of cocaine possession and insubordination. A military judge gave Vance an ultimatum to cancel the order.
Rory Fowler, lawyer and former lieutenant colonel, has been monitoring the situation closely in his blog.
He said the Iredale case leaves a plaintiff without a day in court and a defendant with a cloud over his reputation.
“Sexual assault is a lightning rod,” he said.
“Especially with this Chief of the Defense Staff. And that’s what I find ultimately ironic. It was a Chief of the Defense Staff who said he was going to crack down on sexual misconduct. . ”
Other stay requests will be heard this week
In other decision, Pelletier traces the path of the problem through the Supreme Court of Canada and several reports written in an attempt to tackle the problem.
But he said the central conflict had never been addressed.
“Military judges continue to function within the structure of the Canadian Armed Forces,” wrote Pelletier.
“They have a rank that puts them in a given position in the structure of the Canadian Armed Forces for most observers.”
Drapeau predicted that the case could go to the Supreme Court of Canada. He said possible solutions involve: removing military judges from the military; establish a civil court to oversee courts martial; or the creation of a military division of the Federal Court.
Three more requests for a stay of proceedings will be heard at court martial this week. And it remains to be seen what impact Vance’s stay of his order has on appeals of cases that have already been stayed, including Iredale’s.
“The reason we’re in the mess that we’re in right now, I don’t think it’s the military’s fault. I don’t think it’s the military judges’ fault,” Drapeau said.
“I think it’s the parliamentarians’ fault. They’ve been told quite often … and they decided not to act. Now they have a crisis, and they have to resolve it.”