Author Topic: Chief military judge charged  (Read 10152 times)

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Offline FJAG

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Re: Top military judge to face court martial overseen by own deputy
« Reply #50 on: June 11, 2019, 12:53:05 »
There does not seem to be a lot of depth from which to find a military judge who does not have a direct working relationship to the CMJ.  Besides the DCMJ, there are only three military judges.  And would most of a small Legal Branch (the senior members anyway) not fall within the same criteria of being "too close to both his client and many of the witnesses who will be called to testify".   Maybe this is one of those situations that could make use of the Supplementary Reserve, if that organization had any credibility or a usable database.

We all start in the same pool of legal officers and when I first transferred to the branch (back in 84) it was a fairly intimate little group but since then the branch has been a growth industry and now numbers several hundreds and folks all know each other although that doesn't mean they are necessarily intimate friends.

Once a legal officer is made a judge, however, they and the bulk of the branch tend to go their separate ways. That's not unlike when a civilian lawyer from a particular law society is made a judge in that province.  Unfortunately, while the legal branch is larger than PEI's bar and a bit smaller than NFLDs and a lot smaller than everyone else, it is all considered part of the same firm (with the exception of DDCS).

Generally civilian judges will not hear cases involving lawyers from the same firm that they served in and it's not too hard to find an "untainted" judge. I expect since Dutil is fighting this thing, we'll eventually be told by the Court Martial Appeal Court as to whether the oath of office is a sufficient enough provision to rely upon. Like I said above, we need to add a legislative provision to ad hoc an outside judge for these very extreme cases (which might extend as far as all legal officer defendants and not just judges)

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Re: Chief military judge charged
« Reply #51 on: June 11, 2019, 16:25:46 »
Here is a provision from the BC Provincial Court Act that would be a good addition to the National Defence Act to address this type of situation:

Quote
Temporary judge

8   The chief judge may appoint a person as a judge of the court for

(a) a period of time set out in the appointment, or

(b) a specific case or class of cases set out in the appointment,

or both, if

(c) the appointee is a provincial court judge, as defined in the Criminal Code, in a province other than British Columbia, and

(d) the chief judge of or the person who holds the equivalent office of the chief judge of the provincial court in the other province consents to the appointment.