Chief military judge's court martial hears about friendship with presiding judge

The court martial of Canada's chief military judge kicked off Monday with testimony about Col. Mario Dutil's close professional and "familial" relationship with the judge presiding over his trial: Dutil's own deputy.

The testimony delivered on the first day of Dutil's court martial, in which he is facing eight charges, underscored the unprecedented nature of the case — and why the court martial is considered a test of the military justice system.

It came as Dutil's lawyer sought to have Lt.-Col. Vincent-Louis d'Auteuil recuse himself from the trial, arguing the deputy chief military judge is too close to both his client and many of the witnesses who will be called to testify.

Canada's top military judge since 2006, Dutil was charged last year over allegations he had a consensual but inappropriate relationship with a subordinate and knowingly signed a travel claim for $927.60 containing false information.

He is facing two counts of fraud, one of wilfully making a false entry in an official document, one of wilfully making a false statement in an official document, and four related to conduct or neglect to the prejudice of good order and discipline.

None of the charges, three of which were laid in January 2018 and the other five last June, has been tested in court.

The military's top prosecutor opted to appoint a special prosecutor to review the military-police investigation against Dutil and decide whether to recommend charges.

It's believed Dutil is the first person to be charged while serving as the chief military judge and given the unprecedented nature of the case, it wasn't clear in the months leading up to the court martial how it would proceed. That included whether one of the three other military judges he oversees would hear the case against him.

Court heard Monday that it was d'Auteuil who ultimately decided to preside over the case.

That was despite what Simone Morrissey, the court-martial administrator for the office of the chief military judge, described Monday as a close professional and personal relationship between the two stretching back more than a decade.

"What I've observed is they're both professionals and have a professional relationship," Morrissey testified. "But they also have a familial relationship in that they're friends, very much friends."

That relationship manifested itself in regular Friday lunches, Morrissey said in response to questions from Dutil's lawyer, Philippe-Luc Boutin, and providing assistance to each other when one or the other was dealing with family difficulties.

The two also remained in contact even after Dutil was charged, Morrissey said, with the two signing each other's vacation requests and Dutil, who remains chief military judge, approving d'Auteuil's training requests.

Only the federal cabinet can appoint or remove a chief military judge, and Dutil, who was permitted to appear in a suit rather than his uniform, still holds his post but has not been hearing cases since he was charged in January 2018.

Yet while she spoke at length about the judges' friendship, Morrissey acknowledged she couldn't confirm the relationship had remained the same after Dutil was charged.

"They're still, as far as I know, very respectful of each other's positions and they respect the fact that (d'Auteuil's) assigned himself to preside at the proceedings and that there's a separation, professional separation, between the two of them," she said.

Adding to the drama, immediately after the court martial commenced, Boutin served d'Auteuil with a subpoena, explaining to reporters afterward that it was because the judge was a "witness to the facts."

"I think a reasonable person who is well-informed will determine that there is a clear conflict of interest," said Boutin, who added that he had flagged concerns early on about his client being tried in the military court system.

Military prosecutor 2nd Lt. Cimon Senecal, who has yet to make his own arguments, defended the decision to try Dutil via court martial because several of the charges are not in the Criminal Code but fall exclusively under military law.

"We still believe that this decision was correct and we're moving forward and there's nothing has changed that we think the situation should change," he said.

"I'm confident a person who is subjected to (military law), for such a person, the military justice system will find a way to ensure that this person faces the appropriate measures."