'This case will clearly be used in law schools as a great example of what not to do,' Chief Military Judge Col. Mario Dutil’s lawyer said

OTTAWA — Fraud charges against the military’s chief justice have been dropped because the military’s justice system was unable to find an impartial judge to try this “extraordinary and very rare” case.

“This dossier clearly demonstrates that the military justice system as it stands is not robust. Especially not when it’s administered in a malicious way. This case will clearly be used in law schools as a great example of what not to do,” Chief Military Judge Col. Mario Dutil’s lawyer told the National Post.

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“I do not think that the military justice system has grown or evolved with this case,” Philippe-Luc Boutin continued, adding that his client is relieved that the charges were dropped.

In January 2018, Col. Mario Dutil was charged with willfully making a false statement in a document signed by him, fraud, committing an act of a fraudulent nature and conduct to the prejudice of good order and discipline.

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At the heart of the case were allegations he had a consensual but inappropriate relationship with a subordinate, as well as claiming over $900 in travel expenses using false information.

At the time, military prosecutors decided to try the case in the military justice system rather than through civilian court.

“I can assure you that the military justice system has the appropriate mechanisms to deal with this exceptional situation, fairly and in accordance with the law,” Judge Advocate General Commodore Geneviève Bernatchez said when the charges were announced.

Last summer, deputy chief military judge Lt.-Col. Louis-Vincent d’Auteuil was assigned to hear the case, but quickly recused himself and refused to assign one of his three colleagues in his stead.

Col. Bruce MacGregor, the director of military prosecutions, asked the Federal Court to review the decision and assign one of the remaining military judges to hear the case. But in a stern judgment, Federal Court Justice Luc Martineau refused.

I do not think that the military justice system has grown or evolved with this case

“We cannot have the accused bear the burden of what seems to be, unfortunately, the result of an absence of legislative or governmental lucidity, wrote Martineau. “There must exist a reasonable degree of probability that Col. Dutil can benefit, in fact and in appearance, from a fair and equitable trial before the Court Martial. It is clearly not the case today.”

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That decision, as well as the fact the case has dragged on for over two years and the fact that Col. Dutil is a few days from mandatory retirement at age 60, convinced the director of military prosecutions to drop the charges.

“These are extraordinary and very rare circumstances. Because of the smallness of the (military justice) unit, I can’t see these types of circumstances ever arising anytime soon,” MacGregor told the National Post.

He said he did not think the case will undermine Canadians’ and military personnel’s confidence in the military justice system.

“It was unfortunate for the system and for the accused to not have his day in court. But I do not think my decision today, or anyone else’s, really does say that anybody is above the law. This is just rare circumstances that led to the decision not to proceed with the charges.”