Special Prosecutor appointed at JAG
On 25 January 2018, Colonel Mario Dutil, the Chief Military Judge, was charged under the National Defence Act by the Canadian Forces National Investigation Service with one count each of an act of a fraudulent nature, willfully making a false entry in a document signed by him that was required for an official purpose, and conduct to the prejudice of good order and discipline.
As in all cases, the accused is presumed innocent until proven guilty, and this matter will continue to progress through the military justice system in accordance with the law.
In order to carry out military prosecution duties relating to the charges laid recently against Colonel Dutil, the Director of Military Prosecutions, Colonel Bruce MacGregor, has announced the appointment of Lieutenant-Colonel Mark Poland as a Special Prosecutor.
The appointment of a Special Prosecutor may be considered in certain circumstances where there may be an actual or perceived conflict of interest in the conduct of military prosecution duties that may adversely impact public confidence in the administration of military justice.
For the purposes of military prosecutions, a Special Prosecutor is an officer of the Canadian Armed Forces who is a member of the bar of a province in good standing and who is not a member of the Legal Branch.
LCol Poland will conduct a post-charge review of the charges against Col Dutil as they have now been referred to the Director of Military Prosecutions pursuant to the National Defence Act. When conducting a post-charge review, prosecutors must conduct a two-stage analysis to determine whether or not to prefer a matter for trial by court martial. LCol Poland in this case must first consider whether there is a reasonable prospect of conviction should the matter proceed to trial by court martial, based on all of the evidence and the law, and second whether the public interest requires that a prosecution be pursued.
“As in the civilian justice system, no one is above the law and the appointment of Lieutenant-Colonel Mark Poland as a Special Prosecutor demonstrates that the Canadian Military Prosecution Service has the policies and processes in place to handle this unique case fairly, independently and impartially,” said Colonel Bruce MacGregor, Director of Military Prosecutions, Canadian Military Prosecution Service.
The Special Prosecutor, LCol Poland, is an Infantry Officer in the Reserve Force serving as the Commanding Officer of the Royal Highland Fusiliers of Canada in Cambridge, Ontario. In his civilian career, he is the Crown Attorney of the Waterloo Region with the Ontario Ministry of the Attorney General. Called to the bar as a member of the Law Society of Upper Canada in 2000, he holds a Master of Laws Degree in criminal law and his professional practice focuses on managing the prosecution of criminal proceedings in jury and non-jury trials and appeals both at the Ontario Court of Justice and Ontario Superior Court of Justice.
The Canadian Military Prosecution Service is an independent entity within the Canadian Armed Forces mandated to review cases referred for court martial, to decide which cases should proceed, and to prosecute those cases in the courtroom.