MGen Dany Fortin & the MPCC

 

The Chairperson of the Military Police Complaints Commission (MPCC) has indicated that the MPCC will conduct a Public Interest Investigation to examine the Military Police investigation of sexual assault allegations against Major-General (MGen) Dany Fortin.

That is a ‘good thing’.  But it’s not enough.

The manner in which the Canadian Forces (CF) – particularly, but not solely, the Military Police – have handled allegations of sexual misconduct within an increasingly politicized environment must be the subject of both broader, and in-depth, scrutiny and critical analysis.

 

MPCC Announcement

On 23 May 2023, the Chairperson of the MPCC announced that she would commence a Public Interest Investigation into the handling of the sexual assault allegations against MGen Fortin.  The Canadian Forces National Investigation Service (CFNIS), a unit of the Canadian Forces Military Police Group (CF MP Gp) that investigates serious or sensitive allegations of criminal or Code of Service Discipline misconduct, investigated historical allegations of sexual assault, raised by a former member of the Canadian Forces who attended military college with MGen Fortin.  Based upon initial reports, the Chairperson of the MPCC indicated that MGen Fortin’s claims about the involvement of senior military officials make it a matter of public interest.

As an aside, this announcement was rather rapidly overtaken in the news media by the anticipated announcement by Special Rapporteur David Johnston regarding his “First Report” relating to allegations of interference in the 2019 and 2021 federal elections by the government of the People’s Republic of China.  Mr. Johnston’s problematic recommendation against a public inquiry quickly dominated the headlines, reducing the MPCC announcement to a news media footnote.

While the MPCC’s announcement can be characterized a positive step toward transparency in the CF’s problematic handling of allegations of sexual misconduct, I would also suggest that much more needs to be done to address broader issues of injustice in the handling of such allegations.

A meaningful examination of these issues needs to push past the “Media Response Lines” promulgated by government actors and representatives of statutory commissions.  The dramatic terminology employed by the news media to describe the role of the MPCC – such as “… military police watchdog …” – though evocative, fails to offer an accurate and meaningful description of what the MPCC actually does and what a Public Interest Investigation would actually entail and accomplish.  And the broader examination that is required should consider factors that distinguish MGen Fortin’s circumstances from the significant number of other CF (and former CF) personnel who were also the victims of unfair, unreasonable, and, ultimately, unjust decision-making.

I suggest that an inquiry or investigation into the handling of the Military Police investigation of MGen Fortin, which would presumably be limited in scope, will fall short of addressing many of the relevant factors relating to how the CF has addressed allegations of sexual misconduct.

I will start with a brief recap of what transpired in MGen Fortin’s specific circumstances.  I will then broaden the discussion with a comparison between MGen Fortin’s circumstances and an example of what more junior personnel often face.  This will afford us an opportunity to examine some of the broader issues that are often overlooked as a result of a myopic focus on certain high-profile matters.  Finally, I will present some conclusions, and, more significantly, questions that merit a response.

 

MGen Fortin’s Unfortunate Odyssey

By early 2021, MGen Fortin’s star was on the rise.  In November 2020, he was appointed as the Vice-President of Logistics and Operations for the Public Health Agency of Canada (PHAC), typically described as a secondment to PHAC, to oversee the rollout of COVID-19 vaccines at the federal level.  He was regularly placed front-and-centre in news briefings on the progress of the “vaccine rollout”.  His prominence in these briefings displayed a rather transparent governmental message: the vaccine rollout would proceed with military precision and efficiency.

Then, suddenly, on 14 May 2021, Department of National Defence (DND) spokespersons announced that MGen Fortin had been removed from his role with PHAC.  It had been leaked that MGen Fortin was the subject of a CFNIS investigation into sexual misconduct.  Initially, limited information was available.  The specific nature of the allegations was not described – only that it involved sexual misconduct.  Details were gradually disclosed.

Similarly, the source of the leak was unclear.  It is noteworthy that there had been other leaks of similar CFNIS investigations of senior CF officers.  And, frankly, we still do not have any answers about the source or sources of those leaks.  Consequently, we do not know what motive or motives may have been behind those leaks.

I could state that, in my experience, Military Police are among the most gossip-prone personnel in the CF.  And while I would stand by such an assertion, that is simply a broad anecdotal observation that doesn’t answer the questions: Who was/were the source(s) of these leaks?  Where did they obtain that information?  What was their motive or intent in leaking the information?

What we do know was that, at the outset of the reporting of the so-called scandals involving General Officers and Flag Officers (GOFO) of the CF, the CFNIS experienced more leaks than a warship past its prime.

Indeed, MGen Fortin claimed to have first learned of the allegations against him not from the CFNIS, the Chief of the Defence Staff (CDS), the Head of PHAC or any senior CF or governmental official, but from a reporter who contacted him regarding the allegations.

When the investigation became public, MGen Fortin was removed from his position and, de facto, but not de jure, relieved from performance of military duty.  That was a de rigueur response from the Minister of National Defence (MND) and the CDS whenever a GOFO was accused of wrong-doing – or merely smeared in the news media – the GOFO would be removed from his position and given no further duties.  That represents a relief from performance of military duty in all but name.  And these steps were also taken without the procedural fairness that is required under arts 19.75 or 101.09 of the Queen’s Regulations and Orders for the Canadian Forces (QR&O).

I have discussed this before: The Military Justice System – Use it or Lose it (17 October 2021).  And I have discussed the importance of deliberative consideration of facts rather than a default resort to outrage: Facts Before Outrage (16 May 2021).

MGen Fortin sought judicial review of the decision to remove him from his position with PHAC. He did not first use the CF’s statutory grievance process under section 29 of the National Defence Act (NDA), amplified by Chapter 7 of the QR&O and Defence Administrative Order and Directive (DAOD) 2017-0 Military Grievances and 2017-1 Military Grievance Process.  He argued that the grievance process was not an adequate alternative remedy.  Among the reasons for his position was the fact that the decision was ostensibly made by the CDS’s political masters.  Consequently, the CDS, as the final authority in the CF grievance process, could not possibly review and remedy that decision.

The Attorney General of Canada brought a successful motion to have MGen Fortin’s application dismissed based on the ground that he had failed to exhaust the ‘adequate alternative remedy’ in the CF grievance process: Fortin v Canada (Attorney General), 2021 FC 1061.

MGen Fortin appealed this decision (Federal Court of Appeal Docket A-278-21).  However, that appeal process was adjourned indefinitely on 3 October 2022 and does not appear to have been advanced since that date.  It remains an open docket with the Federal Court of Appeal.

Unlike many CF personnel, of various ranks, who have experienced the adverse impact on their reputations by allegations of sexual misconduct, MGen Fortin eventually had his day in court – several days actually.  He was acquitted.  The principal reason for the acquittal was the unreliability of the testimony of the complainant.  At trial, the complainant’s testimony regarding how she identified her assailant differed markedly from what she had told the CFNIS when they interviewed her.  And the explanation for this marked inconsistency was not satisfactory.  As a result, the trial judge – who was also the trier of fact – found that the complainant’s recollection of events from over three decades earlier was unreliable.

However, MGen Fortin’s challenges continued.  Director Military Careers Administration (DMCA) initiated an Administrative Review (AR) under DAOD 5019-2 in order to determine whether any administrative action should be taken against MGen Fortin – up to and including compulsory release from the CF – based upon the allegations.

Not surprisingly, the CF announced that, following the Administrative Review process, a determination was made that MGen Fortin did not engage in sexual misconduct.  A reasonable person would have viewed such a conclusion as inevitable.  After all, if the complainant’s recollection regarding her assailant was unreliable in the criminal proceeding, it would be unreliable in an administrative proceeding.  The issue of reliability is distinct from the operative burden of proof in a proceeding.  Whether it is a criminal trial applying proof beyond a reasonable doubt or an administrative tribunal proceeding on a balance of probabilities, an unreliable witness remains unreliable.

The foregoing will not be news to anyone who regularly reviews this Blog.  I have devoted several blog posts to MGen Fortin’s odyssey:

Why is the ‘Fortin File’ Being Transferred to a Civil Prosecutor? 23 May 2021

Wearing Canadian Forces Uniform in Civil Court, 30 September 2022

MGen Fortin’s Appeal, 3 October 2022

What happens if MGen Fortin is acquitted? 24 October 2022

The Fortin CANFORGEN, 19 November 2022

MGen Fortin was acquitted.  Now what? 6 December 2022

 

The actions taken against MGen Fortin were also relevant to other Blog posts; however, I suspect that this illustrates my point: high-profile matters such as the allegations against MGen Fortin can tend to drive policy decisions within the context of the DND and CF.  And some of those policy decisions are not necessarily firmly grounded in articulable principles.  Sometimes they are simply knee-jerk reactions.

MGen Fortin also initiated an action against the Crown before the Superior Court of Justice of Ontario, naming multiple defendants, including (but not limited to): the Attorney General of Canada; Prime Minister Justin Trudeau; the (then) Minister if National Defence, Harjit Sajjan; the (then) Deputy Minister of National Defence, Jody Thomas; the CDS, General Wayne Eyre; the Canadian Forces Provost Marshal, Simon Trudeau; and the (then) Director of Military Prosecutions, Bruce MacGregor.  His counsel at Conway Baxter Wilson LLP have posted the statement of claim on their firm’s website.  [NB: Following the initial publication of this Blog post, it was brought to my attention that, on 24 April 2023, the Plaintiff, MGen Fortin, discontinued the action against the named defendant Bruce MacGregor.]

The statement of claim filed with the Superior Court of Justice of Ontario raised the following causes of action: defamation, misfeasance in public office, negligent investigation, public disclosure of private facts, breach of confidence, and conspiracy.

Many people are sympathetic toward MGen Fortin.  He is an accomplished senior officer who would likely have risen even further in the CF but for the allegations against him.  These allegations did not withstand the scrutiny offered through cross-examination before an independent and impartial court.  And notwithstanding his exoneration, the allegations still resulted in MGen Fortin being sidelined for 20 months.  In light of the public nature of the allegations and the controversy associated with them, one might now conclude that it would be unlikely, if not impossible, that MGen Fortin could ever be promoted.  And, while he has been appointed to a position as a ‘Senior Advisor’ to the Commander, Canadian Joint Operations Command, it would not be unreasonable to characterize this position as a superficial attempt to provide him with a position to occupy, without offering him a truly meaningful position commensurate with his rank, abilities, and experience.  In other words, he is still being sidelined.

And, to offer frank disclosure of my own personal bias, I am sympathetic to MGen Fortin.  I personally believe that he has been dealt with in an unfair and disingenuous manner by a variety of decision-makers.

However, if we are going to have a frank and meaningful discussion about the implications of MGen Fortin’s circumstances in relation to the CF response to sexual misconduct, we must recognize additional incontrovertible facts that are relevant to this discussion.

 

Comparing Circumstances

MGen Fortin remains an officer – specifically a Major-General – in the CF.  Arguably, he is not occupying a meaningful position commensurate with his rank and experience.  However, he has still been able to serve in the CF for at least 35 years.  He has attained high rank (though one might acknowledge that, prior to May 2021, it would have been reasonable to expect him to reach even higher rank).  He continues to receive a salary commensurate with that rank (and experience, and ability).  This will be reflected in the immediate annuity to which he will be entitled under the Canadian Forces Superannuation Act (CFSA) when he eventually retires.

And, while his post-CF employment opportunities may be impacted by the circumstances that he has endured for the last two years, it is not unreasonable to suggest that such employment opportunities are not entirely foreclosed.

MGen Fortin was acquitted at his criminal trial and exonerated by the subsequent Administrative Review.  Public sentiment appears to be supportive or sympathetic to MGen Fortin (although this is a broadly subjective conclusion).  However, we must also recognize that the Administrative Review was directly influenced by the testing of the allegations at his criminal trial.  I suggest that the criminal trial – and the opportunity that MGen Fortin had to make full answer and defence at that trial – was determinative of the outcome of the Administrative Review.

And that factor distinguishes MGen Fortin’s circumstances from the significant number of CF personnel who have faced, and continue to face, Administrative Review based upon Military Police investigations where no charges were, or are, laid under the Criminal Code or the Code of Service Discipline.  Indeed, that distinguishes MGen Fortin’s circumstances from those of several other GOFO who were vilified in the news media but who were also not afforded an opportunity to make full answer and defence.

But my principal comparative focus is not on the other GOFO who have also been fodder for the news media coverage.  Rather, my focus will be on the nameless, more junior, personnel whose circumstances are distinguishable regarding many of the relevant factors that ought to be considered.

So, let’s compare MGen Fortin’s circumstances to a more junior member of the CF who faces allegations of sexual misconduct that are investigated by the CFNIS (or the Military Police generally) but where charges are not laid, either under the Code of Service Discipline or before a civil court of criminal jurisdiction.  Instead, these nameless respondents face, and faced, Administrative Review without the prior opportunity to make full answer and defence before an independent court and with the assistance of counsel.

Regular readers of this Blog will likely recognize the context that I describe.  I have often presented discussion of such circumstances, notably in Blog posts such as: Rules are for Corporals, Not for Colonels (1 September 2020) and Examining Vavilov’s Impact on Military Administration – Hypothetical Scenario (24 February 2020).

One of the challenges in comparing MGen Fortin’s circumstances to a CF member who was the subject of an Administrative Review without the benefit of a prior criminal or Code of Service Discipline trial manifests in one of the noteworthy differences that we will discuss here: by default, criminal and Code of Service Discipline trials are typically public.  Administrative Reviews are not.  I cannot, therefore, offer an example of such an Administrative Review that is well-known to the public.

In light of this distinction, we’ll have to rely on a hypothetical circumstance.  I will draw on my experience with such matters to present a brief, but realistic, scenario.  We will focus on a (hypothetical) CF member, accused of sexual misconduct prior to the significant changes to the Code of Service Discipline that came into force on 20 June 2022.

As a comparator, we’ll imagine a corporal – Corporal Infortunatus – who was investigated by the Military Police based upon allegations of sexual misconduct.  However, Cpl Infortunatus is not charged, under the Criminal Code or the Code of Service Discipline, by either the CFNIS or by his chain of command.  Instead, his chain of command – and DMCA – rely on the Military Police investigation as a justification for an Administrative Review under DAOD 5019-2.  They may, or may not, issue a Notice of Intent to recommend release under art 15.36 of the QR&O.

Consequently, the main focus will be on the Administrative Review (AR).  And, as I have explained, in detail, Administrative Review is an unsuitable substitute for a proper and fair prosecution under the Code of Service Discipline or, where the allegations relate to any form of “harassment”, an investigation under DAOD 5012-0 Harassment Prevention and Resolution.  It also represents a failure to satisfy a CF member’s legitimate expectation regarding the processes that the CF will use.

Based upon what I have encountered, consistently, we cannot be confident that the Administrative Review will disclose the entire Military Police investigation to Cpl Infortunatus.  In the past, such Administrative Reviews often relied upon merely the summary drafted by one or more Military Police investigators or select excerpts from the report that support the preferred narrative.  And I hasten to add that Military Police report summaries tend to be drafted in a less-than-objective manner that favours the complaint and complainant.  And, since the investigation was initially conducted as a criminal or disciplinary investigation, it is likely that Cpl Infortunatus exercised his Charter right to remain silent.  Consequently, the Military Police investigation won’t have all relevant evidence or statements from all relevant witnesses.

I will acknowledge that there have been some improvements to how the CF conducts Administrative Reviews in these circumstances.  Increasingly, if inconsistently, DMCA is providing more than simply the summary of a Military Police investigation.  However, these ‘improvements’ remain insufficient in terms of providing adequate fairness.  There often remain unsubstantiated and potentially improper or unfair redactions from the Military Police investigations presented in Administrative Reviews.  We cannot be confident that the level of disclosure in Administrative Review is comparable to the disclosure in criminal or Code of Service Discipline trial by virtue of R v Stinchcombe, [1991] 3 SCR 326.  Frankly, I have often encountered circumstances in which the principles in Sheriff v Canada (Attorney General), 2006 FCA 139 – which describes the duty of disclosure in administrative/disciplinary[1] proceedings – are not respected.

Cpl Infortunatus will eventually be offered an opportunity to make representations based upon the disclosure of the Administrative Review file (which may, or may not, include all relevant evidence) and after a DMCA analyst has already drafted a synopsis.  This synopsis will typically incorporate a boilerplate “analysis” based upon assertions of fact derived from the allegations against Cpl Infortunatus.

And it is vital that we recognize that the summary of facts presented in the Administrative Review synopsis is articulated before Cpl Infortunatus has an opportunity to present his version of events.  And those facts are not presented as a result of an intelligible weighing of evidence and a transparent and meaningful analysis of why certain evidence is accepted and other evidence is rejected.  The allegations described in the Military Police investigation will typically be treated as facts, as opposed to allegations or potentially disputed evidence. [I do note that more recent Administrative Review synopses have begun to use the expression “Summary of Information” in lieu of “Summary of Facts”.  That represents a superficial change – the “information” is still treated as proven, even if it is disputed by the respondent CF member and there remains an absence of any articulable weighing of evidence.]

The differences between MGen Fortin’s circumstances and those of Cpl Infortunatus should be obvious:

• MGen Fortin received robust disclosure in order to make full answer and defence in the criminal trial process;
• MGen Fortin was entitled to representation by counsel in the prior criminal proceeding;
• Evidence was presented before a constitutionally independent and impartial trier of fact;
• The evidence was subject to scrutiny under cross-examination; and
• The process was public.

 

In other words, MGen Fortin was permitted to offer full answer and defence in a public process before an independent and impartial tribunal.  And the outcome of that process – including and specifically, the evaluation of the key evidence – was relevant to (and, in MGen Fotin’s circumstances, determinative of) the subsequent Administrative Review.

In comparison:

• Cpl Infortunatus would likely receive limited disclosure of the case against him. It could be limited solely to the Military Police investigation summary;
• The allegations are treated as established fact by DMCA analysts before Cpl Infortunatus even has an opportunity to offer his version of events;
• Cpl Infortunatus is not permitted to cross-examine any witnesses – assuming he is even provided with the evidence that each witness purportedly presented to the Military Police, instead of merely being provided an investigator’s filtered summary of the evidence;
• The evidence is not weighed by an independent and impartial trier of fact; and
• The process is not public.

 

In other words, Cpl Infortunatus is not truly permitted to make full answer and defence to the allegations.  His representations are not considered by an independent and impartial tribunal.  He is not entitled to representation by counsel.  Arguably, he can seek the assistance of counsel; however, that counsel will not play a direct role in the proceedings.  Most importantly, Cpl Infortunatus is not afforded any opportunity to test the evidence against him in any meaningful way.  The process amounts to his version of events being weighed against the complainant’s version of events, absent any opportunity to test that evidence in a meaningful manner and in circumstances in which the allegations are already treated as established fact before Cpl Infortunatus even has an opportunity to respond.  Thus, not only does he not have the opportunity to make full answer and defence before an independent and impartial tribunal, but there is a compelling argument that an adverse narrative has already become entrenched in the process employed by the CF.

And the distinctions do not stop there.  If Cpl Infortunatus has not yet completed sufficient service to receive an immediate and unreduced annuity under the CFSA, if he is compulsorily released from the CF, he will typically only be entitled to a deferred annuity.

And, while the notoriety surrounding MGen Fortin’s matter may have had some adverse consequences for him, that public scrutiny also made it impracticable for senior CF decision-makers to release him following the type of one-sided and narrow-minded Administrative Review that Cpl Infortunatus faces.  The earlier criminal trial, and the objective and critical weighing of the evidence by the trial judge, constructively barred DMCA from making the sort of disingenuous findings and determinations that are all too common in Administrative Reviews that are predicated upon Military Police investigations that do not give rise to charges and which, consequently, are never scrutinized by an independent trier of fact in the ‘light of day’.

In circumstances such as those faced by Cpl Infortunatus – circumstances that arise frequently in the administration of the affairs of the CF – a prudent observer would be inclined to ask: if the evidence gathered by the Military Police was insufficient to satisfy the relatively low threshold required to lay one or more charges (i.e., an actual and reasonable belief) or the low threshold to proceed with a prosecution (i.e., a reasonable prospect of conviction), how could it conceivably be sufficient to be regarded as clear, cogent, and convincing evidence that would satisfy the civil burden of proof on a balance of probability? (F.H. v McDougall, 2008 SCC 53), [2008] 3 SCR 41)

And how much confidence can we have in disputed evidence – if actual cogent evidence is even presented in the Administrative Review process – that is not tested by any mechanism even remotely resembling cross-examination?

We must not lose sight of the fact that the complainant in the case of MGen Fortin was held to be unreliable precisely because her testimony did not withstand the scrutiny of cross-examination.  And a meaningful cross-examination was feasible because MGen Fortin had received sufficient disclosure of the case against him.

The CF personnel who are subject only to Administrative Review often do not receive comparably robust disclosure and are never afforded an opportunity to test the evidence against them.  And that is because Administrative Reviews are not actually designed to receive and weigh disputed evidence.  They were never designed for that purpose.  They are essentially structured file reviews.  They are suited to the review of undisputed factual information in order to make reasoned determinations regarding the appropriate measures, if any, that should be used to correct a performance or conduct deficiency or to address other career-related issues.  Where the process relies upon reliable or undisputed evidence, such a process could reasonably lead to the conclusion that a CF member has demonstrated that, even with the assistance of the chain of command, the CF member has been unable to correct the deficiency and, therefore, compulsory release is warranted.

But that is not what has been transpiring within the context of the CF’s response to allegations of sexual misconduct.  Administrative Reviews are being used as improper substitutes for the Code of Service Discipline to adjudicate disputed allegations of sexual misconduct.  And some of these Administrative Reviews have led to the ‘ultimate’ administrative sanction – compulsory release – even where the respondent did not have a history of prior conduct-related deficiency and where the respondent was not previously the subject of corrective measures to assist him (or her) in overcoming such deficiencies.

Instead, the respondents are told that their alleged misconduct was so serious that it warrants compulsory release in the absence of a graduated or progressive response.  Ironically, in such circumstances, the alleged wrongdoing was not so serious that it warranted a charge or charges under the Code of Service Discipline.  And that dissonance should ring a rather loud note of concern for observers of military justice and the administration of the affairs of the CF.

And I suggest that it is not too difficult to surmise why Administrative Reviews have increasingly become the principal mechanism by which CF decision-makers have taken coercive action against CF personnel accused of significant wrong-doing, including sexual misconduct.  In an Administrative Review, the chain of command remains the unfettered decision-maker.  And make no mistake – even though the decision is often made by DMCA, that is still a decision by the CF chain of command.  They control the process in its entirety, including the extent and nature of disclosure and the timing of the process.  They need not worry about some independent judge – military or otherwise – meddling in their decision-making.

 

So why is this distinction important?

We must not loose sight of the fact that MGen Fortin’s circumstances represent the exception, not the rule.  Most CF members who face Administrative Review based upon allegations of sexual misconduct (or other purportedly significant wrongdoing) do not benefit from the opportunity to test the evidence against them in a robust and meaningful manner before an independent and impartial trier of fact.

There is a grave risk that the ‘lesson’ that CF and governmental decision-makers will take away from MGen Fortin’s circumstances is that, if they wish to ‘get rid of’ a CF member, they should not run the risk of first laying a charge under the Code of Service Discipline or before a civil court of criminal jurisdiction.  Otherwise, the evidence upon which they wish to rely in the Administrative Review may prove to be unreliable.  Instead, they will opt for the ‘certainty’ of their own Administrative Review process – though it is manifestly not designed to adjudicate disputed evidence, they retain absolute control over the entire process.

Frankly, my use of the term “grave risk” is a bit tongue-in-cheek.  CF decision-makers, and the legal advisors who support their decision-making, have clearly already “learned” this lesson.  That is the logical explanation why Administrative Review is so frequently used to address allegations of sexual misconduct, absent reliance on the Code of Service Discipline or a criminal trial.

Ironically, many of these CF members face compulsory release because the allegations against them are purportedly so serious that compulsory release is ostensibly the appropriate outcome; yet the allegations are not so serious that they warrant prosecution under the Code of Service Discipline or the Criminal Code.

And that projects a rather transparent cognitive dissonance.  A reasonable person may be inclined to conclude that the real reason that charges are not laid is because the relevant decision-makers have concluded that the evidence is so deficient that it would not withstand even moderate scrutiny by an independent or truly open-minded decision-maker.  And once that evidence is examined – and potentially rejected – by an independent and impartial decision-maker in a public process, it becomes markedly more difficult for CF decision-makers to rely on such allegations to justify significant and coercive statutory decision-making under so-called ‘administrative’ processes.  And make no mistake: while those the processes may be labelled as ‘administrative’, their purpose in such circumstances is often principally punitive.

It’s fortunate that the Military Police investigation of MGen Fortin will be subject to a Public Interest Investigation (PII) by the MPCC.  I note, tangentially, that this is not the only PII that the MPCC has announced recently.  The MPCC also announced that it would conduct a PII into the handling of the allegations against the late Major Cristian Hiestand.  And Major Hiestand’s family is still waiting for the Canadian Forces Provost Marshal and his Professional Standards section to complete the investigation of their complaint.  And it appears that the PII announced in relation to Major Hiestand will not proceed in any material fashion until the CFPM completes his Professional Standards investigation.

But these are discrete and individual circumstances.  While they share some common factors, they are also distinguishable on their own facts.  And what is truly required is a broader examination of how CF decision-making and actions in response to allegations of sexual misconduct– including, but not limited to, Military Police investigations – have been shaped by the highly politicized environment that has been generated over the past few years.

The CF faced increasing scrutiny and criticism regarding the handling of sexual misconduct complaints.  And that scrutiny and criticism was not without merit.  This has led to a variety of policy decisions and practices.  Some have been effective.  Many were not.  Some policy choices were well-intentioned, if problematic.  Others have been driven principally by ‘optics’ – what people of previous generations would have referred to as ‘appearances’.  [Consider: Disclosure of Personal Information Under Op HONOUR (19 August 2019); The Sexual Misconduct Decision Tree & Closed-Minded Decision-Making (25 September 2019)].

Some policy choices were rather transparent political spectacle.  Other policy initiatives – such as the current MND’s decision to refer prosecution of sexual offences to civil authorities – were not staff-checked properly and were predicated upon dubious principles.  And the manner in which the MND appeared to implement that policy decision may well have been inconsistent with Parliament’s direction under the National Defence Act.

Minister of National Defence Announcement – Sexual Misconduct, 5 November 2021

The MND’s New Policy and the Rule of Law, 19 November 2021

Impact of Access to Justice on Sexual Misconduct Charges, 23 June 2022

Setting Conditions for Failure, 11 July 2022

 

At the heart of these decisions – including, I suggest, the decision to prosecute MGen Fortin – was the political expediency that “we must be seen to be doing something!”.  But that is not the proper ‘test’ for whether a prosecution should proceed.  Nor is it the proper ‘test’ for the exercise of coercive statutory powers that can have an adverse impact on the object of those powers.

The decision to prosecute allegations of wrongdoing turns on a two-part test: (1) is there a reasonable prospect of conviction; and, (2) is it in the public interest to do so?  I have discussed this issue before, at length.  In light of concerns regarding sexual misconduct in the CF, it is likely that a prosecution will almost always be justified in the public interest, provided that there is a reasonable prospect of conviction.  And the test for a ‘reasonable prospect of conviction’ is manifestly not: “… if we don’t prosecute these allegations, the complainant may contact the news media and we may be subject to one-sided criticism …” or “… if we don’t prosecute, the complainant’s family might contact the Minister or the CDS or the JAG to complain …”.

However, every now and then a prosecution is brought in the military justice system (or where military decision-makers have pushed for a prosecution in the civilian justice system) where there was clearly no reasonable prospect of conviction.

And that should raise questions for anyone concerned with the military justice system in Canada and the administration of the affairs of the CF.  And we need to start asking questions regarding such decision-making as it pertains to the politically-charged subject of sexual misconduct, including:

• Are Military Police investigators intentionally avoiding pursuing reasonable avenues of investigation in order to avoid the risk of identifying potentially exculpatory evidence?
• Are CF decision-makers – including Military Police, the chain of command, and military prosecutors – truly evaluating whether there is a reasonable prospect of conviction in matters pursued before military or civilian courts, or are they pursuing allegations of sexual misconduct, absent a reasonable prospect of conviction, in order to avoid criticism?
• To what extent has the Administrative Review process been used as an improper substitute for prosecution of sexual misconduct under the Criminal Code or the Code of Service Discipline?

 

To this we can add inquiry into the outcome of the MND’s policy decision to refer some (but clearly not all)[2] allegations of sexual offences to civil jurisdiction.  That policy decision was made over 18 months ago.  Yet there has been little if any information forthcoming about the consequences of that policy decision.  That policy decision was predicated, in part, upon the problematic conclusion that too many prosecutions for sexual offences under the Code of Service Discipline resulted in acquittals.  And that conclusion was problematic not because acquittals or convictions are inherently ‘good’ or ‘bad’, but because the measure of the merit of a justice system ought to be on the fairness and reliability of the process, not whether the outcomes align with what the Crown or any other ‘stakeholder’ group considers to be the ‘desired’ outcome.

Consider: Impact of Access to Justice on Sexual Misconduct Charges (23 June 2022).

There remain pertinent questions:

• How many allegations of sexual-related criminal offences are still being prosecuted under the Code of Service Discipline? And why?
• How many matters, referred to civil prosecutors by CF authorities, have been rejected by those civil prosecutors? (i.e., In how many cases have civil prosecutors declined to proceed?)
• Where civil prosecutors have declined to proceed, have military prosecutors then chosen to proceed under the Code of Service Discipline?
• How many matters investigated by the Military Police, but referred to civil courts of criminal jurisdiction, have been prosecuted, resulting in a judgment?
• Of those, how many resulted in conviction and how many resulted in acquittal?
• How do those results compare to prosecutions for similar offences under the Code of Service Discipline?
• How do those results compare to prosecutions for similar offences before civil course of criminal jurisdiction generally?

 

There are important issues that will not be addressed by the ‘Fortin PII’ (or the ‘Hiestand PII’, for that matter).  There are questions that will not be asked or answered.

One possible means of providing a more robust response, regarding the Military Police at least, would be for the MPCC to conduct one or more Public Interest Hearings, rather than merely PII.  Another would be for a broader inquiry – under either the National Defence Act or even the Inquiries Act – into the CF’s handling of allegations of sexual misconduct and the methods and practices that the CF has employed.  This would require more than an ad hoc inquiry by a retired Supreme Court of Canada justice that relied upon anecdotal information offered in private.  It would require a public inquiry in which those difficult questions are asked, and in which the answers are scrutinized and tested.

Unfortunately, public inquiries do not appear to be very popular with select governmental decision-makers.

 

[1] The use of the term “disciplinary” in this context should not be confused with the Code of Service Discipline, which is essentially a penal/criminal regime.  The term “disciplinary” is used in what can be characterized as a civilian or administrative context, such as a disciplinary process for a regulated profession.

[2] As at 30 May 2023, of the 28 courts martial listed on the website for the Chief Military Judge (technically, Acting Chief Military Judge) five involve at least one charge of sexual assault, contrary to section 271 of the Criminal Code and incorporated into the Code of Service Discipline by virtue of section 130 of the National Defence Act.