MGen Fortin was acquitted.  Now what?

 

Major-General (MGen) Dany Fortin’s trial concluded yesterday, 5 December 2022, with an acquittal.  Judge Richard Meredith, of the Provincial Court of Quebec (Cour de Québec), read out his judgment to a packed courtroom.

Based upon the news media reports of the testimony, the verdict did not come as a surprise.

The Crown has 30 days to decide whether it will appeal.  For the purposes of the Blog post that follows, I will assume that the Crown will not appeal.  Frankly, based upon the judgment and the evidence that was heard, I would be surprised if the Crown appealed.

Based upon the presumption that the criminal proceeding is concluded, the question now is what the Chief of the Defence Staff (CDS) and his political masters, the Prime Minister (PM) and Minister of National Defence (MND) will do.  That is far less certain than the outcome of the criminal trial was.

In part, this is because the potential courses of action are not binary in nature.  Second, we could be confident that Judge Meredith would follow the law and evidence that was before him in determining the verdict in the criminal prosecution.  It will likely come as no surprise to regular readers of this Blog that I have less confidence that this will be the case in the administration of the affairs of the Canadian Forces (CF).

Before we examine some of the options before the PM, MND, and CDS, let’s first turn our focus on the nature of MGen Fortin’s acquittal, and the implications that it holds for subsequent statutory decision-making under the National Defence Act (NDA).  We can then examine the decision-making that has thus far arisen under the NDA.  This will assist in examining what courses of action the PM, MND, and CDS might the pursue.

 

The Acquittal

The reporting on the acquittal has been relatively consistent, with most journalists focusing on the criminal burden of proof – i.e., that guilt was not proven beyond a reasonable doubt.  Indeed, some journalists leaned into that term of art in a manner that gave the impression that they were expressing the view that the acquittal was due largely to this high evidentiary threshold.

However, I contend that the outcome turned not principally on the evidentiary threshold, but on the credibility of evidence regarding the sole element of the offence that was in dispute in the prosecution: identity.

In a previous Blog post concerning MGen Fortin’s trial, I described the distinction between the criminal evidentiary threshold and determinations of credibility and reliability of evidence.  I won’t revisit that commentary here, but you may review it at your convenience:

What happens if MGen Fortin is acquitted?, 24 October 2022

 

While it is true that Judge Meredith concluded that guilt had not been proven beyond a reasonable doubt, the issue that will impact subsequent decision-making in the administration of the affairs of the CF is why that was.

MGen Fortin maintained both before the trial, and during the hearing of evidence, that he was not the person who assaulted the complainant and that he was not present.  He did not challenge the complainant’s testimony that she was sexually assaulted.  How could he, if he was not present?

So, the material issue at trial was whether the assailant was Dany Fortin.  And when making this determination, Judge Meredith was unequivocal: he found that the complainant was not credible regarding the issue of identity of the assailant, and that Dany Fortin was.

That does not mean that Judge Meredith questioned the complainant’s honesty or truthfulness.  He unequivocally stated that he believed the complainant when she stated that she was sexually assaulted.  And that is a reasonable conclusion to draw, as there was no contrary evidence presented.

But Judge Meredith pointed out several inconsistencies in the complainant’s testimony and factors that undermined the reliability of her evidence regarding the identity of her assailant.  Her ability to observe and recall, accurately, the crucial evidence relating to the sole element of the offence that was in dispute, was compromised.

In other words, recalling the description of the ‘test’ in R v W(D), [1991] 1 SCR 742 that I explained in my previous blog on this matter, the judge faced a three-stage test regarding credibility:

1. First, if you believe the evidence of the accused, obviously you must acquit.
2. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
3. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

 

I contend that, when adjudicating the sole issue that was in dispute – the issue of identity – Judge Meredith acquitted MGen Fortin based upon the first stage of this test.

And that is a significant factor.  In criminal prosecutions, there will be cases in which a trier of fact might believe that it is ‘likely’ that an accused committed a criminal act, but where, in the circumstances of the totality of the evidence, the trier of fact is still left with a reasonable doubt.  That is what is described in the third step in the W(D) ‘test’.  It may be an acquittal, but it is not a compelling acquittal.  In such circumstances, there may well be sufficient evidence to make a determination of blameworthy conduct on a civil burden of proof.

In some prosecutions, the accused might not be entirely credible, but the testimony of the accused still raises a reasonable doubt.  This can arise where the complainant is also not particularly credible.  That describes the second stage of the W(D) ‘test’.  In such circumstances, it can be debatable whether blameworthiness could be proven on the lower civil burden of proof.

However, an acquittal at the first stage of the analysis is generally indicative of circumstances in which the accused is believed, and the complainant is not.  In such circumstance, an objective and impartial decision-maker would come to the same conclusion even on a balance of probabilities.  That is because it turns on credibility and reliability, and not the degree to which one party is believed over the other.

In some cases, this can arise where the complainant is disbelieved entirely by the trier of fact.  Such circumstances are uncommon.  I suggest that is what arose in the court martial of R v Jonasson, 2019 CM 2003.  In that case, the military judge clearly concluded that the complainant was not being truthful.

In the present case, it was not that Judge Meredith did not believe the truthfulness of the complainant; he concluded that her ability to observe at the material time, and her recollection regarding the sole element of the offence that was in dispute – identity – was not reliable.

An accused is not found ‘innocent’ when a court of criminal jurisdiction does not find them guilty; the accused is found ‘not guilty’.  It is not a determination of the existence of innocence, but a determination of the absence of guilt.  However, in circumstances other than where the Crown was ill-advised to even commence a prosecution (e.g., R v Jonasson) the outcome in MGen Fortin’s trial is about as close as one will get to exoneration when charges are laid, and a prosecution is pursued.

 

Current Status

MGen Fortin does not have a position within the CF.  Undoubtedly, he occupies a ‘line serial’ on the establishment of the CF.  But he is not presently assigned duties, functions, and powers in relation to a specific command or staff appointment.  Like every other General Officer of Flag Officer (GOFO) who was accused of a Code of Service Discipline or criminal offence in the past 2 to 3 years (and one or two who were not even accused of offences) he was, de facto, if not de jure, relieved from performance of military duty.

And that is part of the problem.  The Queen’s Regulations and Orders for the Canadian Forces (QR&O) set out, rather clearly, the process that must be used when relieving an officer or non-commissioned member (NCM) from performance of military duty.  There is a general provision at art 19.75 of the QR&O, and another at art 101.09 of the QR&O where an officer or NCM is believed to have committed a criminal or Code of Service Discipline offence.

And to be clear, an officer or NCM need not be relieved from performance of military duty when he, she, or they are accused of an offence.  This is a measure of last resort.  In many cases, it will not be necessary to exercise this measure of last resort.  And I suggest that the allegations against MGen Fortin were representative of a circumstance in which this measure was not justified.

For example, if an officer or NCM is accused of impaired operation of a motor vehicle, it likely won’t be necessary to relieve the officer or NCM from performance of military duty.  It’s possible that some restrictions may arise.  If the accused’s CF position and function is that of a driver, his chain of command might choose to assign him to different duties if they are concerned about his fitness as a driver. In order to permit the accused to make full answer and defence to the charges, it may be necessary to refrain from posting that officer or NCM away from the location in which the charges arose (including deployments).  But relief from performance of military duty must not be used as an ersatz punishment.  That is for the criminal justice system (or, depending upon the charges, the military justice system), and only upon a finding of guilt.  Nor may CF decision-makers take action that would compromise (or force the accused to compromise) his, her, or their rights under the criminal justice process.

Similarly, if an officer is accused of sexual assault allegedly occurring 34 years ago, with no indication of any similar misconduct during the scope of his career, one might question why it was necessary to, de facto, relieve him from performance of military duty.

And it is not sufficient for the relevant decision-maker to assert that he or she has not actually relieved an officer from performance of military duty – i.e., they have not expressly relied upon art 101.09 of the QR&O – and that they have merely changed the officer’s functions, if the practical effect is to relieve the officer from the performance of any military duties or functions.  That would be transparently disingenuous.

It’s one thing if the officer were to request leave in order to focus on making full answer and defence.  It’s quite another to, in effect, relieve the officer from performance of military duty by removing him from one position and not assigning him any other duties, based upon unproven allegations.

Putting aside whether such action is justified, there is the separate issue of following the process that the Minister has established by regulation at art 101.09 of the QR&O.

While reasonable people might debate whether relief from performance of military duty was justified in this circumstance, there really isn’t a debate about whether the law should be followed.  Remember, “Obey and support lawful authority” is the third of three ethical principles under the Department of National Defence (DND) and CF Code of Values and Ethics,  established under Defence Administrative Order and Directive (DAOD) 7023-0, Defence Ethics, and DAOD 7023-1 Defence Ethics Programme,

This principle states:

At all times and in all places, DND employees and CF members shall uphold Canada’s parliamentary democracy and its institutions by:

3.1 Respecting the rule of law.

3.2 Carrying out their duty and their duties in accordance with legislation, policies and directives in a non-partisan and objective manner.

 

The CDS and senior leadership should be familiar with this principle – they use it frequently enough to justify imposing administrative measures (and ersatz punishments) on subordinates, up to and including compulsory release.  It was used to justify the compulsory release of every CF member who was ejected from the CF for refusing to be vaccinated against COVID-19.

But what the CDS and his leadership team need to remember is that these ethical principles apply to them too.  And when they relieve people from performance of military duty – even if they won’t admit that that is precisely what they are doing – then they are obliged to do so reasonably and in accordance with the law (e.g., art 101.09 of the QR&O).  And when they fail to do so, they are contravening the very principles they purport to uphold.  And that also means that, as officers, they are failing to comply with their obligations under art 4.02 of the QR&O.

And it’s not like the procedural fairness obliged under art 101.09 of the QR&O is particularly onerous.  The steps are laid out in a clear and unambiguous fashion, and they permit some fairly broad discretion (although the decision must still be reasonable, intelligible, transparent, and justified based upon the relevant evidence).  The CDS has essentially ignored this provision and has certainly not offered any reason – compelling or otherwise – for failing to perform this duty when he or one of his subordinates has failed to comply with this lawful obligation relating to relief from performance of military duty.

But I don’t blame solely the CDS for this failure to comply with lawful obligations, and thereby uphold the rule of law – and make no mistake, I do blame the CDS for failing to do so.  There is another officer and organization that has a not-insignificant role to play in such processes.

I will give you a hint: the translation of the Latin motto on their cap-badge is: “Let justice prevail”.

The Judge Advocate General of the Canadian Forces (JAG) is responsible for advising the CDS and other statutory decision-makers on the application of military law (NDA, s 9.1).  She is aided by the legal officers in the Office of the JAG (OJAG) (art 4.081 of the QR&O).

The CDS has failed to ensure that art 101.09 of the QR&O has been applied, and applied reasonably, in these, and other similar circumstances.  So, either he is not getting the legal advice that he requires, or he is getting the necessary legal advice, but is not heeding it.  Either possibility is problematic.

The former would suggest that he is not seeking legal advice or that the JAG and OJAG are not offering it, even though the circumstances call out for such legal advice.  If that is the case, one might conclude that the JAG is failing in her obligations.

If the CDS is receiving the necessary legal advice, but is ignoring it, then there is a bigger problem.  If the CDS is not heeding legal advice, then the JAG should be having a pointed conversation with the MND.

But what if the MND is part of the problem?  What if the MND – herself a lawyer – is not heeding the advice of the JAG to ensure that the CDS and other senior CF leaders are complying with their obligations under the NDA?

There is a third possibility, and it is worrisome for me as a former legal officer.  What if the legal advice coming from the OJAG is compromised by a desire to avoid ‘rocking the boat’?  What if the legal advice coming from the OJAG hedges on statutory and Common Law obligations through disingenuous interpretations of the law?  What if the OJAG is being less-than-resolute in upholding the rule of law?

I am disheartened to observe that such circumstances may have arisen in the recent past: Some Observations on ‘Military Justice’ at Summary Trial – Conclusion, 13 June 2022.

However, the present circumstance represents an opportunity.  For the past few years, the OJAG has been focused principally on providing “…client-focused, timely, options-oriented and operationally-driven military legal services …”.  At times it can appear that this mission statement is translated into providing the legal advice that CF decision-makers want, rather than the legal advice that they need.

Perhaps the time has come to re-emphasize upholding rule of law in the CF so that it reflects Canadian legal norms.  In light of the asymmetric nature of the Crown-soldier relationship, perhaps a reinvigorated approach to reasonableness and procedural fairness is the appropriate focus in order to enhance not just the military justice system as it is now narrowly defined under section 2 of the NDA, but to enhance confidence in statutory decision-making in the administration of the affairs of the CF.

 

So, what happens now?

Presumably, the CDS and the MND and PM have discussed the possibility that MGen Fortin would be acquitted.  They would have been acutely aware that a verdict would eventually be handed down.  And, frankly, six weeks ago, after the closing arguments were completed, it should have been clear to them that an acquittal was at least a possible outcome, if not likely.  One would like to think that the CDS would have seen the value of contingency planning.  Even if the PM and MND were not interested in discussing the issue, the CDS, at the very least, should have consulted with his staff and members of his senior leadership team to discuss what they should do.

At this point, MGen Fortin has not been convicted of any offence, and the verdict of Judge Meredith clearly articulated that the key evidence regarding whether MGen Fortin was the culpable party in the complaint was not reliable.

Absent reliable evidence of wrong-doing – particularly wrong-doing alleged to have occurred 34 years ago – one might presume that MGen Fortin would be permitted to resume his role as a senior leader in the CF.  A reasonable person might expect MGen Fortin to be assigned to a position commensurate with his rank and abilities.

However, the track record of such decision-making in the administration of the affairs of the CF gives me pause that reasonable decision-making will be the order of the day.

Part of the problem is that the decision-making regarding MGen Fortin’s status 19 months ago was allegedly driven by the PM, the (then) MND and other ministers and senior departmental officials.  In his pleadings before the Federal Court, MGen Fortin presented evidence that the decision to remove him from his position as ‘Vice President Logistics and Operations with the Public Health Agency of Canada (PHAC)’ was made by the PM, the MND, and the Minister of Health.  And, based upon notes from the CDS that were presented in evidence in the Federal Court proceeding, it appeared that the CDS acknowledged that this decision was imposed on him by his political masters.

But that is only part of the equation.  While the decision to remove MGen Fortin from his position with PHAC was made at the ministerial level, it remained open to the CDS to assign MGen Fortin to other duties.  He did not do so.  And, by not assigning MGen Fortin to new duties, the CDS, in effect, relieved him from performance of military duty.  But he did not do so in a manner consistent with art 101.09 of the QR&O.  And MGen Fortin alleges that the subsequent decision (or, perhaps more accurately, absence of a decision) was driven or directed by ministerial decision-makers.

The CDS must now decide what he is going to do.  Will he assign MGen Fortin to a position commensurate with his rank and experience?  If not, why not?  And what process will the CDS employ to ensure that MGen Fortin receives the procedural fairness to which he is due as the subject of statutory decision-making?  And these questions are particularly pertinent, as there has been little evidence of any compliance with general principles of public and administrative law, or specific compliance with applicable legislated or policy regimes, in the decision-making concerning MGen Fortin’s status.

What direction, if any, will the MND give to the CDS?  Will they take further adverse action against MGen Fortin?

And that is where there is a risk of disingenuous decision-making.

There is a tangible – if not probable – risk that the MND will direct the CDS to commence an Administrative Review under DAOD 5019-2 regarding MGen Fortin’s future in the CF, or that the CDS will, himself, decide to initiate such a review.

This assertion is predicated upon the pattern of conduct demonstrated by the CDS and the current (and former) MND over the past 2 years.

I’ll be blunt: when the allegations against MGen Fortin arose – or, more accurately, when they were leaked by as-yet-unnamed person – the senior CF leadership and their political masters panicked.  They panicked like a new Officer Cadet receiving his first leadership task on Basic Training.  And their decision-making was driven by fear: fear of negative news media coverage, fear of allegations of sexual misconduct, and fear of appearing ineffectual in their roles.  So, they did what many people do when they panic: they over-reacted.

The same is true for many of the circumstances surrounding GOFO who have been accused or vilified in the news media.  Indeed, the same is true regarding more junior CF personnel.  The principal difference is that most Canadians do not hear about the allegations, and subsequent administrative action, against more junior personnel.  And even though the scrutiny of national news media is not as significant a concern where allegations are brought against junior personnel, that does not mean that the chain of command is not similarly prone to over-react.

The treatment of select GOFO who have been the objects of complaints or allegations serve as a public example of treatment of many other CF personnel, whose circumstances are not the subject of news media scrutiny.  And those more junior personnel may not share some of the advantages of the GOFO: e.g., robust salaries; long service that guarantees an immediate, and unreduced annuity; public support; or skills and experience in dealing with complex administrative matters.

So, despite MGen Fortin’s 30+ years of service to the country and Crown and the accomplishments that led to him being promoted to MGen and being assigned to lead Canada’s COVID-19 vaccine roll-out, he was removed from that position and, in effect, relieved from performance of military duty.  This was done without regard to the obligatory procedural fairness established under art 101.09 of the QR&O.  This was done without offering a reasonable, intelligible, transparent, or justified explanation for the decision.  It was done to satisfy ‘optics’.

“It would look bad if we didn’t” does not pass muster for the exercise of statutory powers that has such a significant impact on the subject of the decision.

The risk now is that the CDS and other statutory decision-makers will double-down – again, as a result of panic – in order to: (a) make the problem ‘go away’; and, (b) demonstrate that they are acting decisively.

And that has been an enduring problem in the administration of the affairs of the CF: senior decision-makers are more focused on being seen to act decisively than they are on acting reasonably and fairly.  However, as statutory decision-makers, their principal obligations include acting reasonably and fairly.  They are obliged to comply with the parameters of the legislative regimes that empower them in the first place.  And, while it may be desirable that they act decisively and in a timely fashion, those factors do not justify derogation from the obligations to act fairly and reasonably.  Nor do they obviate requirement to comply with legislative provisions that apply, expressly, to the exercise of the powers that they exercise.

And asserting that the CF grievance process offers a remedy is disingenuous.  The availability of a remedial process – particularly one plagued by delay and constraints on meaningful remedy – is not an acceptable excuse for failing to act reasonably and fairly in the first place.  If ‘patriotism’ is the last refuge of a scoundrel, then the statement, “If you don’t like it, you can grieve it”, is the penultimate refuge.

 

Possible Courses of Action

There are a variety of options available to the PM, the MND, and the CDS.  Arguably, the potential courses of action are limited only by imagination.  However, any potential action must start with the CDS.  The CDS is charged with the control and administration of the CF (NDA, s 18).  It is a near certainty that the CDS will consult with the MND, and likely the PM, when considering what will be done.  But the initial steps fall to the CDS.

And, frankly, barring specific requests from MGen Fortin, the only reasonable decision is to assign MGen Fortin to duties and functions commensurate with his rank, experience, and aptitudes.  As I say, he should not have been relieved from performance of military duty for the past year-and-a-half.

Some people have observed that, at 54 years of age, MGen Fortin could be obliged to retire when he turns 55 years of age (“retirement age”) under item 5(a) of the table to art 15.01 of the QR&O.  Certainly, reliance on “retirement age” is a common basis by which the MND and CDS have, in the past, directed GOFO to retire.  This provision has not been successfully challenged before the Federal Court.  And the presumption of lawfulness supports the contention that, until and unless it is successfully challenged, this provision remains applicable.

But the MND and CDS are not obliged to direct any GOFO’s retirement at age 55.  And such a perfunctory use of statutory power could trigger judicial review.

Others have started to speculate about whether MGen Fortin might be offered, or receive, some form of compensation from the Governor in Council.  The aftermath of the failed prosecution of Vice-Admiral Mark Norman (ret’d) is typically uttered in such context.

There are similarities between the two matters – notorious removal of a GOFO from a high-profile position based upon allegations of criminal misconduct, followed by an unsuccessful prosecution.

However, there are also differences.  Even before the prosecution of VAdm Norman began, it was difficult to discern how the Crown believed that they could ever prove ‘breach of trust by a public officer’ contrary to s 122 of the Criminal Code.  Based upon the public reporting at the time, there did not appear to be any evidence that might have established the fourth element of that offence (excluding the elements common to all offences): the accused acted with the intention to use his or her public office for a purpose other than the public good, for example, for a dishonest, partial, corrupt, or oppressive purpose.

Recalling the allegations against VAdm Norman, even if he had done what he was alleged to have done, it was evident that he did so for the benefit of the Royal Canadian Navy, the Command for which he was the commander.

In MGen Fortin’s case, there was arguably a case to meet.  The threshold for laying criminal charges is relatively low (an actual and reasonable belief) as is the threshold to pursue a prosecution (a reasonable prospect of conviction).  Some people point to the complainant’s evidence and ask how such a prosecution could proceed.  However, based upon the information that has been publicly available (and without access to the disclosure upon which the prosecution was based), it would appear that the complainant’s testimony at trial was markedly different than what she told the Military Police investigators.  The frailty arising from the inconsistent testimony would likely not have been known to the prosecutor until it occurred at trial.

There are undoubtedly details of which the public is presently uninformed, and the public may remain uninformed of those details.

Ultimately, the criminal prosecution unfolded in a manner not unlike other criminal prosecutions, albeit with much more media scrutiny and commentary than most.

Any compensation that the Executive might offer MGen Fortin would likely relate more to how he was treated by governmental and CF decision-makers outside the parameters of the criminal prosecution.

 

Conclusion

What is of specific importance presently relates to the statutory decision-making of approximately 19 months ago, and the statutory decision-making that will unfold now.  And that track record of senior CF and governmental decision-makers in that regard has been less-than-stellar.

This matter involved an initial narrative that some critics of the CF characterized as part of a broader process of holding CF members, including senior leaders, accountable for sexual misconduct and the impunity arising therefrom.  Through missteps and disingenuous action, this matter has evolved into a narrative describing the need to hold CF leadership accountable for their failure to act reasonably and fairly, and the impunity arising therefrom: (It’s) the Impunity, Stupid, 9 April 2021.

Once MGen Fortin was accused – or, more accurately, once the allegations were reported publicly, approximately six months before he was charged – MGen Fortin was viewed by the PM, the (then) MND, the Deputy Minister and the Acting CDS as a liability.  They panicked accordingly.  That is why he was removed from his position supporting PHAC without any procedural fairness.  That is why he was, de facto if not de jure, relieved from performance of military duty.

They were concerned not about fairness or the rule of law.  They were concerned about optics.  They were concerned about appeasing those who would condemn a person based upon allegations and not determinations derived from the rule of law.  They were concerned about those who have made outrage a vocation.

One might hope that they would not repeat those errors.

One might hope that governmental and CF decision-makers would seize this opportunity to demonstrate that the CF embraces the rule of law and reasonableness and fairness in statutory decision-making.

One might hope that their legal advisors would embrace this opportunity to reassert their role in upholding the rule of law in the administration of the affairs of the CF.

Unfortunately, ‘hope is not a method’.

On va voir.