Timeliness
September 16, 2022
Criminal Law Case
MGen Fortin’s Appeal
October 3, 2022

Wearing Canadian Forces Uniform in Civil Court

 

Some people are upset that Major-General (MGen) Dany Fortin wore his uniform when appearing in in civil court to answer to charges of an alleged sexual assault dating to 1988.

Other people applaud his decision.

And as usual, senior leadership in the Canadian Forces (CF) and the Department of National Defence (DND) are wringing their hands and demonstrating the fear and panic that sets in whenever news media criticize anything pertaining to Canada’s military.

And, not surprisingly, the CBC reporter who is covering the story, reported that “Canada’s military is reviewing its dress code policy for civilian court cases in response to online outrage over a highly-decorated military commander’s recent decision to wear his uniform and medals to his sexual assault trial.”

So, who is right?

Frankly, it’s not a simple question.

But first let’s look at the narrative presented in the news media.  Then we can break down the reaction and separate rational and reasonable arguments, on both sides of the spectrum, from responses grounded in subjectivity and emotion.  Finally, we can examine how the CF might approach this issue.

Unfortunately, I don’t anticipate that this issue will be addressed with a calm, rational, and deliberative approach.

 

Background

One of the first reporters to lead with this story was Ashley Burke from the CBC, who posted her report last week.  As is typical with most reports of this nature from Ms Burke, she circled back to other reports that she has made regarding allegations against other General and Flag Officers (GOFO).

So here is the context:

MGen Fortin was charged with sexual assault based upon allegations dating to 1988, when he was an Officer Cadet at Royal Military College St-Jean (or, as it was universally called at the time, Collège Militaire Royal or CMR).  The complainant in this matter was also an Officer Cadet at CMR.

However, MGen Fortin was charged as a Major General.

The allegations were investigated by the Military Police – specifically the Canadian Forces National Investigation Service (CFNIS).  The charge of sexual assault was laid by a member of the CFNIS, although it was laid by way of Information before a civil court of criminal jurisdiction, and not under the Code of Service Discipline.

Consequently, the charge is being prosecuted before a civil court in Quebec.  Some people have been quick to suggest that this reflects the decision made by the Minister of National Defence (MND), Anita Anand, to have all allegations against CF personnel, which describe sexual misconduct of a criminal nature, tried before civil courts of criminal jurisdiction.  At least, after initial ambiguity in her direction, that is how her direction was eventually characterized.

For more detailed commentary on that decision, the ambiguous manner in which it was initially conveyed, and the problematic manner in which it was made, please see:

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

“Stand By for Apologies – But, let’s talk about transparency…”, 16 November 2021

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

 

However, there is a more significant reason why the charge is being tried before a civil court of criminal jurisdiction: the allegations predate the period, commencing 1 September 1999, when allegations of sexual assault, alleged to have been committed within Canada, could be tried before court martial.  This amendment of section 70 of the National Defence Act (NDA) was introduced by Bill C-25, An Act to amend the National Defence Act and to make consequential amendments to other Acts, which received Royal Assent on 1 September 1999.  Several statutory amendments came into force upon Royal Assent, including the amendment to section 70, which, prior to that date, prohibited prosecution of sexual assault (and variations on that offence) before courts martial where it was alleged to have occurred in Canada.

Indeed, in R v MacPherson, 2021 CM 2014, aff’d 2022 CMAC 8, the Director of Military Prosecutions (DMP) tried, unsuccessfully, to prosecute allegations of sexual assault before a court martial, even though the alleged misconduct pre-dated 1 September 1999.  Note, too, that there are indications that military authorities first tried to refer the charges in MacPherson to a civilian Crown Attorney to prosecute.  One wonders, then, why a decision was made to try to prosecute the charges at court martial.

R v MacPherson, 2021 CM 2014 – What were they thinking?”, 14 September 2021

 

Regardless of what the MND may have wished or directed – the allegations against MGen Fortin could only have been prosecuted before a civil court of criminal jurisdiction.

That said, the context of the allegations and investigation can be described as follows: (a) the complainant was, at the material time of the alleged offence, a member of the CF; (b) the accused was, at the material time alleged offence, a member of the CF; (c) the alleged sexual assault took place on a defence establishment; (d) the allegations were investigated by the CFNIS; (e) the charge was laid by the CFNIS.

Although military nexus is not a relevant consideration for jurisdiction – and clearly has not been a relevant factor since at least the Supreme Court of Canada judgment in R v Stillman, 2019 SCC 40; and arguably as early as R v Moriarity, 2014 CMAC 1, aff’d 2015 SCC 55 or even R v Reddick (1996), 5 CMAR 485, 112 CCC (3d) 491(CMAC) – if one were looking for a military nexus in this matter, there is no shortage of factors.

And had MGen Fortin been tried by court martial, not only would he have been permitted to wear his uniform; he would have been obliged to wear his uniform.  Indeed, he would have had to have sought permission to appear in civilian attire: R c Dutil (Colonel), 2019 CM 3002.

 

Dress in Civil Courts

However, MGen Fortin was not being tried by court martial.  He was being tried before a civil court of criminal jurisdiction.  And, typically, one would wear civilian attire when appearing as a witness, accused, or complainant in such circumstances.

There are exceptions.

Police officers who appear as witnesses in the performance of their policing duties, particularly those who typically wear a uniform while on duty, will typically wear a uniform while testifying or when attending court to assist with the process.  Detectives and plain-clothes officers will typically wear their ‘dress of the day’ – i.e., civilian clothing, typically ‘business attire’.  Lawyers, when appearing in a Superior Court of Justice as advocates, will be gowned in barrister’s robes.  When appearing in Provincial Court – where the majority of criminal prosecutions take place – counsel will wear appropriate business attire (what some might characterize as a ‘suit or equivalent attire’).

Although there are fairly rigorous dress codes for counsel appearing before courts (e.g., ‘business attire’ for the Provincial Courts, Barrister’s Gown for Superior Courts of Justice), courts do not impose stringent dress codes on people who appear before them as accused, complainants, or witnesses.  There are rules for decorum – such as the requirement to remove hats or headwear (save those worn for religious purposes) and sunglasses, turning off mobile phones, and a prohibition on bringing food/drink into the court room.  But guidance for attire is relatively permissive.

The general direction of most courts is that people, other than advocates, appearing before them should appear in clean and presentable attire consistent with their financial means.  Certainly, defence counsel will encourage their clients (and witnesses) to appear in what may be characterized as business attire or equivalent forms of attire – but not everyone caught up in the criminal justice system can afford such attire.

MGen Fortin was not obliged to wear his uniform, with medals, in court.  But neither was he necessarily prohibited from doing so.  He chose to do so.

Ms Burke’s news report offers a couple of brief statements from someone identified as MGen Fortin’s ‘spokesperson’; however, those statements (discussed below) are fairly basic assertions.  His counsel declined to comment.  And, frankly, neither MGen Fortin, nor his counsel, nor any representative speaking for him, was obliged to explain or justify his decision to Ms Burke – or anyone else for that matter.

 

Why did MGen Fortin wear his uniform?

The reason why MGen Fortin chose to do so is open to debate.  Certainly, there has been a great deal of speculation as to why he did so.  And that is all that is: speculation.  And I am not convinced that it represented any of the ‘improper’ purposes posited by various stakeholders interviewed by Ms Burke and who, quite frankly, will have their own narrative reasons for their interpretation of MGen Fortin’s purported ‘motive’ for doing so.

According to Ms Burke, a ‘spokesperson’ for MGen Fortin – whomever that may have been – stated that MGen “… Fortin is presumed innocent and it’s appropriate for him, as a serving officer, to wear his uniform in court.”

He certainly should benefit from the presumption of innocence in the prosecution; however, that does not speak to whether or why he chose to wear his uniform.  That is more of an assertion than a reason for doing so.

Ms Burke interviewed various advocates for victim’s rights who suggested, among other things: that MGen Fortin’s decision to wear his uniform was a ‘power play’; that it was an attempt at intimidation (of whom, was not specified); that it was ‘tone-deaf’; and that it was not ‘trauma informed’.

Most of these assertions were just that – assertions.  They were not backed up with specific analysis or any specific insight.  It was conjecture.

Certainly, there is no denying that those advocates disagreed with MGen Fortin’s choice of attire.  But the fact that certain people disagree, does not mean that it was, objectively, wrong or improper for him to do so.

There is no provision in the NDA that prohibits a CF member from wearing his or her uniform when appearing as an accused in a civil court of criminal jurisdiction.

Section 3 of Chapter 19 of the Queen’s Regulations and Orders for the Canadian Forces (QR&O), comprised of articles 19.51 to 19.62, and which concerns “Legal Proceedings by Civil Authorities”, is silent on that issue.

Similarly, the Canadian Forces Dress Instructions, issued under the authority of the Chief of the Defence Staff (CDS), are silent regarding any prohibition on wearing a particular order of dress when attending civil court, particularly as the accused.  The CF Dress Instructions tend to emphasize how a uniform must be worn, rather then when it may or may not be worn.

[And, as an aside, contrary to the tendency by some personnel to refer to the CF Dress Instructions as ‘dress regulations’, they are not actually regulations.  Regulations are subordinate legislation, which, for the CF, are most frequently enacted under the authority of s 12 of the NDA.  The CF Dress Instructions are more accurately characterized as ‘instructions published for the general information and guidance of the Canadian Forces’.]

Ms Burke reported that the Department of National Defence (DND) said military members are permitted to wear their uniforms during civilian criminal trials — but that it is a personal choice for which individuals are responsible.  As an aside, the Department of National Defence and the CF are distinct institutions, and it likely would have been more appropriate to obtain a statement from the CF.  Indeed, Ms Burke may well have been quoting a CF spokesperson – many reporters tend to conflate the DND and the CF.

Ms Burke also reported that “… DND said military members appearing at courts martial or summary trials within the military’s judicial system are expected to wear their ‘service dress number three’ (tunic and ribbons), unless a judge says otherwise.”  That’s not entirely accurate.  Summary trials – which were supplanted by summary hearings on 20 June 2022, save for matters in which charges were laid and summary trials commenced before 20 June 2022 – are typically conducted in a unit’s dress of the day.  The same will, presumably, be true of summary hearings.

However, it is correct that, presently, participants at court martial, including legal officers acting as prosecutors and defence counsel, appear in the ‘order of dress’ identified in the CF Dress Instructions as ‘3B’, which consists of tunic, trousers or skirt, appropriate headdress, etc.  Ribbons, representing medals, are worn on the tunic, as well as any other appropriate accoutrements.  A few years ago, the order of dress for courts martial was ‘3A’, in which medals, not ribbons, were worn.  I specify the sub-order of dress as ‘service dress number three’ could include ‘3C’ which consists of shirt (with ribbons), trousers or skirt, etc., and excludes the tunic.

Some people have been quick to point out that MGen Fortin went beyond the current order of dress appropriate for courts martial by wearing his medals.  However, one should also note that MGen Fortin was not constrained by any statute, regulation, or order published for the guidance of the CF regarding the wearing of his medals, provided he wore them correctly with that specific order of dress.

Oddly, what is not discussed in Ms Burke’s article was a typical source of direction regarding the wearing of uniforms when appearing before a civil court: unit standing orders.  And, in light of the fact that Ms Burke did interview former CF members, I was surprised that no one raised this factor.  Perhaps they were more focused on their desired narrative.

When I was a young subaltern, from time to time, soldiers under my command fell afoul of civilian law enforcement and could find themselves appearing before a civil court of criminal jurisdiction.  And our unit standing orders – which were quite similar on this issue across the units in our formation – directed that any soldier attending court as an accused, complainant, or witness, would do so in civilian attire, unless the attendance related to military duty.  The unit standing orders also directed that, if there was a doubt whether a uniform would be appropriate, to consult the Adjutant and Regimental Sergeant Major (RSM).  Attending officers (see art 19.57 of the QR&O) would typically attend in uniform.  When I was a young officer, I attended court as both witness and attending officer.  More recently, I have encountered this process as defence counsel.

It’s not clear to what unit MGen Fortin belongs or what that unit’s standing orders state, if anything, regarding the wearing of uniform at a civil trial.  Indeed, MGen Fortin has, de facto, if not de jure, been relieved from performance of military duty by the Prime Minister, the Minister of National Defence, and the CDS.  Consequently, I am not aware of any order or directive that prohibits MGen Fortin from wearing his uniform at his trial.

As for why he wore his uniform, we have been told by his ‘spokesperson’ that his decision to wear his uniform and decorations was an expression of his 37 years of service to Canada and that MGen Fortin was disappointed that some would deem such a decision as inappropriate.  And we haven’t seen any evidence to contradict that rationale.

I could speculate that MGen Fortin wore his uniform as a means of sending a message to senior CF and governmental decision-makers who ‘threw him under the bus’.  I suspect that a great many people would agree with that belief.  But like much of what Ms Burke reported regarding other observers’ views of his purported motivation – that would be mere speculation.

 

Arguments against Wearing Uniform

As I indicate above, Ms Burke canvassed many people who expressed outrage or disagreement with MGen Fortin’s decision.  How compelling were those arguments?

Ms Burke reported that one of those stakeholders said that the CF uniform is a powerful symbol of the institution and wearing it could make a complainant feel like they’re facing off against the entire Canadian Forces.  Other have suggested that it might cause people to conclude that the CF was endorsing MGen Fortin.

Certainly, it is a powerful symbol.  The Government of Canada – and the politicians who make executive decisions – take every opportunity to use that symbol for their own benefit.  For example: how many politicians, of all colours, have pointedly had their photo taken with uniformed CF personnel as a backdrop?

Take the CF response (presumably under s 273.6 of the NDA) to the effects of Hurricane/Tropical Storm Fiona in Atlantic Canada this past week.  CF personnel deployed on this domestic operation to aid their fellow Canadians.  Normally, the specifics of the operations would be briefed by military planners and spokespersons.  Certainly, throughout my own service, when we deployed on domestic assistance operations, that was the typical practice.  Yet, in the present circumstances, the MND, Anita Anand, has been front and centre to report on what the CF has been doing.  This appears to include discussing the tactical deployments of units and personnel, a role that, in the past, was typically conducted by tactical or operational commanders, not the MND.

Indeed, in MGen Fortin’s specific circumstances, how many times did the government expressly have him briefing the country on vaccine roll-out, wearing that same uniform?  Is it possible that was done in order to instill confidence in the electorate that this specific government could be trusted to deliver vaccines with military proficiency?

However, the assertion that MGen Fortin’s uniform could make a complainant feel as if he or she is facing off against the entire CF is a mere bald assertion, and not particularly compelling.  Any reasonable complainant would be able to see that the weight of the state – both the CF and the Province of Quebec – has been brought against Dany Fortin.  The suggestion that it could be construed as the CF’s endorsement of MGen Fortin runs contrary to how he has been treated, rather publicly, by various CF actors and decision-makers, and their political masters.  These suggestions are certainly evocative, and could potentially trigger a strong emotional response, but they are not grounded in an objective examination of the dynamic arising in the prosecution.

And remember, there are all manner of devices employed in the prosecution of sexual assault that are designed to ensure that the complainant can testify from a safe space.  Complainants are regularly permitted to testify remotely or from behind a screen.  They are permitted to have support persons present when they testify.  And the Criminal Code has been amended time and again to restrict the means by which defence counsel can test the evidence of a complainant.  Recently, many of the more recent amendments have been upheld by the Supreme Court of Canada: R v J.J., 2022 SCC 28.

So, the suggestion that MGen Fortin wearing his uniform was an ‘intimidation tactic’ is not compelling.  He is not going to intimidate the court and the judge.  He is unlikely to intimidate the prosecuting Crown Attorney.  And, as I say, there are safeguards available to provide support to a complainant.  We have seen no evidence that such was MGen Fortin’s intent or even if it had that effect on the complainant in his matter.

The suggestion that his decision to wear his uniform would affect the outcome of the trial or influence the court may resonate as a headline, but it lacks merit.  This is particularly true when the ‘trier of fact’ in this case is a judge, sitting alone. Moreover, advocates who suggest that such ‘theatre’ would influence a judge should turn their mind to the double-edged nature of such an assertion.  If they are suggesting that such ‘courtroom theatre’ influences judicial decision-making, then the same could be alleged regarding the trappings of courtroom process designed to protect complainants, such as testifying from behind a screen or by remote camera.  After all, a person sufficiently frightened that he or she must testify remotely or behind a screen must always be telling the truth, right?  Or, we can accept that an experienced judge would not be influenced by such subtle messaging and would decide the matter based upon the evidence presented before the court.

The assertions that MGen Fortin’s decision was ‘tone deaf’ or was not ‘trauma informed’ turn on highly subjective views.  The former appears to suggest that, notwithstanding that he has had a long and fruitful career as an officer in the CF, he has no right to wear the uniform in such a circumstance because it does not recognize the harm done by sexual misconduct in the CF.

However, MGen Fortin has asserted his innocence; he states that he is wrongly accused.  He is permitted to defend himself.  And, while it is true that he could do so wearing civilian attire, consider this: every time this matter is raised in the news media, his rank, his service, and the fact that he was unilaterally removed from his position as head of Canada’s vaccine task force is also mentioned.

Is it any wonder that he chose to wear his uniform, with medals, at his trial?

Rather than being tone deaf, I would suggest that he recognizes rather clearly the hyper-politicized nature of this matter.  And, if the news media, pundits, and so-called experts in sexual misconduct are going to keep mentioning his rank and military service, none of us should be surprised by his decision to wear his uniform.

The claim that it is not ‘trauma informed’ is similarly problematic.  We must all be cautious not to lend to that term of art – a term that is increasingly in vogue in the administration of the affairs of the CF – a meaning that is defined by whomever chooses to use it.  We must be cautious not to permit the term ‘trauma informed’ to become code for the right to challenge anything with which someone disagrees.

A trauma informed approach to the prosecution of sexual misconduct acknowledges and articulates that no one understands the challenges of the recovery journey from trauma better than the person living it. This requires that actors and decision-makers are attuned to a person’s experience and the dynamics of trauma and acknowledge, respect and validate that experience.

But it does not mean that someone can attach that term to an issue and declare that the views or actions with which one disagrees fail to be ‘trauma informed’.  It does not mean that an accused is barred from presenting a robust defence.  And it does not mean that a person is barred from responding, directly, to treatment and allegations, in a like manner.  Again, if reporters, pundits, and stakeholders are going to repeatedly make reference to his rank and position as part of the narrative that they wish to project, then none of us should be surprised if MGen Fortin responds in a similar manner.

Some of those interviewed by Ms Burke suggested that MGen Fortin’s decision was manipulative.  However, in a trial before a judge sitting without a jury, I don’t know how manipulative that could possibly be.  And, again, if people making that assertion believe that the choice of apparel would influence a judge (or a jury) so readily, would they also be concerned about the choice of attire by a complainant, or any other witness?  And would they wish to dictate what those witnesses could wear?

I would suggest that, in light of how MGen Fortin has been treated by some people, and the constant focus on his status as a GOFO, I am not at all surprised that he may have been inclined to wear his uniform as a means of making a statement: “That’s right, I am a General Officer. And I am not guilty.”

Another problematic comment that I have read is the suggestion that, in wearing his uniform, MGen Fortin has somehow brought disgrace on the uniform or that it makes the CF or the uniform look bad.

Unless you are prepared to presume guilt, I have difficulty reconciling that observation.

One of the more problematic comparators described in Ms Burke’s article came from Professor Megan MacKenzie, from Simon Fraser University, who suggested that once a CF member is charged with an offence, that member should lose the right to wear the uniform in court.  Professor MacKenzie suggested that the public would find it odd to see a judge accused of a criminal offence wearing their robe to court because of the status it symbolizes.  I find that a particularly inapt comparator.

I agree with Professor MacKenzie regarding the inappropriateness of a judge wearing judicial robes when appearing as an accused.  Indeed, I think the public would be outraged, not just find it odd.  But I disagree with her analogy.  We would be offended by a judge wearing judicial robes when appearing before a court as an accused because of the very role that a judge plays in a court.  It is inherently inconsistent.  The same is not true for a member of the CF.  It is a disingenuous comparator.

And, as for ‘losing a right’ based upon an unproven allegation – well, frankly, I am going to require a bit more than a bald assertion to support that suggestion.

Another questionable comparator that was presented in Ms Burke’s article was the example of Commissioner Lucki, head of the Royal Canadian Mounted Police (RCMP), who appeared before the Mass Casualty Commission (MCC) in Nova Scotia wearing civilian attire.

Ms Burke reported that, according to the RCMP, the commission had requested she not wear her uniform as it “may be triggering for some individuals attending the proceedings…”.  The shooter in that case wore a police uniform.  And, since speculation appears to be in vogue, I suggest that Commissioner Lucki was more than happy to wear civilian attire, in order to downplay the allegations of her attempts to politicize the investigation by her subordinates.  Had she worn her uniform, it would have been yet another reminder of her alleged attempt to use her position to influence investigative decision-making for political purposes.

However, in MGen Fortin’s case, the court (i.e., the judge), which controls its own process, did not make the same request or demand of MGen Fortin.  It does not appear that the Crown prosecutor objected to MGen Fortin’s uniform – if that had been the case, I am quite certain Ms Burke would have reported it.

That said, I do acknowledge that some former CF personnel may have felt triggered – to use a term that Ms Burke used liberally in her report – when they saw MGen Fortin in his uniform.  That is truly unfortunate.  I certainly would not wish anyone who has suffered harm to suffer further from any subsequent experience.

However, what all of us must remember is that this trial is not about observers, or pundits, or reporters.  It is about whether the accused committed the offence with which he has been charged.

And for those who are quick to assert that the accused must be prohibited from wearing his uniform and medals, I have a few questions.

Why did we not see this outrage when Vice-Admiral Norman wore his uniform and medals at his trial?

If you are prepared to insist that the accused be given very specific direction on what he can and cannot wear, are you also willing to have similarly rigid instructions given to the complainant and all other witnesses?

And would you also favour some form of prohibition on the extent to which the news media could dwell on someone rank or position when reporting on such matters?  [Not that such a prohibition would ever be feasible or enforceable.]

After all, in emotionally- or politically-charged prosecutions, many people wrap themselves in particular garb – be it literal or figurative – to convey a message.

Not surprisingly, I tend to agree with Lawrence Greenspon, one of Canada’s leading criminal law practitioners, whom Ms Burke interviewed for her piece.  Mr. Greenspon’s comments, buried amongst the comments of those who complained of MGen Fortin’s decision, were apt:

“I don’t think the military should start to encourage a dress code for people who are charged with sexual assault … I don’t think it has any impact on the judges hearing the cases … the issues before the judge are the credibility of that person, not the medals on the chest of their uniform.”

Greenspon said that the pendulum has swung against anyone “merely charged with sexual assault,” whether the alleged assault happened recently or decades ago, and the “presumption of innocence goes out the window when the person’s name is published.”

“A person today who’s facing sexual assault charges is treated in many respects much worse than somebody who would be charged with a far more serious crime — say, murder,” he said.

 

Knee-Jerk Policy Making

We have seen manifested, time and again in the reporting on allegations against GOFO, and even lower ranked CF personnel, Mr. Greenspon’s concerns regarding the tendency to presume guilt.  I suggest that it is such sentiments that form the basis of a suggestion that someone should lose the right to wear a uniform simply when charged.  And the public nature of such allegations, and the focus of the news media (albeit, typically regarding the allegations against very senior people) that tends to drive policy making.

Unfortunately, that policy making often is conducted in a ‘knee-jerk’ manner.  The focus is on appeasing media scrutiny, rather than reasoned examination of relevant factors.  Ms Burke even mentions, or alludes to, some past examples.

Ms Burke reported: “The military agreed last year to a government directive to temporarily transfer all sexual assault cases to civilian police for investigation and civilian courts for prosecution.”

That’s not entirely accurate.  Suggesting that the CF ‘agreed’ to the direction tends to suggest that they had a choice.  The MND directed that investigations would be conducted by civilian police process and that prosecutions would be conducted by civilian Crown Attorneys.  As I have explained previously, the manner in which the MND appears to have issued that direction was not consistent with what Parliament set out in the NDA.  And the awkwardness of that direction gave rise to an Orwellian joint statement by the Canadian Forces Provost Marshal (CFPM) and DMP that essentially conveyed the message: you can still have confidence in our ability to investigate and prosecute sexual assault, even if the Minister doesn’t.

But perhaps the clumsiest part of that policy direction was that someone forgot to liaise with the provinces beforehand to ensure that they were willing to assume that responsibility: “Setting Conditions for Failure”, 11 July 2022.  After all, while the MND can ride roughshod over the CFPM and DMP, she has no authority over provincial police forces and Crown Attorneys.  Consequently, according to the website for the Office of the Chief Military Judge, as of the publication of this Blog post (30 September 2022), there are presently 16 courts martial (out of 31) convened and scheduled for the prosecution of ‘sexual offences of a criminal nature’.  And that does not include courts martial convened to try misconduct of a sexual nature but where the charges are laid pursuant to offences expressly established under the NDA (e.g., Disgraceful Conduct contrary to s 95 of the NDA).  It may be premature to suggest that Louise Arbour’s recommendation has been implemented.  In fact, it might be appropriate to inquire into how many of the matters that are currently before court martial were initially presented to civilian Crown Attorneys and, whether they declined to prosecute and why.

Ms Burke also mentions, in a self-congratulatory manner, the decision by the CF to prohibit the use of CF/DND letterhead if a CF member writes a letter of support for a person charged with, or convicted of, a criminal offence.  This was conveyed – as so many hasty and problematic policy decisions are conveyed – by a Canadian Forces General Message (CANFORGEN).  For those unfamiliar with CANFORGEN, they are a message tool for communicating information of general importance to the CF.  They are used, ostensibly, to notify CF personnel of significant policy changes.  For example, shortly prior to the coming into force of the regulatory changes that would implement the Military Justice at the Unit Level (MJUL) on 20 June 2022, the Vice Chief of the Defence Staff announced the changes and the implementation via CANFORGEN 089/22, dated 7 June 2022.  But the CANFORGEN was not the actual policy instrument.

CANFORGEN are not intended to be the policy instruments themselves.  Unfortunately, that hasn’t stopped the senior CF leadership from consistently using CANFORGEN for this purpose – a purpose for which they are ill-suited.  And the significance of CANFORGEN 044/22, entitled “Guidance Related to the Provision of Character References”, merits some examination.

When Ms Burke first reported on that issue, she cited Professor MacKenzie as suggesting that the military should have simply barred members from providing character references to those guilty of sexual assault and other serious crimes.  Fortunately, CANFORGEN 044/22 did not go that far.  And I would suggest that it did not go that far because that would contravene a principle of fundamental justice that a sentencing court must have all relevant information before it in order to impose a just and proper sentence.  It would also be an unreasonable fettering of freedom of expression.

All that CANFORGEN 044/22 expressly prohibited was the use of CF or DND letterhead.  It did not bar the person offering the reference from indicating her or his role and their relationship the referee had with the subject of the letter.  Consequently, it is very likely that such letter would still identify the nature of the military service of both the referee and the subject of the letter.

So, what did CANFORGEN 044/22 actually do?  I suggest that it accomplished three, relatively politicized, goals for the Government of Canada:

  1. It gave the appearance of ‘doing something’;
  2. It removed a potential point of embarrassment (DND/CF letterhead); and
  3. It communicated a message intended to have a chilling effect on a legitimate part of the criminal justice process.

 

As I have mentioned before in the Blog, when it comes to the CF, governmental and CF decision-makers tend to be focused more on ‘being seen to be doing something’ about an issue rather than actually address the issue in a reasonable, deliberative, justified, and transparent manner.  They seek a headline to quell the media scrutiny, regardless of its merit.

That’s how we wind up with announcements that the MND has directed that ‘all sexual misconduct cases will be handled by civilians’.  Except that, what the MND really meant was cases of criminal misconduct of a sexual nature.  And even then, they will be handled by civilians only if the civilians are willing to accept them.  But don’t worry – at least ‘something is being done’.

In reality, the so-called guidance in CANFORGEN 044/22 was fairly ambiguous and the only prohibition was “don’t use military letterhead” – as if that would alter the source of the letter.  But at least the government would not be embarrassed if the news media started waving around letters with ‘official’ letterhead on them; and, as we know from a cyber security briefing held at RMC recently, avoiding embarrassing the government is a high priority for any military risk mitigation policy or strategy.

But there is a subtle message conveyed in CANFORGEN 044/22, which is backed up by the threat of denunciation by certain news reporters: if you have the temerity to contribute to a legitimate part of the criminal justice process, that entirely reasonable and lawful act can be used against you.  You could be unreasonably vilified in the news media.  You could have your career suddenly stall.  The significance of CANFORGEN 044/22 is not what is written in the CANFORGEN – it is what is not written.

 

Conclusion

And that takes us back to our present issue: Should MGen Fortin have been permitted to wear his uniform at his trial?  Or, more to the point: should MGen Fortin have been prohibited from wearing his uniform when appearing in court?

The short answer is that there is no prohibition in the NDA or QR&O regarding whether a CF member may wear his, her, or their uniform when appearing as an accused.

Therefore, the question becomes: Should the CDS (or other relevant policy maker) issue explicit direction regarding when uniform may, and may not, be worn?

And even that question presumes a factor that many people overlook.  The DND has no role to play in that decision.  The wearing of a uniform is principally a matter for military decision-makers.  It is military policymakers who develop and issue the CF Dress Instructions.  These instructions are issued by, or under the authority of, the CDS (NDA, s 18).  Certainly, the CDS’ decisions are subject to direction from the MND (NDA, s 18).  The MND (and the Governor in Council for that matter) may enact regulations “… for the organization, training, discipline, efficiency, administration and good government of the Canadian Forces and generally for carrying the purposes and provisions of [the NDA] into effect.”

Undoubtedly, as we have seen before, the MND and her staff will inevitably weigh into this issue and will very likely issue direction to the CDS, regardless of what advice the CDS or any other military advisor may suggest.  Remember: this is about ‘being seen to be doing something’ regardless of merit or impact of the decision, rather than actually addressing something in a reasoned, deliberative, justified, and transparent manner.

The CDS (or another statutory actor acting on behalf of the CDS) could certainly issue such direction.

And, frankly, there are meritorious arguments that support restricting the wearing of uniforms when appearing as an accused (just as there have been some specious arguments raised in support of that proposition).  And there are meritorious arguments that can be raised in support of the contention that a restriction should not be imposed.

There is a relatively broad degree of discretion.  And neither approach would be normatively ‘wrong’.  Neither approach, assuming that it is articulated clearly, transparently and for a justified purpose, would be unreasonable.

I would suggest that, if the CDS is going to prohibit an accused from wearing her or his uniform when appearing as an accused before a civil court of criminal jurisdiction, the same should apply to any complainant or witness.  One justifiable exception would be a member of the Military Police who investigated the matter.  (Even then, most Military Police who testify at civil courts of criminal jurisdiction will likely be from the CFNIS and will, therefore, probably attend in civilian attire).

Presumably, however, when appearing at courts martial, CF personnel – whether accused, complainant, or witness – will appear in uniform unless the presiding military judge grants an exception.

But that raises a nuanced concern in relation to matters that are inconsistently referred to civil courts of criminal jurisdiction, even where they could be prosecuted before a court martial.  As I indicate above, notwithstanding the MND’s direction, some ‘sexual misconduct of a criminal nature’ has been referred to civil courts of criminal jurisdiction, and some matters are still being retained in the military justice system under the Code of Service Discipline.  The reasons why some are referred ‘downtown’, while others are not, remain unclear.  And, quite frankly, I doubt that DMP will explain this dissonance any time soon.  I certainly hope that this is not a result of ‘venue shopping’.

But this difference in prosecution has already given rise to one significant dissonance: CF personnel tried by court martial are provided representation by competent legal counsel free of charge.  Those who are prosecuted before civil courts of criminal jurisdiction are on the hook for their own legal expenses.  And that can easily amount to tens of thousands of dollars.  See: “Impact of Access to Justice on Sexual Misconduct Charges”, 23 June 2022.

If the CF leadership decides to impose restrictions on the wearing of uniforms when a matter is prosecuted before a civil court of criminal jurisdiction – or perhaps more accurately, if the CF leadership enforces a decision by the MND to restrict the wearing of uniforms – that will be one more dissonance in what, to an outside observer, may appear to be a largely arbitrary determination regarding whether a matter is prosecuted in the military justice system or the civilian criminal justice system.

Moreover, even if the CF were to direct that a CF member was prohibited from wearing her or his uniform in court, the same may not be true of medals.  One need not be in uniform to wear medals that one has lawfully received.  Every Remembrance Day, I wear my medals on my blazer when I attend the Act of Remembrance.  I have worn medals, or miniatures, on a variety of occasions since retiring in 2017.

And I could wear them in court.  I generally don’t but that’s a personal choice.  Some people get quite fussy about wearing medals with their Barrister’s Gown.  I noticed in some recent promotional material from the Office of the JAG, photos of gowned military prosecutors (apparently appearing before the Supreme Court of Canada) wearing their medals.  I wonder: were they trying to influence the judges?

So, even if the CDS were to convey the MND’s direction that uniforms cannot be worn by an accused appearing before a civil court of criminal jurisdiction, it would be problematic for him to direct that a CF member, who has lawfully received medals for her or his service, is prohibited from wearing them with civilian attire.  He simply does not have that authority.

So, there is scope for the CDS (or an officer acting on behalf of the CDS) to issue direction limiting or prohibiting the wearing of CF uniform by an accused (and others) appearing before a civil court of criminal jurisdiction.  Whether such direction is merited and reasonable would be open to debate, but it would be feasible to issue such direction in a manner consistent with relevant law (including the Charter and the NDA).

But what would be ‘wrong’ would be the sort of knee-jerk, defensive approach to decision-making that has characterized much of the policy-making regarding how to address sexual misconduct in the CF.  All too often, that decision-making is driven by fear – fear of scrutiny, fear of negative news media coverage, fear of criticism (whether such criticism is objectively meritorious or not).  And unchecked fear can lead to cowardly decisions by policy-makers.

Unchecked fear and a desire to be ‘seen to be doing something’ has led to problematic decision-making in the administration of the affairs of the CF.  It has led to procedurally unfair and unreasonable statutory decision-making.  When the principal determinative factor becomes consideration of what the news media might say, rather than what is transparently justifiable based upon reliable facts and articulable reasons, then the relevant decision-maker or policy-maker has lost his or her way.

Whatever policy the CF develops regarding the wearing of uniforms – or, as will likely be the case, which is handed down by the MND – it must be predicated upon objective, reasoned, and rational analysis.  It must not be driven by fear.  It must not be the refuge of a coward.

 

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3 Comments

  1. Ellen Adam says:

    Thank you. What a mess is laid out with these observational musings and rule naming.

  2. Andrew Smith says:

    I think this issue is just a distraction from the real concern which is how a case such as this makes its way to court with what amounts to no corroborated evidence. An officer’s career and reputation have been destroyed while his accuser remains anonymous. What is to stop anyone from making a claim out of spite or malice if the outcome seems so certain and the repercussions so limited?

  3. DA Paterson says:

    There is an outdated DAOD (redundant, I know) on the topic, which, as one might expect, adds only confusion to the discussion at hand, as it focuses on duty status at trial, and reimbursement of expenses.

    https://www.canada.ca/en/department-national-defence/corporate/policies-standards/defence-administrative-orders-directives/7000-series/7001/7001-1-attendance-at-civil-and-criminal-court-proceedings.html

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