What happens if MGen Fortin is acquitted?
Major-General (MGen) Dany Fortin’s trial resumed today before a civil court of criminal jurisdiction in Quebec – specifically the Provincial Court of Quebec (Cour de Québec). On 20 September 2022, the trial was adjourned to 24 October 2022. The trial had initially been set down for two days and, by the end of two days of evidence, MGen Fortin had testified, but had not yet been cross-examined by Crown Counsel.
By the end of today’s process, all relevant evidence had been presented and MGen Fortin’s Defence Counsel had completed her closing submissions. The trial is expected to conclude tomorrow, 25 October 2022, with the Crown’s closing submissions.
At that point, the presiding judge, Justice Richard Meredith, will consider the evidence and may reserve judgment for a date in the future. In light of the notoriety and scrutiny of these allegations, I would not be surprised if the judge reserves and the matter is adjourned to a future date for judgment. Indeed, it is not uncommon for judges to reserve their judgments where allegations are not subject to the glare of media scrutiny and speculation.
And that judgment will be a binary decision: Dany Fortin will either be found guilty or not guilty.
For the purposes of the discussion that follows, I will predicate my observations on the consequence of MGen Fortin being found not guilty. I do so not based upon my personal belief about whether he will be acquitted, but because such a circumstance presents a much thornier issue for the government and the Chief of the Defence Staff (CDS).
While I do have personal views regarding what the likely outcome will be, I was not present in the courtroom during the entirety of the proceedings. I did not hear all of the testimony, nor did I have access to disclosure or other relevant evidence. I only know what the public knows – and that is based upon the reporting that has been offered to the public by the news media covering the proceeding. And it is fair to say that the public has not been informed of every detail of the relevant testimony arising in that matter. I say that not as a slight to the reporters covering the trial, but as a simple acknowledgement that they have not provided a detailed transcript of the proceeding.
Acquittal Presents a Thorny Issue
An acquittal presents more difficult issues in the administration of the affairs of the Canadian Forces (CF) than a finding of guilt, and, in this Blog, I try to address the difficult issues arising in the administration of the affairs of the CF. That said, many issues are made more difficult by unreasonable, disingenuous, or even capricious statutory decision-making. And we will address that issue in due course.
Were Dany Fortin to be found guilty, the trial would shift to the sentencing stage. Once that was complete, it is a near certainty that the CDS would initiate a Notice of Intent to recommend his release under art 15.21 of the Queen’s Regulations and Orders for the Canadian Forces (QR&O). Or, he should do – from time to time, I note that some statutory decision-makers in the CF forget this obligatory step (or similar steps under similar articles of the QR&O). Procedural fairness has not been the CF’s strong suit in these matters.
In any event, if MGen Fortin is found guilty, the CDS, or other appropriate initiating authority will undoubtedly commence a process under art 15.21 of the QR&O, leading to an Administrative Review (AR) under Defence Administrative Order and Directive (DAOD) 5019-2, and culminating in a recommendation, then decision, to release MGen Fortin under item 2(a) of the Table to art 15.01 of the QR&O.
And, if that were the circumstance, then there would, ostensibly, be justification for such a compulsory release. One could argue that misconduct from over 3 decades ago should not be determinative of what the CDS and Minister of National Defence (MND) should do now. However, I suggest that such argument would fall on deaf ears. After all, his 30+ years of dedicated service to the country would not matter to the MND and CDS at that point – what would be crucial for them is to ‘send a message’ that ‘something is being done’ about sexual misconduct in the CF.
A circumstance in which MGen Fortin is found guilty may be contrasted with the numerous matters over the past few years in which CF personnel have received a NoI to Recommend Release under ‘item 2(a)’ (or, alternatively, ‘item 5(f)’) when they have not been convicted of any criminal or Code of Service Discipline offence and where the chain of command has expressly pursued administrative recourse rather than prosecute criminal or Code of Service Discipline charges.
CF personnel of lower rank, in less notorious circumstances, have been ejected from the CF based upon allegations – some of which were dated – that were not proven before an independent and impartial court.
Remember: sometimes statutory decision-making in the administration of the affairs of the CF can take on unreasonable or capricious dimensions.
It is unlikely that the passage of time would be viewed as sufficiently mitigating by the MND, the CDS, or those rent-seekers whose public expressions of condemnation the MND and CDS fear.
But that would be the ‘easy’ circumstance for the CDS and his political masters.
The issue is much more challenging if MGen Fortin is acquitted. And, in such circumstance, the reasons for the acquittal will be materially important.
Possible Grounds for Acquittal
An acquittal can arise from a variety of different findings. In a trial before a judge sitting alone (as in the case of MGen Fortin) the judge is both ‘trier of law’ and ‘trier of fact’. An acquittal could arise from the judge believing the accused (and, consequently, disbelieving the complainant) on one or more elements of the alleged offence. It could also arise where the judge does not believe the accused, but is still left with a reasonable doubt. And that could arise in a circumstance in which the judge believes neither the accused nor the complainant. Or the judge might generally believe the complainant and not the accused. Even then, the judge must inquire, on the basis of the evidence that is accepted, whether the judge is convinced beyond a reasonable doubt of the accused’s guilt.
These factors lie at the heart of the method, established by the majority of the Supreme Court of Canada (SCC) in the seminal judgment R v W(D),  1 SCR 742, of evaluating guilt when credibility is important to the determination. This method of evaluating evidence is frequently raised in allegations of sexual assault in which the principal witnesses are the complainant and the accused. And I suggest that it will be an important part of Justice Meredith’s judgment.
And there is a material difference between believing the accused and having a reasonable doubt about guilt.
The prosecution of MGen Fortin turns on the reliability of both the complainant’s and the accused’s recollection of events from over 30 years ago. And it turns on their credibility.
The complainant testified that Dany Fortin sexually assaulted her. MGen Fortin testified that he did not. While I was not present during his testimony, the news media coverage thus far has not pointed to any noteworthy frailties in his evidence. And no reasonable observer would conclude that the national news media coverage of this prosecution is biased in favour of, or sympathetic to, MGen Fortin.
In comparison, some frailties have been identified in the complainant’s testimony.
The complainant testified that she believed that her roommate was in the room at the material time and that she later asked her roommate whether she had seen or heard anything. The roommate testified that there was a divider in the room and that, consequently, she likely wouldn’t have been able to hear anything. She also testified that she didn’t hear anything. While that is not determinative of the complainant’s credibility, neither does it corroborate the complainant’s version of events.
However, the roommate also testified that she had no memory of being asked about an incident by the complainant. One statement from the roommate that was reported was: “I’m not saying it didn’t happen, because personally, from my own trauma, I blocked a lot of those memories out.”
The complainant testified that she told her (then) boyfriend about the alleged incident. However, the person who was her boyfriend at that time testified that he did not recall that conversation.
While the complainant’s (then) boyfriend and other witnesses testified about a general environment at Collège Militaire Royal de St-Jean that could be described as inappropriate or involving sexual misconduct, that is not probative of guilt in this prosecution.
Perhaps one of the more significant frailties in the complainant’s testimony concerned the question of whether her assailant spoke during the alleged incident. She testified in court that her assailant – whom she identified as MGen Fortin – never spoke during the alleged incident. However, when she was interviewed by Military Police last year in relation to her allegation, she indicated that she recognized MGen Fortin’s voice and his French accent during the alleged incident.
In her closing argument, MGen Fortin’s counsel, Isabel Schurman, noted other inconsistencies between the complainant’s statements to investigating police and her testimony before the court.
Reporters covering the Crown’s cross-examination of MGen Fortin did not identify any inconsistencies or frailties in his testimony. And, presumably, they would have mentioned such frailties in their reporting today.
In any event, the Crown will present closing arguments tomorrow.
If the presiding judge does acquit MGen Fortin, I contend that the reasons for such an acquittal would be materially important to any statutory decision-making in the administration of the affairs of the CF.
It would be open to the judge to conclude that he believes that that the incident generally described by the complainant occurred, but also that the judge believes the accused when he states that it was not him. In other words, it would be open for the judge to believe the complainant on all aspects of her complaint, save for the identity of the perpetrator.
It would also be open to the judge to conclude that he believes the complainant regarding whether the incident she described actually occurred, but that he is left with a reasonable doubt regarding the identity of the perpetrator.
Objectively, the latter determination would be less definitive about MGen Fortin’s innocence.
It is possible to be a victim – a survivor – of sexual assault, but still err regarding the identity of the assailant. And, frankly, that is the principal issue upon which this prosecution turns.
It would, conceivably, be open to the presiding judge to conclude that he does not believe MGen Fortin, and that he generally believes the complainant, but is still left with a reasonable doubt about MGen Fortin’s guilt. However, in light of the evidence that has been described in the news reports, I suggest that this is the least likely outcome if there is an acquittal. As I say, the news reports have not identified any frailties in MGen Fortin’s testimony or noted any discrepancies that arose on cross-examination by the Crown.
Burden of Proof
And this might be an appropriate time to explain the distinction between the burden of proof and a judge’s determination about whether the judge believes a witness. And this is a crucial distinction to be made in light of the tendency of statutory decision-makers in the CF to misconstrue the nature of burdens of proof.
The burden of proof refers to the evaluation of evidence by the trier of fact in order to draw factual conclusions from the evidence. You can think of it in terms of the evidence as raw materials and the eventual determinations of fact as the finished product of that analysis.
When a judge presides over a trial without a jury (or, for a Court Martial, a Panel) the judge is both trier of fact and trier of law (and mixed law and fact). As trier of fact, the judge must determine what happened. In a criminal proceeding (or court martial) the burden of proof is ‘beyond a reasonable doubt’. That is a fairly high threshold. In R v Lifchus,  3 SCR 320, the SCC provides a template for how a presiding judge might explain this burden to a jury:
The accused enters these proceedings presumed to be innocent. That presumption of innocence remains throughout the case until such time as the Crown has, on the evidence put before you, satisfied you beyond a reasonable doubt that the accused is guilty.
What does the expression “beyond a reasonable doubt” mean?
The term “beyond a reasonable doubt” has been used for a very long time and is a part of our history and traditions of justice. It is so engrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning.
A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence.
Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt.
On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so. Such a standard of proof is impossibly high.
In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since this demonstrates that you are satisfied of his guilt beyond a reasonable doubt. [Lifchus, para 39]
In civil and administrative matters (and, now, for Summary Hearings in all their problematic glory) the burden of proof is ‘balance of probabilities’. This is often described as: “… is it more likely, than not, that the impugned act (or incident) occurred …”. And, when making decisions in the administration of the affairs of the CF, the statutory decision-makers who regularly make decisions that are adverse to the rights, interests, and privileges of their subordinates cling to that mantra like it’s the last life preserver on a sinking vessel.
But, as we can see from R v W(D),  1 SCR 742, the application of the burden of proof – regardless of the specific standard of that burden – is distinct from a determination of whether a witness is believed. Before applying the burden of proof, a trier of fact must generally first determine whether he or she believes a particular witness. If a witness is disbelieved entirely, then that witness’ testimony will not generally factor into the evaluation of the evidence.
When we speak of credibility of a witness, the term ‘credibility’ can be given a broad or a narrow meaning. The broad meaning of the term refers to the trustworthiness of a witness based on the veracity, sincerity, and accuracy of their evidence. When people use the term ‘credibility’ in its narrow sense, they tend to focus on the sincerity or truthfulness of the witness’ evidence.
In many circumstances, witnesses may offer contrary versions of events. In some cases, the difference in versions may be explained by factors relating to the respective witness’ capacity to observe, recall, or explain specific events. These factors describe the reliability of the witness. One witness may have a better vantage point, more reliable physical senses (sight, hearing, etc.), a clearer memory, more compelling aids to recollection, or a more refined capacity to explain what they observed and what they recall.
And reliability in this context is part of a witness’ credibility in its broad sense, but distinct in terms of truthfulness. In addition to reliability, the trier of fact must also evaluate the truthfulness of the witnesses. And the common crucible by which credibility and reliability are tested is cross-examination.
A trier of fact must make determinations regarding the reliability of a witness’ testimony. And that determination may not be binary in nature. One witness may be more, or less, reliable than another in terms of the observation, recollection, or explanation of particular evidence. In the circumstances, both witnesses may be credible in terms of their apparent truthfulness, and they may each earnestly believe that they speak the truth. But, the witnesses may still present contradictory or inconsistent testimony. For a variety of reasons – some of which are mentioned above – one witness may be more reliable than the other.
In such circumstances, the trier of fact may believe both witnesses, but must still reconcile the contradictory elements of their respective testimony. That is where the burden of proof, combined with the evidentiary onus will be relevant. In a civil matter, the plaintiff generally bears the onus, and the burden is balance of probabilities. In a criminal prosecution, the Crown bears the onus, and the burden is ‘beyond a reasonable doubt’. When a CF statutory decision-maker intends to take adverse action against a CF member – such as a compulsory release – the evidentiary onus is on the statutory decision-maker, and the burden will typically be a balance of probability. But this does not simply mean that the statutory decision-maker may select whichever of the options is most palatable. The decision-maker must carefully scrutinize the evidence upon which her or his decision is based in order to ensure that it is ‘clear, convincing and cogent’: F.H. v McDougall, 2008 SCC 53,  3 SCR 41.
As an aside, this is one of the significant failings of the Administrative Review process under DAOD 5019-2. The ‘evidence’ of various witnesses that will be relied upon in that process is not subject to testing under cross-examination. It is even more problematic when, as is not infrequently the case, the so-called ‘evidence’ is not proper evidence. When Administrative Review is pursued instead of a prosecution under the Code of Service Discipline or before a civil court of criminal jurisdiction, elements of an investigation – e.g., a Military Police investigation or a Unit Disciplinary Investigation – will frequently be used to support the process. However, often the actual witness statements will not be presented. Instead, a Military Police investigator’s summary of the witness statement will be used. That is not proper evidence for such a significant process. It is not “clear, convincing and cogent”. It is even less clear, convincing and cogent when the summary is excessively or improperly redacted.
So, if the judge in the prosecution of MGen Fortin concludes that Dany Fortin is believable, and accepts his version of events, the judge does so not because of the higher burden of proof in criminal matters; the judge makes a determination of credibility and reliability.
Similarly, if the judge determines that the complainant is not reliable or credible, then, as Justice Cory described in R v W(D), that determination is distinct from the application of the criminal burden of proof.
And there are occasions in which judges conclude that a complainant is not believable. In the military justice system, the case of R v Jonasson, 2019 CM 2003 is an object example. Indeed, that case is an object example of problematic decision-making by charge layers and prosecutors. Any reasonable person reviewing the judgment of Military Judge, Commander Sukstorf, would find it difficult to understand how a decision was made to pursue that prosecution in light of clear indicators that the complainant in that matter was not a credible or reliable witness.
Based upon what has been reported in the prosecution of MGen Fortin, the complainant’s testimony is not as problematic as that of the complainant in R v Jonasson, notwithstanding the frailties noted above. And, again, that statement comes with the caveat that the public has only been provided with snippets of key testimony, filtered through the reporters who have covered the matter.
So, what happens if MGen Fortin is acquitted?
If there is an acquittal
MGen Fortin has, in effect, been relieved from performance of military duty since he was removed from his role as ‘Vice President Logistics and Operations with the Public Health Agency of Canada (PHAC)’. The members of government who appear to have made that decision (subsequently supported by the CDS) did not actually, expressly, indicate that he was being relieved from performance of military duty. And, if they had made such an assertion, the public would be justified in asking why they had not followed the mandatory steps under arts 101.09 or 19.75 of the QR&O. [As an aside, in light of the allegations, art 101.09 would have been the appropriate provision.]
Then again, none of the General or Flag Officers (GOFO), who have de facto, if not de jure, been relieved from performance of military duty, benefitted from the procedural fairness in either provision. So, I suppose, one could posit the question: why should MGen Fortin benefit from such procedural fairness if no one else has? However, I suggest the more pertinent question is: Why have the CDS, his political masters, and other senior leaders in the CF pointedly refused to apply the relevant regulatory provisions when they have, essentially, relieved personnel from performance of military duty?
Put another way: Why have they pointedly refused to follow the rule of law? After all, the DND and CF Code of Values and Ethics, which is incorporated into DAOD 7023-0, Defence Ethics, and DAOD 7023-1 Defence Ethics Programme, includes the ethical principle to “… obey and support lawful authority …”. That principle includes “… respecting the rule of law …” and “… carrying out their duty and their duties in accordance with legislation, policies and directives in a non-partisan and objective manner.” That doesn’t appear to have been how many of these administrative matters have been handled.
This is particularly ironic in light of the fact that DAOD 7023-0 and 7023-1 are routinely cited in the boiler-plate analyses for Administrative Reviews ranging from alleged sexual misconduct to refusal of the COVID-19 vaccination as part of the justification for compulsory release or other adverse administrative action.
One would expect the Judge Advocate General – or Acting Judge Advocate General, since the JAG appears to be one of the GOFO who has not been performing statutory powers and functions over the past several months – to provide meaningful guidance on such issues. If that has been happening, we have not seen such advice manifested in many of those decisions.
What if the judge acquits MGen Fortin based upon a conclusion that MGen Fortin is believed?
Some might be inclined to assert that MGen Fortin should be reinstated in a position commensurate with his rank and experience, since he was ‘found innocent’. Except that an accused is not found ‘innocent’. An accused is found ‘not guilty’. The ‘presumption of innocence’ is simply a legal construct that places the burden of proof on the prosecutor.
However, if MGen Fortin’s version of events is accepted by the trial judge, I suggest that such a conclusion is strongly indicative that he did nothing wrong.
At the risk of offering a potentially inflammatory comparison (at least for some) consider the recent dismissal of the Statement of Claim brought by Lori Buchart against Donna Riguidel and Diane Rose, three of the survivors involved in the group ‘It’s Not Just 20K’. Based upon the recent news reports, it appears that the defendants had brought a successful motion to dismiss the Statement of Claim in its entirety. Based upon what has been reported (which did not present much detail), the Statement of Claim was deficient. Thus, the matter did not even get to the stage at which evidence was weighed and tested.
And, while evidence was not weighed or tested, we can safely conclude that the allegations were not proven. Not only did the plaintiff not meet the burden of proof, she did not get to the stage where evidence would be weighed.
In the Fortin prosecution, evidence was presented, and will be weighed. But if the judge concludes that he believes MGen Fortin, that conclusion means that the allegations were not substantiated.
Arguably, CF and governmental decision-makers could assert that the finding of a court of criminal jurisdiction is not binding on a separate determination made under the NDA. Strictly speaking, that’s true. And the issue of judicial comity does not arise. However, the merit of the court’s judgment remains relevant.
As I mention above, the Administrative Review process under DAOD 5019-2 does not allow for cross-examination or meaningful testing of evidence. Often, the so-called evidence that is presented in that process is sparse and selective. And, regardless of what evidence is presented, it is certainly not rigorously tested.
In other words, the evidentiary basis of that decision-making process is often dubious.
Compare that to a court of criminal jurisdiction, where an independent and impartial judge hears actual evidence, viva voce, from witnesses. That evidence is tested, through cross-examination, by competent counsel representing the interests of both the Crown and the accused. In short: it is a process in which the rule of law is respected.
It would be difficult for the CDS, his political masters, and other statutory decision-makers to ignore the merit of such conclusions. After all, if MGen Fortin were found guilty, you’d better believe that the finding of guilt would be one of the foremost assertions – if not the #1 assertion – by those same statutory decision-makers when they subsequently pursued a process under the NDA (namely: ordering his compulsory release under Item 2(a)).
What if the acquittal is more equivocal?
It becomes a thornier issue if the judge in the criminal proceeding bases an acquittal not on believing Dany Fortin’s testimony, but on having a reasonable doubt about guilt. Arguably, the second or third stage of the test in R v W(D) applies only if the trier of fact first concludes that he does not believe the accused (or does not believe the accused about a central material fact).
The determination is not a contest between the complainant and the accused. It is not an ‘either/or’ proposition.
If the trial judge concludes that MGen Fortin is ‘not guilty’ based upon being left with a reasonable doubt, rather than because he believes MGen Fortin, then it is possible that the CDS and his political masters could view that as an opportunity to conclude that wrong-doing could be found on a ‘lower’ burden of proof.
After all, the mantra that is repeated, religiously, in all Administrative Reviews (and not just those dealing with allegations of sexual misconduct) is that the burden of proof is the civil standard of ‘balance of probabilities’ and not the higher criminal standard of ‘beyond a reasonable doubt’.
I have discussed this rote reference previously:
[Clearly, this is a recurring theme.]
All too often, the civil ‘burden of proof’ is interpreted as supporting a cursory analysis (and ‘analysis’ may be an exaggeration of the process) of the allegations in order to arrive at the decision-maker’s preferred conclusion to impose “administrative penalties” such as compulsory release (typically under Item 5(f) where there is no criminal or Code of Service Discipline conviction upon which the decision-maker might rely).
All of this can be contrasted with the process before a court of criminal jurisdiction, which has a robust means of examining actual evidence and where the decision is made by an independent and impartial decision-maker.
If MGen Fortin is acquitted, the most accurate descriptor to apply to him is that he was someone who was accused of wrong-doing, but who was found not guilty. The strength of that finding can be discerned from the content of the judgment offered by the trier of fact. In a case tried by judge alone, rather than a judge and jury, the accused and the public have the benefit not only of the finding, but of transparent and intelligible reasons justifying that outcome.
Likely outcome following acquittal
If MGen Fortin is acquitted, the problem that he then faces is that the CDS, and his political masters, will likely be less concerned about the acquittal, than they are of the allegations and the hue and cry that will be raised from certain rent-seekers for whom allegations are sufficient for condemnation.
And that is where problematic decision-making can arise.
Once MGen Fortin was accused – or, more accurately, once the relevant decision-makers such as the (then) Deputy Minister and the CDS (when he was Acting CDS) permitted the allegations to be reported publicly, approximately six months before he was charged – MGen Fortin was viewed by the Prime Minister, the (then) Minister of National Defence, the Deputy Minister and the Acting CDS as a liability. 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.
And that is why, regardless of the outcome of the criminal proceeding, I anticipate that the PM, MND, DM and CDS will not permit MGen Fortin to return to any meaningful duties.
They are concerned not about fairness or the rule of law. They are concerned about optics. They are concerned about appeasing those who would condemn a person based upon allegations and not determinations derived from the rule of law.
 This does not describe a different burden of proof; it remains ‘balance of probability’. However, the judgement of the Court, delivered by Justice Rothstein, describes the quality of the evidence that is required. Per paras 45 and 46: “ To suggest that depending upon the seriousness, the evidence in the civil case must be scrutinized with greater care implies that in less serious cases the evidence need not be scrutinized with such care. I think it is inappropriate to say that there are legally recognized different levels of scrutiny of the evidence depending upon the seriousness of the case. There is only one legal rule and that is that in all cases, evidence must be scrutinized with care by the trial judge.  Similarly, evidence must always be sufficiently clear, convincing and cogent to satisfy the balance of probabilities test. But again, there is no objective standard to measure sufficiency. In serious cases, like the present, judges may be faced with evidence of events that are alleged to have occurred many years before, where there is little other evidence than that of the plaintiff and defendant. As difficult as the task may be, the judge must make a decision.”