Why is the ‘Fortin File’ Being Transferred to a Civil Prosecutor?
There has been a flurry of commentary over the past week or so regarding Major-General (MGen) Dany Fortin. A fair bit of it has been speculation.
On 19 May 2021, various news media reported that the Canadian Forces Provost Marshal (CFPM) indicated that the Canadian Forces National Investigation Service (CFNIS) has sent its investigation file to Québec’s Director of Criminal and Penal Prosecutions (DCPP) – or, en français, le Directeur des Poursuites Criminelles et Pénales (DPCP).
Understanding why this has been done requires an understanding of the Code of Service Discipline (CSD) both as it stands now and as it was in 1989 under the National Defence Act (NDA) that was in force at that time.
When discussing the jurisdiction of the CSD, many people immediately jump straight to section 70 of the NDA, particularly its pre-1998 version, which expressly excluded from the jurisdiction of the CSD the offence of sexual assault (and other variations of that offence). This reaction is understandable; inclusion of the offence under the jurisdiction of the CSD was a frequent topic of discussion and commentary prior to 1998, and, more recently, has been a recurring topic of discussion. Part of the discussion has involved commentary about whether sexual assault should have been included under the jurisdiction of the CSD, whether the CFNIS has done an adequate job investigating such allegations, and whether the Canadian Military Prosecution Service (CMPS) under the Director of Military Prosecutions (DMP) has done an adequate job prosecuting the offence.
But that is not the focus of the present Blog Post.
Rather, I will be discussing a broader jurisdictional concern relating to the CSD prior to 1998 that is often overlooked, and which is likely the principal reason why the ‘Fortin file’ has been referred to civil authorities in Québec, rather than being prosecuted under the CSD. And that involves section 69 of the NDA that was in force in 1989.
This discussion will be constrained due to a lack of relevant information that can be applied to the relevant legal regime. This requires a degree of speculation or assumption on my part. However, we will still be able to examine, generally, the relevant aspects of jurisdiction that likely influence this matter.
I will first examine some of the limited facts that have been presented regarding the ‘Fortin file’ in order to orient our discussion. I will identify what the public has been told, and what they have not been told, and I will offer a few comments on those circumstances.
Then I will present the relevant law and analysis of key provisions relating to jurisdiction of the CSD. While this will include some discussion of the law in force presently, the principal focus will be the statutory provisions in force in 1989. Based upon the limited information that has been provided thus far, that is the relevant timeframe for our discussion. This analysis will also examine the actions and decisions that have been taken by Canadian Forces (CF) decision-makers, particularly the referral of the file to a civil prosecutor.
The investigation of MGen Fortin was first made public on or about 14 May 2021, when spokespersons for the CF and Department of National Defence (DND) indicated that he was ‘stepping down’ from his leadership role with the Public Health Administration of Canada (PHAC) in delivering COVID-19 vaccines, due to an investigation into allegations of misconduct.
Indeed, while MGen Fortin was apparently aware, generally, that he was under investigation, it appears that he was first informed by a reporter from CTV News, and not by any supervisor, of specifics regarding the allegations. The allegations were apparently first raised in March of this year. These allegations then precipitated his removal from his position with PHAC. Although the action was repeatedly characterized as MGen Fortin ‘stepping down’ – which tends to suggest a voluntary action on his part – that action appears to have followed a meeting with the Acting Chief of the Defence Staff (A/CDS), Lieutenant-General (LGen) Wayne Eyre. Frankly, it is difficult not to conclude that the A/CDS essentially directed MGen Fortin to ‘step down’.
I suspect that MGen Fortin would have preferred to have heard about the nature of the investigation against him from the A/CDS, rather than a CTV reporter.
There has also been very little information provided to the public. That can be problematic. As I have mentioned before, when it comes to the ‘scandal’ plaguing the CF at present, the Canadian public has demonstrated a penchant for expressing a mob mentality where allegations are presented with limited information.
I was struck by a comment that I saw in social media regarding the limited information that has been provided thus far. One person wrote: “… then someone should tell the public the facts, not deliberately conceal them.” I have seen other comments along similar lines, complaining that not enough information is being released about that investigation.
The problem with such a perspective is that it fundamentally misconstrues how criminal or disciplinary investigations are conducted, and how such evidence is used in criminal or disciplinary proceedings.
As I have indicated – repeatedly – we do not try people for criminal (or Code of Service Discipline) offences in the media, and for good reason. We do not use ‘People’s Courts’. Nazi Germany used ‘People’s Courts’. They are not what I would characterize as shining examples of fairness and adherence to the rule of law.
We have to remember that the police (whether civilian or military) do not collect ‘facts’. They collect evidence. That evidence is presented before courts or tribunals with appropriate jurisdiction, and which follow processes that permit fair, independent, and reasonable adjudication of that evidence in order that the ‘trier of fact’ can arrive at factual conclusions that are lawful, fair, and reasonable and, thereby, defensible in a free and democratic society. That is why I have previously suggested that we might want to put away our torches and pitchforks, unless we have legitimate agricultural purposes to which we might wish to apply such tools.
Normally, the results of police investigations are presented to prosecutors when, and if, charges are laid. Sometimes, law enforcement will seek input from prosecutors prior to laying charges. In the CF, when charges are laid under the CSD, pre-charge legal advice is often mandatory. In Québec, prosecutors play a direct role in the laying of charges.
However, the results of police investigations are not typically shared with the employer of the subject of the investigations. However, it appears that the Prime Minister, the Minister of National Defence, and even the Head of the PHAC were informed of the investigation against MGen Fortin, apparently well before mid-May.
I am a little concerned about the manner and timing of the alleged ‘leaks’ that have been presented in this matter over the past week. While they have been characterized as ‘leaks’ – presumably meaning that selective information has been provided by people who have not been authorized to provide that information – it does appear that just enough information was provided to disclose a thin factual veneer to justify removing MGen Fortin from his position (or forcing him to ‘step down’) approximately two months after the allegations were raised. And that information was provided to the news media just as the ‘Fortin file’ was being referred to the civilian prosecutors at Québec’s DCPP.
I question whether these ‘leaks’ were truly leaks, or whether there was direction given by someone that certain information would be provided in order to assist with explaining the action taken by senior decision-makers. I have no means of knowing whether such direction was given.
Where I do have a degree of certainty is the direction given under the Access to Information Act (ATIA). The head of a government institution may refuse to disclose the product of a law enforcement investigation. (NB: This is distinct from the disclosure that must be provided to an accused in the course of a prosecution, whether before a civil court or a military tribunal, as part of an accused’s right to offer ‘full answer and defence’.) The head of a government institution shall refuse to disclose personal information unless the person to whom it applies consents to the disclosure, or if disclosure is permitted under the Privacy Act.
Arguably, some of the information that we are dealing with is MGen Fortin’s ‘personal information’, as defined under s 2 of the Privacy Act. Pursuant to sub-para 8(2)(m)(i) of the Privacy Act, and subject to any other Act of Parliament, “… personal information under the control of a government institution may be disclosed … for any purpose where, in the opinion of the head of the institution, the public interest in disclosure clearly outweighs any invasion of privacy that could result from the disclosure …”.
The “head” of the institution is defined under section 2 of the Privacy Act as:
(a) in the case of a department or ministry of state, the member of the Queen’s Privy Council for Canada who presides over the department or ministry, or
(b) in any other case, either the person designated under subsection 3.1(2) to be the head of the institution for the purposes of this Act or, if no such person is designated, the chief executive officer of the institution, whatever their title; …
In other words, in the present case, it would be the Minister of National Defence. However, such decisions are not always made by a Minister. Arguably, such decisions are more frequently made by a person exercising ‘implied powers’ by virtue of sub-section 24(2) of the Interpretation Act:
(2) Words directing or empowering a minister of the Crown to do an act or thing, regardless of whether the act or thing is administrative, legislative or judicial, or otherwise applying to that minister as the holder of the office, include
(a) a minister acting for that minister or, if the office is vacant, a minister designated to act in the office by or under the authority of an order in council;
(b) the successors of that minister in the office;
(c) his or their deputy; and
(d) notwithstanding paragraph (c), a person appointed to serve, in the department or ministry of state over which the minister presides, in a capacity appropriate to the doing of the act or thing, or to the words so applying.
Most often, for matters such as these, it is the person exercising implied powers under para 24(2)(c) – the Deputy Minister.
Again, the information provided to certain media sources was characterized as a ‘leak’. There may not have been actual direction given pursuant to the ATIA and Privacy Act. However, I am very curious why a minor amount of information was ‘leaked’, but just enough was ‘leaked’ to assist in explaining why certain actions were taken regarding MGen Fortin, and at the same time that the investigation file was being referred to a civil prosecutor.
The information that has been leaked thus far can be summarized as follows:
In the commentary that follows, I will base my analysis on the following:
The Relevant Law and Analysis
As I mention above, when it was announced that the CFNIS would refer their investigation to the DCPP in Quebec, the likely tendency for most people was to conclude that, since the allegations pre-date 1998, when Bill C-25 amended section 70 of the NDA, the file was being referred to DPCP because it involved allegations of sexual assault.
Prior to 1998 – or, more particularly, in 1989 – section 70 of the NDA was:
70. A service tribunal shall not try any person charged with any of the following offences committed in Canada:
(c) sexual assault;
(d) sexual assault committed with a weapon or with threats to a third party or causing bodily harm;
(e) aggravated sexual assault; or
(f) an offence under sections 280 to 283 of the Criminal Code.
[NB: section 280 to 283 of the Criminal Code concerned offences relating to the abduction of children].
In 1998, the enactment of Bill C-25 introduced significant statutory reforms to the CSD and repealed paras 70(c) to (e) of the NDA, leaving the jurisdictional exclusions for the offences of murder and manslaughter, and offences under section 280 to 283 of the Criminal Code, when they are committed in Canada.
Due to the frequent discussion of the prosecution of sexual assault under the CSD, many Canadians are likely familiar with this pre-1998 jurisdictional exclusion.
However, I suggest that this is not the principal jurisdictional provision behind the decision to refer the matter to the civilian DCPP in Quebec. It is not clear if the allegations against MGen Fortin involve allegations of sexual assault. Rather, the principal provision under the NDA governing this decision is likely section 69 (more specifically, section 69 as it was in force in 1989).
For clarity, I will reproduce the entirety of this provision, as it existed in 1989:
69. (1) Except in respect of the service offences described in subsection (2), no person is liable to be tried by a service tribunal unless the trial of that person begins before the expiration of a period of three years after the day on which the service offence was alleged to have been committed.
(2) Every person subject to the Code of Service Discipline at the time of the alleged commission by that person of a service offence of mutiny, desertion or absence without leave or a service offence for which the highest punishment that may be imposed is death continues to be liable to be charged, dealt with and tried at any time under the Code of Service Discipline.
(3) In calculating the period of limitation referred to in subsection (1), there shall not be included
(a) time during which a person was a prisoner of war;
(b) any period of absence in respect of which a person has been found guilty by any service tribunal of desertion or absence without leave; and
(c) any time during which a person was serving a sentence of incarceration imposed by any court other than a service tribunal.
As I indicate above, it is unclear whether the allegations against MGen Fortin include sexual assault. While that term was included in some of the initial reporting by the CTV, that news agency has appeared to resile from using that term in their subsequent reporting. However, whether or not such allegations form part of the investigation is not the principal issue regarding the jurisdiction of the Code of Service Discipline in relation to allegations of misconduct in 1989.
Pursuant to subsection 69(1), if (then) OCdt Fortin were to have been prosecuted before a military tribunal in relation to alleged misconduct arising in 1989, the charges would have to have been brought before the military tribunal within three years of when they allegedly arose, unless the allegations related to one of the exceptions listed at subsection 69(2) of the NDA (based upon the provision in force at that time). Those exceptions related to charges of mutiny, desertion, AWOL, or any service offence for which (at that time) the maximum punishment was death.
It does not appear that the allegations against MGen Fortin, arising on or about 1989, relate to mutiny, desertion, AWOL, or any service offence that was punishable by death. I cannot say for certain, because I do not have any greater knowledge of the allegations than the rest of the Canadian public. However, it appears that the allegations relate to either ‘indecent exposure’ (more on that in a moment) or, possibly, sexual assault. Alternatively, the alleged misconduct may have constituted conduct to the prejudice of good order and discipline under section 129 (as it was then in force).
Consequently, whether it is alleged that (then) OCdt Fortin committed a service offence created under the NDA (as it was in 1989) or a Criminal Code offence that was incorporated under the CSD by virtue of section 130 of the NDA (as it was in 1989), on the presumption that it was not an offence described at subsection 69(2) of the NDA, then the intervening 32 years would preclude prosecution before a military tribunal, regardless of whether the allegation related to sexual assault.
Presumably, then, the allegations investigated by the CFNIS relate to one or more potential Criminal Code offences (again, based upon the Criminal Code in force in 1989). Since it is dubious that jurisdiction could be exercised under the CSD by virtue of subsection 69(1) of the NDA in force in 1989, the CFNIS have presumably referred the matter to the civil prosecutor in Quebec, who exercises (and, in 1989, exercised) concurrent jurisdiction over Criminal Code offences.
Sections 69 and 70 do not present the only jurisdictional considerations for this matter. By virtue of subsection 786(2) of the Criminal Code (in force in 1989), the summary prosecution of a criminal offence must have commenced within 6 months of the date of the alleged offence. Consequently, if the allegations against (then) OCdt Fortin are prosecuted under the Criminal Code before a civil court of criminal jurisdiction, they would have to proceed by indictment. That means only a ‘hybrid’ offence (i.e. an offence that can be prosecuted summarily or by indictment) or an indictable offence may be the subject of such a prosecution.
It is unclear if the allegations against MGen Fortin include allegations of sexual assault. The only allegation that has been described with any degree of particularity thus far is that (then) OCdt Fortin allegedly ‘exposed’ himself to another person. And based upon what has been reported, the specific circumstances of the allegation remain largely unknown. The likeliest offence that would be charged is an ‘Indecent Act’, described by section 173 of the Criminal Code. Were one to examine that offence as it is presently defined under the Criminal Code, one would conclude that it is a ’hybrid’ offence (i.e. it can be prosecuted summarily or by indictment):
173 (1) Everyone who wilfully does an indecent act in a public place in the presence of one or more persons, or in any place with intent to insult or offend any person,
(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than two years; or
(b) is guilty of an offence punishable on summary conviction.
(2) Every person who, in any place, for a sexual purpose, exposes his or her genital organs to a person who is under the age of 16 years
(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than two years and to a minimum punishment of imprisonment for a term of 90 days; or
(b) is guilty of an offence punishable on summary conviction and is liable to imprisonment for a term of not more than six months and to a minimum punishment of imprisonment for a term of 30 days.
However, if the allegations date to 1989, it is not the current version of that offence that would be prosecuted, but the version in force in 1989:
173. Every one who wilfully does an indecent act
(a) in a public place in the presence of one or more persons, or
(b) in any place, with intent thereby to insult or offend any person,
is guilty of an offence punishable on summary conviction.
’Indecent Act’ under s 173, as it was in force in 1989, was solely a summary offence. It could not be prosecuted today before a civil court of criminal jurisdiction due to the limitation period at sub-section 786(2) of the Criminal Code that was in force in 1989.
Presumably, before the CFNIS referred the file to the DCPP in Quebec, the legal advisors in the CMPS would have conducted a similar analysis as I present above and would have advised the CFNIS accordingly, consistent with their publicly stated mandate.
According to spokespersons for the CFNIS, the file was referred to the DCPP. It is possible that the investigation presents evidence of more than one alleged incident or more than one type of alleged misconduct. In light of the very limited information that has been made public thus far, the public cannot be certain of what is alleged or what the evidence is.
Moreover, it is unlikely that MGen Fortin is aware of the full contents of the file. His right to disclosure under Stinchcombe arises only after he is charged.
If the CFNIS investigation identified evidence that would only support the laying of a charge pursuant to section 173 of the Criminal Code, as it was in force in 1989, I would like to believe that the CMPS would not have recommended that the CFNIS refer the file to the DPCC in Quebec. After all, it would not be feasible for the DPCC to proceed with such a charge after a delay of 32 years. If those are the circumstances, I would have expected counsel at the CMPS to have liaised with counsel at the DPCC regarding the issue of jurisdiction. Otherwise, it could appear that the CF decision-makers are off-loading onto a civilian prosecutor the unpalatable decision not to prosecute, rather than making that determination themselves (presumably, in consultation with the relevant civilian prosecutor).
After all, there has already been plenty of ‘buck passing’ regarding the current ‘scandal’ in the CF.
The Canadian public still does not know much about the allegations against MGen Fortin. However, if they are allegations of criminal misconduct, then those can be brought to light the same way as allegations of criminal misconduct against any person in Canada – through a prosecution before a court of criminal jurisdiction. While some Canadians may be upset that ‘we have not been provided all the details’, I suggest that the public has less of an interest in such disclosure than Dany Fortin himself. After all, he is the one facing jeopardy, and he is the one who has already been subject to adverse action and decision-making.
Perhaps something that should be of greater concern for Canadians is the fact that just enough information was ‘leaked’ about the allegations to appear to support the adverse administrative action taken against MGen Fortin.
Perhaps Canadians should be concerned that, although MGen Fortin was aware, in a general sense, that an investigation was being conducted, the first that he was informed of any details was when a CTV reporter approached him for a comment. He did not learn of those details from supervisors, even as he was being obliged to ‘step down’ from his role in delivering vaccines to Canadians.
Perhaps Canadians should be concerned that senior government officials, including the Prime Minister, the Minister of National Defence, and the Head of the PHAC, were aware of details of the allegations as far back as March, even though MGen Fortin was unaware of the details or that they had been shared with senior officials with whom he worked and to whom he reported. In addition to the fact that most civilian police forces do not share the contents of their investigations with employers before the investigation is complete and before any charges are laid, such action runs a not-insignificant risk of creating a toxic workplace for MGen Fortin.
Ultimately, the contents of the investigation were referred to a civilian prosecutor. This was undoubtedly done due to jurisdictional limitations of the Code of Service Discipline under the NDA that was in force in 1989. While the jurisdictional limitation at section 70 of the NDA in force in 1989 may have been relevant, I suggest that the principal jurisdictional limitation that governed CF decision-making was the broader jurisdictional limitation at section 69. The 3-year limitation period in that provision would have applied to a broad range of misconduct, and not just sexual assault.
We will now have to wait to see what conclusions are drawn by prosecutors in Quebec’s DPCC. Hopefully, we will not learn that much of this action was simply another case of ‘buck passing’ regarding difficult or unpalatable decisions.
 Ashley Burke and Murray Brewster, “Quebec prosecutor’s office to decide on possible charges against Maj.-Gen. Dany Fortin”, (19 May 2021), online: CBC News <https://www.cbc.ca/news/politics/dany-fortin-sexual-misconduct-vaccine-1.6032931>; Rachel Aiello, Annie Bergeron-Oliver, and Kevin Gallagher, “Military investigators refer allegation involving Maj.-Gen. Dany Fortin to Quebec prosecutor”, (19 May 2021), online: CTV News <https://www.ctvnews.ca/politics/military-investigators-refer-allegation-involving-maj-gen-dany-fortin-to-quebec-prosecutor-1.5434968>.
 National Defence Act, RSC 1985, c N-5 [NDA].
 This position has been referred to as ‘Vice President Logistics and Operations’. However, MGen Fortin remained an officer in the Canadian Forces.
 Sarah Turnbull, “Maj.-Gen. Dany Fortin no longer leading vaccine campaign pending military investigation”, (14 May 2021), online: CTV News <https://www.ctvnews.ca/health/coronavirus/maj-gen-dany-fortin-no-longer-leading-vaccine-campaign-pending-military-investigation-1.5428928>; Murray Brewster, “Fortin out as Canada’s vaccine campaign lead amid military probe into sexual misconduct claim, sources say”, (15 May 2021), online: CBC News <https://www.cbc.ca/news/politics/fortin-military-investigation-removed-1.6027995>; The Canadian Press, “Feds face growing calls for answers following Fortin’s departure from COVID-19 vaccine campaign”, (16 May 2021), online: National Post <https://nationalpost.com/news/feds-face-growing-calls-for-answers-after-general-overseeing-vaccine-effort-sidelined>.
 Annie Bergeron-Oliver and Kevin Gallagher, “Maj.-Gen. Dany Fortin facing historical sexual misconduct allegation: CTV News sources”, (16 May 2021), CTV News <https://www.ctvnews.ca/politics/maj-gen-dany-fortin-facing-historical-sexual-misconduct-allegation-ctv-news-sources-1.5430554>.
 David Pugliese, “Maj. Gen. Dany Fortin steps down from vaccine roll out job after military police launch investigation”, (14 May 2021), online: Ottawa Citizen <https://ottawacitizen.com/news/national/defence-watch/maj-gen-dany-fortin-steps-down-from-vaccine-roll-out-job-after-military-police-launch-investigation>.
 Murray Brewster and Ashley Burke, “Trudeau says he was informed of Fortin investigation ‘a number of weeks ago’”, (18 May 2021), online: CBC News <https://www.cbc.ca/news/politics/trudeau-fortin-misconduct-1.6030352>; Annie Bergeron-Oliver and Kevin Gallagher, “Defence Minister Sajjan was aware of investigation into Fortin in March, PM says he learned ‘weeks ago’”, (18 May 2021), online: CTV News. <https://www.ctvnews.ca/politics/defence-minister-sajjan-was-aware-of-investigation-into-fortin-in-march-pm-says-he-learned-weeks-ago-1.5432908>; Rachel Aiello, “Head of public health agency informed of ‘issue’ regarding Fortin in March”, (21 May 2021), online: CTV News <https://www.ctvnews.ca/politics/head-of-public-health-agency-informed-of-issue-regarding-fortin-in-march-1.5438465>.
 Access to Information Act, RSC 1985, c A-1 [ATIA].
 Privacy Act, RSC 1985, c P-21.
 Interpretation Act, RSC 1985, c I-21.
 Criminal Code, RSC 1985, c C-46.
 Annie Bergeron-Oliver and Kevin Gallagher, n 5.
 Pursuant to para 139(1)(a) of the NDA in force until 1998, capital punishment remained a punishment for certain offences under the Code of Service Discipline. It was repealed in 1998 under Bill C-25, n 13, s 35.
 Even under the version of s 786(2) of the Criminal Code presently in force, the limitation period to proceed with summary prosecutions is twelve months unless both the prosecutor and accused consent to a prosecution commencing later than twelve months.
 See Canada, Director of Military Prosecutions, DMP Policy Directive 002/00, Pre-Charge Screening, (1 March 2000, Updated 1 September 2018) <https://www.canada.ca/en/department-national-defence/corporate/policies-standards/legal-policies-directives/pre-charge-screening.html>, paras 2 to 4, 14 and 15, and 22 to 24. See also, Canada, Director of Military Prosecutions, “The Work of the CMPS”, (retrieved 23 May 2021), online: Government of Canada <http://www.mdn.ca/en/caf-community-legal-services/mil-prosecutions.page> “… CMPS personnel also provide ongoing legal advice to the CAF National Investigation Service on such matters as search warrants, appropriate charges and other legal requirements of investigations.”.