Military faces calls to return Fortin to duty after acquittal

Maj.-Gen. Dany Fortin's acquittal for sexual assault has sparked calls for the senior military officer's immediate return to duty as well as a debate over how the Canadian Armed Forces should deal with troops accused of sexual misconduct in the future.

The Armed Forces says it is still considering the implications of Judge Richard Meredith's ruling on Monday. The Quebec civilian judge ruled that the Crown did not establish beyond a reasonable doubt that Fortin had sexually assaulted a woman in 1988.

In an interview on Tuesday, one of Fortin's lawyers said her client is "ready, willing and able" to return to service after being removed as head of Canada's COVID-19 vaccine rollout campaign and put on paid leave with the military in May 2021.

Lawyer Natalia Rodriguez also left the door open to a lawsuit or settlement, saying Fortin's career and long-term reputation have suffered as a result of the allegation against him — and the way it was handled by the Liberal government and military leadership.

"This has been a very heavy blow to his career," said Rodriguez. "If you look at his performance reviews leading up to this dismissal, they were glowing and they said he was poised for a promotion. … And it's very difficult to come back from this reputationally."

Rodriguez is representing Fortin in Federal Court, where the senior officer has accused the Liberal government of removing him from the vaccine campaign and other military duties for purely political reasons and without due process.

Fortin wants the Federal Court to order the military to reinstate him to a position commensurate with his rank. An appeal was scheduled for October after his request was initially rejected, but the hearing was adjourned pending the results of his criminal trial.

Rodriguez argued Tuesday that the military's decision to leave her client essentially in limbo for the past 18 months has affected his ability to work and be promoted before reaching the Armed Forces' mandatory retirement age of 55 this coming summer.

And despite being acquitted, she said the allegation against him will affect his post-military career options.

Retired colonel Michael Drapeau, who is now a lawyer specializing in military cases, says Monday's acquittal should pave the way for Fortin to be immediately assigned to a new role with full duties.

"Having been found ‘not guilty' after a full criminal trial, he should be immediately assigned to a high-level position commensurate with his long and diverse experience as a senior leader," Drapeau said in an email. "There is no legal or administrative reason not to do this."

Drapeau acknowledged the government may instead offer a settlement in return for Fortin's retirement, as happened when the breach-of-trust case against vice-admiral Mark Norman was dropped in May 2019.

Like Fortin's fight in Federal Court, Norman's defence included allegations of political interference by the Liberal government. And like Fortin, Norman said he wanted to return to military service before accepting the undisclosed settlement.

"In both cases, the issue is whether they should be returned to full duties once the criminal procedure is over. I think they should," Drapeau said. "However, this does not prevent DND/CAF and the officer to arrive at a settlement facilitating and early retirement."

Chief of the defence staff Gen. Wayne Eyre can also recommend the release of any Armed Forces member who has served more than 30 years, Drapeau said.

Retired lieutenant-colonel Rory Fowler, also now a civilian lawyer specializing in military cases, argued that Fortin never should have been relieved of his military duties given the historical nature of the allegation against him and the importance of due process.

"There's no justification for them to continue to leave him in limbo," Fowler said. "Because here's the thing: there wasn't a justification a year and a half ago. And if there wasn't a justification a year and a half ago, there's definitely not a justification now."

Fowler previously represented Art McDonald, who voluntarily stepped aside as chief of the defence staff in February 2021 due to an investigation of sexual misconduct. He was later rebuffed in his attempt to return to the position after police opted not to charge him.

While Fowler said it is important that the military address sexual misconduct in the ranks, he argued Fortin's treatment shows the military is failing to ensure those facing allegations of wrongdoing are dealt with in a fair manner.

"What I would hope would come out of this is that the (chief of the defence staff) and his political masters re-evaluate not just how they treated Dany Fortin and the other general and flag officers, but how they're treating all members of the Canadian Forces accused of wrongdoing," he said.

Charlotte Duval-Lantoine, an expert on military sexual misconduct at the Canadian Global Affairs Institute, said the decision over whether to return Fortin to duty or not will be polarizing no matter where the military ends up.

She also said the decision over whether to keep troops accused of wrongdoing in their jobs or have them essentially suspended is one fraught with complexity. She said it is also a question that the Armed Forces needs to get a handle on.

"What the CAF needs to prioritize then is to establish a clear policy when it comes to handling those cases on the administrative side and enforce consistency," she said. "There'll be discontent, but consistency and firm communication will be where this battle will be won."

This report by The Canadian Press was first published Dec. 6, 2022.