Strictly speaking, this is not a matter that concerned the Code of Service Discipline and, consequently, is not a matter of 'military justice' as that term is defined by the Judge Advocate General of the Canadian Forces (and as the National Defence Act will define the term once section 2 of Bill C-77 comes into force). However, it does concern 'military justice' where that term is interpreted to include the application of statutory powers in a manner that affects the rights, interests, and privileges of members of the Canadian Forces, and it is related to a disciplinary investigation.
MGen Fortin had been seconded from the Canadian Forces to the Public Health Agency of Canada (PHAC) to co-ordinate vaccine delivery in response to the COVID-19 pandemic. In March 2021, a complainant reported what is characterized as an 'historic' complaint of sexual misconduct dating from a period when MGen Fortin was an Officer Cadet at Royal Military College St-Jean in the late 1980s. He was removed abruptly from his position with PHAC in May 2021, when news of the investigation leaked. That investigation eventually led to a charge of sexual assault pursuant to section 271 of the Criminal Code, which was laid under the civilian criminal justice system, and not under the Code of Service Discipline. That allegation has yet to be tested in court.
In his application for judicial review, MGen Fortin alleged that, on May 14, 2021, a decision was made by the Minister of Health, the Minster of National Defence, the Prime Minister of Canada, and the Clerk of the Privy Council to remove him from his position prior to the anticipated end date of 31 October 2021. He alleged that the decision was not made by the Acting Chief of the Defence Staff (A/CDS), (then) Lieutenant-General Wayne Eyre, who was the appropriate authority to make such a decision, but by political actors, and that the decision was prompted by a change in the “political calculus”.
As a result, MGen Fortin asserted that the CF grievance process was not the appropriate mechanism for him to seek redress, as the final authority in the process -- the Chief of the Defence Staff -- has no authority over the political actors who made the decision. In his application, MGen Fortin sought reinstatement in his position with PHAC, or a position commensurate with his rank. In the alternative, he asked the court to remit the matter to the A/CDS for re-determination.
However, in a 20-page judgment, Justice McDonald held that MGen Fortin was obliged to exhaust the 'adequate alternative remedy' presented by the CF grievance process, as he had failed to demonstrate that he could not obtain redress through that process.
MGen Fortin has until 12 November 2021 to file a Notice of Appeal, as of right, if he chooses to appeal the judgment of the Federal Court.
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