Monday, September 26, 2022

Should military accused appear in uniform before civil courts?


Ottawa, Canada.  The Canadian Broadcasting Corporation (CBC) are reporting on the case of Major-General Dany Fortin, Canadian Army, who stands accused of an sexual assault  which allegedly took place at the Royal Military College [RMC] in 1988. Fortin pleaded 'not guilty' during his appearance before a a civilian court, this past week.  

This is the result of a decision made last year by the incoming Defence Minister, the Honorable Anita Anand, who in response to the successive recommendations of two retired Supreme Court of Canada justices recommending that jurisdiction for the investigation and prosecution of 'sexual assaults' now be moved to civilian courts. In 2021, both the Honorable Morris Fish and the Honorable Louise Arbour separately conducted an external independent review of the Canadian military justice system and recommended that jurisdiction for sexual assault be transferred to civilian jurisdiction. [A change which has been long argued by the writer of this post.]

 Last week, MGen Fortin appeared in civil court in full dress uniform which includes medals. This  created a controversy on the part of sexual trauma advocates and commentators who argued that the "act of wearing the full uniform to court while on court on trial is power play that intimidates complainants and triggers victims." Other argued that the 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."  In response, the Department of National Defence [DND] has announced that it will review the matter and decide whether members accused of crimes should wear uniforms in civilian courts. 

For the sake of transparency, I also need to note that I have separately commented this issue to the CBC over the week-end. Given that the military uniform is, in many respects, a visible sign of authority issued by the national State, unless the military member appearing in a civilian court  [of civil or criminal jurisdiction] is acting in an official capacity (i.e. as a witness), he or she should not wear the uniform. To act otherwise, may suggests that the military member is endorsed or otherwise supported by his parent organization in the instant action.


  1. I think U.S. rules mirror Michel's thoughts.

    10 U.S.C. § 772(c) permits retirees to wear the uniform of their retired grade. [].

    The DoD proscribes wearing the uniform when it “may tend to bring discredit upon the Military Services.” [].

    As an example, the Air Force says that Air Force members may not wear the uniform “While participating in civilian court proceedings when the conviction would bring discredit to the Air Force.” This applies to situations where they are the accused. Otherwise wearing the uniform in court must be approved by an appropriate commander. This leaves some wiggle room. AFI 36-2903 [] and [].

    The Navy follows the DoDI and the AF.

    One wrinkle, that seems correct, is that a retired officer appearing as an accused in a court-martial post-retirement may choose to wear uniform or civilian clothes. This happened some years ago with Major General Grazioplene (civilian clothes) [] and Brigadier General Sinclair (uniform) [].

  2. I suggest those interested in military justice would be much more concerned about why someone is being prosecuted 34 years later.


Comments are subject to moderation and must be submitted under your real name. Anonymous comments will not be posted (even though the form seems to permit them).