Monday, January 23, 2023
Major General Fortin cleared of wrongdoing
The spokespersons for the Canadian Forces (CF) have indicated that Major General (MGen) Dany Fortin has been cleared of wrongdoing and that an administrative review has concluded that “... he did not engage in sexual misconduct.”
Aaron D'Andrea, "Maj.-Gen. Dany Fortin cleared in military review of sexual misconduct allegation" (23 January 2023), online: Global News Network.
This should not come as much of a surprise. In a Blog commentary approximately six weeks ago, I offered an analysis of key factors that should be considered in any such review. I concluded that it would be difficult for any reasonable statutory decision-maker to conclude, even on the civil burden of proof ("balance of probability") that MGen Fortin had committed wrong-doing over 30 years ago.
Rory Fowler, "MGen Fortin was acquitted. Now what?" (6 December 2022), online: Law Office of Rory G Fowler
Granted, the requirement for procedurally fair, reasonable, open-minded, and transparent decision-making has not previously barred statutory decision-makers in the Canadian Forces from making unsupported and unreasonable decisions. However, it appears that the level of public support for MGen Fortin, combined with the public scrutiny of the statutory decision-making following his acquittal before a civil court of criminal jurisdiction, convinced senior CF and governmental decision-makers from playing 'fast and loose' with principles of administrative law. It is also possible that the unresolved appeal that MGen Fortin has brought before the Federal Court of Appeal has dissuaded the Minister or other political actors from interfering in this decision-making process.
Rory Fowler, "MGen Fortin’s Appeal" (3 October 2022), online: Law Office of Rory G Fowler