OTTAWA—Maj. Gen. Dany Fortin is challenging his removal as head of Canada’s vaccine rollout in an explosive judicial application, saying there was “improper political interference” by two ministers, the prime minister and the country’s top civil servant, according to new court documents.
Fortin is asking for judicial review at the Federal Court of Canada, and is seeking to be reinstated as the lead of vaccine rollout at the Public Health Agency of Canada (PHAC) or an equal posting that someone of his rank as a two-star general should have, calling the original decision unreasonable, arbitrary, unfair and a violation of his and the complainant’s rights.
Fortin says the decision to push him out — and public pronouncements that signalled it was a case of improper sexual misconduct — caused “significant reputational harm (…) whether or not they can be disproven or are found to be frivolous or unsubstantiated.”
The public comments by cabinet members not only interfered with matters that were properly only for the military chain of command, but also violated his right “not to have personal information disclosed” under the privacy act, and the complainant’s desire for the investigation to be kept confidential,” and could potentially compromise the investigation, says the application to have the decision overturned.
The notice of application filed Monday says Fortin has not been reassigned within the military since being ousted from his posting at the vaccine operation on May 13, a decision that was made public on May 14.
But it lays out a detailed timeline of Fortin’s sacking from PHAC that had previously been kept under wraps.
Last month, military investigators referred an allegation of sexual misconduct against Fortin to the Quebec prosecution service, which has the power to decide whether or not any criminal charge will be laid in relation to a historical complaint that occurred in Quebec more than three decades ago.
The new documents do not lay out specifics of the complaint, but the allegation has been reported to relate to an incident that happened while Fortin was a student at the Royal Military College at St-Jean-sur-Richelieu.
Fortin, through his former military lawyer, categorically denied any allegation.
In a notice of application to have the decision quashed or referred back to Lieut.-Gen. Wayne Eyre, the acting chief of defence staff, Fortin suggests that he held Eyre’s confidence until the decision was made by political actors to boot him.
Fortin had been assigned on Nov. 23 to PHAC to co-ordinate the national vaccination rollout — a posting that was extended in late February to Oct. 31, just weeks before the complaint was first raised to his military boss — a decision that was approved by Defence Minister Harjit Sajjan at Eyre’s request, according to the document.
But on March 17, Fortin met with Eyre who said he’d just learned an investigation had been launched by military police into an allegation of “sexual misconduct.”
The document says Fortin, who commanded the NATO mission in Iraq between 2018 and 2019, was told by Eyre that he wanted Fortin “to hear it from him and not the press.”
The document goes on to say Fortin “was not given any information on the allegations at this time.” Eyre is said to have offered Fortin the opportunity to take time off, which Fortin declined, indicating he wanted to continue working on the vaccine distribution.
Eyre phoned Fortin later the same evening to say the privy council office — the prime minister’s department — was informed of the investigation. Eyre, the document says, assured Fortin he would continue to advocate for “due process, the presumption of innocence” and that he be allowed to stay in the job.
The following morning, March 18, Fortin himself notified Iain Stewart, the president of PHAC, of the investigation.
Stewart assured him in a meeting later that afternoon “it was business as usual” while the investigation ran its course, and “reiterated that MGen Fortin was entitled to due process and that he was presumed innocent.”
Stewart told Fortin “that the Minister of Health’s Office and the Prime Minister’s Office may change their minds later but that he was ‘OK for now.’ However, Mr. Stewart told Fortin to prepare himself ‘for the moment when they determine that you need to be let go.’ Mr. Stewart said: ‘Keep your bags packed,’” the document says.
The document says on April 9, Fortin learned that word of the investigation had begun to leak from the Canadian Forces National Investigative Services. Fortin complained to the provost marshal in charge of the military police. His application says it is unclear if that leak was ever identified or investigated.
On April 15, Eyre told Fortin the complainant did not want to make the complaint public.
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On April 19, a military police investigator called and notified Fortin he was “being investigated for one instance of sexual misconduct” alleged to have occurred more than 30 years ago.
On May 13, Stewart, the PHAC president, again met with Fortin and told him that Health Minister Patty Hajdu and Defence Minister Harjit Sajjan “had discussed the issue and that they wanted to remove him.”
The document says Fortin was “told to ‘take a sick day tomorrow.’ Fortin said he would take “a day off.” That evening, Eyre, Fortin’s military boss, called Fortin and said they would work on a transition to a new post, but was not given any information about what triggered his removal.
The acting defence staff chief told Fortin “that the ‘political calculus’ had changed and that the PCO (privy council office) had said he would have to be removed,” the document says.
On May 14, the news became public. The department of national defence issued a statement announcing Fortin’s secondment had been terminated.
The document indicates Fortin was told his departure was “not negotiable” but he had a choice about the wording and he chose the version “in which it appeared that he had decided to step down and resign his assigned military duty at PHAC.” It says he was not given an opportunity to “make representations” nor did he receive any written notice of the decision to end his secondment or relieve him of the performance of the military duty.”
The application points a finger at Sajjan’s public comments on the case in which the minister said he is committed to “lasting change …that sheds toxic and outdated values, practices and policies” and another that “asked that the complainant receive any necessary support.”
It says Sajjan made clear the investigation involved “improper conduct that was sexual in nature.”
Fortin’s application says that the major general “understands” the decision to terminate him and make the reasons public was made by Hajdu and Sajjan “in collaboration with” the PMO and PCO. It says the decision was taken by the ministers, the prime minister and the clerk of the privy council (Janice Charette is acting in the job).
Fortin claims it was “arbitrary, not in the public interest and made solely for the personal and political gain of the ministers of health and national defence and the prime minister.”
By law, Fortin says, the decision should have been Eyre’s alone.
He argues the ministers “circumvented and interfered with” Eyre’s powers and functions, and “effectively prevented” Eyre from reassigning Fortin to a position “commensurate with his rank.”
It says as a result Fortin has been “de facto, relieved from performance of his military duty” — a power that only lies with the Canadian Armed Forces chain of command.
Fortin says he only learned of the referral of “an allegation of sexual misconduct” to the Quebec prosecutions office “through news media reports.”
The document says Fortin “expects he will no longer be considered for any promotions, special missions or key positions due to the significant reputational damage that has resulted from the decision.”
Fortin asks the Federal Court to conclude there is no other “reasonable outcome” than to quash the decision and reinstate him, or to refer it back to Eyre, “the proper decision-maker” to allow him to be heard and for reasons to be given for any new decision.
Sajjan’s press secretary Daniel Minden, in an emailed statement that Hajdu’s office said stands as her response and that of all the government officials involved, said, “As this is an ongoing legal matter, it would be inappropriate for us to comment at this time.”
Military law expert Michel Drapeau, a retired colonel, told the Star at the time of Fortin’s removal that military police investigators owed Fortin a duty under military administrative law to outline the case against him that led to his removal from his post.
“It is high time that a modicum of procedural fairness be brought. At present it seems as if DND was ruled by an authoritative regime. The cascade of sudden public removal of senior respected leaders is unprecedented and unmerited. At the end it will cost Canada dearly. The Canadian military is losing a generation of trusted and battle-tested leaders. Also, these leaders — and their families — are now losing faith and confidence in the fair and just judgment of their political leaders. This a sort of witch hunt. It has got to stop.”
Tonda MacCharles is an Ottawa-based reporter covering federal politics for the Star. Follow her on Twitter: @tondamacc
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