Fortin Public Interest Investigation (MPCC‑2023‑006) - Decision to Conduct a Public Interest Investigation

Overview

On January 17, 2023, the Military Police Complaints Commission (MPCC) received a conduct complaint from MGen Dany Fortin (the complainant). The complaint is about the handling of a Canadian Forces National Investigation Service (CFNIS) investigation of a sexual assault. This CFNIS investigation led to the prosecution of the complainant for sexual assault. He was acquitted at his trial.

For the reasons that follow, I have decided to cause the MPCC to conduct a public interest investigation into this complaint.¹

Background to the Complaint

The sexual assault was alleged to have occurred in 1988 at the Royal Military College of Saint‑Jean, Quebec, while the complainant and the alleged victim were cadets. The CFNIS investigation commenced in March 2021 and, on May 11, 2021, the CFNIS transmitted the investigation file to the Director of Criminal and Penal Prosecutions (DCPP) of Quebec. The complainant was charged with sexual assault by the DCPP on August 18, 2021.

On December 5, 2022, the complainant was acquitted of the sexual assault charge. On January 9, 2023, the DCPP announced that it would not appeal the verdict.

The complainant claims to have been the victim of a biased and partial police investigation. He further states that he was charged on the basis of insufficient evidence and that his prosecution was the result of undue pressure to believe the alleged victim and to accept her allegations at face value, to the complainant’s detriment.

On January 25, 2023, the MPCC submitted a disclosure request to the Office of Professional Standards of the Canadian Forces Provost Marshal regarding this conduct complaint file. Specifically, the MPCC requested a copy of the CFNIS investigation file pertaining to the sexual assault allegation against the complainant (General Occurrence (GO) file 2021‑5656). This request was made in order to consider any relevant information in this case.

On March 31, 2023, the Office of Professional Standards responded to this request by disclosing to the MPCC only a copy of the military police investigation report, a document of a few pages containing only a summary of the investigation. The MPCC has not received disclosure of the complete investigation file in question at the time of writing this decision letter, despite its follow-up efforts. As the MPCC has a duty to act expeditiously with all matters before it², I have decided to proceed with the examination of whether I should cause the MPCC to conduct a public interest investigation into this complaint based on the information available to date.

Considerations Relevant to Public Interest Investigation Determination

Under the National Defence Act (NDA), I have a broad discretion to decide whether the MPCC should conduct a public interest investigation. The NDA provides that:

250.38 (1) If at any time the Chairperson considers it advisable in the public interest, the Chairperson may cause the Complaints Commission to conduct an investigation and, if warranted, to hold a hearing into a conduct complaint or an interference complaint.³

The following factors, which are not meant to be exhaustive, have been recognized by the MPCC as relevant to decisions on the holding of public interest investigations in respect of complaints:

• The inherent seriousness of the alleged conduct;
• The systemic issues raised in the complaint;
• The involvement of senior officials or military officers;
• The public interest in the issues related to the complaint;
• Process considerations which suggest that it would be more fair, credible, coherent or efficient to deal with the complaint as a public interest case.

Not all of these factors are engaged in all cases. Those relevant to this complaint are addressed below.

Sexual assault is a criminal offence under the Criminal Code of Canada. A person charged with this serious criminal offence is potentially at risk of prosecution, conviction, and imprisonment for up to ten years.⁴ It follows that a complaint that raises concerns about the failure to properly investigate allegations of sexual assault is serious.

This complaint alleges a pro-victim bias on the part of the CFNIS. The Canadian Armed Forces, including in particular the military police, have been under significant public scrutiny for their handling of sexual misconduct, including the provision of adequate support and access to legal remedies for sexual misconduct victims. These are serious issues. However, it would also be problematic if, in response to this heightened public and media scrutiny, Military Police sexual assault investigations were to become, consciously or unconsciously, tainted by biases against victims or suspects. This complaint squarely raises this issue, and does so in a high-profile case. It would be preferable for an external oversight body, like the MPCC, to examine whether the Military Police were biased in their handling of the sexual assault complaint against the complainant.

The involvement of senior officials or military officers in a complaint can lead to concerns that a matter will be handled differently on that account, particularly in rank-conscious institutions like the military. This is another consideration which favours investigation by the MPCC.

I also note that the complainant has recently filed a statement of claim in the Ontario Superior Court of Justice naming several senior officials and military officers, including the Canadian Forces Provost Marshal, as defendants. This is another reason why the MPCC should conduct this investigation.

The investigation and prosecution of the complainant was widely reported in the national news media, as was his concurrent removal from the federal COVID‑19 Vaccine Roll-out Task Force, under the Public Health Agency of Canada.

The fact that the issues related to this complaint have been raised in the public domain is a consideration which favours investigation by the MPCC.

Given these considerations, I consider it advisable in the public interest that the MPCC initiate an immediate investigation of this conduct complaint, rather than transfer it to the Canadian Forces Provost Marshal to be dealt with in the first instance.

Decision

For these reasons, I designate this conduct complaint, MPCC 2023‑006, as a MPCC public interest investigation.⁵

The MPCC will now begin its investigation of this matter. As the MPCC has not received the requested disclosure from the Office of Professional Standards of the Canadian Forces Provost Marshal regarding this complaint, the MPCC is not in a position to notify any individuals who may be subjects of its investigation, other than the individual identified by the complainant. Further subject notification will occur, as appropriate, as disclosure is received from the Canadian Forces Provost Marshal’s Office of Professional Standards.

SIGNED in Ottawa, Ontario, on this 20^th day of April 2023.

Original document signed by:

________________________________

Me Tammy Tremblay, MSM, CD, LL.M.
Chairperson

Distribution List