OTTAWA — A Federal Court judge is now considering whether to reinstate Maj.-Gen. Dany Fortin as the head of Canada’s vaccine distribution campaign following two days of arguments between his lawyers and the government around who ultimately decided to remove the senior military officer from his high-profile post in May — and why.
Fortin’s legal team spent much of the two-day hearing before Justice Ann Marie McDonald alleging Prime Minister Justin Trudeau and members of his government secretly decided to have the senior military officer turfed from his temporary position at the Public Health Agency of Canada for purely political reasons.
That, they argued, constituted inappropriate political interference in the military’s internal affairs, violated Fortin’s own rights to due process, presumption of innocence and privacy — and is why he should be reinstated as head of the vaccine rollout campaign, or a similar post.
Government lawyers in turn have asked McDonald to throw out the lawsuit. They maintain acting defence chief Gen. Wayne Eyre made the decision in the interests of the vaccine rollout effort and a police investigation into Fortin’s conduct — and that if he wasn’t happy with the move, he should have taken it up with the military.
The Federal Court hearing came as Fortin is also fighting in criminal court after Quebec police charged him last month with one count of sexual assault in relation to an alleged incident dating back to 1988 that was initially investigated by military police. That case is due back in a Quebec court on Nov. 5.
Fortin’s lawyers on Wednesday described to McDonald the difficulties they and their client had faced in trying to get information from the government about his abrupt removal from the vaccine campaign on May 14.
That included an absence of written reasons for the move and what they alleged was the government’s refusal to say categorically who made the decision.
“It is indeed telling that not one of them wanted to put their name to the decision when it was made,” lawyer Natalia Rodriguez said. “And still nobody has come forward to unambiguously say they made the decision. One has to wonder why not.”
Fortin’s legal team have argued the power to remove the senior officer rested with Eyre as the law empowers the chief of defence staff alone with managing the military’s internal affairs, not politicians or other federal public servants.
They have previously pointed to Fortin’s sworn affidavit about the weeks leading up to his removal — whose accuracy was not challenged by the government — as well as comments that Health Minister Patty Hajdu made during an interview on May 30 as proof Eyre did not make the decision.
Rodriguez on Wednesday also pointed to handwritten notes that Eyre took during multiple meetings leading up to Fortin’s removal that had been tabled as evidence and include several references to political risks and calculations as evidence of the political motivations for his removal.
“It appears to be that the political concern or the political calculus was this: if (Fortin) remained in his position, and the fact of the investigation became public, it would damage the public's perception of the institution and could expose the decision-makers to political risks,” Rodriguez told the court.
“This was a politically motivated decision. … The fact is the decision makers deliberately did not make themselves known to (Fortin), and instead used the acting chief of defence staff as their mouthpiece.”
Justice Department lawyer Elizabeth Richards during her submissions acknowledged Eyre “had various discussions with other government officials, including the Public Health Agency of Canada and Privy Council Office, about this investigation and the potential impact.
“And we say that's exactly what you would expect … It would be strange indeed if the (Canadian Armed Forces), working side by side in response to a request for assistance, did not discuss the impact on the agency that had requested this assistance.”
Nevertheless, Richards said, “somebody has stepped up and taken responsibility for the decision: It's the acting chief of defence staff,” later adding: "This issue about who is the decision-maker is a complete red herring."
Fortin’s lawyer Thomas Conway railed against that assertion in his closing arguments, saying the government’s refusal to provide him and his client substantive written documentation — and other efforts at obfuscation — had hamstrung his ability to determine whether that was really true.
Government lawyers also referred to Eyre’s handwritten notes, pointing to certain sections as proof Canada’s top military commander ultimately made the decision to remove Fortin to protect the integrity of the military police investigation into his conduct and public confidence in the vaccine campaign.
“There was legitimate concern for the integrity and confidentiality of the investigation,” said Justice Department lawyer Helen Gray, and “the integrity of the vaccine rollout … were it to become public that (Fortin) was performing his duties under the cloud of a sexual assault investigation.”
Government lawyers also told the court Fortin was not relieved of his military duties but returned to his previous position as chief of staff to the commander of the Canadian Joint Operations Command. They added that he should have brought a grievance to the military rather than filing a lawsuit in court, and that besides, the vaccine campaign position no longer exists.
But Conway noted Fortin swore in his affidavit that he no longer had any military duties.
“The only evidence that we have is from Maj.-Gen. Fortin, who says he doesn't have an assignment,” Conway said. “And this is why he's come to court, because he doesn't have one. He's been removed from his assignment, and he doesn't have one.”
McDonald said she would deliver a written ruling in short order.
This report by The Canadian Press was first published Sept. 29, 2021.
Lee Berthiaume, The Canadian Press