Government lawyers argue politicians did not interfere in Maj.-Gen. Fortin's removal from pandemic post

The federal government's legal team argued in Federal Court today there was never any political interference in the decision to remove Maj.-Gen. Dany Fortin from his high-profile role leading the logistics for Canada's vaccine rollout.

Government lawyers said Canadian officials feared Canadians could lose confidence in Canada's vaccine rollout if they learned Fortin was "under the cloud of a sexual assault investigation."

That risk grew in May when the government learned the military was transferring Fortin's case to Quebec prosecutors, government lawyers argued.

Fortin is in court challenging the decision to remove him in May from his temporary role leading the vaccine rollout at the Public Health Agency of Canada (PHAC) after the military decided to hand over his case to Quebec prosecutors.

Fortin was charged in August with one count of sexual assault tied to an incident alleged to have taken place in 1988, when he was a student at the Royal Military College Saint-Jean.

While the views of federal ministers, the president of PHAC and the clerk of the Privy Council were taken into consideration, the decision to remove Fortin landed "squarely'' on Acting Chief of the Defence Staff Gen. Wayne Eyre, the federal government's lawyers argued.

"They were just that, views, opinion, strongly advocated positions to be sure, but nothing that could be implemented or acted upon without the acting chief of defence staff making a decision," federal government lawyer Helen Gray told the court.

Fortin's legal team has argued during the two-day hearing — which concluded today — that improper political meddling in the military chain of command leading to Fortin's removal benefitted Health Minister Patty Hajdu, Defence Minister Harjit Sajjan, Prime Minister Justin Trudeau and the clerk of the Privy Council.

"This application is not just about the personal interest of Maj.-Gen. Fortin," said Fortin's lawyer Natalia Rodriguez. "This application also raises serious question about improper interference in the military chain of command by political actors."

Risk of negative publicity 

Fortin's legal team points to Eyre's notebook submitted to court that reveals weeks of intense discussions with government officials about how to handle Fortin's case — starting in March, when he first learned about the allegation.

The notes contain multiple references to "political concerns," "political pressure," "political risk" and the prospect that the case "could bring down the government" or cause the "government to fall."

In his notes, Eyre refers to the clerk of the Privy Council having spoken to Hajdu four times. His notes say that "Min H insulating/protect herself" and that she "doesn't want to create a narrative." They also say she "understands" the complainant's "perspective."

The federal government's lawyers argue that while Hajdu shared her views with Eyre through an intermediary, there is no evidence that Eyre forgot about all the other factors he had been considering, or that he was forced to remove Fortin.

The government's legal team argued the notes show Eyre considered the interests of Fortin, the victim and the institution and balanced it all during a complex and rapidly developing situation. The lawyers said the situation changed when the case was handed over to Quebec prosecutors on May 11.

"Therefore, there was a risk of negative publicly and a risk that publicity would impact on the vaccine rollout," said Gray. "By May 14, that risk was too great and the acting chief of defence staff alone was entitled to balance that risk against the other factors which remained present in his decision-making at all times."

Fortin wasn't given reason for his removal in writing

Fortin alleges Eyre told him in May when he was removed that the "political calculus" had changed. His lawyers argue he was not given a written reason for his removal and his privacy was violated when the Department of National Defence publicly revealed he was under military police investigation.

Fortin's lawyers are pushing for the Federal Court to overturn the decision to remove him from his role with the vaccine rollout and give him that job back, or another position that reflects his rank.

Fortin is currently employed by the military as a senior adviser to Commander Canadian Joint Operations Command at headquarters in Ottawa, according to the department. But he's currently sitting at home with no work to do, according to his lawyers.

Federal government lawyers argue the case is moot because Fortin's old position no longer exists. They say Fortin has been assigned to a military position that matches his rank. Fortin's legal team argues his current role does not reflect his rank and added he's currently not being assigned work.

​​The Federal Court's justice said she's reserving her decision and will release a written decision in "short order."