Military to decide whether members accused of crimes can wear uniforms in civilian courts

Canada's military is reviewing its dress code policy for civilian court cases in response to online outrage over a highly-decorated military commander's recent decision to wear his uniform and medals to his sexual assault trial.

Maj.-Gen. Dany Fortin, the former head of Canada's vaccine task force, has been charged with sexual assault in relation to an alleged incident in 1988. He has pleaded not guilty. He defended himself in a Quebec civilian courthouse earlier this week dressed in his uniform, with 10 medals across his chest.

Fortin and his lawyer have said they will not comment on any matters during the trial. A spokesperson for Fortin, who did not want to be named due to concerns about online reprisals, said that Fortin is presumed innocent and it's appropriate for him, as a serving officer, to wear his uniform in court.

The Department of National Defence (DND) said military members are permitted to wear their uniforms during civilian criminal trials — but it's a "personal choice for which individuals are responsible." 

DND also said the military will now "examine its policies related to the participation of CAF members in civilian judicial proceedings, including the subject of military dress, to assess whether changes should be made."

The civilian judicial system prosecutes a series of offences involving military members, including murder, manslaughter and sexual assault.

Several military sexual trauma advocates have said that the act of wearing the full uniform to court while on trial for sexual assault is a power play that intimidates complainants and triggers victims.

Retired major Donna Riguidel said she wants the military to ban its members from wearing their uniforms in court while on trial — or to at least advise against it.

"At best, it's tone-deaf," said Riguidel, the director of Survivor Perspectives Consulting Group. "At worst it's intimidation and bullying … and it will have a silencing effect on survivors."

Riguidel has been hired by the military to conduct training sessions to improve how military members respond to sexual misconduct disclosures.

She said the uniform is a powerful symbol of the institution and wearing it could make a complainant feel like they're facing off against the entire Canadian Armed Forces.

"It's unacceptable in an organization that's trying to become more trauma-informed and trying to focus on changing the culture to allow things like this to happen at his rank, at this leadership level," said Riguidel.

The military is trying to recover from a sexual misconduct crisis that has shaken the defence establishment to its foundations and damaged morale. Since 2021, multiple high-ranking senior military leaders have been removed from powerful posts over allegations of sexual misconduct.

The military agreed last year to a government directive to temporarily transfer all sexual assault cases to civilian police for investigation and civilian courts for prosecution. In a scathing report released in May, former Supreme Court justice Louise Arbour recommended the forces permanently give up all control of sexual assault cases. 

"Over the last year, the Defence Team has committed that it will use integrated, transparent and trauma-informed approaches as part of its culture growth initiatives," wrote DND spokesperson Daniel Le Bouthillier in a statement to CBC News.

DND said military members appearing at courts martial or summary trials within the military's judicial system are expected to wear their "service dress number three" (tunic and ribbons), unless a judge says otherwise.

The policy on military medals states that medals "may be worn, when appropriate, by entitled personnel." But in a civilian trial, serving members are not required to wear a uniform, DND said.

Fortin's spokesperson said his uniform and decorations are an expression of his 37 years of service to Canada and he's disappointed that some would deem inappropriate the act of wearing the uniform during a court appearance.

The military sexual trauma peer group It's Just Not 20K said some survivors have told the organization they were triggered by seeing Fortin in court in his uniform. (The group has had travel expenses covered by the navy for past consulting work.)

Some survivors of military sexual misconduct say they can no longer wear or look at the uniform because they feel the institution betrayed them by not believing them when they reported their allegations.

The issue of uniforms and power dynamics was front and centre at the mass casualty commission in Nova Scotia last month. RCMP Commissioner Brenda Lucki testified in civilian clothing. The commission had requested she not wear her uniform as it "may be triggering for some individuals attending the proceedings," according to the RCMP. The shooter in that case wore a police uniform.

Ottawa defence lawyer Lawrence Greenspon said other professionals — such as police officers, medical doctors, paramedics — testify before the courts in their uniforms all the time, and military members should be allowed to do the same.

"I don't think the military should start to encourage a dress code for people who are charged with sexual assault," said Greenspon, who is not acting for Fortin. "I don't think it has any impact on the judges hearing the cases ... the issues before the judge are the credibility of that person, not the medals on the chest of their uniform."

Greenspon said that the pendulum has swung against anyone "merely charged with sexual assault," whether the alleged assault happened recently or decades ago, and the "presumption of innocence goes out the window when the person's name is published."

"A person today who's facing sexual assault charges is treated in many respects much worse than somebody who would be charged with a far more serious crime — say, murder," he said.

Megan MacKenzie is the Simons chair in international law and human security at Simon Fraser University. She said she believes that once a military member is charged, that member should lose the right to wear the uniform in court.

The military uniform is unlike any other uniform because it's a very powerful symbol of "status" in a hierarchical institution, she said. The military's own policy makes it clear the uniform is a symbol of military ethos, public trust and Canadian pride, she added.

The public would find it odd to see a judge accused of a criminal offence wearing their robe to court because of the status it symbolizes, she said.

"Everyone is meant to be equal before the law," said MacKenzie. "The minute that someone walks in wearing a military uniform, and in particular a uniform with medals that symbolize accolades and deployments, I really think that it elevates that person's status in a way that could impact the trial. I think that's not appropriate."

Retired captain Annalise Schamuhn said Fortin's decision to wear his uniform "struck me as overtly manipulative and brought back memories of when senior military officers wrote letters on military and regimental letterhead to sway the court in support of the sex offender convicted of assaulting me."

"I would have found it incredibly distressing when I was testifying in court if my assailant had been allowed to attend in full dress uniform," said Schamuhn, who has done some paid consulting work for the navy.

Following CBC's coverage of Schamuhn's case, the military banned its members from using Canadian Armed Forces letterhead to write character references for members accused of crimes.