Coronavirus (COVID-19)

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A military administrative tribunal has found the Canadian Armed Forces’ (CAF) COVID-19 vaccine mandate violated the charter rights of members who refused vaccination and said the policy was “arbitrary” in some aspects and “overly broad.”

“I conclude that the limitation of the grievors’ right to liberty and security of the person by the CAF vaccination policy is not in accordance with the principles of fundamental justice because the policy, in some aspects, is arbitrary, overly broad and disproportionate,” wrote Nina Frid of the Military Grievances External Review Committee (MGERC) in a May 30 decision.

“Therefore, I conclude that the grievors’ rights protected under Section 7 were infringed.”

MGERC is an independent administrative tribunal that reviews military grievances and provides findings and recommendations to the chief of the defence staff and CAF member who submitted the grievance.

The committee’s findings, which were obtained by The Epoch Times, are non-binding and are sent to Chief of Defence Staff (CDS) Wayne Eyre for his consideration.

National Defence spokesperson Jessica Lamirande told The Epoch Times that the CAF makes its decisions around vaccination by considering the “most up-to-date” medical evidence and advice, as well as the current federal posture, and the need to be operationally ready “in terms of both force health and ability to act in an environment where any vaccine-preventable illness is a hazard to individuals and the mission.”

In responding to the committee during the review, the Vice Chief of the Defence Staff (VCDS) Frances Allen said that no member was forced to receive medical treatment according to the findings.

She said that the CAF “maintained the members’ right to refuse medical treatment, but that their right is distinct from the potential loss of employment for failure to comply with the CDS orders to be vaccinated.”

The military imposed a vaccine mandate on the troops in the fall of 2021 and non-compliance led to the CAF losing hundreds of members. They left through voluntary releases or expulsion under code 5(f), “unsuitable for further service,” a dishonourable discharge reserved for soldiers with “personal weaknesses” or other issues imposing an excessive burden on the CAF.

The CAF vaccine mandate was lightened in October 2022 by removing COVID-19 vaccination as a condition of service but kept in place a mandatory primary series of injections for numerous operational roles.

The grievance reviewed by the committee was filed by a soldier with the rank of master corporal in February 2022 and the review began in May of that year.

The grievor was issued a remedial measure for failing to comply with the CDS’s Directive on Vaccination on Nov. 15, 2021, but he then complied and received his first and second vaccine doses on Nov. 16, 2021, and Jan. 28, 2022.

Along with finding a violation of charter rights, the committee assessed that basic procedural fairness was “set aside” in administering the remedial measure because the outcome of non-compliance was pre-determined.

“No room was left for consideration of any other factors, such as the member’s representations or the member’s service record. This process was fundamentally unfair towards the members,” wrote Frid.
Two Protected Interests Violated

According to the committee, the CAF’s vaccination policy violated two of the three protected interests under section 7 of the charter: The requirement to be vaccinated in order to remain employed by the CAF violated the grievors’ right to liberty, while the consequences of non-compliance could also have violated some grievors’ right to the security of the person.

“This deprivation is only permissible if it is in accordance with the principles of fundamental justice,” said Frid.

The committee said the right to liberty protects personal autonomy and dignity, which includes the right to make “inherently private choices” such as whether to undergo medical treatment, noting that courts have found patients have a common law right to refuse consent to medical treatment, even in “cases where the medical care or treatment could have been beneficial to the person’s health.”

Frid cited a recent court decision by the Superior Court of Quebec, in which it did not accept the Attorney General’s argument that the employees were not forced to be vaccinated as, while they theoretically had a choice on whether to accept it, “the consequences of a refusal are such that this choice is not really a choice.” She said that as such, the CDS Directives violated the grievors’ right to liberty to make their own decisions regarding medical treatment.

Frid also cited a case about the constitutionality of Transport Canada’s COVID-19 vaccination policies, where the court said employees’ right to security of the person was engaged. She said that given that CAF members experienced stresses to their livelihoods and physical and psychological integrity, their rights to the security of the person “is also engaged in some cases.”

Alberta-based lawyer Catherine Christensen of Valour Law, which specializes in military law, said she believed the committee’s decision, while not binding in the federal court, is the “first in Canada for any success with any COVID-related litigation.”

Christensen, who will be filing a class-action lawsuit imminently on behalf of several hundred CAF active or former members impacted by the vaccine mandate, said that under the National Defence Act, General Wayne Eyre cannot give an order that violates the Charter. “Therefore, the conclusion can only be that the Directives mandating COVID-19 vaccinations for CAF members was an unlawful order,” she told The Epoch Times via email on June 14.

“I look forward to bringing this abuse of power to the Federal Court.”
Implementation ‘Arbitrary’

Frid acknowledged that the rights protected by section 7 of the charter are “not absolute” and can be limited in accordance with the principles of fundamental justice in ways that are not arbitrary, overly broad or disproportionate. But she said the CDS Directives failed all three of these tests.

She said the requirement for all CAF members to be vaccinated within 14 days of the directive or face release procedures, regardless of their occupation or location, was overly broad. She said the policy failed to consider the circumstances of members already working remotely or in low-risk environments, and it also applied to members serving in settings allowing other unvaccinated members to undergo weekly rapid testing to access the workplace.

The CDS Directives were disproportionate, Frid argued, because as arbitrators have previously found, policies directing the termination of unvaccinated employees were “unreasonable in light of the constantly changing and evolving situation with COVID-19 pandemic.” Frid said employers did not have “just cause” in terminating employees simply because of their refusal to get vaccinated, as teleworking and COVID testing options would have been a more proportionate response in some cases.

She said the CDS Directives were arbitrary because the CAF failed to explain why the alternatives could not be made available to those who did not want to be vaccinated.

“CAF had to limit the accommodations to the ‘unable.’ Therefore, while I find the CAF vaccination policy itself not arbitrary, I find the distinction in its implementation between ‘unable’ and ‘unwilling’ to vaccinate to be arbitrary,” she said.

As an adequate remedy, Frid said the CAF should declare that all CDS Directives surrounding COVID-19 vaccination are invalid, as well as rescind all administrative actions against members as a result of the directives. “Some grievors also request apologies from the CDS for the infringement on their fundamental rights. It is left to the CDS to issue such apology, if he believes it is appropriate to do so.”

This article has been updated with comments from National Defence spokesperson Jessica Lamirande.