A court that is part of the military complaints process has found that the Canadian Armed Forces’ COVID-19 vaccine policy violated the Charter rights of its members.
The Military Complaints External Review Committee reviews complaints submitted to it by the Chief of Defense Staff and provides non-binding conclusions and recommendations.
In all, 157 complaints have been filed with the independent court over the military vaccination policy, which went into effect in the fall of 2021 and remained in effect for nearly a year before being updated to be more strictly enforced.
With dozens of similar complaints being considered at the same time, the committee made the decision to publish three addendums in mid-July that set out its analysis to expedite future cases.
Vaccine policy required members of the Canadian Armed Forces to be vaccinated against COVID-19 or released.
When the order ended last October, 299 people had been released and another 108 were left on their own.
The initial vaccination mandate in October 2021 came after a similar policy was put in place for the central civil service, including the RCMP and Department of National Defense employees.
The first directive from the chief of the Defense Staff indicated that 91 percent of members of the Armed Forces had already chosen to be vaccinated, and gave members until November 2021 to declare whether they were fully vaccinated or did not want or they could not get vaccinated. .
Those who could not be vaccinated were to be accommodated under human rights legislation, but those who chose not to have been warned that they could lose promotion, training and deployment opportunities or be released entirely.
Anyone who did not disclose their status or who refused a vaccine could face administrative remedial action, or could choose to be released or transferred to the supplemental reserve.
Another directive from December 2021 stated that unvaccinated members could be discharged under a provision stating that they were unfit for duty.
Last October, that was updated to say that vaccinations are not required for all who serve in uniform, but are instead based on the roles and responsibilities of individual service members.
In an interview with The Canadian Press at the time, General Wayne Eyre, chief of the defense staff, said service members are expected to follow legal orders, and that the repeated refusal of some troops to get vaccinated “raises questions about its suitability”. serve in uniform”.
“It is dangerous in the army that legal orders are disobeyed,” he said. “It’s a very slippery slope.”
The external review committee reached conclusions in three complaint cases at the end of May.
The committee concluded that the policy infringed the rights protected by Section 7 of the Charter, which guarantees life, liberty and security of the person. It found that the limitations on these rights were not in accordance with the principles of fundamental justice.
The court also found that the limitations were not justified under Section 1 of the Charter, which states that rights and freedoms are subject to reasonable limits.
Committee member Nina Frid, who wrote the analysis, found that while there was justification for a vaccination mandate because “science shows that COVID-19 vaccines are effective in reducing the chance of getting seriously ill or dying from this disease “, the policy arbitrarily distinguished between those who were unable to receive the vaccine and those who chose not to receive the vaccine.
Frid also wrote that the policy was “too broad” and its implementation was “disproportionate”.
“The characterization that members ‘unwilling’ to get vaccinated are displaying misconduct is in contradiction to CAF’s own pre-existing policies and statements which also guarantee its members’ choice towards medical treatment,” he wrote.
The committee recommends that all administrative actions taken against members who refused to be vaccinated be rescinded and, in one case, calls for a mourner to be allowed to re-enlist in the military.
The Chief of the Defense Staff makes the final decision
Eyre will make the final decisions on cases and, as defense chief, does not have to follow recommendations. He previously said that he would consider re-registration requests on a case-by-case basis.
In a written statement, the Department of Defense said it’s important to note that the process isn’t complete until the Eyre review is done.
“CAF makes its decisions about vaccination considering the most up-to-date medical evidence and advice, the current federal stance, and the need to be operationally ready in terms of health force and ability to act in an environment where any vaccine-preventable diseases are a danger to the people and the mission,” spokeswoman Jessica Lamirande said.
He noted that more than 96 percent of members of the Armed Forces are vaccinated against COVID-19.
“CAF members are routinely vaccinated as needed for a number of diseases, from cholera to yellow fever, prior to their deployment,” the statement said.
Retired Lt. Col. Rory Fowler, a lawyer who specializes in military cases, said the release of the committee’s analysis requires a response from Eyre, though he doesn’t expect a decision any time soon. “What he does is put his views in the public domain and pushes the issue.”
The way the military has released members, characterizing their choice not to get vaccinated as a disciplinary matter, rather than pressing charges, is cowardly, Fowler said.
He added that he does not expect Eyre’s office to accept the committee’s recommendations and that these complaints will eventually result in judicial reviews.
“They will reject, at least in part, elements of the findings and recommendations that they find unpleasant, and then litigation will arise from the eventual determinations.”
