Refusal of COVID vaccination by Canadian soldier not ‘behavioral defect’, complaints committee rules
An independent military administrative tribunal has found that a veteran of the Canadian Armed Forces (CAF) had shown no “conduct defect” in refusing the COVID-19 vaccination and was therefore wrongly expelled from the organization.
“I believe that the refusal of vaccination should not have been considered a misconduct as it was an exercise of a right protected by the Charter and recognized by existing laws and regulations,” wrote Nina Frid of the Military Grievances External Review Committee (MGERC) in a June 20 decision.
According to a copy of the complaint ruling, the defendant is a corporal who served 24 years in the CAF and worked as an aircraft construction technician. He was dishonorably discharged from the army code 5(f)“unfit for further service”, in July 2022.
Frid recommended that Chief of Defense Staff (CDS) Wayne Eyre cancel both the corrective action against the Corporal and the decision to release him, facilitate his re-enlistment and consider awarding him financial compensation “either by an ex gratia payment, or by recourse outside the CAF grievance process through a referral to the Director of Civil Claims and Litigation.”
MGERC is an independent administrative tribunal that reviews military grievances and provides findings and recommendations to the CDS and to the CAF member making the complaint. The committee’s non-binding findings are sent to the CDS for consideration.
“It is important to note that the recommendations and findings of the MGERC are part of the grievance process, which has not yet been completed in this case. Additional assessment by the [CDS] is still ongoing,” Jessica Lamirande of the Department of National Defense (DND) said in an earlier statement.
The Epoch Times asked DND for comment on several complaints filed against the CAF, as well as on the timetable for the CDS decision, but received no response as of this writing.
Dishonorable discharge
CAF members were subject to a vaccination mandate imposed by the military in the fall of 2021, with those who failed to comply being released under 5(f) – a dishonorable discharge usually reserved for soldiers with “personal weaknesses” or other problems that are deemed an excessive burden on the CAF.
The armed forces lost hundreds of soldiers as a result of the policy, either through voluntary release or through 5(f) expulsions. The KAF illuminated the COVID-19 vaccine mandate in October 2022 by removing COVID-19 vaccination as a condition of service, but maintaining a mandatory primary series of injections for numerous operational roles.
“The CAF always bases its decisions on vaccination by taking into account the most current medical evidence and advice, the current federal attitude and the need to be operationally ready in terms of both the health of the armed forces and the ability to act in an environment where any vaccine-preventable disease is a danger to individuals and the mission,” Lamirande said.
MGERC ruled that refusing vaccination may affect a soldier’s ability to perform certain duties, but it does not address their ethics and conduct.
The CAF argued, according to the findings, that non-compliant soldiers “clearly failed to comply with the Code of Ethics and Values, disrespected the dignity of all persons, did not serve Canada for themselves, and obeyed and supported lawful authority.”
The defendant sought to test whether the warrant was lawful by being judged by a court-martial under section 126 of the National Defense Act (NDA) on immunization. The law says that soldiers who disobey a vaccination order “without reasonable excuse” could be jailed. The CDS directive made no reference to NDA 126 and instead dealt with resistance fighter soldiers through administrative processes.
The review committee wrote that members have a protected right to refuse medical treatment under NDA 126 that has been set aside.
disadvantaged
MGERC recently ruled on several grievances related to the CAF’s COVID-19 vaccination and sided with the grievances, according to decisions by The Epoch Times.
MGERC determined that CAF’s COVID-19 vaccination policy violated the defendant’s rights under Article 7: The Right to Liberty which protects the freedom of competent adults to make choices about their medical care, including the right to accept or refuse medical treatment.
The tribunal acknowledged that those protected rights are not absolute and may be limited in certain circumstances, but the restrictions should not be arbitrary, overly broad or disproportionate.
As with other rulings seen by The Epoch Times, the commission found that not only was charter rights infringed, but the disciplinary process followed was inadequate.
In her most recent ruling, Frid wrote that the implementation of the corrective actions in accordance with the CAF vaccination policy had “significant procedural fairness deficiencies,” and that actions taken against the corporal under that policy were “unreasonable and unwarranted.”
“I find that the direction of recommending release of the defendant from the CAF within the greatly reduced time frame, and the decision to release the defendant for non-compliance with the CAF vaccination policy, but without due regard to his military career, which spans about 25. years, as a mitigating circumstance, resulted in violations of procedural justice and his procedural rights,” Frid wrote.
The corporal is also one of 329 active or former CAF members who say they have been harmed by COVID-19 vaccine mandates that have filed a $500 million class action lawsuit against the CDS, Defense Minister Anita Anand, former deputy Secretary of National Defense Jody Thomas, and others.
Plaintiffs’ attorney, Catherine Christensen of Valor Law, says the CDS faces a “lose-lose” situation with the complaints committee’s findings.
“If [Eyre] agrees with the findings, he issued an unlawful order as he cannot issue an order that violates the rights of the Charter (NDA). If he doesn’t agree, he’s opened the door to a world of legal damage,” she told The Epoch Times.
