The Canadian Army’s COVID vaccine mandate violated Charter rights, the Complaints Committee finds

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

“I conclude that the limitation of the right of the defendants to liberty and security of the person by the CAF vaccination policy is inconsistent with the principles of fundamental justice because the policy is in some respects arbitrary, too broad and disproportionate,” wrote Nina Frid of the Military Grievances External Review Committee (MGERC) in a May 30 decision.

“I therefore conclude that the rights of the defendants protected under Section 7 have been violated.”

MGERC is an independent administrative tribunal that reviews military grievances and provides findings and recommendations to the Chief of the Defense Staff and the CAF member making the complaint.

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

National Defense spokesperson Jessica Lamirande told The Epoch Times that the CAF makes its vaccination decisions by taking into account the “most up-to-date” medical evidence and advice, as well as 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 poses a danger to individuals and the mission.

Commenting on the committee during its review, Vice Chief of the Defense Staff (VCDS) Frances Allen said no member had been forced to undergo medical treatment according to the findings.

She said the CAF “upheld members’ right to refuse medical treatment, but their right differed from the potential loss of employment for failing to comply with CDS orders to be vaccinated.”

Army imposed a vaccine mandate on troops in fall 2021 and non-compliance led to the CAF to lose hundreds of members. They left through voluntary release or deportation code 5(f)“unfit for further service”, a dishonorable discharge reserved for soldiers with “personal weaknesses” or other problems that place an undue burden on the CAF.

The CAF vaccine mandate was illuminated in October 2022 by removing COVID-19 vaccination as a condition of service, but maintaining a mandatory primary series of injections for many operational functions.

The complaint reviewed by the committee was filed in February 2022 by a soldier of the rank of Major Corporal and review began in May of that year.

The defendant received a remedial action on November 15, 2021 for failing to comply with the CDS vaccination guideline on November 15, 2021, but he subsequently complied and received his first and second vaccine doses on November 16, 2021 and January 28, 2022.

In addition to finding a violation of charter rights, the commission ruled that basic procedural fairness was “set aside” in administering the corrective action because the outcome of non-compliance was predetermined.

“No room was left for consideration of other factors such as the member’s statements or the member’s track record. This process was fundamentally unfair to the members,” Frid wrote.

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 was a violation of the defendants’ right to liberty, while the Consequences of non-vaccination compliance may also have violated some defendants’ right to the person’s safety.

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

The commission said the right to liberty protects personal autonomy and dignity, including the right to make “inherently private choices” such as whether or not to receive medical treatment, noting that courts have determined that under common law, patients have permission to refuse medical treatment, even in “cases where the medical care or treatment would have been beneficial to the person’s health.”

Frid cited a recent ruling by the Supreme Court of Quebec in which it did not accept the attorney general’s argument that workers were not forced to get vaccinated because, in theory, they had a choice whether or not to accept it , “the consequences of a refusal are such that this choice is not really a choice.” She said the CDS guidelines as such violated the defendants’ right to freedom to make their own decisions regarding medical treatment.

Frid also cited a case about the constitutionality of Transport Canada’s COVID-19 vaccination policy, in which the court said workers’ right to personal safety was at stake. She said that as CAF members experience stress to their livelihoods and physical and psychological integrity, their rights to the person’s safety “are also involved in some cases”.

Alberta-based attorney Catherine Christensen of Valor Law, who specializes in military law, said she believed the commission’s decision, while not binding on federal court, is the “first in Canada for any success with a COVID related process”.

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

“I look forward to taking this abuse of power to the Federal Court.”

Implementation ‘Random’

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

She said the requirement that all CAF members be vaccinated within 14 days of the directive or face release procedures, regardless of occupation or location, was overly broad. She said the policy did not take into account the circumstances of members already working remotely or in low-risk environments, and that it also applied to members working in environments where other unvaccinated members are taking a weekly rapid test. undergo to gain access to the workplace.

The CDS guidelines were disproportionate, Frid argued, because, as arbitrators have previously determined, the policies governing the termination of unvaccinated workers were “unreasonable in light of the constantly changing and evolving situation with the COVID-19 pandemic “. Frid said employers had no “legitimate cause” to fire employees simply because they refused to be vaccinated, as telecommuting and COVID testing options would have been a more proportionate response in some cases.

She said the CDS guidelines 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 ‘incompetent’. Therefore, while I don’t find the CAF vaccination policy itself arbitrary, I find the distinction in its implementation between ‘unable’ and ‘unwilling’ to vaccinate arbitrary,” she said.

As an adequate remedy, Frid said the CAF should declare all CDS guidelines around COVID-19 vaccination invalid, and withdraw all administrative actions against members as a result of the guidelines. “Some of the defendants are also asking the CDS to apologize for the infringement of their fundamental rights. It is left to the CDS to make such an apology, if it deems it appropriate.”

This article has been updated with comments from National Defense spokesperson Jessica Lamirand.