[June 16, 2023] 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.
The Epoch Times contacted the Department of National Defence (DND) for comment on the committee’s decision but didn’t hear back by publication time.
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.”
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.”
Hundreds of CAF members launch $500M vaccine mandate lawsuit
[July 5, 2023] A recent ruling by the Canadian Armed Forces Grievance Board (CAFGB) found that the Canadian Armed Force’s (CAF) mandatory Covid-19 vaccination policy violated the Charter rights of a member who was released for refusing to get vaccinated.
The CAFGB is in charge of reviewing official grievances launched by CAF members.
In its ruling, the CAFGB stated that the CAF’s vaccination policy infringed on the member’s right to liberty and security of the person under Section 7 of the Canadian Charter of Rights and Freedoms.
The watchdog also found that the policy, which came in place at the height of the pandemic via an order by General Wayne Eyre, was arbitrary, overly broad and disproportionate.
“The Committee concluded that the policy infringed on the rights protected under Section 7 of the Charter and that the limitations of these rights were not in accordance with the principles of fundamental justice. The Committee viewed some aspects of the policy as arbitrary and overly broad, and its implementation as disproportionate,” declared the ruling.
It then concluded that the CAF had not shown that mandatory vaccination was necessary to protect public health or operational effectiveness, given the high vaccination rate within the CAF.
“The Committee concluded that the CAF had not met its obligation to ensure minimal impairment in the implementation of its vaccination policy. The Committee concluded that the limitations were not justified under Section 1 of the Charter,” wrote the CAFGB.
According to the watchdog, the process of releasing the member from their service was “unreasonable due to serious breaches of procedural fairness.”
As exclusively reported by True North in Nov. 2021, unvaccinated CAF members were subject to an “unsuitable for further service” release, which would leave a permanent stain on the members’ service record.
As a remedial measure, the CAFGB ordered the CAF to fully reinstate the member to their former position and give them compensation for “unjust release.”
“Additionally, the Committee found that the administrative actions against the grievor, namely the RM and release, should not have occurred as the grievor was exercising a protected Charter right. The Committee also found that the administrative actions were unreasonable due to serious breaches of procedural fairness,” wrote the CAFGB.
“The Committee recommended that the Final Authority cancel the RM and facilitate the grievor’s re-enrolment in the CAF, if the grievor so desired and was eligible. The Committee also recommended that consideration be given to compensation for unjust release.”
This ruling comes amid a lawsuit filed by hundreds of unvaccinated CAF members against the Defence Ministry and the CAF’s command.
Military Grievances External Review Committee #2022-078 Careers, COVID-19
F&R Date: 2023-05-30
The grievor received remedial measures (RM) and was released from the Canadian Armed Forces (CAF) as a result of non-compliance with the CAF COVID-19 vaccination policy. The grievor argued that there were reasonable and practicable alternatives to mandatory vaccination and that taking administrative actions against unvaccinated members would have an impact on operational effectiveness.
There was no Initial Authority decision because the grievance was related to a decision, act or omission of the Chief of the Defence Staff.
The Committee conducted an in-depth analysis of whether the CAF vaccination policy infringed on the protected rights under Section 7 of the Canadian Charter of Rights and Freedoms (the Charter), namely the right to liberty and security of the person. The Committee concluded that the policy infringed on the rights protected under Section 7 of the Charter and that the limitations of these rights were not in accordance with the principles of fundamental justice. The Committee viewed some aspects of the policy as arbitrary and overly broad, and its implementation as disproportionate. This led to a full analysis of whether such limitations are justified under Section 1 of the Charter.
With a high vaccination rate within the CAF, the Committee found the CAF had not shown that consideration of the public interest justified the overly broad and disproportionate implementation of the vaccination policy nor shown any regard for the members’ occupation, duties and place of work.
The Committee concluded that the CAF had not met its obligation to ensure minimal impairment in the implementation of its vaccination policy. The Committee concluded that the limitations were not justified under Section 1 of the Charter.
Additionally, the Committee found that the administrative actions against the grievor, namely the RM and release, should not have occurred as the grievor was exercising a protected Charter right. The Committee also found that the administrative actions were unreasonable due to serious breaches of procedural fairness.
The Committee recommended that the Final Authority cancel the RM and facilitate the grievor’s re-enrolment in the CAF, if the grievor so desired and was eligible. The Committee also recommended that consideration be given to compensation for unjust release.
- Annex I — Constitutionality of the Canadian Armed Forces COVID-19 vaccination policy – Canada.ca
- Annex II — Remedial measures related to the Canadian Armed Forces’ vaccination policy – Canada.ca
- Annex III — Administrative review and release related to the Canadian Armed Forces vaccination policy – Canada.ca