By Canadian Press

Defence chief was warned about legality of military’s COVID-19 vaccine mandate: memo

Oct 24, 2022 | 11:03 AM

OTTAWA — The commander of the Canadian Armed Forces was warned by his senior legal and medical advisers last year that requiring all troops to be vaccinated against COVID-19 was unnecessary ⁠ — and that doing so “may not constitute a legal order.”

The message was delivered to chief of the defence staff Gen. Wayne Eyre in an August 2021 briefing note, two months before then-defence minister Harjit Sajjan directed him to impose a vaccine requirement for all troops.

In two separate interviews with The Canadian Press, the defence chief described the briefing note as one of several legal opinions received before handing down his order in October 2021. 

“We get lots of legal opinions out there, but we can’t allow one legal opinion from stopping us from doing the right thing,” Eyre said. “And here, the right thing is ensuring our operational readiness so that we can protect Canada and Canadian interests around the world.”

However, Catherine Christensen, the Edmonton lawyer who obtained the briefing note through the Access to Information Act, argued the document shows Eyre’s order was driven by politics.

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The Aug. 27, 2021, briefing note was presented to Eyre by Maj.-Gen. Trevor Cadieu, who was one of the defence chief’s strategic advisers at the time. It was prepared “in close collaboration” with senior medical, legal, political and public affairs officers and it incorporates legal analysis from the Department of Justice.

Citing concerns about a fourth wave of COVID-19 driven by the Delta variant, the advisers noted the benefits of vaccination in preventing the spread of disease, adding vaccine mandates “may be effective in increasing coverage rates.”

They also described the purpose of a broader federal vaccine mandate would be “not only to protect public health, but also for the federal government to demonstrate leadership and assist in economic recovery.”

On Aug. 13, 2021, the Liberal government had announced a vaccine mandate for federal public servants, as well as workers and travellers in federally regulated transportation sectors.

The memo suggested a universal mandate was unnecessary to protect the health of the Canadian Armed Forces, given that more than 90 per cent of Armed Forces personnel were already vaccinated at that time.

The early analysis noted “the level of legal risk” for a mandatory COVID-19 vaccine policy would depend on the final details, as well as “the strength of the public health rationale and how the policy will be implemented.”

It said that would include any accommodations and mitigation measures for those either unable or, notably, unwilling to be vaccinated, which it recommend to help defend against Charter challenges.

The advisers also warned that Armed Forces members could try to push back against the vaccine mandate on safety grounds. At that time, Health Canada had authorized COVID-19 inoculations under a special interim order due to the emergency nature of the pandemic.

“Prior to full approval of the vaccines under Canada’s Food and Drug Regulations, CAF members ordered to receive COVID-19 vaccination might argue that they are being ordered to accept a new and potentially dangerous medical substance into their body,” the note said.

The interim order, which expired in September 2021, allowed the government to authorize vaccines faster than normal where the benefits were deemed to outweigh the risks.

In their note, Eyre’s advisers cited the case of former Sgt. Mike Kipling, who was charged in 1998 under Section 126 of the National Defence Act, which allows the military to charge members who “wilfully and without reasonable excuse” refuse an order to get a vaccine.

Kipling had been ordered to take an anthrax vaccine while serving in Kuwait, but refused because he considered the drug unsafe. The vaccine was unlicensed for use in Canada. A military judged eventually ruled in favour of Kipling, agreeing his Charter rights were infringed. The Forces appealed and a new court martial was ordered, but the military decided to drop the proceedings.

Eyre was told military personnel who refused a vaccination order could be similarly charged under military law, but “there is a significant risk in ordering CAF members to accept COVID-19 vaccination, as it may not constitute a legal order.”

The memo also said a mandate for the Armed Forces “would not only be punitive in nature, but would also be counter to the successful efforts made to date to encourage maximum voluntary uptake of the COVID-19 vaccine.” The advisers suggested the military share its voluntary approach with other federal departments as a “best practice.”

The advisers concluded by expressing support for the federal government’s intent to bring in a proof-of-vaccination policy, but again cautioned that the rollout would need “prudent planning” that kept in mind the challenges they described.

Eyre first ordered all Armed Forces members to attest they had been fully vaccinated against COVID-19 on Oct. 6, 2021.

Rather than charging those who refused to comply, the military forced about 300 non-compliant Armed Forces members out of uniform using an administrative process called a 5F release that declares them unfit for service.

About 100 troops have left voluntarily. Hundreds more had permanent censures put on their files. Outside the military, most federal employees were allowed to go on leave without pay and returned to their positions after the mandate was suspended in June.

The Armed Forces’ vaccination policy does allow exemptions for medical reasons, religious beliefs or any other grounds of discrimination under the Canadian Human Rights Act, to be determined on a case-by-case basis. In late April, a parliamentary committee heard that more than 1,300 members had requested exemptions, but nearly 1,000 had been denied.

Retired lieutenant-colonel Rory Fowler, who is now a lawyer specializing in military cases, said the decision to use 5F releases instead of charging unvaccinated troops means the Armed Forces doesn’t have to defend the legality of the order in court.

And while troops can file a grievance, it currently takes about three years for a case to be heard — with the defence chief serving as the final authority.

Christensen, who is representing a number of those unvaccinated troops who lost their jobs, said she believes the briefing note explains why the military is using 5F releases instead of charging those who refuse to comply with Eyre’s order.

“They didn’t want their mandate or their order for everyone to be vaccinated to be challenged in court,” said Christensen. She said Eyre had the power “to order everyone to be vaccinated. Full stop. Then if they did not want to be vaccinated, they had to come up with a reasonable excuse at court martial. … (Eyre) didn’t do that.”

Fowler has previously raised concerns about the military trying to punish soldiers without involving the courts in other situations, and believes there are legitimate questions about the legality of the vaccine order.

“What I believe is it should be tested,” he said.

Eyre and his office have not said exactly why that decision was made. His office said in a statement that “administrative measures and the administrative review process was considered the most appropriate approach.”

Asked if the decision to avoid the courts was the result of concerns about the legality of his order, Eyre said: “Not at all. We had numerous legal opinions.”

The defence chief also said that while Sajjan directed him to include the Armed Forces in the broader federal government’s mandate, “I was in agreement at that time, I issued the order. … Make no mistake, it’s my order.”

This report by The Canadian Press was first published Oct. 24, 2022.

Lee Berthiaume, The Canadian Press