EXCLUSIVE: Canadian Soldier’s Refusal of COVID Vaccination Not a ‘Conduct Deficiency,’ Grievance Committee Rules

Reservists help pack military vehicles with boats and fuel at CFB Kingston in Kingston, Ont., on May 9, 2017. The Canadian Press/Lars Hagberg

An independent military administrative tribunal has determined that a Canadian Armed Forces (CAF) veteran had not shown a “conduct deficiency” in refusing COVID-19 vaccination and was therefore wrongfully expelled from the organization.

“I find that refusing vaccination should not have been considered a conduct deficiency since 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 grievance ruling, the grievor is a corporal who served in the CAF for 24 years and worked as an Aircraft Structures Technician. He was dishonourably discharged from the military under code 5(f), “unsuitable for further service,” in July 2022.

Frid recommended that Chief of Defence Staff (CDS) Wayne Eyre cancel both the remedial measures against the corporal and the decision to release him, facilitate his re-enrolment, and consider awarding him financial compensation “either through an ex gratia payment or by seeking redress outside of the CAF grievance process via a reference 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 who submitted the grievance. The committee’s non-binding findings are sent to the CDS for his consideration.

“It’s important to note that the recommendations and findings from the MGERC are part of the grievance process, which in this case, is not yet complete. Additional review by the [CDS] is still underway,” said Department of National Defence (DND) spokesperson Jessica Lamirande in a previous statement.

The Epoch Times asked DND to comment on several grievances filed against the CAF, and on the timeframe for the CDS decision, but didn’t receive a response by press time.

Dishonourable Discharge

CAF members were subjected to a vaccination mandate imposed by the military in the fall of 2021, with those not complying being released under 5(f)—a dishonourable discharge usually reserved for soldiers with “personal weaknesses” or other issues deemed to impose an excessive burden on the CAF.

The forces lost hundreds of soldiers as a result of the policy, whether through voluntary releases or 5(f) expulsions. The CAF lightened the COVID-19 vaccine mandate in October 2022 by removing COVID-19 vaccination as a condition of service but kept in place a mandatory primary series of shots for numerous operational roles.

“The CAF always bases its decisions on vaccination by considering the most up to date medical evidence and advice, the current federal posture, and the need to be operationally ready in terms of both force health and ability to act in an environment where any vaccine-preventable illness is a hazard to individuals and the mission,” said Lamirande.

MGERC ruled that refusing vaccination can have an impact on a soldier’s capacity to perform certain duties, but it does not relate to 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, did not respect the dignity of all persons, did not serve Canada before self and obey and support lawful authority.”

The grievor sought to test whether the order was lawful by being judged by a court martial under the National Defence Act (NDA) section 126 on immunization. The act says that soldiers who disobey a vaccination order “without reasonable excuse” can face imprisonment. The CDS directive did not refer to NDA 126 and instead dealt with resisting soldiers through administrative processes.

The review committee wrote that members have a protected right to refuse medical treatment under NDA 126 that was set aside.

Aggrieved

MGERC has recently ruled on several grievances related to the CAF’s COVID-19 vaccination and sided with the grievors, decisions seen by The Epoch Times indicate.

MGERC determined that CAF’s COVID-19 vaccination policy infringed on the grievor’s Section 7 charter rights: the right to liberty that protects the freedom of capable 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 can be limited in certain circumstances, but the limitations must not be arbitrary, overly broad, or disproportionate.

As with other rulings seen by The Epoch Times, the committee found that on top of charter rights being infringed, the disciplinary process being followed was inadequate.

In her most recent ruling, Frid wrote that the administration of the remedial measures in accordance with the CAF’s vaccination policy “had significant procedural fairness shortcomings,” and that measures against the corporal under that policy were “unreasonable and unjustified.”

“I find that the direction to recommend release of the grievor from the CAF within the severely abridged timeframe, and the decision to release the grievor for non-compliance with the CAF vaccination policy but without due consideration of his military career, which spans approximately 25 years, as a mitigating factor, resulted in breaches of procedural fairness and his procedural rights,” wrote Frid.

The corporal is also one of the 329 active or former CAF members who say they were harmed by COVID-19 vaccine mandates that have filed a $500 million class-action lawsuit against the CDS, Minister of National Defence Anita Anand, former deputy minister of national defence Jody Thomas, and others.

The plaintiffs’ lawyer Catherine Christensen of Valour Law says the CDS faces a “lose-lose” situation with the grievance committee’s findings.

“If [Eyre] agrees with the findings then he issued an unlawful order, since he cannot make an order that breaches Charter rights (NDA). If he disagrees then he’s opened it up for a world of legal hurt,” she told The Epoch Times.