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Another legal win to prove that vaccine mandates were unconsitutional. Remedies and apologies demanded!
Review gets it right: Canadian military vaccine mandate violated the Charter! Some knew it from the very beginning. For those who did not, read this decision from Military Grievances Review Committee.
Annex I — Constitutionality of the Canadian Armed Forces COVID-19 vaccination policy
Date: 18 July 2023
The aim of this Annex is to determine if portions of the Canadian Armed Forces (CAF) Vaccination Policy pursuant to Chief of the Defence Staff (CDS) COVID-19 directives deprive CAF members of their rights under the Canadian Charter of Rights and Freedoms (the Charter), Section 7 - Life, liberty and security of person, which states:Footnote1
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
If section 7 is engaged, then this Annex will also examine whether the CAF has shown that the limitation of the rights guaranteed by section 7 is justified in a free and democratic society under section 1 of the Charter, which states:Footnote2
1.The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
The obligation to limit fundamental rights only when necessary and within proportional limits rests with the CAF. The CAF has the obligation to ensure minimal impairment in the implementation of its vaccination policy, demonstrating that there are no less impairing measures to attain the objective than releasing the members. Similar to the duty to accommodate, minimal impairment requires the CAF to demonstrate that among the range of reasonable alternatives available, there is no other less-impairing means of achieving the objective in a real and substantial manner. I conclude that the CAF has not met its obligation to ensure minimal impairment.
The appropriate remedy for an unconstitutional rule is a declaration of invalidity. The CAF mandatory vaccination policy has been amended when CDS directives 001 and 002 were superseded on 11 October 2022 by the CDS directive 003. The requirement that all CAF members be vaccinated in order to remain employed was cancelled and vaccination is no longer a condition of enrolment. Therefore, the remedy sought by several grievors - the cancellation of the CAF’s vaccination policy as stated in the first CDS directive and subsequent directives 002 and 002 amended - has already been implemented, at least in part. The cancellation of the previous versions of the policy constitutes partial remedy considering my finding that portions of the policy were unconstitutional. However, CDS directive 003 maintains the administrative actions issued under CDS directive 002. Given my finding that portions of the policy were unconstitutional, all administrative actions taken against members as a result of the application of the first CDS directive and directives 002 and 002 amended on COVID-19 vaccination should be rescinded.
Some grievors also request apologies from the CDS for the infringement on their fundamental rights. I note that the Committee cannot compel the CDS, or anyone else, to apologize to a grievor given that the issuance of apologies is linked to freedom of expression and cannot be forced. Having said this, it is left to the CDS to issue such apology, if he believes it is appropriate to do so.
I find that the disputed provisions of the CAF vaccination policy are unconstitutional and, therefore, invalid.
Dated at Ottawa, this 18th day of July 2023