The Canadian Forces’ COVID-19 Vaccination Policy

 

Before we delve into today’s topic:

Vaccination for COVID-19 is a sensitive, politically charged, and highly emotive subject.  Therefore, it would be prudent for me to ensure that the topic of today’s discussion is clear.  The present Blog post does not concern whether a person should, or should not, get vaccinated.  I am not a physician or a virologist, I’m not going to comment on the purpose, efficacy, or safety of vaccines generally, or specific vaccines.  This Blog post, as is the case with most of my Blog posts, is about the rule of law and the exercise of statutory duties, powers, and functions (and other duties, powers, and functions) in the administration of the affairs of the Canadian Forces.  That said, on with the discussion (and, fair warning: this is not a short Blog post)…

 

Introduction

I suspect that many people will have read or seen recent news reports about litigation commenced on behalf of a select number of members of the Canadian Forces (CF) regarding the CF’s policy on vaccination against COVID-19.  As is typically the case, the coverage can be relatively superficial.  In the present Blog post, I will attempt to explain why I believe the CF leadership is employing the administrative process that it is presently using and what the consequences of that decision are.  In particular, I will explore how the decision not to rely on the Code of Service Discipline limits and shapes the consequent administrative process.  I will describe why the CF leadership is focused on ‘procedural fairness’ and also why I believe they are focusing on the wrong element of fairness in the exercise of statutory decision making.

In so doing, I will necessarily delve into some of the aspects of the CF policy on vaccination against COVID-19, particularly the process that the CF is employing regarding CF members who have refused to be vaccinated.  This process will very likely result in the compulsory release those same CF members.  It appears that several hundred CF members may eventually be compulsorily released as a result of refusing vaccination against COVID-19.

For those of you who might be expecting me to offer constructive arguments regarding how a CF member might oppose this administrative action or grieve the remedial measures, Administrative Review, or compulsory release that will ensue, I am afraid that I will disappoint.  Similarly, if you are expecting commentary on the merits of litigation that was mentions in recent news reports, I may again disappoint.  While I do discuss, in general terms, some of the issues that we can anticipate will arise within the recent litigation, I do not propose to present a detailed analysis of the strengths and weaknesses of the application[1] that has been commenced.  I have not yet reviewed the pleadings and would not offer an analysis without having done so.  I may, at a future point in time, offer an analysis of the application that has been brought or the resulting judgment.

Today’s discussion will focus on the following factors and issues:

1. What is the CF Policy on COVID-19 Vaccination?
2. How is the CF proceeding in addressing vaccine-hesitancy or refusal by CF members to receive vaccination against COVID-19?
3. How is the Code of Service Discipline relevant to the current CF policy?
4. What is ultimately driving the CF policy and the process that is being employed, and how does that affect the decision-making process?

 

Background and Policy

The CF has promulgated its policy on vaccination for COVID-19.  It follows on the heels of the Government of Canada’s Policy on COVID-19 Vaccination for the Core Public Administration Including the Royal Canadian Mounted Police, dated 6 October 2021.  The CF is not part of the ‘Core Public Administration’ for which the Treasury Board is the statutory employer.[2]  Members of the Canadian Forces are not in privity of contract with the Crown, but, rather, have a ‘direct relationship’ with Her Majesty.[3]  We have discussed that unique aspect of the Crown-soldier relationship before, so I won’t delve into the nuances of that relationship here.  As a result of the distinction between the CF and the Federal Public Administration, the CF requires a separate, parallel, and, presumably, analogous policy.

Thus, we have the CDS Directive on CAF COVID-19 Vaccination, dated 8 October 2021.  This was subsequently amplified by the CDS Directive 002 on CAF COVID-19 Vaccination – Implementation of Accommodations and Administrative Action, dated 5 November 2021.  Both of these directives were developed by the Strategic Joint Staff (SJS).  That is not surprising, since ‘CDS Directives’ tend to be developed and promulgated by the SJS.  Whether that is the appropriate manner of promulgating what is essentially a personnel policy is a separate matter, and one discussed briefly below.

These are the publicly promulgated policies.  However, there is another document that is relevant to our discussion: the DMCA 2 Aide-Memoire – CDS Directive 002 on CAF COVID-19 Vaccination Implementation of Accommodations and Administrative Action (DMCA2 Aide Memoire).  This document (sporting a lengthy and slightly awkward title) was not technically ‘publicly promulgated’.  But it is relevant to the administration of the affairs of the Canadian Forces regarding vaccination against COVID-19.  Consequently, I have hyperlinked it above.

The dates of these directives are significant.  The World Health Organization (WHO) declared a Public Health Emergency of International Concern almost 2 years ago, on 30 January 2020.  The WHO declared it to be a pandemic on 11 March 2020.  Vaccination in Canada began, in a meaningful manner, early in 2021.  Policies on mandatory vaccination did not spring up ‘overnight’.  However, by summer 2021 it was clear that vaccination policies – particularly mandatory vaccination – was an issue in public administration.  Not surprisingly, the policy for the CF is dependent upon the broader governmental policy, notwithstanding that the CF are administered differently, in many regards, than the Federal Public Administration.

Equally unsurprising was the fact that the CF policy was not promulgated until several months after many adult Canadians had received at least one, if not both, of the injections that constitutes the typical vaccination regime, regardless of the specific vaccine that is administered.  In light of the priority placed on vaccinating CF personnel, the policies were published well after most CF personnel would have had an opportunity to be vaccinated.

Before delving into the specifics of how the CF is proceeding under the CDS’ Directives, I wish to address three issues which help to frame or inform the discussion below:

1. Subtle distinctions in the terms ‘decline’ and ‘refuse’;
2. The nature of Policy Directives in the CF; and
3. A reasonable characterization of the CF Directives on COVID-19 vaccination.

 

Decline/Refuse.  When discussing issues of military law, I have often stated that ‘words have meaning’ and that it is important to be as precise as possible when using terms of art upon which decisions might turn.  A corollary to that assertion is that words can also convey subtle meanings that can have a significant impact on the response and reaction when such terms are employed.

Take the terms ‘decline’ and ‘refuse’.  They both refer to a person indicating or demonstrating that the person is unwilling to do, accept, or grant something.  However, the term ‘refuse’ often conveys a blunt or negative response of ‘unwillingness’, while ‘decline’ could be described as ‘polite refusal’.  They denote very similar meanings, but the connotation conveyed by these two terms can be markedly distinct.  The term ‘refuse’ can elicit a more negative or confrontational reaction than ‘decline’.

In the discussion that follows, I use the term ‘refuse’.  I do so principally because that is how the CF chain of command has characterized the decision by CF personnel who have chosen not to be vaccinated against COVID-19.  I am aware of the subtle distinction in connotation and have overtly identified this distinction so that we are clear on the connotation that arises.  As I am discussing the CF response to this issue, I have chosen to use the term that I believe reflects the perspective of the CF chain of command.

 

Policy Directives.  The CDS Directives identified above are presented in a manner reflective of operational orders.  While the current CDS has not chosen to refer to the Directive as an ‘Operation’ – such as ‘Op HONOUR’ – the Directives repeatedly refer to operational language: operational requirements, effectiveness, demands, capacity, etc.  The Directives are conveyed using (in part) the structure and language of operational orders.  However, the Directives very much convey personnel policy.  I suggest that using an ‘op order’ for personnel policy can be problematic.  That was certainly the case with ‘Op HONOUR’.  It appears that some lessons are learned the hard way.

I am not surprised that the Directives were conveyed as a kind of ‘op order’.  After all, they were developed by the SJS.  It is a format with which that staff is familiar.  But it does tend to prompt the question: Why were the Directives not generated by Chief Military Personnel (CMP)?  After all, this subject matter falls very much within the functional authority of CMP.  See: Defence Administrative Order and Directive (DAOD) 1000-7.  Undoubtedly, offices under CMP likely had a role to play in the development of these Directives.  Presumably, the staff working for Director Military Careers Administration (DMCA) were involved in the development of the DMCA2 Aide-Memoire, and possibly the CDS Directives.

I suggest that the formulation of this personnel policy as an ‘op order’ subtly conveys its true nature.  The mission stated in the initial Directive is:

In accordance with GC direction, the CAF will implement this COVID-19 Vaccination Directive, in order to protect members of CAF and the Defence Team, and to demonstrate responsible leadership to Canada and Canadians through the Defence Team’s response to the pandemic, starting on 8 October, 2021 with an attestation period ending on 29 October, 2021 and implementation of the mitigation measures starting on 15 November, 2021.

The mission in Directive 002 is similar:

The CAF will continue to demonstrate leadership to Canada and Canadians by getting its members fully vaccinated and by implementing accommodations and administrative action to manage its unvaccinated members starting on 15 November, 2021, in order to protect the readiness, health, and safety of the Force, the entire Defence Team, as well as members of the public they may be called upon to serve.

What was unstated in these mission statements, but which remains very much part of the overall ‘operation’, is that the CF will set conditions for compulsory release for those CF personnel who refuse vaccination against COVID-19 and who are not afforded accommodation*.

 

Characterization of the Policy.  Notwithstanding that the CDS Directives, and more particularly, the DMCA2 Aide-Memoire, are laden with terms evoking conduct and discipline, I suggest that the most accurate characterization of the CF’s policy on COVID-19 vaccination is that it represents a change of conditions of service for all members of the CF.  Some people may be inclined to suggest that it is representative of ‘universality of service’.  That may be a bit of a conceptual stretch.  After all, there is a compelling argument that ‘universality of service’, which is typically traced to ‘liability of service’ under section 33 of the National Defence Act (NDA), is applicable in its most comprehensive manifestation only to members of the Regular Force.  Subsection 33(1), which states that “… all units and other elements … and all officers and non-commissioned members … are at all times liable to perform any lawful duty …” only applies to the Regular Force.

It may not be palatable for some people to admit or acknowledge, but the conditions of service for members of the Regular Forces differ from those of the Reserve Force, and one of the principal distinctions is the ‘liability of service’ under section 33 of the NDA.

The manner in which the obligations are conveyed in the CDS Directives indicate that vaccination (absent any accommodation*) is a mandatory requirement to serve in the CF at present – whether Regular Force or Reserve Force.  This is a condition of service, not that dissimilar from the requirement to be medically fit, physically fit, or any of myriad other conditions of service established by, or under the authority of, the CDS, and by, or under the authority of, the NDA.

Although this condition of service applies to future enrolment in the CF it was also imposed on current serving personnel – i.e., it post-dates the decisions of current CF personnel to join the CF.  But we must bear in mind that the nature of service in the armed forces, absent privity of contract, and subject to broad discretion granted to statutory decision-makers, permits the CDS, or those acting under his control and administration, to impose conditions of service on serving personnel.  While those conditions of service may be subject to (eventual) scrutiny by the courts, such scrutiny is conducted under principles of public law, not private law.

 

How is the CF Proceeding?

The focus of this portion of discussion is not on the entirety of the CDS Directives on COVID-19 Vaccination, but on the process that ensues when a CF member refuses either to complete a vaccination attestation or refuses to be vaccinated.  After all, the principal reason for the Directives, dressed in the garb of ‘op orders’, is not to provide direction to those CF personnel who have already chosen to be vaccinated.  The principal purpose for the Directives is to set conditions for CF decision makers to take action regarding CF members who do not comply, culminating in compulsory release.

Arguably, the Directives also set conditions for CF members to seek accommodation* on medical grounds, religious or spiritual grounds, or other potential grounds of discrimination.  However, as I discuss below, the policy elements regarding accommodation* appear to be designed more to satisfy elements of procedural fairness and demonstrate that CF decision makers are taking into consideration relevant human rights legislation such as the Canadian Human Rights Act.

Based upon the CDS Directives, the CF is proceeding with administrative sanctions, actions, and processes.  It appears that no one is being charged with any Code of Service Discipline offence(s) in relation to refusing vaccination.  In light of both the content of the DMCA2 Aide-Memoire and comments from some within the military community, the Code of Service Discipline is relevant to the CF response, and one that I examine below.

The CF leadership is relying on remedial measures under DAOD 5019-4 and, eventually, Administrative Review under DAOD 5019-2, to justify eventual compulsory release of CF personnel who refuse to be vaccinated against COVID-19.

My statement above may appear to some to be highly conclusory.  One might suggest that the process described under the DMCA2 Aide-Memoire is not necessarily pre-destined to result in compulsory release.  One could suggest that it describes the use of remedial measures to correct a deficiency and that, in the event that a CF member corrects his or her deficiency, that member would not be released.

While there is some merit in such a suggestion, I contend that it would be naïve to ignore the blunt reality presented by the CDS Directives and the DMCA 2 Aide Memoire.  The Directives represent an order by the CDS that all CF personnel will be vaccinated against COVID-19 and will sign an ‘attestation’ to that effect; otherwise, absent any accommodation* approved by the CF leadership, CF members who do not comply will face compulsory release.  Where accommodation* is not provided, this amounts to an ultimatum: Get vaccinated or you will be compulsorily released from the CF.

Lest my meaning be misconstrued: the foregoing is not a comment on whether such a policy is ‘good’ or ‘bad’.  I simply mean to ensure that there is clarity on what the policy represents.

 

Conduct Deficiency?

The DMCA2 Aide-Memoire presents boiler-plate samples of the various administrative processes that will lead to a compulsory release under item 5(f) of article 15.01 of the Queen’s Regulations and Orders for the Canadian Forces (QR&O) if a CF member refuses vaccination against COVID-19.[4]  Those sample documents include remedial measures – both Recorded Warning (RW) and Counselling & Probation (C&P) – under DAOD 5019-4, Notice of Intent to Recommend Release under articles 15.21, 15.22, or 15.36 of the QR&O (depending upon the rank of the CF member), Administrative Review under DAOD 5019-2, and, eventually, compulsory release under Chapter 15 of the QR&O.  The DMCA2 Aide Memoire lays out not only each step in the process, but the proposed content of each document.

The boiler-plate samples proposed by the DMCA2 Aide Memoire characterizes the subject matter as a ‘conduct deficiency’.  Frankly, this is an awkward characterization, but one that is shaped by the process that the C F leadership has chosen to employ.  If a deficiency is to be addressed by remedial measures, it must either be a ‘performance deficiency’ or a ‘conduct deficiency’.  I suggest that characterizing this matter as a ‘conduct deficiency’ is a bit misleading.  This does not involve a CF member’s tendency to abuse alcohol or be disruptive in the workplace.  This is not a deficiency in which the chain of command is attempting to help correct a repeated tendency by a subordinate to behave in a manner that is incompatible with CF objectives or values.  And I acknowledge that there is an argument that refusal to be vaccinated can be ‘disruptive to the workplace’ – but that represents a bit of a conceptual stretch.

Ultimately, this matter concerns a discrete decision by select CF members who have chosen not to comply with a specific condition of service.  And the manner in which the CF has chosen to respond (including the process that the CF leadership has chosen not to use) both dictates the processes that must be used, and also complicates the use of those same processes.

In this discussion, I offer no comment on whether the decisions by certain CF members to refuse vaccination are justified or not.  But it is imperative, for the discussion that follows, that we are clear on what it is that we are discussing.  A select number of CF personnel have concluded that they do not wish to be vaccinated.  Their reasons vary – some may believe that the vaccines that are available are unsafe for them, personally; some may object on moral grounds based upon how the vaccines were developed.  It appears that most, if not all, of those who object to vaccination hold those beliefs genuinely.

Undoubtedly, some people who are reading this blog may hold the view that those who object to being vaccinated are doing so based upon unreasonable views, a flawed understanding of the relevant science, or confirmation bias arising from selective research undertaken by the person objecting.  Certainly, debate has abounded, on social media, within families and groups of friends, and elsewhere in our society.   That is not the object of the discussion in the present Blog post.  My objective is to discuss the nature of the CF response and how it shapes the decision-making process.

A minority of CF personnel have refused to be vaccinated against COVID-19 based upon the existing and available vaccination regimens.  In response, the CDS has issued an order: Either a CF member can consent to vaccination, or the CF member will be compulsorily released from the CF.  And the process that will be followed is set out in the DMCA2 Aide-Memoire.

Anyone who reads this Blog regularly will be aware that DMCA and his staff have demonstrated a penchant for a boiler-plate approach to administrative processes such as Administrative Reviews.  And anyone who reads this Blog regularly will be familiar with my criticism that DMCA and his staff rely excessively on a boiler-plate approach in lieu of critical, objective, open-minded, and evidence-based decision-making.

The DMCA2 Aide Memoire is a marked example of a boiler-plate approach, replete with check lists for statutory decision-makers.  Such check lists certainly make administration simpler and easier, and I suspect that DMCA and DMCA staff are of the view that it will convey a sufficient amount of ‘procedural fairness’ to withstand judicial scrutiny.

The boiler-plate ‘samples’ in the Annexes to the DMCA2 Aide-Memoire are as illuminating as the CDS Directives or the direction in the Aide-Memoire itself.  Indeed, the DMCA2 Aide Memoire itself has very little direction; most of the content of the Aide Memoire is represented by the ‘samples’ of the various forms that will be used and check lists upon which the chain of command is expected to rely.

Take, for example, the wording of the ‘sample’ Recorded Warning, which identifies a ‘conduct’ related deficiency:

On 15 November, you violated both CDS Directive on CAF COVID-19 Vaccination and CDS Directive 002 on CAF COVID-19 Vaccination – Implementation of Accommodation and Administrative Action by (select wording appropriate of the mbr’s circumstances)

a. Failing to provide attestation of your COVID-19 vaccination status to the CoC; or

b. Refusing to be vaccinated for COVID-19

You have not provided the CoC with proof that you are unable to be vaccinated IAW CDS Directive 002.

Your refusal to comply with this directive is considered failure to follow a direct order.  This violates the DND and CF Code of Values and Ethics, which includes the ethical principle to obey and support lawful authority

 

I suspect that most, if not all, CF members who received a Recorded Warning received a document that reiterated this text verbatim.  In fact, I wouldn’t be surprised if some CF members received a Recorded Warning in which their supervisors accidentally included the parenthetical text that was clearly meant as guidance for the person completing the form, and not intended as actual text for the form.

I suspect that most, if not all, CF members who refused to be vaccinated received Recorded Warnings and, subsequently, Notice of Intent (NoI) of Counselling and Probation, and Counselling & Probation, all of which reiterated the text in the ‘samples’ verbatim.

After all, that is what boiler-plate processes produce – verbatim text.  Boiler-plate processes tend to impair deliberative decision making and action.

These are, essentially, ‘assembly line’ remedial measures.

Nevertheless, on the surface of the remedial measures, there are what I would characterize as some problematic aspects.

First, the remedial measures are conveyed in terms of a ‘conduct deficiency’.  This tends to raise questions regarding why administrative processes are being used, instead of the Code of Service Discipline.  More on that later.

Second, the timing of the process conveyed in the DMCA2 Aide Memoire appears to be contrived.  For example, at Part 1.3 of the Aide-Memoire, the direction states:

COs, Commanders and leadership at all levels are to note that vaccination is a two-stage process and that there must be a 28-day time provision between first and second vaccinations. This time period must be factored into the process.

It must also be noted that the monitoring period for Recorded warning is to be three (3) months, and the monitoring period for Counselling and Probation is to be six (6) months. [emphasis in original]

 

However, based upon the Annexes to the DMCA2 Aide Memoire, the stated monitoring periods do not reflect the speed with which administrative processes will emanate (or are emanating).  The monitoring described in the ‘sample’ Recorded Warning indicates that, within 3 days of completion of the Recorded Warning form, the CF member is obliged to confirm completion of the course “COVID-19 Vaccine Information for CAF-2021” and, within 7 days, he or she must confirm compliance with CDS Directive 002.

If the CF member does not, it appears that he or she will receive a NoI for Counselling and Probation (C&P), followed by being placed on C&P.  It appears CF members are receiving the NoI for C&P a week after being placed on Recorded Warning and are being placed on C&P within a week (or less) of receiving the NoI for C&P.

Thus, the monitoring periods appear to be largely irrelevant in terms of the pace at which the remedial measures will be imposed.  Thus, the monitoring period for the Recorded Warding is largely meaningless and is included simply to pay lip service to the policy.  Presumably, the intent is that, if the affected CF member does not successfully complete the 6-month C&P monitoring period – which would presumably be satisfied if the CF member consents to COVID-19 vaccination – then the chain of command and DMCA would initiate an Administrative Review under DAOD 5019-2.  It is possible that Administrative Reviews may commence before that point.

As is clear from the samples in the Annexes to the DMCA2 Aide-Memoire, it is anticipated that the CF members who did not comply with CDS Directives will have been placed on Recorded warning in (late) November 2021 and will have been (or will be) placed on C&P in December 2021.  I suspect that most CF members who refused to be vaccinated are now on C&P.  If they are not, they soon will be.

They will subsequently be served with a NoI to Recommend Release under item 5(f) and will be subject to an Administrative Review under DAOD 5019-2.  We can anticipate that those processes – the NoI to Recommend Release and the Administrative Review – will look very similar to what is conveyed in the DMCA Aide-Memoire.  In fact, I anticipate that the actual processes will replicate the content of ‘samples’ verbatim, less member-specific information.

In other words, refusal to comply with the order for vaccination against COVID-19 will result in a compulsory release under item 5(f) to the Table to article 15.01 of the QR&O.  Sure, each member will receive ‘procedural fairness’ insofar as the chain of command will follow the boiler-plate check list in the DMCA2 Aide-Memoire; however, is the process fair if it is a foregone conclusion?  Apart from DMCA’s love of mantras, is procedural fairness the central relevant issue?

Oh, and as an aside, have a look at the references at Part 6.0 of the DMCA2 Aide-Memoire.  I remain confused about what the following CF policies (among others) have to do with a CF member’s refusal to be vaccinated:

• DAOD 5019-1, Personal Relationships and Fraternization
• DAOD 5019-3, Canadian Forces Drug Control Program
• DAOD 5019-6, Academic Misconduct
• DAOD 5019-7, Alcohol Misconduct
• DAOD 5019-8, Private Debts
• DAOD 5044-4, Family Violence
• DAOD 9004-1, Use of Cannabis by CAF Members
• DAOD 9005-1, Sexual Misconduct Response
• CF Mil Pers Instruction 01/20 – Hateful Conduct
• CANFORGEN 090/20 Hateful Conduct

That’s what happens when you generate boiler-plate policies and processes – often, since it tends to promote rote decision-making that lacks deliberative thinking, you’ll accidentally include irrelevant information.

 

Accommodation

You may have noticed that, in the discussion above, I have repeatedly placed an asterisk (*) after the word ‘accommodation’.  I have done so because I view the ‘possibility of accommodation’ in the CDS Directives to be largely nugatory and is present in the directives principally to satisfy the objective requirement that any personnel policy must comply with public law constraints such as the Canadian Charter of Rights and Freedoms (Charter) and the Canadian Human Rights Act.  At least on the face of the policies.

The CDS Directives indicate that CF personnel may seek accommodation if they refuse to be vaccinated against COVID-19.  Such accommodation could, purportedly, be based upon medical grounds, religious or spiritual grounds, or another discriminatory ground recognized in human rights law, like the Canadian Human Rights Act.  According to a recent report in the Globe and Mail, at least 800 CF members have sought accommodation.[5]  We are not told how many accommodations have been permitted.  I would not be surprised if that number approaches zero.

I do not propose to examine the parameters for accommodation.  That is, potentially, a significant topic to explore.  That may well form the basis of future commentary.  What I will try to describe, presently, are the circumstances that likely arose when CF members sought accommodation and why it is likely a nugatory caveat to the order conveyed in the CDS Directives.

I suspect that the first course of action by many CF personnel who did not wish to be vaccinated was to seek medical accommodation based upon whatever medical circumstance a given CF member believed ought to exempt him or her from vaccination.  I am willing to bet that no health care provider in any CF medical centre – whether a uniformed member of the CF or a contracted civilian health care provider – supported any such request.  Even if a CF member had a pre-existing medical condition that may cause the CF member to be vaccine hesitant, I suspect that the response from the health care provider was along the lines of: “We will see how you respond to the first injection.”

Again, I offer no comment on the merits of any medical concerns.  I simply suggest that requests for accommodation on medical grounds were likely uniformly rejected by CF Health Services.  I also suggest that it would be difficult to obtain information regarding requests for medical accommodation.  Certainly, it would be unlikely that a journalist or member of the public would be able to obtain specific information on individual applications for accommodation absent the consent of the specific CF member.  Such information is ‘personal information’ under the Privacy Act, and not subject to disclosure without the consent of the person to whom it applies.

It is possible, even likely, that the CF is maintaining data of the number of requests for accommodation, the number of cases in which such accommodation is granted, and the basis for any accommodation offered.  In light of the tendency of the current government to obfuscate that which ought to be transparent, I anticipate that anyone seeking such information may encounter some difficulties or delays in obtaining it.

Normally, one of the obstacles that a CF member will face when challenging administrative action for which comparison with other CF members may be useful, is that the CF member in question won’t be privy to the personal information pertaining to other CF members in similar circumstances.  For example, a CF member who faces compulsory release from the CF due to a disability, may wish to seek accommodation.  There may be other CF personnel who are or were in similar circumstances and who obtained accommodation.  However, the CF member seeking accommodation may be unaware of comparators, or their specific circumstances.  The CF member would not normally be entitled to have access to another CF member’s personal information.

Where CF personnel have refused vaccination against COVID-19, and have sought accommodation, I suspect that CF decision-makers are reluctant to provide any accommodation.  They will likely anticipate that any CF member who receives accommodation will share that information with other similar-minded CF personnel, in order to assist those other CF members.

When CF members were unsuccessful seeking accommodation on medical grounds, I suspect that many may have then turned their minds to accommodation on spiritual or religious grounds.  Some may have done so at the outset.  To do so, they would have been required to seek recommendation from a CF chaplain on the relevant base to which they are posted.

Again, I anticipate the response to such requests was uniformly negative.  It is possible that some chaplains (likely a small minority) may have been inclined to support such requests for accommodation, particularly if the chaplain him- or herself was also disinclined to consent to vaccination on the basis of his or her spiritual or religious beliefs.  If such a case were to arise, I would not be surprised if a chaplain, who held such beliefs, ended up having his or her mandate suspended by the Chaplain General (or an officer acting on the Chaplain General’s behalf).

Ultimately, I contend that, although accommodation is technically provided in the CDS Directives, and the DMCA2 Aide Memoire sets out the process for seeking accommodation, it is ultimately a nugatory process if no accommodation is provided and, frankly, if no accommodation is actually anticipated by the CF chain of command.  It is largely a fiction, albeit one concealed behind of veil of policy that would be difficult to pierce.

Nevertheless, the futility of the process of seeking accommodation is relevant to the conclusions drawn below.

 

Code of Service Discipline

Since mid-November, when the CF policy on vaccination against COVID-19 reached what could be considered a ‘culminating point’, I have witnessed several members of what could be characterized broadly as the ‘military community’ refer to section 126 of the National Defence Act (NDA) in relation to this policy.  Section 126 of the NDA creates an offence for refusing vaccination without reasonable excuse for doing so:

1. 126. Every person who, on receiving an order to submit to inoculation, re-inoculation, vaccination, re-vaccination, other immunization procedures, immunity tests, blood examination or treatment against any infectious disease, wilfully and without reasonable excuse disobeys that order is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.

 

The rationale for this offence is actually grounded in the flu pandemic of a century ago.

Note, too, that the provision is not framed in absolute terms.  A CF member who can present a reasonable excuse for declining an inoculation, vaccination or other immunization would avoid disciplinary jeopardy.

Lately, current and former members of the CF have tended to refer to section 126 of the NDA and proclaim: “They should be charged!” or “They’re lucky they aren’t being charged!”.

Often, soon after someone mentions section 126 of the NDA, someone (sometimes the same person raising the spectre of a charge under section 126) will offer: “What about Kipling?”

My instinctive response to such a query is: “I don’t know; I have never Kipled.”

After the riotous laughter subsides, I then explain the extent to which the judgment of the Court Martial Appeal Court of Canada (CMAC) in R v Kipling, 2002 CMAC 1 is relevant.  Specifically, I describe what the judgment represents and, equally importantly, what it does not represent.

The CMAC judgment in Kipling does not represent an appellate judgment upholding the constitutional validity of section 126 of the NDA, complete with relevant analysis under section 7 (and, potentially, section 1) of the Charter.  In fact, as Strayer CJ explained at paras 30 to 32 of his judgment, absent a Notice of Constitutional Question, the CMAC did not have jurisdiction to conduct that inquiry and analysis.  What Kipling does represent, principally, is how section 126 of the NDA should be applied as a matter of ordinary law.

In a previous discussion regarding the independence of the military judiciary, I had occasion to discuss the problematic aspects of the judgment at first instance in Sgt Kipling’s court martial: ‘Bad Facts’ and Awkward Law: The Director of Military Prosecutions v Deputy Chief Military Judge, et al., 2020 FC 330.  I won’t reiterate the entirety of that analysis here.  However, I will draw your attention to the principal reason why Kipling does not represent a validation of section 126 of the NDA under the Charter.

The relevant provision under the Charter is section 7, which states:

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.

 

It is likely uncontroversial to suggest that an obligatory vaccination, inoculation, or other invasive medical procedure would attract scrutiny under section 7 of the Charter as impacting the ‘security of the person’.  That does not mean that it contravenes the Charter – merely that it could warrant examination.

If a party to a proceeding (such as an accused) wishes to challenge the legality of a statutory provision by virtue of a Constitutional provision (such as section 7 of the Charter) the accused must typically bring a ‘Notice of Constitutional Question’.  Such a notice is typically mandatory, under relevant provincial law, for an accused appearing before a provincial Superior Court of Justice or a provincial court in a criminal prosecution.  A Notice of Constitutional Question is mandatory for a party appearing “… before the Federal Court of Appeal or the Federal Court or a federal board, commission or other tribunal, other than a service tribunal within the meaning of the National Defence Act …”.[6]  A Notice of Constitutional Question puts the Attorney General of Canada (and Attorneys General of the Provinces) on notice of the challenge to legislation.  However, as indicated in the CMAC judgment in Kipling, while a Notice of Constitutional Question (served on all Attorneys General) is required if such a challenge is brought before the CMAC, it is not expressly mandatory for courts martial at first instance.

However, an accused appearing before a court martial who seeks to challenge a statutory provision based upon an argument that the statutory provision contravenes one or more Charter rights must still put the military prosecutor on notice by way of a clear and unambiguous notice of application or motion.

Counsel for Sgt Kipling asserted that they were “… not attacking section 126 of [the NDA] per se …”.  However, as the (then) Chief Justice of the CMAC observed on behalf of the court in Kipling, that appeared to be precisely what they were attempting to do.  Sort of.  In any event, the court martial terminated with the military judge concluding that the prosecution of Sgt Kipling contravened section 7 of the Charter.  That would have been difficult if Kipling had not been challenging section 126 of the NDA under the Charter.  However, the CMAC concluded that the military judge at first instance had failed to conduct the proper inquiry under, or application of, section 7 of the Charter.

Consequently, the CMAC overturned the military judge’s judgment at first instance.  However, the CMAC did not, itself, evaluate section 126 of the NDA in light of jurisprudence on sections 7 and 1 of the Charter.  The CMAC simply held that the judgment at first instance represented an error in law.

I offer two important observations regarding section 126 of the NDA:

First, it has, built into the provision, an internal balancing ‘test’.  It is open to a CF member to offer a ‘reasonable excuse’ for refusing a vaccination.  There is not robust case law regarding the definition of ‘reasonable excuse’ in this specific provision.  However, courts (and counsel) could draw upon similar case law regarding ‘reasonable excuse’ to decline/refuse to consent to such a process (e.g., ‘reasonable excuse’ for refusing to provide a breath sample for a breathalyzer or roadside screening device).  Clearly, the invasiveness of a breath sample differs from that of a vaccination; my point is simply that there are means of further defining ‘reasonable excuse’ under section 126 of the NDA.  I do not propose to do so here – largely because there is no indication that the CDS, or any other CF decision-maker intends to rely on this Code of Service Discipline offence regarding refusal by CF members to be vaccinated against COVID-19.

Second, notwithstanding that the CMAC did not, in Kipling, evaluate whether section 126 of the NDA is consistent with section 7 of the Charter, or represents a “… reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society …” under section 1 of the Charter, the ‘presumption of constitutionality’ supports the contention that section 126 of the NDA complies with the Charter until, and unless, it is successfully challenged before a court of competent jurisdiction.  Although Kipling does not represent an appellate judgment that the provision is consistent with the Charter, neither does it represent a judgment that it is not.  Until, and unless, a court of competent jurisdiction determines that section 126 of the NDA does not comply with the Charter, it remains valid law.[7]

Nevertheless, it is possible that certain institutional decision-makers may be concerned about whether the provision may be vulnerable to such challenge.  Indeed, the current circumstances could present an ideal opportunity to test the merit of the provision, particularly in light of the underlying basis for the existence of that offence.

And that brings us to one of the central questions arising from the manner in which the CF is responding to the refusal by some CF personnel to be vaccinated against COVID-19.

There is a specific offence under the NDA that could be charged in these circumstances.[8]  Based upon the limited information that has been made public, it appears that a large percentage of CF personnel have complied with the CF’s COVID-19 vaccination policy.  Over 95% of personnel have received at least one, if not both, doses that are typical of the current vaccination regimens.  However, that leaves, potentially, up to 4000 members of the Regular Force and Reserve Force who may not have complied with this policy.  [And I acknowledge that I do not have access to accurate numbers.]

I anticipate that, in light of recent news reporting, it is safe to suggest that there are at least a few hundred members of the CF who have declined to be vaccinated against COVID-19.

To my knowledge, no one has been charged under section 126 of the NDA.  So, the pertinent question is: Why not?

Certainly, the language in the DMCA2 Aide Memoire refers to a ‘conduct deficiency’ which tends to signal that the subject matter is one that could be addressed, potentially, under either or both the Code of Service Discipline and remedial measures.  The language in the sample remedial measures speaks of disobeying lawful authority and disobeying lawful orders.  Such disobedience can have an adverse affect on discipline.  Certainly, the impression given is that the CF members who are refusing to be vaccinated are failing to demonstrate the ‘habit of obedience’ that the Code of Service Discipline is designed to instill and enforce.  (Then again, the same Aide Memoire also refers to the CF’s policy on Sexual Misconduct, Alcohol Misconduct, Academic Misconduct, and several other policies that, on their face, appear to be irrelevant to a person’s decision to refuse vaccination.  So, maybe, just maybe, there is a degree of imprecision in the DMCA2 Aide Memoire.)

Regular readers of this Blog will be aware that I have reservations about the fairness and propriety of how CF decision-makers have employed administrative mechanisms where a CF member faces allegations of sexual misconduct.  A CF member is told that his (or her) conduct is ‘reprehensible’, ‘undermines morale and cohesion of the CF’, or ‘represents a significant derogation from the Ethics and Values of the CF’.  The CF member may even be told that his (or her) conduct could have been subject to one or more charges under the Code of Service Discipline.

Yet, often, no charges are laid.  The CF member is told that his (or her) misconduct is so reprehensible that it warrants compulsory release form the CF, yet, presumably, it is not so reprehensible that it would warrant charges under the very process that, according to the majority of the Supreme Court of Canada in R v Généreux, [1992] 1 SCR 259, is designed to maintain the discipline, efficiency, and morale of the CF.

Similarly, if refusal of the COVID-19 vaccination is so significant that it warrants compulsory release (which is clearly telegraphed in the DMCA2 Aide-Memoire), and it represents such marked misconduct, why have no charges been laid?

I offer three potential justifications in response to that question.  There are undoubtedly more than three; however, I suggest that the following three explanations are the most likely.  And I also suggest that some potential justifications would really represent variations on one or more of the following themes.

1. The leadership of the CF does not wish to criminalize decisions by CF personnel to refuse to be vaccinated.
2. The leadership of the CF is concerned about potential backlog of cases if dozens, or hundreds, of accused elect trial by court martial.
3. The leadership of the CF is hesitant to subject the policy to the scrutiny of constitutionally independent military judges.

 

As I explain below, my view is that it is likely a combination of ‘Rationale #2’ and ‘Rationale #3’.  I am a cynic, but not without good reason.  I very much doubt that any CF decision maker would admit that either of those possibilities is the true reason why the chain of command has avoided recourse to the Code of Service Discipline.  If pressed to explain their rationale, I would expect either a meaningless evasion, an explanation that CF decision-makers enjoy broad discretion regarding whether they wish to employ the Code of Service Discipline, or a variation of ‘Rationale #1’.

 

CF Leadership Does not Wish to Criminalize the Issue

This is a valid rationale – or, it could be, depending upon the true context in which it is offered.  As I mention above, the CF’s current policy on vaccination against COVID-19 represents a change in conditions of service.  Unlike offences like theft, assault, or sexual assault, a person’s decision to refuse a vaccination, generally, is not an inherently blameworthy act.  It turns on context.

Returning to the Kipling case, in 1998 Sgt Kipling, as a member of 435 Squadron, was informed that he would deploy to the Middle East.  As summarized in the CMAC judgment:

… a detachment from the Squadron was ordered to go to the Middle East as part of a multi-national force deployed to put pressure on Iraq to comply with UN Security Council resolutions in respect of submitting to weapons inspections. The deployment of [Sgt Kipling’s] unit was originally to Bahrain but while it was en route the destination was changed to Kuwait City, some 61 kilometres from the Iraq border. There was evidence that Canadian authorities had an intelligence assessment indicating that Iraq might use weaponised anthrax against the multinational forces if armed conflict ensued. On March 12, 1998 the Commander of the respondent’s detachment ordered all personnel to undergo vaccination with an anthrax vaccine.

 

To be clear, as is presently the case regarding the COVID-19 vaccination, Sgt Kipling was not subject to being physically forced to undergo vaccination.  Sgt Kipling was not vaccinated against anthrax; instead, he was ‘repatriated’.  But he was subject to coercive consequences for refusing the vaccination.

As explained above, Sgt Kipling’s defence team presented what could be characterized as an ambiguous or confusing challenge to section 126 of the NDA under the Charter.  They characterized the basis of their defence as ‘informed consent’.  They did not present a defence based upon a ‘reasonable excuse’ by Sgt Kipling for refusing the order at the time that he refused the order.  While there was some indication at court martial of evidence that challenged the efficacy, safety, or licencing of the anthrax vaccine in question, that was not presented by Sgt Kipling, to his chain of command, at the time that he purportedly refused the vaccination order.[9]  [As an aside, I should point out that, although the Crown was successful in its appeal before the CMAC, DMP chose not to renew the prosecution of Sgt Kipling who, by then, had been lawfully released from the CF.  Although DMP could have proceeded with a prosecution, notwithstanding Sgt Kipling’s intervening release[10], it appears that the Crown’s principal objective was to challenge the Charter-related decision at first instance, rather than prosecute Sgt Kipling.)

The alleged blameworthiness of Sgt Kipling’s purported refusal of the anthrax vaccine was predicated upon the factual context.  Similarly, a refusal of the COVID-19 vaccination could be characterized as blameworthy, in a disciplinary manner, in light of the context in which it arises.

As I state above, there is a compelling characterization of the CF policy on COVID-19 vaccination as a change in conditions of service.  In response to litigation and/or allegations that the CF is attempting to use administrative processes for a disciplinary purpose, the CF leadership may assert that the decision to use administrative, rather than disciplinary, processes is due in large part to a desire not to criminalize a CF member’s decision in relation to conditions of service.

After all, ordinary Canadians are not being prosecuted under criminal law for choosing not to be vaccinated.  Failure to comply with public health orders can lead, and has led, to prosecution, fines, and other sanctions under regulatory frameworks.  Failure to comply with public health orders has also been relevant in the prosecution of criminal offences in which such regulatory considerations are relevant.[11]  However, I hasten to add that such criminal prosecutions arose because of an underlying criminal offence, such as assault.

CF leadership could assert that a conviction for an offence under section 126 of the NDA could potentially lead to a criminal record if the eventual sentence exceeds: (1) a severe reprimand; (2) a reprimand; (3) a fine of up to basic pay for one month; or (4) a minor punishment (e.g. extra work and drill or confinement to barracks).[12]  Consequently, the CF leadership could assert that the chain of command is relying on administrative measures, rather than the Code of Service Discipline, in order to avoid this possible consequence.

While such a rationale might be advanced by CF spokespersons or leaders, I am not particularly convinced by such an explanation.

First, an offence under section 126 of the NDA can be tried by summary trial.  True, an accused could elect trial by court martial.  However, if the accused elected to be tried by summary trial, it would be within the scope of powers and functions of the presiding officer (who is drawn from the ‘chain of command’) to ensure that the sentence does not rise to a level that would generate a ‘criminal record’.

Second, even if the accused were to elect trial by court martial, and is found guilty, it is within the scope of the role played by the chain of command to voice its concerns at the sentencing of a CF member.  Military prosecutors can (and should) elicit evidence from the chain of command at sentencing.  It is open to the chain of command – who would likely be the charge-laying authority in the first place – to offer its view that the misconduct does not warrant a significant sentence that would ‘criminalize’ the CF member’s misconduct.  The sentencing military judge would be obliged to take such evidence into consideration.  It is doubtful that the accused would argue that he or she should receive a sentence that would precipitate a criminal record.  A military judge, like a presiding officer at summary trial, is obliged to impose the minimum sentence necessary to service the principles and purposes of sentencing.

If the CF leadership did not wish to ‘criminalize’ refusal of the COVID-19 vaccine, it is within the scope of their powers and functions to ensure that such a consequence is minimized or avoided.[13]

 

The Chain of Command Fears a Wave of Courts Martial

As I indicate above, an offence under section 126 of the NDA may be tried by summary trial before a presiding officer, or an accused may elect trial by court martial, where the accused would be represented by counsel and would be tried before a constitutionally independent military judge.

If a CF member were adamant about refusing vaccination against COVID-19, what do you think the chances are that he or she would prefer to have his or her charge tried before a constitutionally independent military judge, and be assisted by legal counsel, rather than be tried before a presiding officer who is a representative of the chain of command that is obliged to enforce the CDS’ Directive on COVID-19 vaccination?

Yeah … that’s what I thought as well.  And I am pretty sure that General Eyre and the rest of the CF chain of command anticipate the same thing.  It’s one thing to prosecute a single NCO, tasked with a deployment, and who refuses a vaccination; it is another thing to prosecute several hundred CF personnel, from across ranks and Military Occupations, to refuse a vaccination at the same time.

There could potentially be hundreds of charges laid, leading to hundreds of courts martial.  The chain of command and the legal advisors in the Office of the Judge Advocate General may be concerned about the capacity of the ‘military justice system’ to handle such volume.  I certainly am.

Now, I have it from reliable sources that the military judicial calendar may be freed up a bit as select ‘sexual misconduct’ charges are transferred to the civilian criminal justice system.  After all, sexual misconduct charges comprise approximately 60% of the courts martial presently scheduled.

However, we are still awaiting the specific plan regarding how the Minister of National Defence will implement the policy direction she announced back in November.  There’s no guarantee that the plan will materialize in the next few weeks.  And, as we learned shortly after that announcement was made, not all sexual misconduct matters will be referred to the civilian criminal justice system.  Only criminal offences of a sexual nature will be referred.  And, one never knows, like R v MacPherson, 2021 CM 2014, if civilian prosecutors decline to proceed, some of those matters may wind up back in the military justice system.

But, even if every court martial for ‘sexual misconduct’ were removed from the military judicial calendar tomorrow, it would still be problematic to proceed with hundreds, or even dozens, of courts martial relating to charges under s 126 of the NDA.

The CF has four military judges (and we are still waiting for the Governor in Council to designate a Chief Military Judge).  Typically, CF military judges preside over between 50 and 70 courts martial a year.  In fact, since 2000, the high-water mark for courts martial was 2007/2008 (during which time 78 courts martial were held) and most years see fewer than 70.

Even if only 1% of CF personnel refused to be vaccinated, and even if only ¼ of those were charged and elected trial by court martial, the CF would have to conduct more than 200 courts martial for that offence alone.

I suggest that it is a reasonable conclusion to draw that the CDS, the leadership of the CF, and their legal advisors, are concerned about a wave of courts martial if charges were laid under section 126 of the NDA.  In fact, I would go so far as to suggest that they pointedly wish to avoid such a consequence.

It’s one thing to talk tough about misconduct and discipline; however, if you’re unwilling to back up such tough talk with charges under the Code of Service Discipline, then that’s all it is: talk.  The potency of the Code of Service Discipline erodes when the chain of command demonstrates an unwillingness to use it for the purpose for which it was designed.  This is particularly true when the chain of command resorts to ‘alternative’ means of enforcement of discipline.

Building upon a comment offered by a friend of mine recently, one option might be to charge a select few “… pour encourager les autres …”.  Granted, when my friend made that comment, he was not specifically or expressly suggesting that a select ‘representative sample’ could be charged and prosecuted.  Putting aside the contention that the punishment visited upon Admiral Byng may have been a bit excessive in light of all of the relevant factors contributing to his failure to relieve the British garrison at Fort St Philip[14], it is conceivable that the CF chain of command could choose to charge a select representative sample of CF personnel who refused the COVID-19 vaccination.

Certainly, such an approach would be arbitrary.  However, I have some shocking news for your Dear Reader: arbitrary actions and decisions are not unknown in the administration of the affairs of the CF.  Indeed, as I was recently reminded when reviewing a ‘decision letter’ from DMCA (in an unrelated matter), senior leaders in the CF tend to take the position that they exercise very broad discretion regarding when the Code of Service Discipline will, and will not, be used.  Evidently, even when matters are investigated as breaches of discipline, and are framed in language of disciplinary misconduct, administrative measures are a valid expression of punishment … sorry, ‘correction’ … of such breaches of discipline.  But more on that in a moment.

Arguably, a representative sample of alleged offenders could potentially be prosecuted without putting an excessive strain on court martial resources.  Such an approach could be used to demonstrate the validity of such charges, and the CDS’ policy on vaccination.  However, that would not entirely solve the issue for the CDS.

First, that would only provide findings for the ‘representative sample’.  It would still be necessary to justify the compulsory releases of the dozens (or hundreds) of other CF personnel who refused vaccination against COVID-19.  It would not obviate the requirement to follow DMCA’s boiler-plate process described under the DMCA2 Aide-Memoire.

Moreover, why would the CDS want his policy on vaccination tested before a constitutionally independent military judge when the CF can proceed administratively, without such bothersome judicial scrutiny?

And that brings me to the third rationale.

 

Avoiding Judicial Scrutiny of Contentious Decisions

Those of you who read this Blog regularly will likely not be surprised by my contention that the CDS and the CF leadership would prefer to avoid judicial scrutiny of their decisions.  This is one of the reasons why so many allegations of sexual misconduct – often at the lower end of the spectrum of alleged wrongdoing – have been dealt with under administrative processes rather than the Code of Service Discipline.  This is particularly true where the evidence may be weak, where complainants are reluctant to participate in transparent prosecutions before courts martial or, heaven forbid, one or more of the contentious elements might not be provable before a truly open-minded decision-maker who is well-schooled in the law.

It should not be contentious to suggest that the CF chain of command has much more ‘freedom of manoeuvre’ in administrative processes than under the Code of Service Discipline.  At the very least, they perceive that they do.  There is no initial scrutiny by independent judges.  Look at the processes arising in the DMCA2 Aide-Memoire for COVID-19 vaccination.  Remedial measures are not scrutinized by independent judges.  Nor is the NoI to Recommend Release or the subsequent Administrative Review subject to immediate judicial scrutiny.  If DMCA eventually decides upon compulsory release under item 5(f) – and let’s not delude ourselves, DMCA will order compulsory release under item 5(f) in every single instance – that decision won’t be scrutinized by an independent judge.  At that point, the affected CF member – who will likely become a civilian 30 days after DMCA’s decision is delivered to the affected CF member – must exhaust the adequate alternative remedy that is the CF grievance process.

As I have indicated previously, the CF grievance process is, essentially, a litigation avoidance mechanism: Grievance Myths – A Remedy for Canadian Forces Personnel?  It is only after the CF member has exhausted the grievance process that he or she could seek judicial review before the Federal Court.  And we must remember that the final authority in the grievance process is the same officer who issued the CF’s Directives on COVID-19 Vaccination.  I have a sneaking suspicion that the final authority will be inclined to uphold the release decisions.  And that may well take a few years.

Even once an eventual determination by the final authority is brought before the Federal Court – likely a few years after the CF member was compulsorily released – the reviewing judge will review whether the process had been fair and whether the decision fell within a range of reasonable outcomes.  We can anticipate that the reviewing court will grant a large measure of deference to the final authority.

 

What is Really Going On?

So, what is really going on, and what does the CF’s policy on COVID-19 vaccination really signal?

The CDS and the CF leadership have directed that a new condition of service will be applied to CF personnel.  This is unquestionably driven, at least in part, by similar conditions of employment that have been imposed on employees of the Federal Public Administration.  Unlike employees of the Federal Public Administration, CF members are not in privity of contract with the Crown.  Therefore, CF members do not have any protections under the private law of contract.  Their protections in terms of service are defined principally under public law.

One of the principal protections that CF members have in the administration of the affairs of the CF – including, and in particular, in relation to decisions regarding compulsory release from the CF (i.e., termination of their military service) are the foundational principles of administrative law.  These include procedural fairness, which is emphasized in both the CDS Directives and the DMCA 2 Aide Memoire.

But how relevant is procedural fairness in relation to the decision that we can anticipate will be made?

The CDS has directed a change in the conditions of service for all CF personnel: everyone must be vaccinated against COVID-19, barring a grant of accommodation.  We can anticipate that such accommodation will be exceedingly rare, if it is granted at all.  Therefore, the directive is an ultimatum: get vaccinated or your service in the CF will be terminated.

The much-vaunted procedural fairness is a nugatory exercise in ‘box-ticking’.  It is largely irrelevant when the decision is a foregone conclusion.

What is relevant is the substantive reasonableness of the decision and the open-mindedness of the decision-maker, which are distinct from the elements of procedural fairness captured in the boiler-plate process described by the DMCA2 Aide Memoire.

The merit of procedurally fair decision-making, generally, is that the decision maker can offer a fair and well-reasoned decision based upon the fact that the person affected by the decision will be given a meaningful voice in the process.  Where the affected person is provided notice and sufficiently robust disclosure, that person can make informed representations to the decision-maker.  And those informed representations must be heard and considered by an unbiased and open-minded decision maker, who will then be in a position to offer transparent and intelligible reasons that justify the eventual outcome.

But the central concern arising from a CF member’s refusal of vaccination against COVID-19 is not addressed through rote box-ticking and a process that leads to a foregone conclusion, notwithstanding that it assiduously employs CF administrative processes.  The central concern is whether a CF member’s refusal is reasonable.  Conversely, it concerns whether a refusal of accommodation by the CF, or the eventual decision to release the CF member under item 5(f), is reasonable.

But if the central issue is the substantive reasonableness of the decision, why does the CF leadership seem so absorbed with procedural fairness?

That central issue hearkens back to section 126 of the NDA: a CF member who disobeys an order requiring inoculation, vaccination, or immunization is vulnerable to conviction for that offence if he or she does so “… without reasonable excuse …”.  Were a CF member charged under section 126 of the NDA, and elected trial by court martial, an independent military judge, schooled in the law, would be in a position to evaluate the objective reasonableness of such decisions and offer transparent and intelligible reasons that justify the eventual judgment.

However, it is clear that the CDS and the CF leadership are disinclined to submit their justification to the immediate scrutiny of an independent judge.  Therefore, since the consequence of the CDS’ ultimatum is compulsory release for those who refuse vaccination, the CF leadership is left with administrative processes leading up to the application of article 15.01 of the QR&O (and other provisions under Chapter 15).

The problem that the CF leadership then encounters arises from the limitations of the release items prescribed by Governor in Council under article 15.01 of the QR&O.  For those of you inclined, I have previously offered A Word or Two on Release Items in the Canadian Forces.  For those of you disinclined to read yet another lengthy Blog post, I will endeavour to offer a brief summary below.

Release Item 1 – Misconduct is not available to the CF leadership absent: (a) a sentence of Dismissal or Dismissal with Disgrace from a court martial; (b) a conviction by a service tribunal of a serious offence or series of offences that warrants this release item; (c) conviction by a civil court of a serious offence that warrants release under this item; (d) illegal absence and a lack of requirement for further service; or, (e) a fraudulent statement on enrolment.

Release Item 2 – Unsatisfactory Service is not available absent: (a) conviction by a service tribunal of an offence which warrants release under this category, but does not warrant release under Item 1(b); (b) conviction by service tribunals of a number of offences indicating a course of misbehaviour which warrants release under this category, but does not warrant release under Item 1(b); (c) unsatisfactory civil conduct, or conviction of an offence by a civil court, of a serious nature not related to the performance of his duties but reflecting discredit on the Service; or, (d) unsatisfactory performance.  In other words, like release item 1, if a CF member has not been convicted of a serious criminal or Code of Service Discipline offence, release item 2 is generally not available as an option for compulsory release.

This was not always obvious to DMCA staff.  There have been occasions in the past when DMCA staff recommended release under item 2(a), and DMCA ordered release under item 2(a), where a CF member was accused of misconduct, but was never charged under the Code of Service Discipline or the civilian criminal justice system.  It would appear that DMCA and DMCA staff are capable of learning from past errors, if slowly.

Release Item 3 – Medical is not relevant.  It does offer a pertinent comparator.  For example, if a CF member is unable to meet conditions of service relating to medical fitness, he or she would likely be released under this compulsory release item (unless the CF member were accommodated for a period of time – and such accommodations do actually occur).  But refusal of the COVID-19 vaccination will not lead to release under Item 3.

Release Item 4 – Voluntary.  Again, this release item is not directly relevant (although, in a future Blog post, I will explain how the dogmatic approach conveyed in the DMCA2 Aide Memoire likely contributed to a truly bizarre handling of a request for compulsory release).

So, the CF leadership is left with release under Item 5 – Service Completed.  It’s pertinent to note that release under item 5 is not a ‘dishonourable release’.  It is certainly not a ‘dishonourable discharge’, because this concerns the CF, not the armed forces of the United States, and ‘discharge’ does not refer to the termination of service in the CF.  Release under item 5, notwithstanding that it is typically compulsory, generates the notation “Honourably Released” (just as is the case for release under Item 4 or Item 5).

The problem facing the CF leadership is that most of the ‘Reasons for Release’ under Item 5 are not applicable where a CF member refuses vaccination against COVID-19.  The reasons do not include reaching ‘retirement age’ (item 5(a)), ‘reduction in strength’ (item 5(b)), completion of a set period of service (item 5(c)), or an irregular enrolment (item 5(e)).

Thus, the only possible release items are 5(d) ‘Not Advantageously Employable’ or item 5(f) ‘Unsuitable for Further Service’.

Item 5(d) is not likely applicable.  The issue is that the CF members in question are failing to meet a condition of service imposed by the CDS, and that this failure arises from a decision that the CF members are making regarding their vaccination status.  The three potential justifications offered for Item 5(d) in the Table to article 15.01 of the QR&O come close to these circumstances, but are distinguishable:

• because of an inherent lack of ability or aptitude to meet military classification or trade standards; or
• who is unable to adapt to military life; or
• who, either wholly or chiefly because of the conditions of military life or other factors beyond his control, develops personal weaknesses or has domestic or other personal problems that seriously impair his usefulness to or impose an excessive administrative burden on the Canadian Forces.

 

That leaves item 5(f).  Even there, the nature of the issue is tenuously connected to the single justification offered in the Table to article 15.01 of the QR&O:

• Applies to the release of an officer or non-commissioned member who, either wholly or chiefly because of factors within his control, develops personal weakness or behaviour or has domestic or other personal problems that seriously impair his usefulness to or impose an excessive administrative burden on the Canadian Forces.

 

Ostensibly, the conscious refusal of a CF member to be vaccinated against COVID-19 is a “… factor within his [or her] control … that seriously impair[s] his [or her] usefulness to or impose[s] an excessive burden on the Canadian Forces.”  As noted above, whether such a refusal is reasonable is relevant to the justification of a release decision and is, arguably, the principal relevant factor.

So why does the CF appear to be more concerned about ‘procedural fairness’ than about whether a refusal to accommodate, or a release decision, is substantively reasonable?

In part, it is because DMCA and DMCA staff (and other CF decision makers) are much more familiar with (and, therefore, comfortable with) the rote box-ticking of what they view as ‘procedural fairness’.  In other words, “If I can demonstrate that I followed this check list, then I can demonstrate that I was procedurally fair in arriving at the decision that I intended to make from the outset.”  One need not actually have an ‘open mind’ if one simply asserts, “I have taken into consideration all of the relevant evidence and have considered all potential and reasonable outcomes, and I have decided …”.  Right?

Demonstrating procedural fairness in that context is easier than providing fact-specific intelligible reasons that transparently justify a decision.  At least, that appears to be how DMCA staff perceive the issue.  As long as the CF can demonstrate that it followed its check list approach, then voila, procedural fairness is satisfied.

Moreover, as I have explained previously (A Word or Two on Release Items in the Canadian Forces), release under item 5(f) is linked to the use of remedial measures.  In light of the policies at DAOD 5019-4 – Remedial Measures, CF personnel have a legitimate expectation that the CF leadership will assist them in overcoming conduct or performance-related deficiencies, preferably using progressive measures designed to assist the CF member.  DMCA or another decision maker cannot reasonably assert that a CF member has failed to overcome “… personal weakness or behaviour or … domestic or other personal problems …” unless they can demonstrate that the CF has attempted to assist the CF member in doing so, consistent with the policy that the CF has established for that very purpose.

By choosing to avoid the Code of Service Discipline, but still intent on taking significant action against CF personnel who have refused COVID-19 vaccination, the CDS and CF leadership have limited the scope of their options.  To enforce compliance with the CDS Directives, they are obliged to use remedial measures.  If a CF member continues to refuse, CF leadership must escalate to NoI to Recommend Release, Administrative Review and, eventually, compulsory release under item 5(f).  The outcome is a foregone conclusion.

However, in order to comply with both CF policies promulgated under the NDA, and broader human rights legislation, CF leadership must demonstrate ‘procedural fairness’, notwithstanding that the outcome is a forgone conclusion.  At the very least, that appears to be the perspective of the CF leadership.  And it appears that they take comfort in the rote boiler-plate approach provided in the DMCA2 Aide Memoire.

But that is not the central issue regarding the eventual decision to compulsorily release hundreds of CF personnel for refusing COVID-19 vaccination.  The central issue is about substantive reasonableness.  Is it reasonable for those CF members to refuse vaccination?  Is it reasonable to order their compulsory release?  Are there reasonable alternatives to mandatory vaccination or compulsory release?  The central message – the signal – of the CDS Directives is: get vaccinated or your service in the CF will be terminated.  The issue is reasonableness.  The rest is just noise.

 

[1] Federal Court File T-1813-21.

[2] Financial Administration Act, RSC 1985, c F-11, ss 7 and 11.

[3] Gallant v The Queen In Right of Canada (1978), 91 DLR (3d) 695 (FC TD).

[4] I ought to add the caveat “… absent accommodation granted under the CDS’ authority …”.  However, as I anticipate that few, if any, CF members will be ‘accommodated’ under the CDS Directives, that caveat becomes increasingly inconsequential.

[5] Lee Berthiaume, “Military members challenge COVID-19 vaccine requirement in Federal Court” (15 December 2021), Canadian Press, online: The Globe and Mail <https://www.theglobeandmail.com/canada/article-military-members-challenge-covid-19-vaccine-requirement-in-federal/>.

[6] Federal Courts Act, RSC 1985, c F-7, s 57.

[7] See, for example, R v Ruzic, 2001 SCC 24, [2001] 1 SCR 687, para 26.

[8] Some might also suggest that a charge could be laid under section 83 of the NDA (refusal of a lawful order) or section 129 of the NDA (conduct prejudicial to good order and discipline).  However, as there is a specific offence for this very issue, I suggest that the proper charge to lay would be under section 126 of the NDA.

[9] There may be some who might speculate that Sgt Kipling had ulterior motives for refusing the vaccination.  I am disinclined to speculate.  Instead, I take the judgments on their face.

[10] National Defence Act, RSC 1985, c N-5 [NDA], s 60(2).

[11] R v Pruden, 2021 ABPC 266 is an illustrative representative case.

[12] NDA, n 10, s 249.27.

[13] As an aside, based upon the wording of the sample remedial measures in the DMCA2 Aide Memoire, the CDS and the CF chain of command appear to view refusal to be vaccinated against COVID-19 as a very serious form of misconduct.  That tends to undermine any potential suggestion that they wish to avoid ‘criminalizing’ such misconduct.

[14] I would also hasten to add that Voltaire’s observations on Byng’s execution were very much in the vein of satire.