Canada’s defence chief received legal advice from the Office of the Judge Advocate General (JAG) in 2021 that there was no evidence supporting a COVID-19 vaccine requirement for all members and that imposing one would be “fraught with legal risk,” an internal document obtained by The Epoch Times shows.
The document was prepared for Chief of the Defence Staff Gen. Wayne Eyre a few months before the Canadian Armed Forces (CAF) imposed a vaccine mandate.
“There is a subtle difference between ordering a member to be inoculated and indicating that it is required for either service generally (Universality of Service) or for a specific task or occupation (bona fide occupational requirement),” reads the document.
“We have no supporting evidence at this time that there is a need for all CAF members to be inoculated,” the document adds. “Therefore implying that it is required for compliance with U of S [Universality of Service] or a BFOR [bona fide occupational requirement], at this time, would be incorrect.”
The legal advice says the Canadian Armed Forces had an obligation to accommodate members to the point of breaching a “Bone Fide Occupational Requirement (BFOR)” and that “considerable scientific medical evidence” would be required “to substantiate a COVID-19 vaccination as a minimum operational standard.”
The document provides an example of a highly skilled sailor who could not receive the vaccine due to medical contraindication.
“However, a requirement based on the actual needs of the CAF and justified on the basis of scientific and medical evidence would provide the CAF the flexibility to accommodate certain members while allowing for a COVID-19 vaccination requirement, when legally justifiable,” it says.
‘Consent Must Be Voluntary’
Citing prior case law, the document says lawmakers have allowed for the Armed Forces to require mandatory vaccination “under certain limited circumstances,” but members could still refuse by providing a “reasonable excuse.” It adds that there is no clear definition of what a “reasonable excuse” could be at that time.The document also says it’s important that “informed consent” be obtained prior to vaccination.
Consent must be voluntary and “the patient must have the capacity to consent and consent must be informed,” it says.
“Patients must always be free to consent to or refuse treatment, free of any suggestion of duress or coercion. Consent obtained under any suggestion of compulsion either by the actions or words of the physician or others may be no consent at all and therefore may be successfully repudiated. In this context physicians must keep clearly in mind there may be circumstances when the initiative to consult was not the patient’s, but rather that of a third party, an employer or a police officer,” the guideline says.
Based on this guideline, the JAG Office document concludes that, “As such, requiring CAF members to attend an inoculation event whereby they would be peer-pressured to consent could result in a finding that the member did not voluntarily consent to inoculation.”
Citing the Canadian Human Rights Act, the CAF legal department’s document also notes that discrimination based on disability, sex, or religion is forbidden.
“CAF would have to demonstrate, on the basis of sufficient evidence, that the accommodation of the needs of an individual or a class of individuals affected would impose undue hardship on the CAF, considering health, safety and cost,” it says.
Additionally, it talks about the relevance of rights under the Charter of Rights and Freedoms, including the right to life, liberty, and security of the person—as well as “potentially,” freedom of religion. It notes that charter rights “are not absolute and may be limited in accordance with section 1, Reasonable limits.”
It adds that in the event that a member refuses mandatory inoculation on the basis of profoundly held personal believes, “we recommend that legal advice be sought.”
“While each situation presents its own set of facts, it appears likely that a mandatory vaccination order that does not allow for religious accommodation would interfere in a manner that is more than trivial or insubstantial,” the document says.
According to testimony by Vice-Chief of the Defence Staff Lt.-Gen. Frances Allen to a parliamentary committee in April 2022, out of the more than 1,300 CAF members who applied for exemptions on religious grounds or other reasons, only 158 had their requests approved.
The document recommends that any vaccine policy be: based on informed consent, free from physical force, based on scientific medical evidence, and consistent with all Canadian laws. It adds that the policy should be reasonable and in accordance with the Charter of Rights.
When asked about the document, a spokesperson with the Department of National Defence defended the CAF’s decision to implement the vaccination policy.
‘Ignored Every Piece of Advice’
Phillip Millar, a former combat officer who now has his own legal firm and has represented a number of CAF members challenging the vaccination mandate, describes the document as “damning.”“It shows the [chain of command] was aware of the risks, how unnecessary the mandate was, and how it is clear that despite advice from the experts, the politicians ordered the go-ahead against legal advice,” Mr. Millar told The Epoch Times.
He said the document recommends that any type of vaccine policy be carefully crafted to require only what was necessary for operational effectiveness. That advice wasn’t heeded, he said.
“They essentially ignored every piece of advice coming from their own experts,” he said.
“What I think needs to be clear is that the government wanted to use the Canadian Armed Forces as an example to the public to enforce a universal mandate, and so they ignored the experts within the Canadian Armed Forces and ordered it anyhow.”
Mr. Millar said a reasonable vaccination policy would consider, for example, the case of a contained environment, such as a submarine, and have certain requirements in that situation.
“Instead, what they said is, everybody will get it and if you don’t get it, we’re going to fire you and destroy your life,” he said.
Since the earlier days that COVID-19 vaccines were first developed, it has now been shown that they don’t prevent transmission or infection.
‘Ensuring Our Operational Readiness’
The Canadian Press previously reported that an August 2021 briefing note presented to Gen. Eyre had said that requiring a vaccine mandate for all CAF members was unnecessary, and that doing so “may not constitute a legal order.”Gen. Eyre told The Canadian Press in late 2022 that it was one of several legal opinions that he received.
Lawsuits
Besides individual lawsuits, a group of around 330 active and former CAF members who said they were harmed by COVID-19 vaccine mandates have filed a class-action lawsuit against high-ranking members of the military, seeking some $500 million in damages.The lawsuit, launched in June 2023, claims that the military abused its power by ignoring legislative limits on its actions, allowing the physical and/or psychological harm of unvaccinated members under the command of CAF-commissioned officers, ignoring established law on the right to privacy and the right to choose medical treatment, and ignoring established law on informed consent and regarding religious and spiritual belief.
“I conclude that the limitation of the grievors’ right to liberty and security of the person by the CAF vaccination policy is not in accordance with the principles of fundamental justice because the policy, in some aspects, is arbitrary, overly broad and disproportionate,” wrote Nina Frid of the Military Grievances External Review Committee.
The committee’s findings, which are non-binding, are sent to Gen. Eyre for consideration.
