Military Chief Sitting on Dozens of COVID-19 Policy Grievances, Tribunal Reports

Military Chief Sitting on Dozens of COVID-19 Policy Grievances, Tribunal Reports
Chief of the defence staff Gen. Wayne Eyre takes part in an interview at Defence headquarters in Ottawa on Oct. 11, 2022. (The Canadian Press/Sean Kilpatrick)
Noé Chartier

Canada’s military chief has yet to address multiple reports from an administrative tribunal that found his vaccine mandate policy to be “unreasonable” and a breach of charter rights.

The Military Grievances External Review Committee (MGERC) told The Epoch Times that, as of Feb. 26, it has sent 58 COVID-19-related findings and recommendation reports to the Canadian Armed Forces (CAF).

“We are not aware of any final decision from the CAF on this matter,” said the committee in a statement. The final authority on the reports is the Chief of the Defence Staff (CDS) General Wayne Eyre.

The Epoch Times contacted the CAF to find out when the reports will be addressed and if Gen. Eyre will do so before retiring this summer. Spokesperson Andrée-Anne Poulin said “it’s important to note” the grievance process is “not yet complete.”

“It’s essential that we take the necessary time to consider all factors,” she told The Epoch Times. “Additional review by the Final Authority, the Chief of Defence Staff, will be conducted.”

The MGERC is also processing an additional 140 grievances related to the CAF’s COVID-19 policies. The committee is an arms-length quasi-judicial body and its decisions are non-binding.

The Epoch Times had reported exclusively on the content of some of the reports issued by MGERC last spring. All of those consulted declared the CAF vaccine mandate “unreasonable” and a violation of members’ charter rights.

Gen. Eyre imposed COVID-19 vaccination as a condition of service in October 2021. In October 2022, the mandate was lightened to allow non-vaccinated individuals to serve but it was kept in place for operational roles.

The Department of National Defence (DND) says that as of October 2022, 108 Regular Force members left voluntarily, citing the mandate as the main reason, while 299 were kicked out over non-compliance. Figures for the Reserves were not provided.

Soldiers who were expelled over the mandate were released under item 5(f), “unsuitable for further service.” Re-enrolment requires the approval from the CDS.

Recent decisions from MGERC seen by The Epoch Times also discuss charter violations. One report signed in mid-December said a soldier who left the ranks voluntarily to avoid vaccination was treated unfairly and his re-enrolment should be facilitated if so he chooses.

“Given my finding that refusing vaccination should not have been considered a conduct deficiency since it was an exercise of a right protected by the charter, and since I also found the CAF COVID-19 vaccination policy unreasonable, I therefore find that the grievor’s release from the CAF, although voluntary, was an unfair outcome for him,” wrote committee member Nina Frid.

Along with recommending re-enrolment, Ms. Frid said the CDS should consider awarding financial compensation to the grievors. This could be done through an ex gratia payment or by going outside the CAF grievance process by referring the file to the Director of Civil Claims and Litigation of the DND, she said.

Making Recommendations Binding

MGERC’s interim chairperson Vihar Joshi appeared at the House of Commons defence committee Feb. 26, as part of its study on transparency issues within DND.
He explained that if the CAF decides not to implement the committee’s recommendations, an explanation must be provided. Some reports related to COVID-19 were issued by MGERC as far back as May last year.
In discussing what could be improved in the process, Mr. Joshi referenced the report of Justice Morris J. Fish, the Third Independent Review of the National Defence Act tabled in 2021.

Mr. Joshi noted the recommendation from Justice Fish that if the CDS does not respond within 90 days to an MGERC report, the findings and recommendations would be binding on the CAF. Justice Fish’s review also recommended looking into whether the final authority on the grievances should be taken away from the CDS.

Right now, Gen. Eyre is “caught,” says lawyer Catherine Christensen who specializes in military law.

“If he agrees with the committee, he admits to charter breaches and having given an unlawful order,” she says. “If he disagrees, he has to justify it. And we know he can’t.”

Ms. Christensen is representing two groups of active and former soldiers, 458 in total, who are suing top defence leadership over COVID-19 policies, claiming abuse of power.

In a statement of defence, the attorney general has called the lawsuits “bald allegations without any material facts necessary to support the causes of action alleged.”