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A military administrative tribunal has found the Canadian Armed Forces’ (CAF) COVID-19 vaccine mandate violated the charter rights of members who refused vaccination and said the policy was “arbitrary” in some aspects and “overly broad.”

“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 (MGERC) in a May 30 decision.

“Therefore, I conclude that the grievors’ rights protected under Section 7 were infringed.”

The military imposed a vaccine mandate on the troops in the fall of 2021 and non-compliance led to the CAF losing hundreds of members. They left through voluntary releases or expulsion under code 5(f), “unsuitable for further service,” a dishonourable discharge reserved for soldiers with “personal weaknesses” or other issues imposing an excessive burden on the CAF.

Frid cited a recent court decision by the Superior Court of Quebec, in which it did not accept the Attorney General’s argument that the employees were not forced to be vaccinated as, while they theoretically had a choice on whether to accept it, “the consequences of a refusal are such that this choice is not really a choice.” She said that as such, the CDS Directives violated the grievors’ right to liberty to make their own decisions regarding medical treatment.

Frid also cited a case about the constitutionality of Transport Canada’s COVID-19 vaccination policies, where the court said employees’ right to security of the person was engaged. She said that given that CAF members experienced stresses to their livelihoods and physical and psychological integrity, their rights to the security of the person “is also engaged in some cases.”

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