The Canadian military ignored legal counsel while implementing a vaccine mandate, as indicated by an internal document.
In 2021, Canada’s Chief of Defence Staff, Gen. Wayne Eyre, received legal advice from the Office of the Judge Advocate General (JAG) indicating no evidence supporting a COVID-19 vaccine requirement for all Canadian Armed Forces (CAF) members.
The internal document, dated Feb. 2, 2021, highlighted potential legal risks and referenced guidelines cautioning against obtaining vaccine consent under employer compulsion. The JAG’s document noted a subtle difference between ordering inoculation for a specific task (bona fide occupational requirement) and a broader mandate for service (Universality of Service). It emphasized the lack of supporting evidence for a universal vaccine requirement for all CAF members.
Despite this advice, the CAF implemented a vaccine mandate in October 2021, applicable to members in domestic and international postings. The directive claimed it was necessary for work-related duties. The internal document raises questions about the decision’s alignment with legal advice and evidence available at the time.
After the mandate’s enforcement, numerous members departed voluntarily or faced expulsion. Official military data disclosed over 300 adverse reactions, with 23 classified as serious. The legal counsel emphasized the Canadian Armed Forces’ duty to accommodate members, potentially breaching a “Bona Fide Occupational Requirement (BFOR).” It stressed the need for “considerable scientific medical evidence” to establish COVID-19 vaccination as a minimum operational standard. The document suggests a CAF requirement aligned with its actual needs and backed by scientific evidence would offer flexibility. While emphasizing members’ obligation to obey lawful orders, it cautions that mandating medical procedures poses legal risks. Referring to precedent, it notes lawmakers permit mandatory vaccination under specific circumstances, allowing members to refuse with a “reasonable excuse,” yet the document acknowledges the absence of a clear definition for such an excuse at that time. The document underscores the importance of obtaining “informed consent” before vaccination, emphasizing the voluntary nature of consent. It specifies that patients must possess the capacity to consent, and their consent should be informed. Referring to guidelines from the Canadian Medical Protective Association, it highlights the necessity for patients to freely consent or refuse treatment without any hint of duress or coercion. The guidelines caution that consent obtained under suggestions of compulsion may be considered invalid and can be repudiated, particularly when initiated by a third party such as an employer or a police officer.
Following the guideline, the JAG Office document asserts that requiring CAF members to participate in an inoculation event with peer pressure could invalidate voluntary consent. Referencing the Canadian Human Rights Act, the CAF legal document highlights the prohibition of discrimination based on disability, sex, or religion. It emphasizes the CAF’s obligation to demonstrate, with sufficient evidence, that accommodating individual or class needs would impose undue hardship, considering health, safety, and cost.
The document also addresses Charter of Rights and Freedoms rights, including life, liberty, and security of the person, and potentially freedom of religion. However, it acknowledges that charter rights are not absolute and may be limited under section 1 for reasonable constraints. In cases where a member refuses mandatory inoculation based on deeply held personal beliefs, the document recommends seeking legal advice. It suggests that a mandatory vaccination order without religious accommodation could likely result in more than trivial interference. As per Vice-Chief of the Defence Staff Lt.-Gen. Frances Allen’s testimony to a parliamentary committee in April 2022, among the 1,300 CAF members seeking exemptions for religious or other reasons, only 158 had their requests approved.
