Revised Annex I — Constitutionality of the Canadian Armed Forces COVID-19 vaccination policy

Date: 11 December 2024

On this page

• Purpose
• Context for the CAF COVID-19 vaccination policy
• Position of the CAF
• Analysis
• Findings

Purpose

The aim of this revised Annex I is to provide additional analysis on the constitutionality of the Canadian Armed Forces (CAF) Vaccination Policy, taking into consideration recent Chief of the Defence Staff (CDS) decisions as a Final Authority in grievances where he disagreed with the Committee’s findings regarding the infringement on the CAF members’ rights under the Canadian Charter of Rights and Freedoms (the Charter).^{Footnote 1}

This analysis explains that the scope and consequences of non-compliance with the mandatory CAF vaccination policy (the policy) interfered with the grievors’ fundamental rights to liberty and security of the person protected under section 7 of the Charter. In some instances, the limitations imposed by the policy were arbitrary, overly broad and grossly disproportionate. While the policy pursuant to CDS directives was serving a pressing and substantial objective during the COVID-19 pandemic, it did not ensure that the limitations of the grievors’ liberty to refuse a medical treatment were proportional to that objective. The CAF also failed to show that the limitations were carefully tailored to the circumstances and could be justified in a free and democratic society under section 1 of the Charter.

Context for the CAF COVID-19 vaccination policy

On January 25, 2020, the first case of the COVID-19 virus was identified in Canada. Due to the highly contagious nature of the virus, other cases were quickly identified. The Government of Canada implemented public health measures to limit the impact of the virus.

On 11 March 2020, the World Health Organization (WHO) assessed the situation related to the spread and severity of illness caused by the COVID-19 virus and declared it a pandemic.^{Footnote 2} In the first months of the pandemic, CAF members were deployed to long-term care facilities in Québec and Ontario under Operation LASER,^{Footnote 3} supported northern and remote communities, assisted the Public Health Agency of Canada in managing and distributing personal protective equipment, and helped Public Health Ontario with contact‑tracing efforts. The CAF also provided support for the distribution of COVID-19 vaccines through Operation VECTOR.^{Footnote 4}

In May 2020, the CAF and the Department of National Defence issued the Deputy Minister (DM)/CDS joint directive – Department of National Defence (DND)/CAF COVID-19 public health measures and personal protection,^{Footnote 5} and the Joint CDS/DM Directive for the Resumption of Activities.^{Footnote 6} The intent was to maintain a level of readiness commensurate with the CAF’s mandate while ensuring the safety of all CAF members.

On 9 December 2020, Health Canada authorized the first vaccine against COVID-19 and mass vaccination efforts began across Canada later that month.^{Footnote 7}

On 6 January 2021, the CAF launched a vaccination campaign where the priority was afforded to CAF members serving in higher-risk settings given their occupation and duties.^{Footnote 8} In the roll-out message, the CAF Surgeon General stated that COVID-19 vaccination would not be mandatory in every instance, but could be required by the chain of command for certain operations or positions.

Between April and June 2021, the CAF completed its first COVID-19 Immunization Campaign for all individuals entitled to CAF medical care. According to the CAF, this campaign was successful.

On 6 October 2021, the Treasury Board Secretariat announced the Policy on COVID-19 Vaccination for the Core Public Administration Including the Royal Canadian Mounted Police (RCMP). The policy applied to DND employees, but not to CAF members. It required all public servants and on-site contractors to be fully vaccinated, regardless of their place of work. It also directed that non-compliant employees be placed on leave without pay. Accommodation measures were available to employees who could demonstrate that they were unable to get vaccinated for reasons related to the protected grounds of discrimination.^{Footnote 9}

On 8 October 2021, the CDS issued the first directive on CAF COVID-19 vaccination.^{Footnote 10} It introduced mandatory vaccination as a requirement for all CAF members to perform work-related duties. It explained that vaccines are effective at preventing severe illness, hospitalization, and death from COVID-19, and that the number of outbreaks decreases with increased vaccination coverage in the population. The directive announced that DND and the CAF implemented a Layered Risk Mitigation Strategy (LRMS) relying on public health measures such as physical distancing, mask-wearing, hand-washing, and work from home. The directive stated that the early implementation of this strategy enabled a safe workplace with minimal transmission of the virus.

The directive affirmed that the CAF’s voluntary vaccination campaign was “highly successful” with 91% of all members being fully vaccinated with two doses. It explained that vaccination is not a substitute for following public health measures; rather, it adds an additional layer of protection. The directive explained that, at the time, the Canadian population had not achieved sufficient vaccination uptake and that the need for public health measures would be ongoing until sufficient widespread immunity is attained in Canada. It stated there were indications that “vaccine mandates” may be effective in increasing vaccine coverage rates in the population, and that the Government of Canada announced its intent to require vaccination across the federal public service. The directive also stated that, to demonstrate leadership, the CAF abides by the general spirit of the federal policy.

The directive divided members into three groups: the “fully vaccinated,” the “unable” to get vaccinated and the “unwilling” to get vaccinated. Members had to attest to their vaccination status in the Monitor Military Administrative Support System (Monitor MASS) by 15 November 2021. The directive stated that accommodation under the Canadian Human Rights Act^{Footnote 11}(CHRA) for those individuals who were unable to be vaccinated should not be punitive and should be provided up to the point of undue hardship. The directive specified that accommodation measures could include remote work / telework arrangement if operationally feasible, testing if access to the workplace was required and alternative workplace or work schedule.^{Footnote 12} It stated that a CAF member’s unvaccinated status may have additional career implications, including loss of opportunities contributing to promotion, such as inability to attend career courses, deployments, domestic and international travel restrictions. It stated that CAF members unwilling to disclose their vaccination status or those who are not accommodated under the CHRA may be subject to remedial or alternative administrative measures. The directive also stated that it was a “temporary measure” with an “anticipated initial implementation period of 12 months, with the potential for extension as required.” It was announced that the measure “will be terminated once the domestic transmission rate of COVID-19 in Canada no longer poses a risk to the national healthcare system”.^{Footnote 13}

On 3 November 2021, the CDS issued a second directive on the CAF COVID-19 vaccination policy. It set out the requirements for requesting an exemption or accommodation on medical, religious or other protected grounds of discrimination.^{Footnote 14} Directive 002 reiterated the CAF’s commitment to abide by the Government of Canada’s policy on vaccination. It stated that adherence to the policy was an expected behaviour for all CAF members and that those who do not comply would be considered in breach of the DND and CAF Code of Values and Ethics. It also provided that unvaccinated members - unless exempted for operational reasons or accommodated under the CHRA where feasible - would not be employed or undergo training on Royal Canadian Navy vessels, Royal Canadian Air Force aircraft or a Canadian Army fighting or field vehicle; be posted outside Canada, be deployed on international or domestic operations; or participate in in-person collective training.

Directive 002 emphasized the chain of command’s (CoC) obligation to initiate administrative action towards members who refused vaccination or refused to disclose their vaccination status. CAF members that have not complied would be placed on remedial measures for misconduct for a period of 14 days, to allow them to “overcome their conduct deficiency” by getting vaccinated. Members who remained unwilling to be vaccinated following the imposition of remedial measures would be subject to release from the CAF. Directive 002 explained that members could not request leave without pay, and clarified that mandatory vaccination also applied to CAF members authorized to work remotely.

On 8 November 2021, the Director Military Career - Administration (DMCA) issued the “Aide-Memoire - CDS Directive 002 on CAF COVID-19 Vaccination Implementation of Accommodations and Administrative Action”, providing direction and templates to the CoC for the issuance of remedial measures and release procedures for non-compliance with the CDS directives.^{Footnote 15}

On 22 December 2021, the CDS issued Directive 002 - Amendment 1 that reiterated the Directive 002 provisions, albeit with a few modifications and clarifications.^{Footnote 16} This directive stated that unvaccinated members could elect to initiate a release on a voluntary basis or transfer to the supplemental reserve.^{Footnote 17} These members were not exempt from remedial measures untilthey were released from the CAF. The directive also applied to members in the process of being released for medical or other reason, including members on periods of retention and those undertaking vocational rehabilitation program for serving members. The directive stated that unvaccinated members in those situations were not exempt from remedial measures and administrative review for non-compliance with the CAF’s vaccination policy and could see their release expedited under Queen’s Regulations and Orders for the Canadian Forces (QR&O), Section 15.01, item 5(f) of the Table, Unsuitable for further service.^{Footnote 18}

In February 2022, the Chief Military Personnel issued [Canadian Forces General Message (CANFORGEN)] 012/22 - APPLICATION OF [Defence Administrative Orders and Directives (DAOD)] 5019-2 - ADMINISTRATIVE REVIEW IN RESPONSE TO CDS DIRECTIVES ON CAF COVID-19 VACCINATION. It reinforced CDS Directive 002, reiterating the direction to the CoC to initiate administrative reviews towards all members who remained non-compliant. It stated that the requirement of DAOD 5019-2, Administrative Review to consider the totality of the member’s career and other criteria did not apply to administrative reviews where members were being released solely as a result of non-compliance with the CDS directives on vaccination against COVID-19.

On 21 March 2022, the CAF issued the [Canadian Forces Military Personnel Instruction] 01/22 - Changing a Place of Duty and the Use of Postings to Enable Remote Work Options^{Footnote 19} that established the CAF’s first framework for authorizing postings to remote work and telework for periods of up to two years.^{Footnote 20}

On 14 June 2022, the Government of Canada announced that the vaccination requirement for the Core Public Administration, including the RCMP, was suspended effective 20 June 2022. During the suspension, employees were not required to be vaccinated as a condition of employment. Employees who were placed on administrative leave without pay for non-compliance with the Policy were returned to regular work duties.^{Footnote 21}

On 16 June 2022, the CAF acknowledged the suspension of the vaccination policy for the public service and stated that the CAF was assessing the need for an amendment to the CDS directives on COVID-19 Vaccination. The message also stated that the CDS Directives remained in effect.

On 11 October 2022, the CDS issued CDS Directive 003.^{Footnote 22} It supersedes all previous directives on vaccination and ended the requirement for all CAF members to be vaccinated, unless accommodated, effective as of 11 October 2022. This directive states that the requirement to be vaccinated against COVID-19 was now driven by operational necessity. Vaccination is still required for employment in certain positions and on certain operations. The requirements focus on high- readiness, deployable, or core missions or tasks where an illness would create a risk to an individual and/or the mission. The directive states that best scientific evidence indicated that a COVID‑19 primary series vaccination protects against severe illness and hospitalization, and limits the likelihood of operationally high impact events requiring medical evacuation. The directive indicates that vaccination was no longer a prerequisite for enrollment. Attestation of vaccination status via Monitor Mass remains a requirement under Directive 003.

Directive 003 states that members who have not received their primary vaccine series no longer required accommodation but may continue to be ineligible to perform certain duties. It encourages all CAF members to be fully vaccinated. Directive 003 remains in force and requires members assigned to specific units or positions to be vaccinated: members assigned to high readiness units and members that could be employed in isolated areas where access to medical care is limited or where vaccination is a prerequisite of entry. Vaccination against COVID-19 is no longer a mandatory requirement for all other personnel.

Directive 003 states that the change in the CAF COVID-19 vaccination policy was not retroactive. The administrative reviews for which a release decision was rendered will still be actioned; those not yet completed will be closed. Any remedial measures will remain on personnel files of members as a record of non- compliance with a lawful order, however, monitoring periods had to be concluded. Additionally, members employed in positions or functions requiring vaccination who have not completed their primary vaccination series and choose not to, shall be reassigned to roles or units designated as not requiring a vaccination (para 14(d)). It states that the policy will be reviewed and updated as the pandemic situation evolves. It also directs the review and consideration of cancellation of CANFORGEN 012/22 stating that the provisions of DAOD 5019‑2, Administrative Review do not apply to CAF members being released under the CAF’s vaccination policy.^{Footnote 23}

In June 2024, the previous CDS rendered decisions as a Final Authority in four grievances concerning the constitutionality of the vaccination policy against COVID-19 pursuant to his directives on vaccination.^{Footnote 24}

On 20 August 2024, the grievor in Committee file 2023-023 filed a Notice of Application for Judicial Review of the CDS decision. The grievor is seeking apologies and damages alleging that the CDS “based his decision on an erroneous finding of law ...”^{Footnote 25}

On 4 October 2024, the Treasury Board rescinded the Policy on COVID-19 Vaccination for the Core Public Administration Including the Royal Canadian Mounted Police.

Position of the CAF

In this section

• The Chief of the Defence Staff
• The Vice Chief of the Defence Staff
• Strategic Joint Staff Director General, Plans
• Public Health Agency of Canada
• Health Canada

The Chief of the Defence Staff

The previous CDS, acting as a Final Authority, disagreed with the Committee’s recommendation to uphold the grievances and acknowledge that his directives ordering all CAF members to get vaccinated were unconstitutional. The CDS concluded that the vaccination requirement did not engage the grievor’s rights to liberty and security of the person protected under section 7 of the Charter. He stated that, if those rights were engaged, the restrictions would be in accordance with the principles of fundamental justice and be justified through proportionality analysis under section 1 of the Charter. He stated that his intention when issuing the CAF COVID-19 Vaccination Policy was to “preserve CAF operational readiness, effectiveness, and critical capabilities by protecting CAF members from the spread of COVID-19 and from the risk of serious illness and death”. The CDS stated that “… unvaccinated CAF members could not contribute to maintaining our operational effectiveness and interoperability in the same way as vaccinated personnel.”

The CDS stated that the CAF vaccination requirement did not compel the grievors to get vaccinated without their consent. “Instead, these orders provided all CAF members with a clear choice between two alternatives: either attest to your status as being fully vaccinated or be subject to specific service-related consequences for your decision not to attest and remain unvaccinated.” He stated that CAF members remained free to make fundamental personal choices about medical treatment. The CDS concluded that the Committee’s findings and recommendations (F&Rs) did not consider the context in which the CAF COVID-19 Vaccination Policy was issued. He explained that the policy was not issued in a “employer-employee” context because CAF members are not in a contractual relationship with the Crown, but in a unilateral commitment. He also explained that military duty is unique and that, at the time, that duty required all CAF members to obey his order to get vaccinated with dedication, initiative, and discipline. The CDS also disagreed with the Committee’s finding that the service-related consequences of non-compliance with the mandatory vaccination requirement could also engage the grievors right to the security of the person. He explained that section 7 of the Charter does not generally encompass economic rights, nor the right to earn a living through a particular profession.

The CDS found that the CAF mandatory vaccination requirement was rationally connected to the policy objectives, was not overbroad or grossly disproportionate. He found that if the CAF vaccination requirement did engage the rights protected under section 7 of the Charter, it would have been consistent with the principles of fundamental justice. The CDS pursued his analysis under section 1 of the Charter to respond to the Committee’s arguments. He found that his order to get vaccinated or be released would be justified, considering the context of the COVID-19 pandemic and the need to meet the pressing substantial objective of the CAF vaccination policy.

The Vice Chief of the Defence Staff

Prior to issuing its findings and recommendations for the initial grievances^{Footnote 26} and before Final Authority decisions in these grievances, the Committee sought input from the CAF to understand what information and considerations played a role in developing its approach. The Committee explained that it received several grievances from CAF members, disputing the constitutionality of the CDS Directives on COVID-19 Vaccination, particularly the portions concerning members “unwilling” to be vaccinated. The Committee also explained that several grievors contended that the requirement to be vaccinated to remain employedwithout further consideration, infringed on their rights to life, liberty and security of the person. In response, the previous Vice Chief of the Defence Staff (VCDS), who was identified as the Office of Primary Interest in the CDS Directive 002, explained to the Committee that no CAF member was forced to receive medical treatment. She stated that the CAF maintained the members’ right to refuse medical treatment, but that their right is distinct from the potential loss of employment for failure to comply with the CDS orders to be vaccinated. She explained that the purpose and intent of [Director Medical Policy Instructions] 4030-57 (MSI 4030-57, Consent to Medical Treatment) was to allow members to freely choose whether they receive medical treatment, but that “This does not mean that there are no consequences for refusing”.^{Footnote 27}

In her comments, the VCDS referred the Committee to the Attorney General’s memorandum in Neri concerning the Government of Canada’s vaccination policy,^{Footnote 28} including all the experts’ affidavits that were presented by the CAF and public health officials. The Committee compiled all of those documents as forming part of the CAF’s position under Appendix 3 to this Annex. The VCDS explained that the CAF was directed to impose a vaccination mandate equivalent to the Government of Canada’s policy for the public service and the RCMP. The VCDS explained that the CAF was unable to place non-compliant members on leave without pay, as was the case with the federal public servants. She explained that the CAF leave policy manual, at chapter 8, precludes the CDS from directing members on leave without pay. She explained that there was no time for the CAF to quickly amend its leave manual permitting to follow the timelines for the Government of Canada’s vaccination policy.

The VCDS explained that “the CAF considered all possible avenues when determining the most effective method of complying with the government of Canada direction regarding public servants [sic throughout]”. She noted that all public servants who did not comply with the directive to vaccinate were to be placed on leave without pay, with the intent that their employment would eventually be terminated.

Strategic Joint Staff Director General, Plans

At the same time, the Committee also sought clarification from the Strategic Joint Staff Director General of Plans, responsible for the development and implementation of the CDS directives, to assess whether the CAF considered other options than ordering all CAF members to get vaccinated to remain employed. The Committee asked whether the CAF considered the possibility of employing the “unwilling” members under alternatives and restrictions, as allowed for unvaccinated members who were accommodated. He answered:^{Footnote 29}

No. CDS made it clear in his policy that the importance of being vaccinated in order to protect the Force was based on solid medical grounds that justified the mandatory aspect of this policy to all CAF members without any exceptions. As with every policy, accommodation process has been put in place for those members who had pre-accepted conditions that would not allow them to comply even if willing to. That said, being unwilling was never an option and the policy even made COVID-19 vax a permanent condition of employment to be enrolled in the CAF.

In the affidavit filed in Neri,^{Footnote 30} the Director General of Plans also explained the context of the CDS directives on COVID-19 vaccination, for which he was responsible. He explained that the CAF has enabled a safe workplace with minimal transmission of the virus through the diligent application of public health measures prior to vaccination being made available in Canada. The CAF’s strategy relied heavily on public health measures, such as physical distancing, wearing nonmedical masks, hand-washing, and dispersed (mix of home and workplace) or work from home postures where operationally feasible.

With respect to the latter measure, the Director General of Plans explained that the COVID-19 pandemic demonstrated how much can be accomplished through a dispersed and remote workplace. However, he also explained that many CAF tasks cannot be successfully accomplished this way. He specified that CAF members completing critical missions or working in situations where physical distancing is not possible may be required to take additional safety measures, such as operational testing for COVID-19. He noted the CAF’s contribution to the Government of Canada’s COVID-19 response and vaccine roll-out operations.

Concerning vaccination, he explained that the CAF encouraged vaccination of its members once Health Canada approved four COVID-19 vaccines for use in Canada. The Director General of Plans added that the CAF’s healthcare system was allocated a quantity of COVID-19 vaccines in April-June 2021 to vaccinate all individuals entitled to CAF medical care. The CAF COVID-19 Immunization Campaign was successful as the CAF reached a 91% vaccination rate (with an additional 2% of members partially vaccinated) by the beginning of October 2021. This uptake rate provided an important level of force protection to CAF members, enabling the relaxation of public health measures in some locations, as well as facilitating the commencement of the reconstitution of the CAF. The Director General of Plans explained that the CAF has a general duty to ensure, where possible, the health and safety of all its members in the workplace. He mentioned that the CAF vaccination policy development process was informed by the scientific evidence provided by the Public Health Agency of Canada, and that it was an evergreen document. He explained that vaccination is an important complement, not a substitute, to the recommended public health measures.^{Footnote 31}

Public Health Agency of Canada

The Public Health Agency of Canada (PHAC) advised that COVID-19 vaccines are critical to improving the functioning of society and to achieving widespread immunity. The evidence indicated that the vaccines are very effective at preventing severe illness, hospitalization and death from COVID-19 and that the number of outbreaks decreases with increased vaccination coverage in the population.

The PHAC’s draft report dated 17 August 2021 indicates the following:^{Footnote 32}

Most recent modelling and forecasting studies indicate that with the current vaccination coverage levels, although very good, the healthcare capacity could be exceeded during this [fourth] wave. To minimize this possibility, 80% or more of all eligible age groups would need to be fully vaccinated. However, overall 2-dose coverage for the eligible general population in Canada is 71.3% and much lower in the lower age groups (51% in the 18-29 year olds) as of mid-August 2021 …”

…

Being unvaccinated has become an important risk factor for hospitalization. Since May 1, 2021 the COVID-19 hospitalization rates among unvaccinated populations are considerably higher than the hospitalization rates for both partially and fully vaccinated populations.

…

Presently, those who are unvaccinated are at greatest risk of infection and severe outcomes. Spread in areas with low vaccination coverage presents an ongoing risk for emergence of, and replacement by, new variants.

Regarding the risks of transmission of the virus, the report notes that earlier studies had shown that vaccination helped reduce transmission, as vaccinated persons were “less infectious”.^{Footnote 33}

However, the affidavit refers to more recent studies pertaining to the Delta variant, showing that “… high viral loads in some breakthrough cases in fully vaccinated people which can be as high as in unvaccinated people”. The report also explains that the benefits of vaccination outweigh any safety risks when compared to the possible side effects. The agency strongly recommends that all eligible Canadians receive a full course of vaccines as soon as possible. The PHAC’s report explains that workplaces have been a frequent setting for outbreaks, mostly in settings where physical distancing was difficult, working remotely not possible and public health measures challenging to implement. It also notes that several workplace settings have succeeded in minimizing transmission with proper infection control measures in place. The PHAC explains that vaccines, when paired with other measures, such as wearing masks, hand-washing, ensuring good ventilation indoors, physically distancing and avoiding crowds, can protect the health and wellbeing of employees.

Concerning the implementation of vaccine mandates, PHAC’s draft report referenced by the CAF in their response to the Committee states that:

Vaccine uptake has plateaued and other countries are facing this challenge. To stimulate uptake, an increasing number of countries as well as provinces and territories are implementing or contemplating vaccine mandates or passports for specific sectors. The impact of these vaccine policies on vaccine uptake will be better known as they roll out.

For non COVID-19 vaccines, vaccine mandates exist and they can be effective to increase uptake. This strategy is mostly effective for individuals that are complacent or not prioritizing vaccination in their day to day life. Other strategies that are more dialogue based are effective to motivate vaccine hesitant individuals. Combination of strategies are most effective to optimize uptake.

…

This highlights the importance of continuing efforts to increase vaccine uptake in Canada, with at least 80% of the all eligible age groups fully vaccinated, given that the Delta variant is much more contagious than previous strains/variants circulating in Canada and a complete two-dose series of COVID-19 vaccine provides substantial protection against the variant.

At the time of the report, it was expected that only 51.3% to 73.1% of the federal public service employees would be fully vaccinated. The report explains that vaccine requirements in daycare settings, schools and colleges/universities could increase vaccine coverage by 18%. It states that the effectiveness of vaccine mandates is impacted by the ease of obtaining exemptions, the consistency of the enforcement and “is less clear when the baseline immunization rate is already high”. The report also notes that vaccine mandates generally have exemptions and does not require the exclusion of the unvaccinated, unless there is an outbreak.

Health Canada

In another affidavit filed in the Neri injunction case, the Director General, Biologic and Radiopharmaceutical Drugs Directorate, Health Products and Food Branch, Health Canada presented information about the COVID-19 vaccination development and approval process.^{Footnote 34} She explained the functioning of mRNA vaccines and reiterated that the benefits associated with the authorized vaccines outweigh the risks of reported side effects.^{Footnote 35} She also explained that studies have revealed that the virus is most frequently transmitted when people are in close contact with others who are infected (either with or without symptoms) and that most transmissions occur indoors. Individual, social and occupational factors affect vulnerability to the COVID-19 illness, for individuals such as healthcare workers, emergency workers who have a high degree of social contact, and for international business travelers.^{Footnote 36} She explained that the goal of Canada’s COVID‑19 pandemic response and recovery was to minimize serious illness and overall deaths, while minimizing societal disruption using a risk management approach. To maximize mitigation efforts, a layered approach should be used by applying multiple measures together aimed at reducing the risk of COVID-19 spread.

In her affidavit, the Director General also explained that it is reasonable to take active measures to control the spread. For example, by reducing the potential for the spread of the COVID-19 virus in Government of Canada’s facilities, Canada will protect Canadians, including those in the employment of the Government of Canada. This will help reduce the burden that individuals infected with COVID-19 place on the provincial acute and emergency care medical systems. Additionally, Canada will help ensure continued operation of those facilities despite continued public transmission of COVID-19 and its variants by reducing the likelihood of transmission at those facilities among staff.

Analysis

In this section

• Scope of the Analysis
• CDS Jurisdiction to Address Questions Pertaining to the Charter and Constitutionality
• The Rights to Liberty and Security of the Person under Section 7 of the Charter of Rights and Freedoms
• Principles of Fundamental Justice under Section 7 of the Charter of Rights and Freedoms
• Is the Limitation of Grievors’ Right to Liberty justified under Section 1 of the Charter of Rights and Freedoms?
• Adequate Remedy

Scope of the Analysis

The Committee has received about 200 grievances in which most grievors challenge the legality of the CDS directives on mandatory CAF COVID-19 vaccination and their application. As noted above, the earlier CDS directives were superseded by directive 003 on 11 October 2022, significantly narrowing the scope of the CAF’s vaccination policy. To clarify, the content of the CDS directive 003 is not under review in this Annex. Rather, the Committee is reviewing the constitutionality of the previous CDS directives - the first directive, directive 002 and directive 002 amended - since their consequences are still applicable and valid for most grievors. As such, remedial measures already issued remain in place and the release processes initiated proceeded. The following analysis is relevant to the majority of similar grievances before the Committee. The use of this Annex, addressing common issues, is intended for consistency, clarity and streamlining of the review process for all relevant cases. It forms an integral part of my findings and recommendations for all relevant cases and must be read in conjunction with individual findings and recommendations reports.

CDS Jurisdiction to Address Questions Pertaining to the Charter and Constitutionality

The Charter at paragraph 24(1) provides that anyone whose guaranteed rights or freedoms have been infringed or denied may apply to a court of competent jurisdiction to obtain appropriate and just remedy. A court of competent jurisdiction is one that has jurisdiction to grant redress.^{Footnote 37} The underlying principle is that “Canadians should be entitled to assert the rights and freedoms that the Constitution guarantees them in the most accessible forum available, without the need for parallel proceedings before the courts”.^{Footnote 38}

The Committee and the Final Authority addressed questions pertaining to CAF members’ fundamental rights protected by the Charter in prior grievances.^{Footnote 39} Subsection 18(1) of the National Defence Act^{Footnote 40} (NDA) states that the CDS is “charged with the control and administration of the Canadian Forces”. Under subsection 29(1) of the NDA, CAF members who believe they are aggrieved can submit grievances against “any decision, act or omission in the administration of the affairs of the Canadian Forces for which no other process for redress is provided under this Act”. The courts noted that the scope of section 29 of the NDA is “the broadest possible wording that accommodates any and every wording, phrasing, expression of injustice, unfairness, discrimination, what-not”.^{Footnote 41} The Federal Court also explained that an order from the CDS has to be consistent with the Constitution to be legal.^{Footnote 42} Although the CDS directives are not “regulations” per se,^{Footnote 43} the Charter and its values apply to binding policies of a general application and to individual administrative decisions.^{Footnote 44}

The Federal Court reiterated the principle that members of the CAF must exhaust the grievance process. It stated that the grievance process can address the CAF members’ Charter claims against the CDS directives on COVID-19 vaccination.^{Footnote 45} While his authority to grant financial compensation is limited, the CDS has the authority to cancel and modify the directives on vaccination, as directed by paragraph 52(1) of the Constitution, if he finds that they are unconstitutional. The CDS can also cancel remedial measures, overturn decisions to release CAF members and direct re-enrolment when feasible. Therefore, as I previously found, the CDS has jurisdiction to determine whether the CAF’s vaccination policy is constitutional. As a Final Authority in the initial grievances^{Footnote 46} referred to the Committee, the previous CDS agreed with having such jurisdiction.

The Rights to Liberty and Security of the Person under Section 7 of the Charter of Rights and Freedoms

As explained in the following analysis, I find that the CDS’ orders mandating that all CAF members must get vaccinated to remain employed in the CAF interfered with the grievors’ right to liberty and potentially engaging their right to security of the person protected by section 7 of the Charter. The Charter states:

7. 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.

To show an infringement on the right to liberty and security of the person, the grievors must satisfy two-part criteria. They must show that: (1) one of the three protected interests (life, liberty, or security of the person) is engaged and (2) that the deprivation is not in accordance with the principles of fundamental justice.^{Footnote 47}

The Right to Liberty

CAF Members’ Unilateral Commitment to the Crown

The CDS found that the Committee’s F&Rs did not consider the specific context of the CAF Vaccination Directives. He referred to the well-established principle that CAF members are not in a contractual relationship with the Crown; but in a unilateral commitment.^{Footnote 48} He went on to say that the military is unique and requires CAF members to respond to crises, deployments, or urgent tasks, sometimes with little or no notice and sometimes with limited preparation.

As the CDS mentions, it is settled law that CAF members do not enjoy a contractual employment relationship with the Crown. In Gallant, the Federal Court stated that “a person who joins [the CAF] enters into a unilateral commitment in return for which the Crown assumes no obligation.” This principle precludes CAF members from submitting claims of wrongful dismissals, as the employment law principles do not apply to the relationship between the Crown and its soldiers.^{Footnote 49} Those statements are correct and not disputed, but the CDS does not explain how this principle is relevant to the issue of constitutionality of his mandatory vaccination orders. As the CDS recognizes, the Charter applies to his orders.^{Footnote 50} In recent cases, the Federal Court stated that the grievance process has competence to address the CAF members’ Charter claims against the CDS directives on CAF COVID-19 vaccination.^{Footnote 51} The obligation for CDS orders to comply with the Charter provisions is not altered, in my view, by the nature of the unilateral commitment of CAF members to the Crown.^{Footnote 52} There is no disagreement on the issue of uniqueness of the CAF service and the relevance of context to a determination concerning the application of the Charter, yet, these factors do not exempt the CDS’ orders and directives from the application of the Charter.

Freedom to Refuse Medical Treatment

The right to liberty protects the freedom of all capable adults to make their own choices concerning their medical care and treatment, including decisions to refuse vaccination. The Charter does not protect all activities that a person defines as central to his or her lifestyle,^{Footnote 53} but choices pertaining to medical care are connected to personal autonomy and dignity. It must also be noted that the protection of the right to liberty under section 7 commonly applies to criminal and immigration matters where the state can physically restrain individuals through imprisonment or deportation.^{Footnote 54} However, the right to liberty is not restricted to mere freedom from physical restraint.^{Footnote 55} It also protects personal autonomy and dignity that includes the right to make inherently private choices such as accepting or refusing medical treatment.^{Footnote 56} Courts have also recognized a common law right of patients to refuse consent to medical treatment, or to demand that treatment, once commenced, be withdrawn or discontinued. This freedom was found to be protected even in cases where the medical care or treatment could have been beneficial to the person’s health and when the refusal was likely to lead to death.^{Footnote 57}

In his decisions as a Final Authority, the CDS found that his order to get vaccinated to remain employed withing the CAF did not engage the grievors’ right to liberty or security of the person. In his view, the grievors failed to meet the first part of the criteria under section 7 of the Charter. The CDS stated that “The right to liberty includes the freedom of all capable adults to refuse medical treatment and to make reasonable medical choices without the threat of criminal prosecution.” In his view, the mandatory CAF vaccination requirement did not compel the grievors to get vaccinated without consent or against their will. He stated that:

… the CAF Vaccination Directives presented some CAF members with a difficult choice: get the vaccine or be subject to service-related consequences that could result in release from the CAF. While this could have been a hard choice, it did not amount to coercion. Your right to refuse medical treatment was respected.

The CDS found that no CAF member was “forced” to get vaccinated against their will. To support his finding, the CDS relied on jurisprudence originating from requests for interlocutory injunction against various employers’ vaccination policies. The statements referenced by the CDS that no one individual was physically “forced” to get vaccinated pertains to the notion of “irreparable harm” that is one of the criterions the applicant for an interlocutory injunction must meet. That criterion, however, does not apply to the analysis under section 7 of the Charter. As noted on p.16 of this Annex, a person claiming infringement on the right to liberty and security of the person must show that one of these protected interests is engaged and that the infringement is not in accordance with the principles of fundamental justice. This is a very different test from the test for interlocutory injunction. The notion of “irreparable harm” imposes a much higher threshold than the test for section 7 of the Charter.^{Footnote 58}

An injunction is an extraordinary remedy that can be ordered before a hearing on the merits of a case. It requires that the applicants establish: (1) that there is a serious issue to be tried; (2) that the applicant would suffer “irreparable harm” if the application is not granted; and (3) that one of the parties will suffer greater harm pending a decision on the merits.^{Footnote 59} In those cases, the courts found that the applicants failed to show that they would suffer “irreparable harm” if the injunctions sought against the application of the vaccination policies were not granted.

The courts also explained that “irreparable harm” is a prejudice that cannot be compensated for in monetary damages.^{Footnote 60} It cannot be quantified in monetary terms or cannot be cured and refers to the nature of the harm suffered rather than its magnitude. It is well established that loss of employment has been held to be a “reparable” harm that can be compensated with reinstatement and the award of monetary damages. In those decisions, the Federal Court explained that the applicants did not show that they would suffer “irreparable harm” as a result of their decision not to comply with the CAF vaccination requirement.^{Footnote 61} The notion of “irreparable harm” does not apply to the analysis of whether the CDS’ orders to get vaccinated interfered with the grievors’ right to liberty under section 7 of the Charter.

While the question of constitutionality of vaccination requirement by various employers is a novel issue, the Federal Court found “some authority for the proposition that engaging a liberty or a security of the person interest as a condition of employment may constitute a deprivation of that right for the purposes of the section 7 analysis”.^{Footnote 62} In that decision, the Federal Court was not reviewing the issue at the bar on the merits, but it did not accept the argument that the vaccination requirement did not interfere with the rights protected under section 7. In another case, the Cour supérieure du Québec also found that the vaccination requirement imposed by the Minister of Transport engaged the employees’ right to liberty and security of the person. The Court did not accept the Attorney General’s argument that the employees were not forced to being vaccinated stating “[translation] Admittedly, the treatment is not imposed on them and they theoretically retain the choice to accept it or not. But the consequences of a refusal are such that this choice is not really a choice”.^{Footnote 63} Arbitration decisions also recognized that a requirement to be vaccinated to remain employed engages the employees’ bodily autonomy including the right to make decisions regarding medical treatment.^{Footnote 64} It should be pointed out that none of those decisions are binding on the CAF, nevertheless, they show that a vaccination requirement by an employer can constitute an infringement on an individual’s right to liberty without physical restraint. In Blencoe,^{Footnote 65} the Supreme Court explained that:

49. The liberty interest protected by s. 7 of the Charter is no longer restricted to mere freedom from physical restraint. Members of this Court have found that “liberty” is engaged where state compulsions or prohibitions affect important and fundamental life choices. … In our free and democratic society, individuals are entitled to make decisions of fundamental importance free from state interference. …

The distinction between “forced” vaccination and “mandatory” vaccination was relevant for the purpose of requests for injunction where courts had to determine if the applicants would suffer “irreparable harm.” However, it is irrelevant for the purpose of the determination of the constitutionality of the CDS’ order to get vaccinated. The grievors do not claim that the chain of command physically restrained them to get vaccinated against their will. The test under the first part of the analysis under section 7 of the Charter is that the disputed provisions “engage” or “interfere” with the grievors’ liberty to refuse vaccination. It does not require evidence that anyone was physically restrained to get vaccinated against their will. In the administrative military context, it is difficult to imagine a situation where the chain of command could interfere more significantly with a member’s decision to refuse vaccination than to issue a military order to get vaccinated.

Refusing Vaccination can Constitute an Offence under the Code of Service Discipline

As I just explained, the protection of the freedom to refuse a medical treatment is not limited to the absence of threat of criminal prosecution or physical restraint. Having said this, it must be noted that CAF members can be charged and imprisoned under the Code of Service Discipline for refusing to follow an order. Section 83 of the NDA states that “Every person who disobeys a lawful command of a superior officer is guilty of an offence and on conviction is liable to imprisonment for life or to less punishment.” Also, section 126 states that “Every person who, on receiving an order to submit to … vaccination, re-vaccination, other immunization procedures, immunity tests, blood examination or treatment against any infectious disease, willfully 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.”^{Footnote 66}

In his decisions as a Final Authority, the CDS failed to acknowledge those provisions, while clearly indicating that the CAF vaccination requirement was an “order” for all CAF members to get vaccinated. The CDS explained that military duty requires CAF members to “obey lawful orders with dedication, initiative, and discipline.” He stated that the grievors’ duty “was to follow these orders” and that failure to comply would result in “easily understandable, reasonable, service related-consequences” including release from the CAF. In the context of the CAF and in light of NDA provisions, it is therefore inaccurate to say that members were free to refuse vaccination without the threat of criminal prosecution considering that this is a possibility under the Code of service discipline.

In Smith,^{Footnote 67} , the Supreme Court found that the prohibition on possession of non-dried forms of medical marihuana deprived the respondent, as well as other medical marihuana users, of their liberty by imposing a threat of imprisonment on conviction. It is also important to note that an “imminent deprivation” of the rights to life, liberty or security of the person is sufficient to ground a claim under section 7. Actual harm is not required.^{Footnote 68} Therefore, it is not necessary to show that the CAF did charge the grievors under the Code of service discipline for the purpose of this analysis. The fact that the CAF could lay charges against the grievors is another argument to support my finding that their right to liberty was engaged by the CDS orders to get vaccinated.

Conclusions on the Right to Liberty to Refuse a Medical Treatment

Accordingly, I find that the CDS orders that all CAF members be vaccinated to remain employed interfered with the grievors’ right to liberty that protects the freedom to refuse a medical treatment. The fact that CAF members are in a unilateral commitment to the Crown does not alter the CDS’ obligation to respect their Charter rights. Also, the grievors were not required to show that they were physically restrained and forced to get vaccinated to satisfy the first part of the analysis under section 7. The CDS orders interfered with their freedom to make their own decisions towards medical treatment as serving members of the CAF. In addition, a refusal to get vaccinated could lead to charges and possible imprisonment under the Code of Service Discipline. My conclusion that the CDS orders interfered with the grievors’ right to liberty is sufficient to pursue the analysis of the second part of the test under section 7 and determine if the infringement was in accordance with the principles of fundamental justice. However, prior to this, I will also examine if the grievors’ right to the security of the person was also engaged by the CAF COVID‑19 Vaccination Policy since this argument was raised.

The Right to Security of the Person

The right to security of the person protects physical and psychological integrity. Like the right to liberty, the right to security of the person protects bodily integrity, dignity and autonomy that can also include interruption or refusal of medical care.^{Footnote 69} The right to security of the person is engaged by state interference with a person’s physical or psychological integrity. Nonetheless, liberty and security of the person are distinct interests and the grievors do not need to show that the CDS’ orders to get vaccinated interfered with both of them.^{Footnote 70}

Purely Economic Rights are Not Protected by the Charter

Section 7 does not protect the right to practice a regulated profession or exploit commerce described as “purely economic interest”. The courts rejected claims that the application of regulations pertaining to the practice of regulated professions and economical activities caused anxiety and stress to the point where they threatened the right to the security of the person. The courts found that the interests involved in those cases were purely economic and not protected by the Charter.^{Footnote 71} The courts recognized the stress and anxiety related to the possibility of losing one’s career in a chosen profession but found that it was not the type of suffering protected under the right to the security of the person. In Siemens, the Supreme Court stated that:

46. In the present case, the appellants’ alleged right to operate (video lottery terminals) at their place of business cannot be characterized as a fundamental life choice. It is purely an economic interest. The ability to generate business revenue by one’s chosen means is not a right that is protected under s. 7 of the Charter.^{Footnote 72}

In Tanase, the appellant was a dental hygienist who entered into a sexual relationship with a woman he was treating. Eventually they married and the appellant continued to treat his spouse. The College of Dental Hygienists found the applicant guilty of professional misconduct based on the prohibition of professional-patient relationship and revoked his registration. The Court found that the penalty of revocation of registration did not limit his rights under section 7 of the Charter.

The Court stated that:

[35] … Security of the person was not engaged by the revocation of registration regardless of the stress, anxiety, and stigma to which disciplinary proceedings inevitably give rise in the context of sexual abuse allegations, nor was a liberty right engaged.

…

Having said this, the Supreme Court of Canada also indicated in Irwin Toy Ltd that this exemption is not absolute: “This is not to declare, however, that no right with an economic component can fall within “security of the person”.^{Footnote 73} In that decision, the Supreme Court suggested that the right to the security of the person may protect against the deprivation of economic rights fundamental to human survival. The distinction is that the regulation of economic activity that can have the effect of limiting profit or earnings will not engage section 7, whereas the complete deprivation of a person’s livelihood may engage the right to the security of the person.^{Footnote 74} In Irwin Toy, the Supreme Court stated that:

This is not to declare, however, that no right with an economic component can fall within “security of the person.” … the rubric of “economic rights” embraces a broad spectrum of interests, ranging from such rights, included in various international covenants, as rights to social security, equal pay for equal work, adequate food, clothing and shelter, to traditional property -- contract rights.

While the question as to what economic rights might be protected under section 7 remains to be answered by the courts, there are many decisions in which courts have recognized that work is a fundamental aspect of a person’s life and pertains to a person’s dignity. The Supreme Court noted that “Work is one of the most fundamental aspects in a person’s life.” ^{Footnote 75} Also, more recently, the Superior Court of Québec found that Transport Canada’s vaccination requirement engaged the employees’ right to the security of the person.^{Footnote 76} In that decision, the Court found that the employees’ statements showed the seriousness of the infringement and stated that “[translation] It would be wrong to minimize or trivialize the pressure thus caused” by the threat of termination.

In the case of the grievors, the consequences for refusing to comply with the CDS orders to get vaccinated after being placed on remedial measures for misconduct for a period of 14 days was that they were released from the CAF. In some grievances reviewed by the Committee, ill and injured CAF members who were not deployable and were in the process of being released for medical reason were abruptly released for misconduct due to their non-compliance with the mandatory vaccination requirement. The decision to release them without any other considerations not only deprived them of their livelihood but also deprived them of essential services to ensure a successful transition to civilian life. In one case, the grievor’s expedited release left him without a place to live as he was residing in CAF housing pending his release for medical reason. Some grievors deplore that their expedited release from the CAF negatively affected their entitlement to their pension, as they were being released in their 24^th year of service despite having a clean record in their last year before becoming entitled to their pension after 25 years of military service. In my opinion, the CDS’ orders for mandatory vaccination and the consequences for non-compliance with these orders could also have engaged the grievors’ right to the security of the person in at least some of those cases.

The jurisprudence cited shows that the exclusion of economic rights from the protection of the right to the security of the person is not absolute. More importantly, the decisions concerning purely economic interests must be distinguished from the grievances that concern the imposition of the CAF’s COVID-19 vaccination requirement. The grievors are not alleging that the threat of being released engaged their right to the security of the person, which would have a comparable argument. Rather, the grievors are alleging that the CDS’ orders to get vaccinated under threat of being released from the CAF engaged their liberty to refuse a medical treatment. None of the decisions concerning purely economic rights raised the question of an imposed medical treatment. The fact that the orders were given in the context of their employment (or unilateral commitment to the Crown as members of the CAF) does not mean that the grievors are seeking a Charter protection of “purely economic rights.” I find that the principle against “purely economic rights” does not apply to the grievances before the Committee, contrary to the CDS’ conclusion.

As stated above, the rights to liberty and security of the person are distinct interests protected by section 7 of the Charter. The grievors do not need to show that the CDS orders to get vaccinated interfered with both of them.^{Footnote 77} I have already found that the CDS orders interfered with the grievors’ right to liberty that protects a person’s right to refuse a medical treatment. I also find that the consequences of non-compliance with the CDS’ orders can infringe on the grievors’ right to the security of the person in some cases. Those conclusions bring me to the second part of the analysis under section 7, which provides that such limitations are only permissible if they respect the principles of fundamental justice.

Principles of Fundamental Justice under Section 7 of the Charter of Rights and Freedoms

The second part of the analysis recognizes that the rights protected by section 7 of the Charter are not absolute and can be limited in accordance with the principles of fundamental justice. Those principles ensure that limitations to the right to life, liberty and security of the person are not arbitrary, overly broad or grossly disproportionate. The principles of fundamental justice also incorporate the requirements of the duty of procedural fairness taking into consideration the severity of the impact on the protected interests.^{Footnote 78} Courts have noted that the principles of fundamental justice consider whether there is a rational connection between the disputed policy or rule, and the impact on the person. Arbitrariness, overbreadth and gross disproportionality can all be established based upon the impact on a single person. A finding that at least one of these principles is infringed leads to the analysis under section 1 of the Charter.^{Footnote 79} The principles of fundamental justice must be approached with a careful consideration of the context and will vary accordingly.^{Footnote 80}

Charter rights must be given a “generous and liberal interpretation aimed at fulfilling the purpose of the right in question and of the Charter as a whole.”^{Footnote 81} The Supreme Court explained that the Charter’s purpose “is to guarantee and to protect, within the limits of reason, the enjoyment of the rights and freedoms it enshrines. It is intended to constrain governmental action inconsistent with those rights and freedoms; it is not in itself an authorization for governmental action.”^{Footnote 82} Courts and administrative decision makers should avoid unduly narrow interpretation.^{Footnote 83} Charter interpretation also requires consideration of the principle that the protected rights must be capable of development over time, a principle known as the “living tree doctrine.”^{Footnote 84}

In Bedford, the Supreme Court explained that:

[97] The concepts of arbitrariness, overbreadth, and gross disproportionality evolved organically as courts were faced with novel Charter claims.

…

[107] Although there is significant overlap between these three principles, and one law may properly be characterized by more than one of them, arbitrariness, overbreadth, and gross disproportionality remain three distinct principles that stem from what Hamish Stewart calls “failures of instrumental rationality” — the situation where the law is “inadequately connected to its objective or in some sense goes too far in seeking to attain it” (Fundamental Justice: Section 7 of the Canadian Charter of Rights and Freedoms (2012), at p. 151). As Peter Hogg has explained:

The doctrines of overbreadth, disproportionality and arbitrariness are all at bottom intended to address what Hamish Stewart calls “failures of instrumental rationality”, by which he means that the Court accepts the legislative objective, but scrutinizes the policy instrument enacted as the means to achieve the objective. If the policy instrument is not a rational means to achieve the objective, then the law is dysfunctional in terms of its own objective. (“The Brilliant Career of Section 7 of the Charter” (2012), 58 S.C.L.R. (2d) 195, at p. 209 (citation omitted)).^{Footnote 85}

As noted prior, it is only necessary to find that one of the principles of fundamental justice was breached to find that the grievors’ fundamental rights under section 7 were infringed. Therefore, a conclusion that at least one the principles below was not respected is sufficient to pursue the constitutionality analysis of the Oakes’ test under section 1. Nonetheless, the following analysis offers the review of certain aspects of the CAF COVID-19 Vaccination Policy pursuant to CDS directives under all the three principles of fundamental justice.

Arbitrariness – Two Groups of Unvaccinated Members

An arbitrary policy or rule is one that has no rational connection to its purpose. It does not fulfill its objectives in that it limits a protected right without furthering the public good that is said to be the object of the policy.^{Footnote 86} The existence and coming into force of a CAF vaccination policy is not in itself arbitrary, given the context of the global COVID-19 pandemic. The science shows that the COVID-19 vaccines have been effective at reducing the likelihood of serious illness or death from this disease. As the CDS reiterated in his decisions, he issued the directives “to implement a vaccine mandate to preserve CAF operational readiness, effectiveness, and critical capabilities by protecting CAF members from the spread of COVID-19 and from the serious illness and death…”

In the context of the pandemic, the Federal Court stated that “… previous case law suggests the mere existence of a policy, such as the CAF vaccination policy, in itself is not sufficient to ground a challenge under section 7 of the Charter”.^{Footnote 87} Considering the severity of the COVID-19 pandemic, the possible consequences of infection from the virus, the social and economic impacts, the conditions of military service and the role of vaccination in preventing severe illness, it is easy to see a rational connection between the vaccination policy and its objective. Additionally, the CAF members can be called upon to serve in various conditions and locations, including in settings with high risks of transmission and infection from COVID-19. In that context, the putting into place of a vaccination policy was justified. However, this understanding does not conclude the analysis of arbitrariness. A closer look at the application of the CAF vaccination policy was needed to understand whether the treatment of CAF members under that policy was rationally connected to its purpose.

For instance, under the CAF vaccination policy, unvaccinated members were deemed either “unable” or “unwilling” to vaccinate. The “unable” group was comprised of members who received an exemption from vaccination on medical, religious or other grounds protected from discrimination. These members were accommodated through remote work, alternative work arrangements, alternative schedules and various other means. The “unwilling” group was comprised of members who did not receive an exemption from mandatory vaccination. These members were subject to remedial and other administrative measures, up to release from the CAF. The Committee was aware that at the time of implementation of the CAF vaccination policy, 91 to 93% of CAF members were vaccinated or partially vaccinated. With such a high percentage, the “unwilling” group did not seem numerous. This is why the Committee asked the VCDS and the Director General of Plans at Strategic Joint Staff whether it was possible to accommodate the “unwilling” members or whether they could have been placed on leave without pay, as was the case with unvaccinated federal public servants. The responses received suggested that these options were either too slow or not contemplated. Perhaps there was evidence to justify the different treatment of the two groups of CAF members, however, such evidence was not provided to the Committee. Given that some “unwilling” members were on maternity or parental leave or were in the process of being released for medical reasons, and in absence of further evidence, it was difficult to establish a rational connection between the application of the CAF vaccination policy to these members and the objectives of that policy.

In the context of the pandemic, the Federal Court explained that aspects of a policy can be arbitrary if it treats two groups of people who pose similar risks differently, by subjecting them to different restrictions on their liberty.^{Footnote 88} In that case, the Federal Court stated that a “law can be found to be arbitrary on a number of grounds” and explained that this could apply to a law that only punishes one group of people despite the fact that others who pose a similar risk are not subjected to the same restrictions on their liberty. The Court found that the difference in treatment was justified by scientific information showing that the two groups of travelers posed different levels of risks regarding the transmission of the COVID-19 virus.The Court considered evidence showing that air travelers were more inclined to use public transportation that augments the risks of transmission, whereas land travelers were more often using their personal vehicles and were going straight home with limited contacts, representing a lower risk. In Ewert,the Supreme Court examined the applicant’s comparison of the impact of a test between indigenous and non‑indigenous inmates to determine if the disputed practice was rationally connected to the government’s objectives.^{Footnote 89}

In another decision, the Supreme Court explained that a law is arbitrary where “it bears no relation to, or is inconsistent with, the objective that lies behind [it]”.^{Footnote 90} The Court stated that:

[131] In order not to be arbitrary, the limit on life, liberty and security requires not only a theoretical connection between the limit and the legislative goal, but a real connection on the facts. The onus of showing lack of connection in this sense rests with the claimant. The question in every case is whether the measure is arbitrary in the sense of bearing no real relation to the goal and hence being manifestly unfair. The more serious the impingement on the person’s liberty and security, the more clear must be the connection. ...

Many grievors objected to the different treatment of those deemed “unwilling” to vaccinate, stating that they were performing quite well under restrictions for the first 18 months of the pandemic and prior to the imposition of the mandatory vaccination requirement. The Committee had no indication and no evidence to show that members who were “unwilling” to get vaccinated posed a higher risk of spreading the virus than members who were “unable” to get vaccinated. In his decisions, the CDS pointed to the CAF’s obligation to accommodate CAF members who were unable to get vaccinated for reasons linked to protected grounds of discrimination under the Canadian Human Rights Act. He stated that “exempting additional personnel from the CAF vaccination requirement would have impaired our ability to protect CAF members from the serious health risks related to COVID-19, and to preserve CAF critical capabilities and effectiveness in a real and substantive manner.” The CDS stated that the unvaccinated members remained at heightened risk of contracting COVID-19, suffering serious health effects and transmitting it to others. The CDS also stated that alternative work arrangements were aimed at mitigating those risks, but permitting “unwilling” CAF members “to work remotely or providing other alternative work arrangements may have reduced these risks to some extent. However, it would not have achieved the objectives of the CAF Vaccination Directives in a real and substantial degree.” Recognizing that the CAF respected its obligation under the Canadian Human Rights Act, I note the response to the Committee’s questions by the Strategic Joint Staff Director General of Plans, responsible for the development and implementation of the CDS directives, stating that the CAF did not even entertain the possibility of offering alternative work arrangements to unvaccinated members without an exemption under the CHRA because “being unwilling was never an option.”

The different treatment of two groups of unvaccinated members created situations where two CAF members working in similar settings were treated completely differently on the sole basis of the nature of their personal reason for refusing vaccination within the mandated window of 14 days. With no evidence showing that one of the two groups of unvaccinated members presented higher risks and no clear operational requirements to limit alternative work arrangements only to the members “unable” to vaccinate while imposing restrictions and releases on the members “unwilling” to vaccinate, I fail to see how this distinction advanced the policy’s objective. On the contrary, releasing hundreds of trained and experienced CAF members for the sole reason of refusing to comply with a mandatory vaccination requirement put in place on a temporary basis in a time of “critical personnel shortfalls”, as mentioned by the CDS in his decisions as a Final Authority, contradicts the policy’s objective that includes supporting the CAF’s critical capabilities and operational effectiveness.

While the development and enactment of the CAF vaccination policy was not arbitrary, I find some aspects of the policy’s implementation arbitrary given the very different treatment of the two groups of unvaccinated members – the “unable” and the “unwilling” to get vaccinated.

Overbreadth – The CDS Order Applied to All CAF Members

To avoid overbreadth, policies must be carefully tailored to avoid including some conduct that bears no relation to its objective. The question is whether the policy is so broad in scope that it has some impact on an interest protected under section 7 that bears no connection to the objective.^{Footnote 91} Overbreadth addresses the situation where there is a lack of rational connection between the purpose of the policy and some, but not all, of its impacts. This can happen when the state uses means that are broader than is necessary to achieve the objective, when only some effects of the policy are arbitrary.^{Footnote 92} The Supreme Court explained that:

[113] Overbreadth allows courts to recognize that the law is rational in some cases, but that it overreaches in its effect in others. Despite this recognition of the scope of the law as a whole, the focus remains on the individual and whether the effect on the individual is rationally connected to the law’s purpose. For example, where a law is drawn broadly and targets some conduct that bears no relation to its purpose in order to make enforcement more practical, there is still no connection between the purpose of the law and its effect on the specific individual. Enforcement practicality may be a justification for an overbroad law, to be analyzed under s. 1 of the Charter.^{Footnote 93}

In Carter, the Supreme Court stated that “The question is not whether Parliament has chosen the least restrictive means, but whether the chosen means infringe life, liberty or security of the person in a way that has no connection with the mischief contemplated by the legislature.” As explained in Carter and Bedford, the correct test is whether the disputed policy “goes too far by denying the rights of some individuals in a way that bears no relation to the object” such that the effect on at least one person is “unnecessary.”

On overbreadth, the CDS in his decisions as a Final Authority explained that an “overbroad order is one that is rational in part but also overreaches and captures some conduct that bears no relation to that order’s purpose [emphasis in original]”. He explained that “military duty and military ethos is unique” and require CAF members to “strictly obey and carry out all lawful commands to ensure operational effectiveness and achieve mission success.” He presented three arguments in response to the Committee’s findings that the order for all CAF members to be vaccinated was overly broad stating that: (1) COVID-19 vaccines are effective tools to maintain the health and safety of CAF members; (2) vaccination supported the CAF’s ability to immediately respond to operational taskings, stating that “CAF members working remotely or on temporary medical categories can be called back to bases, wings and ships at any time for operational reasons”; and (3) the CAF faces critical personnel shortfalls. He stated that “Our team needed to be ready to respond to achieve the strategic effects directed by the government.” The CDS stated that:

Every medically fit CAF member is required to support our readiness. The CAF Vaccination Directives placed reasonable restrictions on unvaccinated personnel that affected their ability to train and deployed. While reasonable, these restrictions meant that unvaccinated CAF members could not contribute to maintaining our operational effectiveness and interoperability in the same way as vaccinated personnel. During a time of heightened security risks, we needed to sustain an effective force. The CAF requirement better enabled our personnel to carry out individual and collective training, and serve on operations, as required.

The implementation of the CAF vaccination requirement for all members reduced these risks. It was connected to achieving the policy objectives of the CAF Vaccination Directives. It was not overbroad. This is the case even if, as the Committee stated, the CAF is a “very large employer” that provides “accommodation measures and work alternatives” in other instances.

As the CDS reiterated in his decisions, the objective of his directives was “to implement a vaccine mandate to preserve CAF operational readiness, effectiveness, and critical capabilities by protecting CAF members form the spread of COVID-19 and from the serious illness and death...” The CDS’ orders to get vaccinated within 14 days applied to all CAF members, regardless of their capacity to be deployed during the period for which the order was effective. As stated above, the vaccination requirement was expected to be a temporary measure of an estimated duration of approximately 12 months. The reality of the CAF is that not all CAF members are deployable at any given time. The scope of the CDS orders was so broad that it did not even make an exemption for cases where members were not deployable for medical reasons. The order to get vaccinated applied to ill and injured CAF members in the process of being released for medical reason. DAOD 5023- 1 Minimum Operational Standards Related to Universality of Service, which define being deployable as “not have a medical or other employment limitation that would preclude deployment.” Another example that the scope of the order to get vaccinated was overly broad was that it applied to CAF members who were on maternity and parental leave. The Committee reviewed grievances from pregnant and breastfeeding members on maternity leave, who were at home and who were not in a position to be recalled to service, not presenting a risk of spreading the virus, but who were still subject to the mandatory vaccination requirement within 14 days. The CAF could have easily exempted such members as part of its vaccination policy but did not. I fail to see how the application of the CDS directives to members in situations where they were already deemed non-deployable could be considered carefully tailored to avoid overbreadth by including situations that bear no rational connection to the objective of the vaccination policy.

Another example as to why the scope of CDS orders on vaccination was overly broad is that it applied to all CAF members regardless of their position, locations, occupation or tasks. Depending on those factors, CAF members could have been exposed to various levels of risks of contracting or transmitting the COVID-19 virus. CAF members serve in a broad range of occupations, location and circumstances. Yet, the order to get vaccinated applied to members who were already successfully performing their duties through remote work / telework arrangements because it was operationally feasible for a period of 18 months prior to the imposition of the mandatory vaccination requirement. The same order applied to members serving in settings where other unvaccinated members were allowed to undergo weekly rapid testing to access the workplace. While a “one size fits all” approach to vaccination would have seemed like a simple and efficient option, the jurisprudence explains that overbreadth cannot be justified on the basis that it makes enforcement more practical should the rule deprive the liberty of even one person in a way that does not serve its purpose.^{Footnote 94}

When the CAF launched its voluntary vaccination campaign,^{Footnote 95} the CAF’s Surgeon General anticipated that vaccination could be made a requirement for an operation or a position by operational commanders, in consultation with their medical advisors, to operate in certain high-risk environments or with vulnerable populations to protect CAF members and others and maintain operational effectiveness. In an affidavit filed in Neri, the Director General – Plans, Strategic Joint Staff of the Canadian Armed Forces explained that the CAF has enabled a safe workplace with minimal transmission of the virus through the diligent application of public health measures prior to vaccination becoming available in Canada. The CAF’s strategy relied heavily on public health measures, such as physical distancing, wearing nonmedical masks, hand‑washing, and dispersed (mix of home and workplace) or work from home postures where operationally feasible. I note that the October 2022 CDS Directive 003 now aligns the CAF COVID-19 vaccination policy with the January 2021 Surgeon General’s vaccine rollout message. However, when the CAF implemented its vaccination policy in 2021, vaccination was made a mandatory requirement for all CAF members, regardless of the settings in which they served. Advice from Health Canada and PHAC, relied upon by the CAF in the development of its vaccination policy, shows that the virus is most frequently transmitted when people are in close contact with infected individuals (either with or without symptoms), that most transmission occurs primarily indoors and that individual, social and occupational factors affect vulnerability to the COVID-19 disease, such as for healthcare workers and emergency workers who have a high degree of social contact. In cases where CAF members were not imminently facing those “higher‑risk setting”, it is difficult to see a rational connection between the mandatory requirement to get vaccinated within 14 days and the policy’s objective.

Since the CDS order to get vaccinated applied to all members regardless of their capacity to be deployed, their position, locations, occupation or tasks, it limited some members’ right to liberty to refuse a medical treatment in cases where there was a lack of rational connection with the objective of the CAF vaccination policy. For those reasons, I conclude that the scope of the CAF COVID-19 vaccination policy was overly broad.

Gross Disproportionality – Expedited Release from the CAF for Refusing Vaccination

The inquiry into gross disproportionality compares the policy’s objective with its negative effects on the individuals to determine if these effects are completely out of sync with the objective. The threshold is high, but Charter rights must also be given a generous and liberal interpretation, as stated above. Its purpose is to protect the enjoyment of the rights and freedoms it establishes by constraining governmental action inconsistent with those rights and freedoms. Charter interpretation must be adapted to the context in which its application arises. The Supreme Court noted that the principles of fundamental justice evolved over time in response to novel Charter claims. It must be kept in mind that the question of proportionality of the consequences for non‑compliance with the CDS orders to get vaccinated arose in the administrative context of the CAF.

The principles of fundamental justice do not consider the effectiveness of the disputed provisions but its effect on at least one person. In Bedford, the Supreme Court explained that:

[120] ... The rule against gross disproportionality only applies in extreme cases where the seriousness of the deprivation is totally out of sync with the objective of the measure. This idea is captured by the hypothetical of a law with the purpose of keeping the streets clean that imposes a sentence of life imprisonment for spitting on the sidewalk. The connection between the draconian impact of the law and its object must be entirely outside the norms accepted in our free and democratic society.

[121] Gross disproportionality under s. 7 of the Charter does not consider the beneficial effects of the law for society. It balances the negative effect on the individual against the purpose of the law, not against societal benefit that might flow from the law.

…

[122] Thus, gross disproportionality is not concerned with the number of people who experience grossly disproportionate effects; a grossly disproportionate effect on one person is sufficient to violate the norm.^{Footnote 96}

In Carter, the Supreme Court explained that:

[89] This principle is infringed if the impact of the restriction on the individual’s life, liberty or security of the person is grossly disproportionate to the object of the measure. … The standard is high: the law’s object and its impact may be incommensurate without reaching the standard for gross disproportionality (Bedford,at para. 120; Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3, at para. 47).

In Lavergne-Poitras, the Federal Court found that: “The importance of protecting the health and safety of employees and the evidence of risks arising from COVID-19 infection allow for even the significant consequence of loss of employment with a third party supplier to the government to be proportionate to the objective.”^{Footnote 97} Having said this, the Federal Court also noted that it reached that conclusion based on the information submitted concerning the application for an injunction. The Court stated that it was not making a determination on the merits of the constitutionality issue.

On gross disproportionality, the CDS found that the expedited release of unvaccinated CAF members was “not an extreme case, where the service-related consequences on unvaccinated personnel are totally out of sync with the objectives of the CAF Vaccination Directives.” The CDS stated:

Even if I accept the Committee’s position that the release of “some members” was a disproportionate response to their non-compliance with the CAF vaccination requirement (which I do not), this finding is not enough to determine that the effects of this order were grossly disproportionate.

It must be shown that this impact was a grossly disproportionate response, one that was totally out of sync with the stated policy objectives of the CAF Vaccination Directives. The Committee’s analysis did not reach this standard. I find that the CAF vaccination requirement was not grossly disproportionate.

The consequences for non-compliance with the order to get vaccinated were grossly disproportionate even when considering the importance of the CAF vaccination policy’s objective. The CDS directives did not only allowed the chain of command to issue remedial measure or request an administrative review for cases in which a member’s refusal could have warranted such measures; the CDS directives directed the chain of command to take such actions in all cases. More so, the directives did not allow the chain of command to consider whether the member’s refusal to get vaccinated called into question the viability of the member’s continued service under DAODs 5019-2, Administrative Review^{Footnote 98} and 5019-4, Remedial Measures. The directives also contradicted paragraphs 5.6(b) and (c) of DAOD 5019-4 which provide that the initiating authority must consider “the CAF member’s entire period of service, taking into account the CAF member’s rank, military occupation, experience and position” and “any representations made by the CAF member that directly relate to the conduct or performance deficiency.”

The CDS directives directed the chain of command to initiate remedial measures and expedited release procedures towards all members who refused vaccination after being placed under recorded warning and counselling and probation for 14 days for an alleged misconduct, regardless of any of the relevant factors to be considered under the DAODs. CAF members that had not complied were placed on recorded warning and counselling and probation for misconduct for a period of 14 days, to allow them an opportunity to “overcome their conduct deficiency” by getting vaccinated. Members who remained unvaccinated despite the remedial measures were subject to an administrative review leading to their expedited release from the CAF for misconduct.^{Footnote 99}

CANFORGEN 012/22 stated that “there is no need to consider the totality of their career” where members were being released solely as a result of non-compliance with the CDS directives. It also stated that DMCA would review the members’ representation, but stated that:

3. ... IT IS STRESSED, HOWEVER, THAT UNDER THE PRESENT CIRCUMSTANCES, THE CONDUCT DEFICIENCY BEING REVIEWED IS LIMITED TO A CAF MBR S NON-COMPLIANCE WITH THE LAWFUL ORDER ISSUED AT [the CDS Directives] IN CONJUNCTION WITH ATTEMPTS TO REMEDY THE MBR S BEHAVIOUR THROUGH THE PROCESS INDICATED AT [DAOD 5019-4, Remedial Measures].

Using the templates provided by DMCA, most remedial measure and administrative review documentation reviewed by the Committee were limited to stating that the members refused to comply with the CDS order to get vaccinated within the allocated 14 days. The CAF directed the chain of command to disregard its long-established process meant to ensure basic procedural fairness. This manner of proceeding also limited the discretion of the CoC^{Footnote 100} by directing the mandatory imposition of remedial measures in all cases. The CDS directives also removed the CoC’s discretion to select the “most appropriate remedial measure.”^{Footnote 101} Many grievors deplored that the CDS directives disregarded the duration of the monitoring periods set out in DAOD 5019-4 by allowing only 14 days to comply with the CDS order to get vaccinated.^{Footnote 102} Those administrative reviews did not follow the CAF’s process aimed at ensuring procedural fairness.

The CAF adopted a position that the members’ decision to refuse vaccination amounted to a refusal to follow an order that was of such seriousness as to justify their immediate release, regardless of any other factor, such as the members’ entire period of service and a clean record. Releases under item 5(f) of the Table to article 15.01 of the QR&O “Unsuitable for further service” apply to “the release of an officer or non-commissioned member who, either wholly or chiefly because of factors within their control, develops personal weakness or behaviour or has domestic or other personal problems that seriously impair their usefulness to, or impose an excessive administrative burden on the Canadian Forces.” Members released under item 5(f) require a special authorization from the CDS to be re-enrolled. There is no indication in numerous grievances referred to the Committee that all unvaccinated members reached that threshold, especially considering that the vaccination requirement was meant to be temporary. In addition, the Committee found that the imposition of remedial measures and release actions were excessive, sometimes unnecessary and unjustified in most cases. In my view, the CDS directives on mandatory vaccination imposed grossly disproportionate consequences to address the grievors’ non-compliance with the CDS order to get vaccinated.

A release from the CAF for misconduct is the most serious administrative action that can be taken against a member. An important factor to support my finding is that the CAF vaccination requirement was said to be temporary whereas a release from the CAF under item 5(f) is pretty much permanent and cannot be undone in some cases.^{Footnote 103} From the start of the vaccination requirement, it was understood that public health measures would remain in place while the COVID-19 pandemic continued to challenge the capacity of the health care system and present a threat to the health and safety of Canadians. It was also understood that some public health measures would be temporary and would be relaxed once the situation improved. While the CAF vaccination policy reflects this understanding, relaxing the requirements pursuant to CDS directive 003, it remained inflexible with regards to members unwilling to vaccinate, releasing them from the CAF with practically permanent impact on their lives, livelihoods and benefits. In some cases, a release from the CAF cannot be undone even if the CDS finds that the decision to release a member was unjustified. For example, one grievor explained that he was released after 24 years of military service, one year prior to being entitled to his CAF pension.

As explained above, section 7 of the Charter guarantees individuals the right to make decisions regarding their medical treatment. The characterization of members who were “unwilling” to get vaccinated as displaying disloyalty and a conduct deficiency is in contradiction with the CAF’s own pre-existing policies that guarantee their members’ a choice towards medical treatments.^{Footnote 104} Despite all this, the CAF vaccination policy prescribed the release of members who exercised their protected right to refuse medical treatment and declared them in contravention of the Department of National Defence and Canadian Forces Code of Values and Ethics. While it is understood that CAF members are expected to follow orders given by the chain of command, such orders are also expected to be in-line with the rights guaranteed and protected by the Charter. In the Committee’s experience, even if the exercise of a protected freedom could be considered as a misconduct, there were very few cases where a single conduct deficiency was sufficient to justify a decision to release a CAF member. It is difficult to see how refusing vaccination automatically makes a CAF member unsuitable for further military service on that basis alone.

It might have been justified for the CAF vaccination policy to provide that non-compliance with the CDS’ order to get vaccinated could have resulted in a release from the CAF in some cases. Potentially, there could have been cases in which, following an Administrative Review where the assessment of the relevant factors was performed, an initiating authority could have found that a release from the CAF was the most appropriate administrative action in a given case. However, the manner in which the CDS directives addressed non-compliance by directing the expedited release of all unvaccinated CAF members without any other consideration is “entirely outside the norms accepted in our free and democratic society” in the administrative context of the CAF. In my view, this manner of proceeding meets the high threshold to be considered a grossly disproportionate response in the pursuit of the objective of the CAF’s vaccination policy. Based on this analysis, I find that termination of service for all unvaccinated members was a grossly disproportionate response to their non-compliance with the vaccination policy.

As stated by the CDS in his decisions as a Final Authority, jurisprudence from provincial courts and arbitrators is not binding on the CAF which is governed by a unique federal legal scheme. I agree. Having said this, the jurisprudence from other courts and tribunals concerning the imposition of mass vaccination requirements is informative and relevant, especially considering that it is a novel issue.^{Footnote 105} Charter interpretation may be informed by reference to external sources and courts may look at laws and practices in other jurisdictions.^{Footnote 106} I note that arbitrators also found that policies directing the inevitable termination of unvaccinated employees were unreasonable in light of the constantly changing and evolving situation with the COVID-19 pandemic. They noted the lack of evidence as to the necessity of expedited termination when compared to alternatives such as teleworking, alternative testing, where feasible, or a period of leave without pay.^{Footnote 107} The arbitrators stated that employers had to demonstrate “just cause” for termination in every case based on the particular circumstances of each case. They found that the fact that an employee was unvaccinated did not automatically justify termination and it did not justify termination in every case. As stated by an arbitrator often referred to in the employment jurisprudence: “Mandating that all employees be vaccinated provides an obvious and simple answer to address [employers’] concerns and return to the workplace. However, mandating vaccinations is not the only reasonable response at this time and in these circumstances.” He found that “… disciplining or discharging an employee for failing to be vaccinated, when it is not a requirement of being hired or an agreed condition of employment and where there is a reasonable alternative, is unjust.”^{Footnote 108} Arbitrators also found that vaccination policies directing that unvaccinated employees who refused to comply with reasonable alternatives such as testing be terminated were reasonable.^{Footnote 109} While not binding, these decisions provide additional context and illustrate that the manner in which the CAF proceeded to enforce the vaccination requirement was outside the norms accepted in a free and democratic society where important administrative decisions affecting a CAF member’s career and livelihood must show respect for the principles of procedural fairness and must be justified and reasonable.^{Footnote 110}

Conclusion on the Principles of Fundamental Justice

There is no doubt that the CDS directives had a valid objective to “implement a vaccine mandate to preserve CAF operational readiness, effectiveness, and critical capabilities by protecting CAF members form the spread of COVID-19 and from the serious illness and death...”. However, the means chosen by the CAF in achieving the objectives of its vaccination policy were not in accordance with the principles of fundamental justice. I have found that the different treatment of two groups of unvaccinated members based on the nature of their decision to refuse vaccination appeared arbitrary because there was no evidence showing that the different treatment of the two groups of unvaccinated members contributed to the policy’s objectives. I have also found that the scope of the CDS orders on vaccination was overly broad because it applied to all CAF members regardless of their capacity to be deployed, their position, their location or taskings. Further, I have found that the expedited release of all non-compliant members on the sole basis of their decision to refuse vaccination disregarding the CAF’s procedures and any other relevant factors was a grossly disproportionate response. Those aspects of the CAF’s vaccination policy were inadequately connected to the objective and went too far in seeking to attain it.

Considering the analysis detailed above, I conclude that the limitation of the grievors’ right to liberty by the CAF vaccination policy was not in accordance with the principles of fundamental justice. Therefore, I conclude that the grievors’ rights protected under section 7 of the Charter were infringed by the CDS orders to get vaccinated and the consequences for not complying.

Is the Limitation of Grievors’ Right to Liberty justified under Section 1 of the Charter of Rights and Freedoms?

The Oakes’ Test

Section 1 also recognizes that fundamental rights are not absolute and that the Government can limit them when necessary to achieve an important objective, as long as the limits are proportionate.^{Footnote 111} As I have found that section 7 was engaged by the CDS order to get vaccinated, the CAF must show that the limitation of the right to liberty was justified in a free and democratic society under section 1 of the Charter, which states:

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

The applicable test was set out in the Oakes decision. Section 1 applies to limits on rights or freedoms that are “prescribed by law”. Under section 1, the “law” includes government entities’ policies that are not acts or regulations when they establish a norm or standard of general application enacted pursuant to a rule-making authority. The Supreme Court explained that “[where] a government policy is authorized by statute and sets out a general norm or standard that is meant to be binding and is sufficiently accessible and precise, the policy is legislative in nature and constitutes a limit that is “prescribed by law”.^{Footnote 112} The CDS directives are “orders and instructions to the Canadian Forces” issued under his authority provided for at subsection 18(2) of the NDA. They are not “acts or regulations”.^{Footnote 113} However, they set out a general standard for members of the CAF and, as such, are considered to be legislative in nature under the section 1 analysis. In his decisions as a Final Authority, the previous CDS agreed that his orders and directives are subject to the Charter.

The constitutionality test asks two questions: first, whether the policy’s goal is “pressing and substantial” and whether there is “proportionality between the objective and the means used to achieve it”. The second part has three elements: rational connection, minimal impairment and final balancing. The test should be applied with flexibly and considering the factual and social context. The analysis is similar to the analysis under section 7. Under section 1, however, the CAF must show that the broader public interest justified the infringement of individual rights.^{Footnote 114} The onus of proof under section 1 is on the government entity and requires persuasive evidence. Under this analysis, the CAF have an opportunity to demonstrate that the limitations imposed on the grievors’ right to liberty to refuse a medical treatment were justified.

In Annex B to his decisions, the CDS explained that “violations of life, liberty and security of the person under section 7 of the Charter are difficult to justify under section 1.” The CDS noted, however, that “there is judicial recognition that government measures that infringe these rights could be upheld in “exceptional circumstances” like epidemic.”^{Footnote 115} He stated that “Additionally, recent judicial decisions also suggest that there may be greater scope for section 1 justification on limits on section 7 rights than may have previously been the case.”^{Footnote 116} In Carter, the Court stated, at paragraph 95, that: “… in some situations the state may be able to show that the public good – a matter not considered under section 7, which looks only at the impact on the rights claimants – justifies depriving an individual of life, liberty, or security of the person under s. 1 of the Charter.”

Pressing and Substantial Objective of the CAF’s Vaccination Policy

The first element of the Oakes’ test is to show that the objective of the policy limiting a fundamental right must be sufficiently important to warrant overriding a constitutionally protected right or freedom. As stated by the previous CDS, he issued the directives “to implement a vaccine mandate to preserve CAF operational readiness, effectiveness, and critical capabilities by protecting CAF members form the spread of COVID-19 and from the serious illness and death...”. The objective is then two-fold: to protect members’ health and to preserve CAF operational readiness, effectiveness, and critical capabilities.

In March 2020, the WHO declared that the situation related to the spread and severity of the illness caused by the COVID-19 virus qualified as a pandemic. In the first months of the pandemic, CAF members were deployed to long-term care facilities in Québec and Ontario under Operation LASER,^{Footnote 117} supported northern and remote communities, assisted the Public Health Agency of Canada in managing and distributing personal protective equipment, and helped Public Health Ontario with contact-tracing efforts. The CAF also provided support for the distribution of COVID-19 vaccines through Operation VECTOR.^{Footnote 118} As of May 2020, the DND and the CAF had already implemented joint directives concerning health measures and personal protection to maintain a level of readiness commensurate with the CAF’s mandate while ensuring the safety of all CAF members.^{Footnote 119} On 6 January 2021, the CAF launched a voluntary vaccination campaign where the priority was afforded to CAF members serving in higher-risk settings given their occupation and duties.^{Footnote 120}

On 8 October 2021, the CDS issued the first directive on CAF COVID-19 vaccination that introduced mandatory vaccination as a requirement for all CAF members to perform work-related duties.^{Footnote 121} It explained that vaccines are effective at preventing severe illness, hospitalization, and death from COVID-19, and that the number of outbreaks decreases with increased vaccination coverage in the population. The directive announced that the DND and the CAF implemented a LRMS relying on public health measures such as physical distancing, mask‑wearing, hand-washing, and work from home. It stated that the early implementation of this strategy enabled a safe workplace with minimal transmission of the virus during the first 19 months of the pandemic. The first directive explained that the “fourth wave of COVID-19” was underway and that the Delta variant was expected to be more easily transmissible than the previous variants. It also presented an “elevated risk of increased hospitalizations and the potential for healthcare capacity to be exceeded.” This directive explained that the PHAC advised that “vaccines are critical to improving the functioning of society and to achieving widespread immunity.” The directive explained that unvaccinated people were more likely to be hospitalized if infected. It also mentions that the CAF has its own healthcare system and that the CAF COVID-19 Immunization Campaign was “highly successful” with 91% of all members being fully vaccinated with two doses and 2% of all members having received one dose.

The CDS explained that “In October 2021, the dominant COVID-19 virus strain carried an elevated risk of infection and hospitalization. Health Canada scientists found that vaccines reduced these risks, that fully vaccinated individuals were less likely to spread COVID-19 to others, and that everyone was at greater risk of exposure and infection from unvaccinated individuals”.^{Footnote 122} He added that “The vaccination requirement protected military personnel from these risks. Vaccination enabled us to continue operating safely in a persistent COVID-19 environment. It mitigated the chance that we would transmit COVID-19 and helped the CAF better preserve CAF critical capabilities and readiness.” He noted that the Committee found that ensuring the health and safety of CAF members, DND civilians and the public in the pandemic were sufficiently pressing and substantial objectives to justify instituting public health measures to mitigate COVID-19 risks.

I note that, in other contexts, the Courts found that public health measures goal of reducing the risks of infection and transmission of the COVID-19 served a pressing and substantial objective in the context of the pandemic.^{Footnote 123} I agree and note that there is no dispute that the CDS directives served a pressing and substantial objective to preserve CAF operational readiness, effectiveness, and critical capabilities by protecting CAF members form the spread of COVID-19 and from the serious illness and death. Considering the unique role of the CAF, as well as its significant contribution during the pandemic, I find that the objective of the vaccination policy was pressing and substantial.

Proportionality Analysis - Rational Connection to the Policy’s Objective

The limit on a protected right must be rationally connected to the objective of the policy. There must be a causal link between the impugned measure and the pressing and substantial objective. The causal relationship between the limits and the objective should be demonstrated, where possible, by scientific evidence showing that the limits imposed may further the objective.

As I have found under my analysis of the grievors’ rights under section 7, the CAF did not present convincing arguments or scientific evidence linked to the attainment of its objective to justify the differential treatment of the two groups of unvaccinated CAF members. On the contrary, the evidence shows that unvaccinated personnel presented the same level of risk, regardless of their reason for refusing vaccination. The CAF also did not show that the percentage of unvaccinated CAF members exceeded its capacity to provide alternative work arrangements. As indicated above, the fact that the CAF respected obligations under the CHRA does not show that the differential treatment between the two groups of unvaccinated members contributed positively to the objective of the vaccination policy. As explained by the PHAC, vaccine mandates generally have exemptions and don’t require the exclusion of the unvaccinated, unless there is an outbreak. However, the CAF released hundreds of members solely because of their decision to refuse vaccination.

Furthermore, the CDS’ statement that “the fact that almost 10% of our team was not vaccinated was a serious concern” is not supported by the scientific evidence referred to by the CAF when questioned by the Committee. On the contrary, the information presented to the Committee showed that Health Canada and PHAC were hoping to get the vaccination coverage at about 80% amongst Canadians and explained that this percentage would have provided “substantial protection” against the Delta variant. At the time of issuing the CDS directives, the CAF had declared that almost 92% of all CAF members voluntarily got vaccinated before the CDS imposed a vaccination requirement. Therefore, the percentage of vaccinated CAF members was higher than the goal set by public health authorities for the Canadian population. Besides, PHAC explained that effectiveness of vaccine mandates was “less clear when the baseline immunization rate is already high.” Therefore, I find that the CAF did not show that the limits imposed on the grievors’ protected right to liberty were sufficiently and rationally connected to the objective of the vaccination policy, lacking a causal link between that policy and its substantial objective. In other words, the limits imposed on the protected right, based on the available evidence, did not further the objective of the vaccination policy under section 1 of the Charter.

Proportionality Analysis - Minimal Impairment

Minimal impairment asks whether the government entity carefully tailored the restrictions on the fundamental rights and freedoms. The deprivation must impair the right or freedom “as little as possible”. Having said this, the government is not held to a standard of perfection and can show that the measures adopted fall within a range of reasonable options.^{Footnote 124} The test for minimal impairment is whether the government can demonstrate that among the range of reasonable alternatives available, there was no other less-impairing means of achieving the objective of the policy in a real and substantial manner. The limitation must impair the right no more than reasonably necessary, having regard to the practical difficulties. There should be evidence as to why less intrusive and equally effective measures were not chosen. In determining whether a scheme is reasonably minimally impairing, courts may also look to laws and practices in other jurisdictions.^{Footnote 125}

While not governed by the same principles, minimal impairment imposes similar obligations on the CAF as the duty to accommodate up to the point of undue hardship. In Hutterian Brethren, the Supreme Court explained that human rights law jurisprudence concerning the duty to accommodate “may be helpful “to explain the burden resulting from the minimal impairment test with respect to a particular individual [emphasis in original].”^{Footnote 126} The CDS correctly points out that the two approaches differ and that the Hutterian Brethren decision explained the differences between the two approaches. While accommodation is concerned with the circumstances of one individual, the Supreme Court explained that “laws of general application are not tailored to the unique needs of individual claimants.” The Court added that “[t]he question the court must answer is whether the Charter infringement is justifiable in a free and democratic society, not whether a more advantageous arrangement for a particular claimant could be envisioned.”

Noting that the Committee found that the CAF vaccination policy was not carefully tailored to ensure minimal impairment, the CDS explained that he had to show that the vaccination requirement “would not interfere with Charter rights any more than was reasonably necessary to accomplish the pressing and substantial policy objectives of the CAF Vaccination Directives.” This required him to show that the CAF mandatory vaccination requirement “fell within a range of reasonable alternatives” and that there was “no other less-impairing means” to achieve the vaccination policy’s objectives “in a real and substantive manner”. He found that the mandatory vaccination requirement fell within a range of policy options that did not impair Charter rights any more than was reasonably necessary. He stated that exempting additional personnel from the vaccination requirement would have impaired the CAF’s ability to protect CAF members from the serious health risks related to COVID-19 and to preserve CAF critical capabilities and effectiveness in a real and substantive manner.

Explaining why the CAF did not impose less impairing measures, similar to alternative work arrangements offered to the other group of unvaccinated members, the CDS stated that the CAF had an obligation to accommodate CAF members who were unable to get vaccinated for reasons related to protected grounds of discrimination under the Canadian Human Rights Act. He acknowledged that those members were able to continue to serve under alternative work arrangements. As for the CAF members who were unwilling to get vaccinated, he stated that:

Personnel who were able to be vaccinated but refused did not receive the same accommodations. “Unwilling” CAF members had a choice. They refused to comply with the CAF vaccination requirement for many reasons, none linked to a protected ground under the CHRA. Instead, they were subject to specific service-related consequences for their decision to remain unvaccinated.

The CDS stated that the unvaccinated members remained at heightened risk of contracting COVID‑19, suffering serious health effects and transmitting it to others. He also stated that alternative work arrangements were aimed at mitigating those risks, but permitting the CAF members who were unwilling “to work remotely or providing other alternative work arrangements may have reduced these risks to some extent. However, it would not have achieved the objectives of the CAF Vaccination Directives in a real and substantial degree.” He stated that:

Therefore, extending similar accommodations to military personnel who refused to get vaccinated would have limited our ability to fully protect the health and safety of individual CAF members, the Defence Team, and the public we serve. Limitations and restrictions on their ability to perform their duties, take part in readiness activities, or deploy when required would have remained. We need every medically fit CAF member to support our critical capabilities and operational effectiveness. During a time of critical personnel shortfalls, permitting almost 10% of our personnel to remain unvaccinated was not a viable policy option.

…

Consequently, providing accommodations to more personnel would have limited the CAF’s ability to meet the CAF Vaccination Directives policy objectives in a real and substantial manner.

As for allowing unvaccinated CAF members to seek leave without pay for the duration of the temporary vaccination requirement, the CDS stated that this option was considered, but it was determined that “these alternatives were not viable policy options before the CAF vaccination requirement was implemented.” He explained that “retaining personnel who refused to get vaccinated was not a viable policy option because these individuals had failed to meet established standards of CAF behaviour.” When questioned by the Committee, the VCDS explained that the CAF sought an equivalent to the Government of Canada’s policy.^{Footnote 127} She explained, however, that ordering non-compliant members on leave without pay or to relieve them from duty were not considered viable options for the CAF. She explained that there was no time for the CAF to amend its leave manual in time to follow the timelines in the Government of Canada’s vaccination policy. The Committee also asked the SJS Director General, Plans, responsible for the development and implementation of the CDS directives if they considered other options than releasing all the unvaccinated members who were deemed to be “unwilling”. He answered that the CAF did not consider the feasibility of employing the “unwilling” members under alternatives and restrictions because the CAF determined that “being unwilling was never an option”.

Also, the information from PHAC referred to by the VCDS explained that workplaces have been a frequent setting for outbreaks, mostly in settings where physical distancing was difficult, working remotely not possible and public health measures challenging to implement. However, the same information indicates that several workplace settings have succeeded in minimizing transmission with proper infection control measures in place. The PHAC explains that vaccines, when paired with other measures such as wearing masks, hand-washing, ensuring good ventilation indoors, physically distancing and avoiding crowds, can protect the health and wellbeing of employees. The information from Health Canada specified that the goal of Canada’s COVID‑19 pandemic response and recovery was to minimize serious illness and overall deaths, while minimizing societal disruption using a risk management approach. To maximize mitigation efforts, a layered approach was recommended by applying multiple measures together aimed at reducing the risk of COVID‑19 spread.

This was also echoed by the CAF Surgeon General at the beginning of the vaccination campaign when he stated that:

Like other vaccines provided to CAF members, the COVID-19 vaccine will not be mandatory; this remains a voluntary option for all. Whether or not a vaccine will be made a requirement for an operation or a position is a decision to be made by operational commanders, in consultation with their medical advisors. However, CAF members may require proof of a COVID-19 vaccination in order to operate in certain high-risk environments or with vulnerable populations. The intent remains to protect ourselves, and protect others to maintain operational effectiveness as we serve Canada and Canadians at home and abroad.

It is pertinent to note here that the October 2022 CDS Directive 003 only requires the vaccination of specific CAF members based on operational requirements, which is what was envisioned by the CAF Surgeon General in January 2021. It is difficult to understand the reason why such a policy could not have been promulgated from the start. Even in anticipation of a new possible variant, the release of unvaccinated members for non-compliance, regardless of their occupation, duties and place of work, was not always necessary or minimally impairing. Having considered the CAF’s position and the information referred to the Committee, I find that the CDS directives do not ensure minimal impairment, as required by section 1 of the Charter.

The CAF did not demonstrate that the scope of the CDS directives and the expedited release of members for non-compliance, without consideration of any other factors, were the less impairing measures to achieve the objective of the CAF vaccination policy. On the contrary, the CDS directives show that the CAF was able to provide alternative work arrangements and allow one group of unvaccinated members to serve under restrictions. The CAF is a very large employer that provides various accommodation measures and work alternatives to its members prior to considering release when a member no longer complies with the Universality of Service principle, for example. It is an organization capable of providing temporary work alternatives to members who, for various reasons, are temporarily non deployable. In addition, the explanations provided concerning the possibility of allowing unvaccinated CAF members to request leave without pay do not show that this option was ruled out for reasons linked to the attainment of the policy’s objectives. Subparagraph 16.25 (c) of the QR&O clearly allows the CDS to grant leave without pay “for any period.” The inclusion of this option in the CDS directives would have constituted a less impairing means than releasing unvaccinated members because they could have return to duties when the mandatory vaccination requirement was amended.

Having carefully reviewed the interpretations provided by the courts and with full appreciation of the complexity of challenges presented by the COVID-19 pandemic, I cannot lose sight of the notion that a policy that limits individuals’ protected rights and freedoms should be carefully tailored and use the least restrictive options in achieving its purpose. Therefore, I find that the CDS directives did not ensure minimal impairment of the grievors’ right to refuse a medical treatment considering that the less impairing means to achieve the objective were disregarded.

Proportionality Analysis - Final Balancing

Under section 1, I need to consider whether the broad public interest justified the infringement on the fundamental individual rights of CAF members protected under section 7. ^{Footnote 128} To be saved under this portion of the analysis under section 1, the salutary effects of the limitations must outweigh its deleterious effects. This analysis allows for a broader assessment of whether the benefits of the challenged policy in terms of the public good are worth the cost of the rights limitation. ^{Footnote 129} For example in the context of the pandemic, I note that in Syndicats des métallos, the Cour supérieure du Québec observed that an infringement to the rights protected under section 7 could be justified under section 1 in a context where a sector was seriously impacted by infection and transmission of the virus.

The CDS concluded that the preservation of CAF critical capabilities and operational effectiveness would have justified any limitations of rights protected under section 7 of the Charter. He reiterated that he issued the directives during the pandemic’s fourth wave. The Delta variant carried an elevated risk of infection and hospitalization and it “threatened the ability of the CAF to carry out its mandate to defend Canada and protect Canadians.” According to the CDS:

[The vaccination requirement] protected the health and safety of our personnel and the public we could be called upon to serve. It allowed us to relax some COVID-19 related restrictions and propelled more CAF members back to working in person. It enabled the resumption of force generation activities that set the initial conditions for CAF reconstitution efforts. The CAF vaccination requirement enhanced our ability to preserve operational effectiveness, critical capabilities, and force readiness. It better equipped our team to support strategic government missions and objectives.

These benefits far outweigh any negative outcomes on personnel who refused to comply with the CAF Vaccination Directives. It was the duty of all CAF members to follow these orders. Their failure to comply resulted in the application of easily understandable, reasonable, service-related consequences, that included release from the CAF.

On this aspect, I note that the CDS directives and affidavit from the Strategic Joint Staff Director General of Plans explained that the CAF had enabled a safe workplace with minimal transmission of the virus through the diligent application of public health measures prior to vaccination being made available in Canada. The CAF’s strategy relied heavily on public health measures , and dispersed (mix of home and workplace) or work from home postures where operationally feasible. The CAF also reported having been successful at mitigating transmission and infection in the workplace. The director also explained that the success of the CAF COVID-19 Immunization Campaign^{Footnote 130} provided an important level of force protection to CAF members, enabling the relaxation of public health measures in some locations, as well as facilitating the commencement of the reconstitution of the CAF.

The first directive stated that “DND/CAF successfully implemented the DND/CAF Layered Risk Mitigation Strategy (LRMS) early on in the COVID-19 pandemic, which has enabled a safe workplace with minimal transmission of the virus.” It also stated that:

14. Problem Definition. CAF efforts throughout the COVID-19 pandemic have been focused on the preservation of force health and the operational effectiveness of critical capabilities, as well as preventing the likelihood of transmission to vulnerable groups. The CAF has demonstrated responsible leadership throughout the pandemic by continuing to deliver on its mission while ensuring force protection through the diligent application of PHMs [public health measures]. One of the most important of these PHMs is ensuring maximum workforce protection through COVID-19 vaccination, as it will enable us to be capable of operating in a persistent COVID-19 environment. The CAF will continue to demonstrate leadership by aligning its policies and orders, to the extent possible, with the Treasury Board Secretariat (TBS) policy on COVID-19 vaccination of the federal workforce at [Policy on COVID-19 Vaccination for the Core Public Administration Including the Royal Canadian Mounted Police].

In my view, the consideration of the public interest as depicted does not justify the overbroad and disproportionate response from the CAF in the implementation of its vaccination policy. The CAF did not show that the disputed measures had a salutary effect that could have outweigh the deleterious effects on the grievors. As the comments and extracts from the CDS directives show, the CAF was in a relatively good posture considering the context of the pandemic. From the beginning of the pandemic, the CAF assisted the Government of Canada in its efforts towards COVID-19. CAF members were deployed to long-term care facilities in Québec and Ontario, they supported northern and remote communities, assisted the PHAC in managing and distributing personal protective equipment, and helped Public Health Ontario with contact-tracing efforts. The CAF was able to deliver on its mission while ensuring force protection through the diligent application of public health measures before and after vaccination being made available. There is no evidence showing how the mandatory vaccination of non-deployable members and the expedited release of one group of unvaccinated members more than 18 months after the start of the pandemic had salutary effects to the point of justifying the disproportionate means employed by the CAF to enforce the CDS order to get vaccinated. Therefore, I find that the CDS directives are not saved by the final balancing under section 1 of the Charter. In conclusion, I find that the CDS directives on CAF COVID-19 Vaccination are unconstitutional.

Adequate Remedy

The appropriate remedy for an unconstitutional rule is a declaration of invalidity. The CAF mandatory vaccination policy has been amended when CDS directives 001 and 002 were superseded on 11 October 2022 by the CDS directive 003. The requirement that all CAF members be vaccinated in order to remain employed was cancelled and vaccination is no longer a condition of enrolment. Therefore, the remedy sought by several grievors - the cancellation of the CAF’s vaccination policy as stated in the first CDS directive and subsequent directives 002 and 002 amended - has already been implemented, at least in part. The cancellation of the previous versions of the policy constitutes partial remedy considering my finding that portions of the policy were unconstitutional. However, CDS directive 003 maintains the administrative actions issued under CDS directive 002. Given my finding that the policy was unconstitutional, all administrative actions taken against members as a result of the application of the first CDS directive and directives 002 and 002 amended on COVID-19 vaccination should be rescinded.

Some grievors also request apologies from the CDS for the infringement on their fundamental rights. I note that the Committee cannot compel the CDS, or anyone else, to apologize to a grievor given that the issuance of apologies is linked to freedom of expression and cannot be forced.

Findings

I find that the disputed provisions of the CAF vaccination policy are unconstitutional and, therefore, invalid.

Dated at Ottawa, this 11^th day of December 2024