Annex II — Remedial measures related to the Canadian Armed Forces vaccination policy against COVID-19

Date: 18 July 2023

Issue

The aim of this Annex is to determine whether Remedial Measures (RM) issued to grievors for non-compliance with the Canadian Armed Forces (CAF) vaccination policy were reasonable and justified.

Context

The CAF vaccination policy promulgated during the global pandemic caused by COVID-19 virus^{Footnote 1}  directed the chain of command (CoC) to issue RM for misconduct to CAF members who were unwilling to get vaccinated or to disclose their vaccination status by the deadline of 29 October 2021. The Chief of the Defence Staff (CDS) issued directives explaining that vaccination against COVID-19 was an expected behaviour and that non-compliance with these directives would be considered a breach of the members’ duty to obey and support lawful authority, as stated in the Department of National Defence (DND) and Canadian Forces (CF) Statement of Defence ethics. The directives warned that administrative measures would be used to enforce compliance and instructed the CoC to first issue a recorded warning (RW) and escalate it to a Counselling and Probation (C&P) if the member remained non-compliant, for having failed to follow an order. The directives significantly abridged the length of the monitoring periods for each RM, allowing days instead of months for members to comply. Several provisions of the Defence Administrative Orders and Directives (DAOD) 5019-4, Remedial Measures were set aside by the CAF vaccination policy, such as consideration of the members’ service records and prior relevant deficiencies, among others. Abridged timelines impaired the members’ ability to submit representations and have these representations considered by the CoC prior to the administration of RM. Additionally, the Director of Military Careers Administration (DMCA) issued an Aide-Memoire with pre-filled templates and standard wording for the application of RM in each individual case. The following analysis will examine the intent of RM, the process of administering them and the justification for issuing them in order to answer the question whether these RM were reasonable or not.

Analysis

Is refusing vaccination a conduct deficiency?

Before the COVID-19 pandemic and the promulgation of the CAF vaccination policy, the administration of RM followed the direction contained in DAOD 5019-4 to ensure that RM respect procedural fairness, are justified and reasonable. The DAOD explains that:

4.1 Each CAF member is required to maintain professional standards of conduct and performance. If a CAF member has demonstrated a conduct or performance deficiency, an appropriate remedial measure may be initiated.

[…]

4.4 The standard of conduct for a CAF member is based on established military standards, ethics and values identified in regulations, codes of conduct, policies, orders, instructions and directives applicable to the CAF member, including the standards of conduct expressed in Duty with Honour: The Profession of Arms in Canada.

The DND and the CAF Statement of Defence ethics lists “obey and support lawful authority” as one of the applicable ethical principles^{Footnote 2} . The expected behaviour is described as “respecting the rule of law” and “[c]arrying out their duty … in accordance with legislation, policies and directives in a non-partisan and objective manner," which is also consistent with the Code of Service Discipline stating that “[e]very officer and non-commissioned member shall obey lawful commands and orders of a superior officer."^{Footnote 3}

While the COVID-19 pandemic was unprecedented, vaccination of CAF members against various diseases was not new and has been done for years. Existing laws, regulations and policies provided guidance and acknowledged the members’ right to accept or refuse medical treatment, including preventive treatment such as vaccination.^{Footnote 4}  The notion that vaccination is essentially voluntary was acknowledged by the CAF’s Surgeon General in his January 2021 vaccine rollout message.^{Footnote 5}  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.

The Canadian Forces Health Services Group Instruction 4030-57 also addresses consent to medical treatments. The instruction defines “treatment” as including anything that is done for a preventive health-related purpose.^{Footnote 6}  It states that “[i]n the medical context and, with the evolution of the law on consent to medical treatment, it has become an accepted principle that every human being of adult years and of sound mind has the right to determine what will be done with his or her own body.” The instruction also explains that consent must be voluntary, informed and that patients have the right to refuse treatment “even when it is clear that such treatment is necessary to preserve health or life of the patient.” Physicians must inform patients of the consequences to their health and to their military careers and inform the member’s CoC of any medical employment limitations arising from a refusal of treatment without disclosing the reason for the medical limitations.^{Footnote 7}

Despite the voluntary nature of vaccination in general, the CAF vaccination policy pursuant to the CDS directives made it a mandatory requirement to be vaccinated. The directives explain that “… it is essential that CAF members understand that the CAF’s application of the [Government of Canada’s] Policy on COVID-19 Vaccination via the adherence of the CDS Directive on CAF COVID-19 Vaccination is an expected behaviour applicable to all CAF members, regardless of their level, position, or rank. Those that don’t comply with the Directive on CAF COVID-19 Vaccination are in breach of the behaviours expected in the Code.”^{Footnote 8}

As explained in Annex I, the CAF vaccination policy was unreasonable because it was overly broad and disproportionate in its application. As also noted in Annex I, the CAF did not offer any evidence that mandatory vaccination, despite the high vaccination rate among CAF members, was necessary in every instance or in each individual case due to operational requirements. The CAF vaccination policy infringed on the members’ rights protected by the Charter and this infringement was not in accordance with principles of fundamental justice. Since CAF members retain their rights protected under the Charter, their refusal to be vaccinated cannot be considered a misconduct nor a violation of the DND and CF Code of Values and Ethics. Although the “unwilling to vaccinate” members did not comply with the mandatory CAF vaccination policy, the said policy was unreasonable and cannot override the Charter.^{Footnote 9}

Further, the requirement to be vaccinated for a specific mission, operation or position is an operational requirement related to the performance of duties and not a question of ethics or conduct. The decision to refuse vaccination (or refuse disclosure of vaccination status) is the exercise of a right protected by the Charter and recognized by the CAF’s pre-COVID regulations and policies. Being unvaccinated against a particular disease in the pre-COVID environment would have had implications on a member’s capacity to perform specific duties, be assigned to a position, undertake training and/or serve in a particular location in high risk settings. However, those implications would be related to one’s capacity to perform duties, not to one’s ethics and conduct.

In essence, the CAF misused the RM policy outlined in DAOD 5019-4, which intended to be applied individually (to correct a member’s deficiencies) and achieve a stated operational objective (having members fully vaccinated). There is no doubt that the CAF, as an organization, has the authority to implement personnel policies intended to meet operational requirements, which are often urgent in a military context. However, the CAF has various tools at its disposal to achieve this objective, including the use of temporary medical categories, bona-fide operational requirements and minimum operational standards related to the principle of universality of service, among others. These tools apply to various occupations or positions and are based on demonstrated operational needs used for specific missions, duties or positions. Despite the existence of these and other tools, they were not utilized to support compliance with the CAF vaccination policy. The problem with the CAF’s approach was in making vaccination against COVID-19 mandatory and then using RM, meant to apply individually, to force overall compliance across the board, as well as making no linkage between specific operational requirements / operational standards and mandatory COVID-19 vaccination.

Following this analysis, I find no basis and no clear justification for characterizing the exercise of the right to accept or refuse a medical treatment as a conduct deficiency.

What is the intent of Remedial Measures?

According to DAOD 5019-4, Remedial Measures^{Footnote 10}  are intended to:

a.     make the CAF member aware of any conduct or performance deficiency;

b.     assist the CAF member in overcoming the deficiency; and

c.      provide the CAF member with time to correct their conduct or improve their performance.

The first stated intent is awareness. Members who were deemed unwilling to comply with the requirement to get vaccinated or disclose vaccination status were directed to attend an information session by the CAF. This information session was meant to raise awareness of non‑compliant members.

The second intent is to help members overcome their deficiencies. It is general knowledge that, in numerous cases, refusal to be vaccinated was based on misinformation. Despite this, a CAF member who refused vaccination did so based on their personal beliefs or preferences. The CAF chose to use RM to force compliance with the mandatory vaccination requirement which, in this context, appeared to serve as a punishment for non-compliance, notwithstanding the fact that DAOD 5019-4 emphasizes that RM are not meant to be punitive.^{Footnote 11}  It is difficult to see how RM in these cases truly assisted members in overcoming their perceived conduct deficiency. Instead, members felt pressured into accepting vaccination against their will, for fear of being released from the CAF and losing their livelihood and way of life. This leads me to conclude that the second intent was not met.

The third and final intent of RM is to give members time to correct their deficiency. This is why DAOD 5019-4 provides specific monitoring periods of three, six or twelve months. However, under the CAF vaccination policy, monitoring periods were severely abridged, giving seven days to comply with a RW and further seven days to comply with a C&P. Such short periods to bring members into compliance did not afford them a real opportunity to correct the deficiency, thus failing to meet the third intent. 

On this basis, I find that RM used to force compliance with the CAF vaccination policy did not fully meet the stated intent of these measures in accordance with DAOD 5019-4.

Was Procedural Fairness Respected in the Administration of Remedial Measures?

Monitoring Periods

As noted above, DAOD 5019-4 provides a minimum of three months for a monitoring period, “intended to allow: the CAF member time to overcome the deficiency; and time to assess the CAF member’s progress.”^{Footnote 12}  However, the CAF vaccination policy set aside provisions of this DAOD as follows:

Notwithstanding DAOD 5019-4 declaring minimum monitoring periods, members will be assessed regularly and offered opportunities to seek advice as required. After seven days of non-compliance, it will be considered a repeat of the deficiency and allow the [initiating authority] to cancel the remainder of the monitoring period and lead to C&P. Further repeats of the deficiency while on C&P will similarly lead to an Administrative Review and potential release from the CAF.^{Footnote 13}

Shortened monitoring periods were meant to force compliance with vaccination policy rather than allow members to overcome the deficiency. Any urgency related to vaccination of CAF members during the COVID-19 pandemic had already been achieved through the voluntary vaccination campaign, resulting in a 91% vaccination rate. Additionally, monitoring periods associated with the issuance of RM are supposed to be specific to each member and linked to their deficiency, as well as operational requirements and individual circumstances, allowing sufficient time to overcome that deficiency.

The circumstances of the pandemic could have warranted certain modifications of the established process since the duty of procedural fairness for administrative decisions is variable, flexible and context-specific.^{Footnote 14}  However, the CAF did not offer evidence to justify the necessity for this expedited process. On the contrary, they explained in the directives and in comments submitted to the Committee that they remained in a good posture throughout the pandemic and had other options to ensure the health and safety of the members who were unable to be vaccinated. Considering the importance and impact that these RM have on a member’s military career, CAF members had a legitimate expectation that the process would be fair.^{Footnote 15}

Nonetheless, the direction to disregard minimum monitoring periods resulted in a breach of procedural fairness reasonably expected by CAF members.

Selection of a Remedial Measure and Representations

DAOD 5019-4 states that the Initiating Authority is responsible for, among other things, “initiating appropriate RM for conduct and performance deficiencies.”^{Footnote 16}  It provides three levels of RM depending on significance.^{Footnote 17}  When selecting the appropriate RM, the DAOD requires the Initiating Authority to consider:^{Footnote 18}

a. the facts of the case, including the significance and impact of the conduct or performance deficiency;

b. the CAF member’s entire period of service, taking into account the CAF member’s rank, military occupation, experience and position;

c. any representations made by the CAF member that directly relate to the conduct or performance deficiency;

d. any conduct or performance appraisal, evaluation or constructive criticism previously received by the CAF member in respect of the deficiency;

e. any previous deficiency substantially related to the current deficiency of the CAF member and the amount of time that has elapsed between the two (e.g. C&P is more likely to be initiated for a CAF member in respect of whom an RW was initiated six months ago for a related deficiency, than in respect of whom a similar RW was initiated 20 years ago);

f. the existence of any relevant [medical employment limitations] and disclosed disability, subject to the requirements of the principle of universality of service; and

g. any other relevant factors in associated policies or orders related to the deficiency.

DAOD 5019-4 also states that “The [initiating authority] must receive and consider the CAF member’s representations.”^{Footnote 19}  However, the CAF vaccination policy directs the CoC to issue RM on the sole basis that a member refused to get vaccinated or disclose their vaccination status. There is no indication that any other factors listed in the criteria were considered, including the member’s representations. There was also no discretion provided to the Initiating Authority to issue a RM or not.

The CDS Directives state that “the [initiating authority] is expected to first consider a RW for conduct,” providing no other options or alternate courses of action. In the Aide-Memoire, the DMCA directs that RW and C&P are to be issued, unless an accommodation is granted. The Aide-Memoire equally does not contemplate any other course of action, contrary to the provisions of the DAOD that allows discretion to the CoC.^{Footnote 20}

Under the DAOD, the CoC has the responsibility to decide if a RM is required and which RM is most appropriate. However, the CDS directives and the DMCA Aide‑Memoire caused significant impact on the grievors by limiting the options and directing the CoC to use a single course of action when dealing with unvaccinated members. The outcome of the assessment having to be the issuance of RM makes it pre-determined by removing all discretion from decision-making by the CoC.

Therefore, I conclude that limiting the discretion of the Initiating Authority in the administration of RM is a significant breach of procedural fairness.

Progression of Remedial Measures

DAOD 5019-4 provides that, “a more significant remedial measure” must be considered when “[d]uring the monitoring period ... the CAF member demonstrates a repeat of the deficiency ...”^{Footnote 21}  The CAF vaccination policy states that continued non-compliance “will be considered a repeat of the deficiency and allow the Initiating Authority to cancel the remainder of the monitoring period and lead to Counselling and Probation (C&P).”

Under the CAF vaccination policy, the issuance of a RW, a C&P and initiation of release procedures are all based on the same decision by a CAF member to refuse vaccination against COVID-19 or refuse to disclose vaccination status. As such, all administrative actions successively applied to a member pertain to the same decision, leading to non-compliance with the CAF vaccination policy. I am of the view that characterizing non-compliance with vaccination policy as inability to overcome a conduct deficiency is inappropriate. Besides, basic procedural fairness is expected in the administration of RM and these essential considerations were set aside by the CAF vaccination policy.

Finding

Since the administration of the RM pursuant to the CAF’s vaccination policy had significant procedural fairness shortcomings, I find that the RW and the C&P issued under that policy were unreasonable and unjustified.

Dated at Ottawa, this 18^th day of July 2023