'Never seen anything like it': Sniper who left military over COVID-19 policy since found 'unconstitutional'
The non-binding decision made by a Canadian military tribunal could result in a flood of new lawsuits against the federal government and reopen a divisive debate over vaccine mandates, a legal expert says.
The Military Grievances External Review Committee (MGERC) recently found that the implementation of the COVID-19 vaccine policy within the Canadian Armed Forces may have violated the Charter rights of some members.
MGERC is an independent administrative tribunal that reports to Parliament through the Ministry of National Defence.
More than 400 military members were fired or quit after refusing to get the COVID-19 vaccine during the pandemic, and 157 of those cases were referred to the committee by the chief of defence staff (CDS) for review.
In at least three of the cases so far, the committee found that portions of the CAF vaccination policy and its COVID-19 directives may have contravened the Charter rights of soldiers who refused to be vaccinated.
MGERC found that the complainants’ “right to liberty and security of the person by the CAF vaccination policy is not in accordance with the principles of fundamental justice.”
In its response, adjudicator Nina Frid wrote that the policy was, in some aspects, “arbitrary, overly broad and disproportionate.”
ALLEGED INTIMIDATION BY SUPERIORS
Dallas Alexander Flamand, a former sniper with the elite JTF2 special operations unit, is among those who left the military because of its vaccine policy.
Flamand says he hopes the MGERC findings will lead to a better approach by the Department of National Defence in implementing future health policies
Flamand said that he was reluctant to get vaccinated because he suffered from several concussions in his career, and was worried about the potential impact of the vaccine on his health. He says he faced “bullying and threats” by his superiors to get the shot.
“I was told by my chain of command, by our sergeant major, that he wanted me out of our troop by the end of the week, which was a very drastic response. I’d never seen anything like it in the 16 years that I served,” said Flamand in an interview with CTV News.
Flamand is now pursuing a music career, but says he would have stayed in the military if he had not been pushed out.
UNABLE VS. UNWILLING
Flamand is one of hundreds who are no longer members of Canada's military due to a directive dating back to the second year of the pandemic.
In October 2021, the CDS issued a directive for mandatory vaccination that aligned with the government of Canada’s policy for all public servants to get the shots. At the time, 91 per cent of the force had already voluntarily received two doses.
The directive, according to the MGERC, separated the unvaccinated into those who were “unable” for medical or religious beliefs, and those who were “unwilling.”
While those who were “unable” received accommodation measures such as remote work and regular COVID-19 testing, the report found that those who were “unwilling” to comply lost promotions or could not be deployed on international or domestic operations, and were subjected to discipline.
The mandatory vaccine requirement in the Canadian Forces was lifted a year later. By October 2022, 299 members were fired and 108 had left the force voluntarily as a result of the policy, according to the CAF.
Frid found the “livelihood, physical and psychological integrity” of the complainants were impacted, and as a result, she deemed the disputed provisions of the CAF vaccination policy “unconstitutional and therefore invalid.”
CALLS TO BRING BACK EXPELLED MEMBERS
Lawyer Phillip Millar calls the MGERC report “refreshing” and “unpolitical.”
The London, Ont.-based lawyer has represented several Canadian Forces members in legal battles against vaccine mandates. His most notable client is Warrant Officer James Topp, an army reservist who faces a court martial after criticizing the policy while wearing his uniform.
Millar says the Chief of Defence Staff Gen. Wayne Eyre should use MGERC’s decision as a reason to bring back the hundreds of skilled soldiers that lost or left their jobs because of vaccine mandates.
“This report gives (Eyre) the ammunition to say those releases were not fair to our soldiers. He could fix it today. Turn those decisions over and bring them back,” said Millar. “We have a recruiting shortfall that’s threatening operational security. But we kicked out hundreds of highly trained people.”
But it is unlikely that expelled members will be welcomed back into the fold.
Section 126 of the National Defence Act makes it an offence for members to reject vaccinations by refusing to obey an order.
After the vaccine mandate was lifted, Eyre said the refusal of some troops to get vaccinated “raises questions” about their suitability.
"It's dangerous in the military to have legal orders disobeyed," Eyre said last October. "It's a very slippery slope."
HUNDREDS OF SOLDIERS SUING
Flamand, who was part of the special operations team that held the record for longest kill shot, has joined a mass tort litigation against the federal government and Canadian Forces initiated by Alberta lawyer Catherine Christensen.
Even though the Canadian Forces doesn’t have to implement MGERC’s recommendations, Christensen says the committee’s findings represent a significant step forward in showing that the vaccine policy was "an unlawful order.”
Christensen represents 330 members, from tactical pilots to chaplains to cooks. Some of them say they didn’t want the vaccine because they had natural immunity from previous infections. Their claims include being denied parental leave and pensionable benefits, along with allegations of threats and loss of promotions.
The St. Albert-based lawyer says the lawsuits aren’t about vaccine mandates, but about the abuse of power and process. She expects more soldiers to join the legal battle after MGERC’s report.
“I don’t care if someone was vaccinated or not vaccinated. That has no bearing on this lawsuit," said Christensen. “This is about the taunting and bullying and harassment of these people. This isn’t anything to do with COVID-19. This has to do with how the Canadian Armed Forces are treating their own people.”
REFUTING THE CONSTITUTIONALITY CLAIM
But constitutional experts say the decision by the military grievance board is unlikely to hold up in court. University of Ottawa law Prof. Erol Mendes, who teaches and researches constitutional and human rights law, says MGERC’s findings are problematic, citing examples that have already been refuted in court.
Mendes says courts in several provinces have already upheld the constitutionality of vaccine mandates because the policies were based on the scientific information that was available at the time.
“You’re not just talking about (individual) liberty and security of one person. What you do affects the liberty and security of person of others. And for that reason, the courts couldn’t say they were infringed so much it was a violation of the Charter.”
Mendes says the evidence shows that the military made attempts to accommodate those who are unable to get vaccinated, but under the Charter it’s not required to accommodate the “unwilling.”
Mendes says the Canadian Forces should move quickly to counter MGERC’s claims in order to stop providing more oxygen to a divisive debate.
“I think most Canadians would say if you’re unwilling to be vaccinated, that shows you’re basically willing to take on the entire system in which you want to be employed.”
The Canadian Forces has yet to decide if it will challenge MGERC’s claims in federal court. In an email to CTV News, it said that vaccine-preventable illness is a hazard to individuals and the mission, and the force’s vaccine policies take into account current medical evidence and the federal posture so the force can be ready operationally.
IN DEPTH
Budget 2024 prioritizes housing while taxing highest earners, deficit projected at $39.8B
In an effort to level the playing field for young people, in the 2024 federal budget, the government is targeting Canada's highest earners with new taxes in order to help offset billions in new spending to enhance the country's housing supply and social supports.
'One of the greatest': Former prime minister Brian Mulroney commemorated at state funeral
Prominent Canadians, political leaders, and family members remembered former prime minister and Progressive Conservative titan Brian Mulroney as an ambitious and compassionate nation-builder at his state funeral on Saturday.
'Democracy requires constant vigilance' Trudeau testifies at inquiry into foreign election interference in Canada
Prime Minister Justin Trudeau testified Wednesday before the national public inquiry into foreign interference in Canada's electoral processes, following a day of testimony from top cabinet ministers about allegations of meddling in the 2019 and 2021 federal elections. Recap all the prime minister had to say.
As Poilievre sides with Smith on trans restrictions, former Conservative candidate says he's 'playing with fire'
Siding with Alberta Premier Danielle Smith on her proposed restrictions on transgender youth, Conservative Leader Pierre Poilievre confirmed Wednesday that he is against trans and non-binary minors using puberty blockers.
Supports for passengers, farmers, artists: 7 bills from MPs and Senators to watch in 2024
When parliamentarians return to Ottawa in a few weeks to kick off the 2024 sitting, there are a few bills from MPs and senators that will be worth keeping an eye on, from a 'gutted' proposal to offer a carbon tax break to farmers, to an initiative aimed at improving Canada's DNA data bank.
Opinion
opinion Don Martin: Gusher of Liberal spending won't put out the fire in this dumpster
A Hail Mary rehash of the greatest hits from the Trudeau government’s three-week travelling pony-show, the 2024 federal budget takes aim at reversing the party’s popularity plunge in the under-40 set, writes political columnist Don Martin. But will it work before the next election?
opinion Don Martin: The doctor Trudeau dumped has a prescription for better health care
Political columnist Don Martin sat down with former federal health minister Jane Philpott, who's on a crusade to help fix Canada's broken health care system, and who declined to take any shots at the prime minister who dumped her from caucus.
opinion Don Martin: Trudeau's seeking shelter from the housing storm he helped create
While Justin Trudeau's recent housing announcements are generally drawing praise from experts, political columnist Don Martin argues there shouldn’t be any standing ovations for a prime minister who helped caused the problem in the first place.
opinion Don Martin: Poilievre has the field to himself as he races across the country to big crowds
It came to pass on Thursday evening that the confidentially predictable failure of the Official Opposition non-confidence motion went down with 204 Liberal, BQ and NDP nays to 116 Conservative yeas. But forcing Canada into a federal election campaign was never the point.
opinion Don Martin: How a beer break may have doomed the carbon tax hike
When the Liberal government chopped a planned beer excise tax hike to two per cent from 4.5 per cent and froze future increases until after the next election, says political columnist Don Martin, it almost guaranteed a similar carbon tax move in the offing.
CTVNews.ca Top Stories
Evacuation order issued for some Fort McMurray neighbourhoods as wildfire nears
Four Fort McMurray neighbourhoods were ordered to evacuate as a wildfire gets closer to the city.
Maximum payout for LifeLabs class-action drops from $150 estimate to $7.86
Canadian LifeLabs customers who filed an application for a class-action settlement began receiving their payments this week, though at a much lower amount than initially expected.
BREAKING 'A remarkable time': After 8 years at Toronto Public Health, Dr. Eileen de Villa announces resignation
The doctor who led Toronto through the COVID-19 pandemic as the city’s top public health official is stepping down.
BREAKING Sask. man faces 60 charges in child exploitation investigation, with crimes dating back to 2005
Saskatchewan RCMP have revealed that a historic sexual assault investigation has led to the discovery of alleged crimes against children dating back to 2005.
Latest updates on air quality alerts, and when the smoke may reach Ontario and Quebec
Wildfires have led Environment Canada to issue air quality advisories for parts of B.C., Alberta, Manitoba, Saskatchewan and the Northwest Territories, as forecasters warn the smoke could drift farther east.
American sought after 'So I raped you' Facebook message detained in France on 2021 warrant
An American accused of sexually assaulting a Pennsylvania college student in 2013 and later sending her a Facebook message that said, 'So I raped you,' has been detained in France after a three-year search.
Full List Are these Canada's best restaurants? Annual top 100 list revealed
The annual list of Canada's top restaurants in the country was just released and here are the places that made the 2024 cut.
Alice Munro, Nobel literature winner revered as short story master, dead at 92
Nobel laureate Alice Munro, the Canadian literary giant who became one of the world's most esteemed contemporary authors and one of history's most honoured short story writers, has died at age 92.
1 killed, 3 injured in head-on crash on Hwy. 417 in Ottawa
Ontario Provincial Police are responding to a fatal collision involving two vehicles on Highway 417 in Ottawa's west end on Tuesday morning.
Local Spotlight
'We're on standby': Team ready to help entangled right whale in Gulf of St. Lawrence
A team is ready to help an entangled North Atlantic right whale in the Gulf of St. Lawrence.
Thieves caught on camera stealing pet chicken from North Vancouver backyard
A $200 reward is being offered by a North Vancouver family for the safe return of their beloved chicken, Snowflake.
Adopted daughter in the Netherlands reunited with sister in Montreal and mother in Colombia, 40 years later
Two daughters and a mother were reunited online 40 years later thanks to a DNA kit and a Zoom connection despite living on three separate continents and speaking different languages.
'Reimagining Mother's Day': Toronto woman creates Motherless Day event after losing mom
Mother's Day can be a difficult occasion for those who have lost or are estranged from their mom.
Chris Hadfield inspires youth musical in Sudbury
YES Theatre Young Company opened its acclaimed kids’ show, One Small Step, at Sudbury Theatre Centre on Saturday.
Ottawa pizzeria places among top 20 deep-dish pizzas in the world at international competition
An Ottawa pizzeria is being recognized as one of the top 20 deep-dish pizzas in the world.
From outer space? Sask. farmers baffled after discovering strange wreckage in field
A family of fifth generation farmers from Ituna, Sask. are trying to find answers after discovering several strange objects lying on their land.
Wilfrid Laurier football player drafted despite only playing 27 games in his entire life
A Listowel, Ont. man, drafted by the Hamilton Tigercats last week, is also getting looks from the NFL, despite only playing 27 games of football in his life.
Federal government bans watercraft from Manitoba lake popular with tourists
The threat of zebra mussels has prompted the federal government to temporarily ban watercraft from a Manitoba lake popular with tourists.