Jessica Rose | Substack
"I find that the grievor was aggrieved."
Yes, millions of us were and are still being aggrieved. Violated is also an appropriate word to use.
Edit: Not a court but a tribunal: the decision is not binding on the Chief of Defence as I wrote.
The tribunal was the platform upon which the presiding authority sat; having a raised position physically as symbolic of his higher position in regard to the adjudication of the law.1
Personally, I am a little iffy about this whole ‘tribunal’ idea. Who decides who is fit to judge or if this so-called ‘higher position’ embodies principles, fairness or justice? It certainly doesn’t in our times. The almighty fiat currency seems to dictate ‘height of position’ which tends to corrupt the minds of men, and I would go as far to say that currency accumulation and ethical behavior are mutually exclusive.
It came to my attention today that a ruling within the Canadian tribunal system - the Military Grievances External Review Committee - found that a member (Master Corporal) of the Canadian Armed Forces (CAF) had their Canadian Charter rights violated, according to the decision of the tribunal with regards to COVID-19 policies.
Read carefully section 7 of the Canadian Charter of Rights and Freedoms under Legal Rights.
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.2
As as aside: I find it ‘interesting’ that Henry Morgentaler is given as an example of someone who successfully challenged abortion law as a breach of security of person according to the Charter on the afore-referenced Wikipedia page.
In order to prove a breach of the Charter, one must provide compelling evidence that at least one of life, liberty or security were engaged. In this case, the tribunal found that 2 out 3 (liberty and security) were engaged and thus, further analysis of potential violation of charter rights was pursuable, therefore.
Following the review of precedent court cases, I conclude that two of the three protected interests under section 7 of the Charter are engaged, which is sufficient to pursue further analysis under section 7. The requirement to be vaccinated in order to remain employed by the CAF engages the grievors’ right to liberty and the consequences of non-compliance can also engage some grievors’ right to the security of the person. This deprivation is only permissible if it is in accordance with the Principles of Fundamental Justice.
Was the deprivation in accordance with the Principles of Fundamental Justice?
The first point in the well-established Principles of Fundamental Justice is Arbitrariness.
Arbitrariness: It is a principle of fundamental justice that laws should not be arbitrary. (R v Malmo-Levine) That is, the state may not limit an individual's rights where "it bears no relation to, or is inconsistent with, the objective that lies behind [it]". (Rodriguez v British Columbia (AG))3
This means that you can’t treat two people or two groups of people differently without rational connection to the purpose for doing so. In this case, the tribunal ruled that people were treated differently for no discernible or justifiable reason and that there were policies imposed within the CAF that were arbitrarily enforced.
The Chief of the Defence Staff (CDS) directives also treat two groups of unvaccinated members differently (the “unable” and the “unwilling”). Members unwilling to be vaccinated receive administrative actions leading to release, while members deemed unable to be vaccinated are provided with alternatives (remote work, telework, testing, alternative work place, alternative work schedule).
The Chief of the Defence Staff (CDS) directives nor the CAF members could explain why the above-listed alternatives could not be made available to the unwilling. The distinction between “unable” and “unwilling” was not found to be connected to the objective of the vaccination policy and therefore, the ‘distinction’ between “unable” and “unwilling” was ruled arbitrary.
There is no scientific evidence or operational considerations showing how the division of unvaccinated members into two groups is connected to the objectives of the vaccination policy or why the CAF had to limit the accommodations to the “unable”.
Ruling: 2 out of 3 of the Legal Rights in section 7 of the Charter were engaged and subsequent deprivation was arbitrarily imposed: therefore these impositions were deemed not in accordance with the Principles of Fundamental Justice based on arbitrary imposition and thus constitute violations of the Canadian Charter of Rights and Freedoms.
The third point in the well-established Principles of Fundamental Justice is Overbreadth.
Overbreadth: The "Principles of Fundamental Justice" require that means used to achieve a societal purpose or objective must be reasonably necessary.
"Overbreadth analysis looks at the means chosen by the state in relation to its purpose. If the State, in pursuing a legitimate objective, uses means which are broader than is necessary to accomplish that objective, the principles of fundamental justice will be violated because the individual's rights will have been limited for no reason." (R v Heywood at para 49)
Basically, there was no scientific basis for mandating all CAF members, regardless of occupation, location or task, to be injected within 14 days in order to remain employed. One size does not fit all. People in telecommunications working remotely, or outside, are at no additional risk of being infected by any airborne pathogen and certainly do not share the risk that others in schools or care homes might.
[It is] “a highly contextual matter involving the balancing of interests that will vary from workplace to workplace, and will be fluid, potentially changing as circumstances change”.
The fourth point in the well-established Principles of Fundamental Justice is Gross disproportionality.
Gross disproportionality describes state actions or legislative responses to a problem that are so extreme as to be disproportionate to any legitimate government interest (R v Malmo-Levine at para 143)
Again, satisfied in this case. According to the CAF injection policy, all members were given 14 days to comply and to get injected with one of the COVID-19 products, or to at least have an appointment to do so ‘arranged’ within this timeframe. Members who were unwilling to comply were punished via misconduct accusations, ‘Recoded Warnings’ with threats of progressing to ‘Counseling and Probation’.
They were subjected to ‘administrative reviews’ but, without the powers that be having the authority to order these public servants to leave without pay, was their termination a proportionate response to simply saying, ‘No thank you, Sir’?
…arbitrators found that policies directing the inevitable termination of unvaccinated employees were unreasonable in light of the constantly changing and evolving situation with 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.
And here’s the punchline: “The simple fact that an employee is unvaccinated does not automatically justify termination and it does not justify termination in every case.”
In light of the analysis detailed above, I conclude that the limitation of the grievors’ right to liberty and security of the person by the CAF vaccination policy is not in accordance with the principles of fundamental justice because the policy, in some aspects, is arbitrary, overly broad and disproportionate. Therefore, I conclude that the grievors’ rights protected under section 7 were infringed.
Ruling: 2 out of 3 of the Legal Rights in section 7 of the Charter were engaged and subsequent deprivation was arbitrarily imposed while the policies were proven to embody overbreadth and gross disproportionality. Therefore, the deprivation was notin accordance with the Principles of Fundamental Justice on 3 separate counts and thus the policies constitute violations of the Canadian Charter of Rights and Freedoms within the CAF.
But don’t break out the champagne yet. The ruling ultimately left the decision up to the perpetrators (the CAF) to limit fundamental rights when necessary andproportional. In addition, since the defendant was seeking to end the mandates within the CAF, since these mandates were no longer a condition for enrollment in the CAF as of 11 October 2022, then no further action was required.
No damage done, right?
The cancellation of the previous versions of the policy constitutes partial remedy considering my finding that portions of the policy were unconstitutional.
Partial? I would like to make a point here. In the case where CAF members were subsequently damaged by these policies (deemed by tribunal proceedings to violate the Canadian Charter of Rights and Freedoms), either mentally or physically, will there be compensation for these people for their loss and suffering? In my opinion, it is not enough to simply say, ‘oops, we violated the Canadian Charter of Rights and Freedoms and you all were subjected to potential harms and some succumbed, but those violations are no longer in place so don’t worry about paralysis, being gas-lit, losing your job: it’s taken care of now’.
If this is the precedent set, what on Earth are we setting up for ourselves in the future? What kind of future could our beautiful country even have where the Charter of Rights and Freedoms can be violated, at will, without repercussions?
It’s great that the judge determined the CAF policies were unreasonable and unjustified, but no one got punished. Did the men and women who vowed to serve and protect our country who were reprimanded and who had their Charter Rights violated get any sort of compensation or even a mere apology?
All we can know is that the CAF member (the grievor) asked for the following:
- written acknowledgement that his rights were infringed upon
- written F&R report from the Committee, which is independent from the CAF and the Department of National Defence, in response to his grievance should satisfy this request
- written guidance from CAF authorities concerning legal and ethical concerns related to the CAF vaccination policy. Guidance by the Surgeon General is referenced in Annex I
- to be exempt from future requirements for booster doses. With the release of CDS Directive 003, vaccination is no longer mandatory.
And the final ‘recommendation’ following having filed that the Charter Rights of this person were violated is as follows:
I recommend that the Final Authority afford the grievor redress, cancel the RW and remove it from his records.
I don’t know what ‘redress’ means in this case, but it seems to me that the push for justice to be served here is still very much required. 1
Original Article: https://jessicar.substack.com/p/i-find-that-the-grievor-was-aggrieved