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Defence chief was warned about legality of military’s COVID-19 vaccine mandate: memo

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OTTAWA — The commander of the Canadian Armed Forces was warned by his senior legal and medical advisers last year that requiring all troops to be vaccinated against COVID-19 was unnecessary ⁠ — and that doing so “may not constitute a legal order.”

The message was delivered to chief of the defence staff Gen. Wayne Eyre in an August 2021 briefing note, two months before then-defence minister Harjit Sajjan directed him to impose a vaccine requirement for all troops.

In two separate interviews with The Canadian Press, the defence chief described the briefing note as one of several legal opinions received before handing down his order in October 2021.

“We get lots of legal opinions out there, but we can’t allow one legal opinion from stopping us from doing the right thing,” Eyre said. “And here, the right thing is ensuring our operational readiness so that we can protect Canada and Canadian interests around the world.”

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However, Catherine Christensen, the Edmonton lawyer who obtained the briefing note through the Access to Information Act, argued the document shows Eyre’s order was driven by politics.

The Aug. 27, 2021, briefing note was presented to Eyre by Maj.-Gen. Trevor Cadieu, who was one of the defence chief’s strategic advisers at the time. It was prepared “in close collaboration” with senior medical, legal, political and public affairs officers and it incorporates legal analysis from the Department of Justice.

Citing concerns about a fourth wave of COVID-19 driven by the Delta variant, the advisers noted the benefits of vaccination in preventing the spread of disease, adding vaccine mandates “may be effective in increasing coverage rates.”

They also described the purpose of a broader federal vaccine mandate would be “not only to protect public health, but also for the federal government to demonstrate leadership and assist in economic recovery.”

On Aug. 13, 2021, the Liberal government had announced a vaccine mandate for federal public servants, as well as workers and travellers in federally regulated transportation sectors.

The memo suggested a universal mandate was unnecessary to protect the health of the Canadian Armed Forces, given that more than 90 per cent of Armed Forces personnel were already vaccinated at that time.

The early analysis noted “the level of legal risk” for a mandatory COVID-19 vaccine policy would depend on the final details, as well as “the strength of the public health rationale and how the policy will be implemented.”

It said that would include any accommodations and mitigation measures for those either unable or, notably, unwilling to be vaccinated, which it recommend to help defend against Charter challenges.

The advisers also warned that Armed Forces members could try to push back against the vaccine mandate on safety grounds. At that time, Health Canada had authorized COVID-19 inoculations under a special interim order due to the emergency nature of the pandemic.

“Prior to full approval of the vaccines under Canada’s Food and Drug Regulations, CAF members ordered to receive COVID-19 vaccination might argue that they are being ordered to accept a new and potentially dangerous medical substance into their body,” the note said.

The interim order, which expired in September 2021, allowed the government to authorize vaccines faster than normal where the benefits were deemed to outweigh the risks.

In their note, Eyre’s advisers cited the case of former Sgt. Mike Kipling, who was charged in 1998 under Section 126 of the National Defence Act, which allows the military to charge members who “wilfully and without reasonable excuse” refuse an order to get a vaccine.

Kipling had been ordered to take an anthrax vaccine while serving in Kuwait, but refused because he considered the drug unsafe. The vaccine was unlicensed for use in Canada. A military judged eventually ruled in favour of Kipling, agreeing his Charter rights were infringed. The Forces appealed and a new court martial was ordered, but the military decided to drop the proceedings.

Eyre was told military personnel who refused a vaccination order could be similarly charged under military law, but “there is a significant risk in ordering CAF members to accept COVID-19 vaccination, as it may not constitute a legal order.”

The memo also said a mandate for the Armed Forces “would not only be punitive in nature, but would also be counter to the successful efforts made to date to encourage maximum voluntary uptake of the COVID-19 vaccine.” The advisers suggested the military share its voluntary approach with other federal departments as a “best practice.”

The advisers concluded by expressing support for the federal government’s intent to bring in a proof-of-vaccination policy, but again cautioned that the rollout would need “prudent planning” that kept in mind the challenges they described.

Eyre first ordered all Armed Forces members to attest they had been fully vaccinated against COVID-19 on Oct. 6, 2021.

Rather than charging those who refused to comply, the military forced about 300 non-compliant Armed Forces members out of uniform using an administrative process called a 5F release that declares them unfit for service.

About 100 troops have left voluntarily. Hundreds more had permanent censures put on their files. Outside the military, most federal employees were allowed to go on leave without pay and returned to their positions after the mandate was suspended in June.

The Armed Forces’ vaccination policy does allow exemptions for medical reasons, religious beliefs or any other grounds of discrimination under the Canadian Human Rights Act, to be determined on a case-by-case basis. In late April, a parliamentary committee heard that more than 1,300 members had requested exemptions, but nearly 1,000 had been denied.

Retired lieutenant-colonel Rory Fowler, who is now a lawyer specializing in military cases, said the decision to use 5F releases instead of charging unvaccinated troops means the Armed Forces doesn’t have to defend the legality of the order in court.

And while troops can file a grievance, it currently takes about three years for a case to be heard — with the defence chief serving as the final authority.

Christensen, who is representing a number of those unvaccinated troops who lost their jobs, said she believes the briefing note explains why the military is using 5F releases instead of charging those who refuse to comply with Eyre’s order.

“They didn’t want their mandate or their order for everyone to be vaccinated to be challenged in court,” said Christensen. She said Eyre had the power “to order everyone to be vaccinated. Full stop. Then if they did not want to be vaccinated, they had to come up with a reasonable excuse at court martial. … (Eyre) didn’t do that.”

Fowler has previously raised concerns about the military trying to punish soldiers without involving the courts in other situations, and believes there are legitimate questions about the legality of the vaccine order.

“What I believe is it should be tested,” he said.

Eyre and his office have not said exactly why that decision was made. His office said in a statement that “administrative measures and the administrative review process was considered the most appropriate approach.”

Asked if the decision to avoid the courts was the result of concerns about the legality of his order, Eyre said: “Not at all. We had numerous legal opinions.”

The defence chief also said that while Sajjan directed him to include the Armed Forces in the broader federal government’s mandate, “I was in agreement at that time, I issued the order. … Make no mistake, it’s my order.”

This report by The Canadian Press was first published Oct. 24, 2022.

 

Lee Berthiaume, The Canadian Press

 

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Young and old more likely to face severe flu. Here's why doctors think it happens – CBC News

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Canadians have been getting sick enough with seasonal flu to land in hospital, say doctors with suggestions on who is most at risk and what it could mean for festive gatherings.

“We’re starting to now see the effect of flu on certain populations, particularly very young children and very older people, in making them sick enough that they need to come into hospital,” said Dr. Gerald Evans, chair of the division of infectious diseases at Queen’s University and Kingston Health Sciences Centre.

During the depths of the COVID-19 pandemic, air travel declined. It’s one of the suspected reasons that influenza all but disappeared, Evans said.

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Flu viruses need human hosts travelling between the southern and northern hemispheres to gain a foothold during winter on both ends of the planet, according to influenza experts.

Dr. Upton Allen, head of infectious diseases at Sick Kids Hospital, said the H3N2 strain of influenza might be associated with more severe disease than other strains. (SickKids)

For about 100 years, doctors have known that the youngest and oldest are most at risk for serious flu. Why hasn’t been nailed down, but there are a few possible reasons — including what strains were circulating when you were first exposed.

Generational effects explored

Canadian and international research on humans as well as in animal models suggest that the first strain of flu virus you’re infected with tends to prime or shape the immune system. The result is that our immune system responds best to the original type of flu infection it faced.

“That’s why we believe that older people who are mostly primed with H1N1 don’t do very well during an H3N2 year like we’re having this year,” Evans said.

Staff at pediatric hospitals like Sick Kids continue to face pressures from pandemic backlogs of surgeries. (Michael Wilson/CBC)

The 2009 H1N1 pandemic also continues to affect how younger ones do with flu.

Those aged 13 and under were probably primed to H1N1 after 2009, just as their grandparents were in their childhoods, Evans said.

If so, today’s kids could be more vulnerable to severe disease from flu now than their parents’ generation who first encountered an H3N2 strain.

Evans added it’s also thought that older people may have more severe outcomes from flu because of underlying problems such as heart disease, lung disease or treatments for cancer.

Youngest hadn’t been exposed 

Another reason why young children are being hit hard by flu and RSV this year: recent pandemic public health measures meant those under two haven’t seen flu at all and preschoolers haven’t experienced it or another respiratory virus known as respiratory syncytial virus, or RSV, for a couple seasons.

“The boost of immunity they get from having had some prior exposures in the year before are missing and so they’re tending to get infected more,” Evans said. 

Dr. Upton Allen, chief of infectious diseases at the Hospital for Sick Children in Toronto, pointed to a few other possibilities.

One is the strain of flu virus that’s mainly circulating. It’s officially called Influenza A H3N2, which Allen said might be associated with more severe disease.

Also, our immune system is considered weakest at the extremes of life.

“The overwhelming majority of kids who get the flu will get it mild, but some people can get it severe,” Allen said.

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If a child is breathing very quickly, having trouble breathing, weak, doesn’t wake up or respond then those might indicate a more severe bout. “Call 911 or go to the nearest emergency department,” Allen said.

The Public Health Agency of Canada reports fewer than five influenza-associated deaths among those aged 16 and younger for the week ending Nov. 19.

“Each year the number of deaths generally are in single digits,” for that age group in Canada, Allen said.

Doctor’s holiday flu forecast

Marie Tarrant, a professor in the nursing school at the University of British Columbia Okanagan, is concerned about the uptick in hospitalizations from flu for patients and health-care systems.

“The other side of that is just the burden that is putting on a healthcare system that has been maximally strained for the last 2 ½ years.”

A lab technician at work.
A lab technician works in the H1N1 laboratory at the British Columbia Centre for Disease Control in Vancouver in 2009. This year’s flu season started earlier than the norm. (Darryl Dyck/The Canadian Press)

People with flu, RSV and other infections have a “compounding effect” of burdening hospitals, she said. Like Canada’s National Advisory Committee on Immunization, Tarrant recommends those aged six months and older who are eligible get a flu shot.

“Flu vaccines prevent about 40 to 60 per cent of serious illness and hospitalization,” she said. “They do work.”

Evans has similar advice.

“Get your flu shot,” he said. “It’s not going to be for everybody, but it’s going to prevent a lot of people getting infected and that’s going to help of course alleviate the stresses that we’re seeing in trying to provide care to everybody.”

It’s also not too late to get a flu shot, clinicians say.

Plus, flu season started earlier than it typically does this year, which could (eventually) offer a yuletide bright spot. Evans said seasonal flu usually disappears after a period of about six weeks. Canada is now about two weeks into a surge.

“By the time the holidays come around, we should be seeing a waning down of numbers of influenza infections, if it follows the pattern that we have seen now literally for decades.”

The good news? “As long as you’re feeling OK and you don’t have signs and symptoms of a cold, I think gathering together is fine.”

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St. Joe's opens Hamilton Mountain flu, COVID and cold clinic – Hamilton Spectator

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St. Joseph's West 5th Campus has opened a flu, COVID and cold clinic.

With the cold and flu season now in full swing, St. Joseph’s Healthcare Hamilton has opened a flu, COVID and cold clinic at their West 5th (and Fennell) campus.

St. Joe’s officials say the goal of the dedicated clinic is to provide both adults and children with timely care, while reducing the number of patients visiting emergency departments for respiratory illnesses commonly seen throughout the fall and winter.

Clinic visits are by appointment only.

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See stjoes.ca/FluCOVIDCold to book an appointment.

Clinic hours are Monday to Friday 4:30 p.m. to 9 p.m., Saturday/Sunday 8 a.m. to 4 p.m.

The clinic is a collaborative effort between St. Joseph’s Healthcare Hamilton, Hamilton Health Sciences (HHS) and primary care doctors

St Joe’s official say adults and children experiencing flu, COVID or cold symptoms, who are unable to seek timely care from their family doctor or do not have a family doctor, should book an appointment if their symptoms are not improving after a few days, despite using common over-the-counter medications as indicated on the label, such as ibuprofen (Advil), acetaminophen (Tylenol), nasal rinses and cold/flu medications or if they are particularly worried about any of their symptoms.

Common symptoms include fever, cough, sore throat, runny or stuffy nose, chills, loss of taste or smell, headache, and muscle aches.

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World AIDS Day: HIV activists hopeful for end to backsliding on infections, stigma – National | Globalnews.ca – Global News

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HIV activists are marking World AIDS Day by urging Ottawa to help stop a global backslide in progress on stemming infections and stigma.

“It’s clear to us that this government is seized of the issue, but the truth of the matter is, no movement is happening quickly enough for people with HIV living in Canada,” says Janet Butler-McPhee, who co-leads the HIV Legal Network in Toronto.

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Read more:

Canada’s response to AIDS lagging, activists say ahead of international conference

The Public Health Agency of Canada estimated that 62,790 people in Canada were living with HIV in 2020, and that 10 per cent of them didn’t know they had the virus.

That represented a slight drop in overall cases from 2018, but an increase among the most vulnerable.

Indigenous people accounted for nearly one-fifth of new HIV infections in Canada in 2020, the data say. That year, women and people who inject drugs made up an increasing share of infections, while men who have sex with men made up a smaller share.


Click to play video: '‘One pandemic cannot overshadow another,’ health minister says on HIV/AIDS'

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‘One pandemic cannot overshadow another,’ health minister says on HIV/AIDS


Advocates argue that the numbers reflect the uneven effects of the COVID-19 pandemic.

Butler-McPhee noted that the Harper and Trudeau governments both pledged funding for grassroots groups that serve people with HIV that hasn’t fully materialized, despite the added factors of a toxic drug crisis and the COVID-19 pandemic.

“You’re talking about organizations who have had to pivot pretty significantly and take on new work without funding that has been long-promised,” she said.

Meanwhile, Canada continues to trail its peers in criminalizing HIV non-disclosure. Canadians living with the virus can be prosecuted for not disclosing their status to sexual partners, even when prescription drugs make it impossible to transmit the virus.

Read more:

‘Far from over’: What past pandemics can tell us about ending COVID-19

“Criminalization can lead to the stigmatization of people living with HIV, which can often discourage individuals from being tested or seeking treatment,” the Department of Justice noted in October.

The Liberals have been promising to fix the issue since 2016, but only launched a national consultation in October. They have also asked prosecutors to avoid criminalizing people with HIV in the territories, while suggesting provinces follow suit, with mixed success.

“For the last six years, there has been a recognition by this federal government that HIV criminalization is an issue in Canada, but there has been not as much movement as we’d like to see,” said India Annamanthadoo, a lawyer with the HIV Legal Network.


Click to play video: 'Specialty hospital  for people living with, at risk of HIV'

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Specialty hospital for people living with, at risk of HIV


Abroad, the World Health Organization reported disruptions in HIV patients accessing treatments that suppress symptoms and stop the virus from progressing to AIDS, as countries targeted their health care systems at stemming COVID-19 infections.

That’s put a dent in progress toward the United Nations sustainable development goal of ending the epidemic of HIV-AIDS by 2030.

Before the pandemic, the UN’s joint program on AIDS reported that AIDS-related deaths had gone down by 68 per cent since the peak in 2004, and by 52 per cent since 2010.

Read more:

Halifax region records increase in number of people diagnosed with HIV: Public Health

Thursday marks World AIDS Day, which the United Nations has marked every year since 1988. The disease has killed roughly 40 million people, including 650,000 in 2021.

In a report this week, the agency said inequalities will make it impossible to reach global targets, whether it’s the presence of girls and women in school or continued stigma against men who have sex with men.

Girls and women in sub-Saharan Africa aged 15 to 24 are acquiring HIV at rates three times that of males in the same age group, the agency reported.


Click to play video: 'HIV advocate shares her journey of acceptance to help combat stigma'

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HIV advocate shares her journey of acceptance to help combat stigma


Gay men and people engaged in sex work are more likely to avoid HIV testing when the country they live in criminalizes their behaviour, the agency says.

In September, Canada was praised for pledging $1.2 billion to the Global Fund to Fight AIDS, Tuberculosis and Malaria, after months of concern that Ottawa would pull back its funding.

Read more:

Canada should commit $1.2B to fight against AIDS, tuberculosis and malaria: advocates

The move came after the Liberals cancelled a ministerial address to the International AIDS Conference in Montreal this summer, a summit clouded by controversy after African delegates were refused visas.

Back home, the Canadian Aboriginal AIDS Network argues that mainstream public-awareness campaigns and access to HIV-preventing drugs are not reaching Indigenous communities, particularly women.

Trevor Stratton, an Ojibwa activist with the group, told an online panel on Wednesday that Ottawa ought to launch an inquiry into the disproportionate rates of HIV among Indigenous peoples.

“It’s a national embarrassment; when I travel internationally I am actually embarrassed to be a citizen of Canada,” he said.

&copy 2022 The Canadian Press

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