Canada's top military judge has stayed a charge of insubordination against a former air force sergeant who refused a dose of anthrax vaccine, ruling that the Charter of Rights and Freedoms protects Canada's soldiers from being forced to take unsafe drugs.
In a precedent-setting ruling sure to have wide-ranging ramifications for the military, the judge, Colonel Guy Brais, ruled that a batch of U.S.-produced vaccine injected into Canadian soldiers in Kuwait was "unsafe and hazardous," based on evidence disclosed during pretrial arguments.
Col. Brais found no malice or negligence on the part of senior Canadian Forces staff who ordered the mandatory vaccinations.
But he noted that "the government . . . could never be justified to impose inoculation of soldiers with an unsafe and dangerous vaccine."
When Sergeant Mike Kipling's superiors ordered him to take the vaccine without his informed consent they infringed upon the serviceman's right to life, liberty and security of person as enshrined in the Charter, the judge ruled.
"This court is satisfied based on a balance of probabilities that the . . . anthrax vaccine . . . was unsafe and hazardous and could be responsible for the important symptoms reported by so many persons who took that vaccine." Consequently, the charge of willfully disobeying a military order was stayed, meaning the case will not be prosecuted.
"It signals a new era for human rights for enlisted men and women. It's a very powerful decision in favour of human rights for the Canadian Forces," said Mr. Kipling's civilian lawyer, Jay Prober.
"It's a huge step forward for human rights in the military. The chief military judge . . . has told the military that in the future, consider the Charter of Rights."
Defence Minister Art Eggleton, speaking from CFB Suffield in Southern Alberta, said the judge's decision must be reviewed, and he added that the order to take the vaccine was motivated by concern for troop safety.
"When our troops go abroad their safety and their security is foremost. Anthrax is a very deadly disease and the serum was given to people because of the risk.
"It was on that basis that the decision was made by medical personnel after much examination."
Ottawa-based defence analyst Michel Drapeau, a lawyer and former military colonel, called the court ruling enlightened and precedent-setting.
"The Charter of Rights and Freedoms has only been around since 1982 and the military code of discipline has been around for hundreds of years," Mr. Drapeau said.
"But we are no longer in the age of gladiators. You need discipline in the military but only up to a point. We've seen that line drawn now. How ironic it is that the military, the very ones who are there to defend the Charter of Rights and Freedoms, should be among the last to be confirmed with these rights."
The questionable vaccine was produced by the Michigan Biologic Product Institute and provided to the Canadian Armed Forces, where Sgt. Kipling, a flight engineer on Hercules aircraft with Winnipeg's 435 Squadron, was stationed in Kuwait in 1998.
Mr. Kipling has said that he was injected with the anthrax vaccine when he served in the Persian Gulf war in 1990, but that subsequent reading he had done on the subject lead him to fear its effects on his health.
While pretrial evidence strongly suggested that quality control over production of the vaccine was lacking, the judge found no malice or negligence on the part of senior Canadian Forces staff for undertaking the mandatory vaccinations. But they should have obtained the informed consent of all involved.
"They truly and honourably believed, on the basis of information received from the United States, that the anthrax vaccine was safe and efficacious," Col. Brais said.
Mr. Kipling's wife, Francine, and other family members and supporters jumped up and down, saluted the judge, and spilled a few tears when the decision was read.
"I feel relieved. I never did this to be a trailblazer or anything," the unassuming Mr. Kipling said outside court afterward. "Hopefully this decision will help some of the guys in the future. I don't believe the military put a lot of thought into this; maybe they have to be dragged into the 21st century.
"I'm not against vaccines in general. I believe we should have the right to decide what's injected into our body. I didn't want this to be dragged out in public and for the military to be brought down like this but . . . I hope the next airman, or sailor or army personnel will have a choice next time an experimental drug is to be used."
The military has said it weighed the potential health risks associated with the vaccine against the potential threat posed by airborne anthrax spores that might be used as a biological weapon.
Military prosecutor Major Del Fullerton had argued that Charter rights apply only in a limited context to military personnel. ". . . the Charter rights must be interpreted in a military context," he said.
Moreover, during testimony, Lieutenant-General Raymond Crabbe suggested that Canadian soldiers must follow discipline, which he described as the "soul of the military."
But the judge ruled Mr. Kipling had every reason, on the basis of his own research, to question the validity of the medication ordered, although he could not be certain.
Health Canada gave special approval for the military to use the controversial vaccine.
Some veterans think the vaccine is linked to Gulf War syndrome, although there appears to be conflicting evidence on this.
Mr. Drapeau suggested yesterday's ruling may open the possibility of a rash of civil lawsuits against the Canadian Forces by service personnel claiming adverse effects from the vaccine.
Mr. Prober said the fact that Col. Brais found no culpability on the part of senior Forces staff does not mitigate against this eventuality. "It doesn't close the door [to possible lawsuits] But I agree with the judge. I don't believe there was any malice or wrongful intentions on the part of any of the generals or the defence staff."
At trial, experts, including Arthur Friedlander, director of anthrax research at the U.S. Army Medical Research Institute, testified the vaccine is generally safe. In a study of 7,000 U.S. soldiers who were given the drug before it was licensed in 1970, less than 42 per cent developed temporary achy, flu-like symptoms shortly after the inoculation.
On the other hand, there is plenty of anecdotal evidence that it causes long-term side effects. Meryl Nass, a medical doctor specializing in internal medicine, testified that hundreds of U.S. military personnel given the anthrax vaccine have complained about side effects including chronic fatigue, headaches, muscle and joint pain and recurring rashes.
And the Canadian Forces may have received a particularly bad batch of the vaccine. The judge noted that he heard evidence that the vials did not contain the doses indicated, that some of the vaccine was nine years old, and was contaminated with "things growing in them" and other things including pieces of rubber.
Since the anthrax vaccine was licensed by the U.S. Food and Drug Administration, more than one million doses have been given to 350,000 Americans.
The Canadian military has 30 days to decide whether to appeal yesterday's decision.
CONFLICTING VIEWS
The controversy between researchers, politicians and military personnel over the safety of the anthrax vaccine has hit a feverish pitch ever since the Persian Gulf war.
Many studies have been conducted -- some of them dating back to the 1950s and 1960s -- but their results conflict and are usually disputed by one group or another.
Some Gulf war veterans have faulted the vaccine for their autoimmune problems since returning from the Middle East.
As recently as last week, however, the U.S. Centers for Disease Control said it had reviewed three separate surveys on effects of the anthrax vaccine and found nothing alarming. A small percentage of service members complained of muscle or joint aches, headache or fatigue after being vaccinated. Women were more likely than men to report minor side effects.
Recent media features have linked anthrax vaccines to "toxic scares." Meanwhile, government officials continue to advocate the shot as a necessary defence in the battlefield.
The anthrax bacteria is considered especially insidious and an ideal biological weapon because it can survive for long periods if it is released in the environment. It can cause fatal infections in either the lungs or the skin, in humans and animals.
The World Health Organization estimates that if 50 kilograms of anthrax spores were released along a two-kilometre line upwind of a city of 500,000 people, 125,000 would become infected within three days, 95,000 of whom would die.
But the anthrax threat is not a recent one. The bug has been blamed for human and animal plagues in biblical, medieval and modern times. And the Encyclopaedia Britannica lists the anthrax vaccine -- first created in 1881 by Louis Pasteur -- as the first effective vaccine against an infectious bacterial disease. The discovery led to the development of the modern science of bacteriology and immunology.