Skip to main content

A former air force sergeant who refused an anthrax vaccine over safety concerns four years ago could face a new military trial thanks to the decision of three civilian judges.

The Court Martial Court of Appeal ruled that Winnipeg-based Mike Kipling should not have been acquitted by a military judge for refusing to be vaccinated in 1998.

The recent decision is a victory for the Canadian Forces -- who refused to comment yesterday -- because it strikes down a precedent that allowed other soldiers to refuse vaccines if they questioned safety.

A section of the National Defence Act compels members of the Canadian Forces to take vaccinations when their superiors order it, unless they have a "reasonable excuse" on religious grounds or other "scruples."

Sgt. Kipling refused to be vaccinated against anthrax after he arrived in Kuwait four years ago as part of an international intelligence operation. He said he felt it was unsafe. The Canadian Forces charged him and sent him home.

In 2000, military Judge Colonel Guy Brais stayed proceedings of insubordination against Sgt. Kipling on the grounds that the U.S.-made anthrax vaccine with which Canadian soldiers were being inoculated was "unsafe and hazardous" and that Canada's Charter of Rights and Freedoms protects soldiers from being forced to take unsafe drugs.

Military lawyers appealed and now civilian judges have questioned whether Judge Brais had jurisdiction to rule on the case on those grounds. They want Sgt. Kipling tried in front of a different military judge if he is tried again.

"If the military is intent on prosecuting Mike Kipling, we will seek leave to go to the Supreme Court," Jay Prober, the retired sergeant's lawyer, said yesterday. "If a soldier legitimately believes that a vaccine will be harmful, he should not have to wait for a trial to determine whether he made the right decision."

Mr. Prober said his client wasn't very surprised or disappointed when he heard about the decision Friday, but instead "he seemed very matter-of-fact and very resolute." Sgt. Kipling was not available.

The U.S.-manufactured anthrax vaccine was first used on Canadian soldiers during the war in the Persian Gulf in 1991. Years afterward, it was linked to assorted short- and long-term side effects among inoculated soldiers including weight and muscle-mass loss, joint pain and impaired memory that became known as gulf-war syndrome.

Meryl Nass, a medical expert based in Freeport, Me., argued at Sgt. Kipling's original trial that the anthrax vaccine was an old, unsafe formula and Canada was using stale-dated batches.

Scott Taylor, editor of Esprit de Corps military magazine, said the Canadian Forces are unlikely to proceed with further prosecution because information about the vaccine "would open the door to a class action suit."