Judge Agrees Anthrax Vaccine Unsafe; Halts Court Martial

by Scott Edmonds

Canadian Press

May 5, 2000

WINNIPEG (CP) - The Armed Forces have been dragged into the 21st century, suggests a retired air force sergeant whose refusal to take an anthrax vaccine was validated Friday by Canada's chief military judge.

"We can defend our Canadian rights but we should be able to partake in them also," Mike Kipling said moments after he and his supporters jubilantly cheered the decision of Col. Guy Brais to end Kipling's court martial before it even started.

"It's great for Mike Kipling and it signals a new era in human rights for enlisted men and women," said Jay Prober, the civilian lawyer Kipling decided to hire instead of accepting free military counsel.

Brais agreed with the defence that the vaccine Kipling was asked to take in 1998 in Kuwait during the second Gulf War could have been unsafe, based on evidence presented in court, and therefore his common law and Charter rights were jeopardized.

"The government . . . could never be justified to impose inoculation of soldiers with unsafe and dangerous vaccines," Brais said.

"It's a huge step forward for human rights in the military," said Prober.

Retired colonel Michel Drapeau, a frequent critic of Canada's military who writes for Esprit de Corps magazine, hailed Kipling as an honourable soldier who did the right thing.

Drapeau pointed out that Kipling resigned in an attempt to end the matter and avoid court martial for disobeying an order but the military decided to pursue him anyway.

"Not only did he draw the line but he did it in a very honourable and dignified way. He paid the price and he was prepared to sacrifice his career to make sure they understood this was not trivial."

He said soldiers must be prepared to stand up for what is right to avoid mistakes like Somalia - where a civilian teenager died at the hands of Canadian peacekeepers - and that includes disobeying illegal orders.

"You cannot do this if you beat a military person into submission to the point where he or she does anything they are told," Drapeau said.

Prosecutor Del Fullerton said it will be up to Col. Kim Carter, director of military prosecutions, to decide whether to appeal.

Fullerton also suggested the decision could be viewed in a very narrow light and should not affect the way the military conducts its business.

"It does not affect the military's ability in any way to order the taking of vaccines generally. It is limited solely to the anthrax vaccine and to a particular lot of that vaccine."

If Carter appeals, the case would go before one more military court. The final court of appeal is the Supreme Court of Canada.

Brais essentially found defence expert Meryl Nass, a Maine physician, more persuasive than one called by Fullerton. She was able to raise serious safety concerns about the specific batch of the vaccine supplied to Canada.

It was up to nine years old, well past its effective date. Some vials were not sterile, and others contained foreign matter and inaccurate doses. Brais noted there were suggestions the vaccine may have been a possible cause of Gulf War syndrome in some troops.

The term is used to describe the thousands of Gulf War veterans from the United States, Britain and Canada who came down with unexplainable illnesses after returning from the region.

In the spring of 1998, about 400 Canadian soldiers were vaccinated against anthrax, a deadly biological weapon.

American troops were also required to take the vaccine and Nass testified that hundreds have complained about side effects that include chronic fatigue, headaches, muscle and joint pain and recurring rashes, symptoms similar to complaints by soldiers deemed to have Gulf War syndrome.

For now, there are no charges hanging over Kipling's head and both he and his wife said they were relieved.

"I'm very proud of my husband," said Francine Kipling, struggling to keep her emotions in check. "He did this for us."

She said he was concerned for the health of his family as well as his own had he taken the vaccine.

Kipling, his well-trimmed moustache and grey hair still looking very military, said he has no hard feelings but would do the same thing again.

"I spent 26 years in the military; we had one disagreement. It still was an adventure and a good life."

But his wife said at times she felt overwhelmed by the fight and the forces arrayed against them.

"We're good citizens. We haven't done anything wrong. Why are we going through this?"

Brais said top military brass believed the vaccine was safe based on the assurances they were given and he didn't fault them.

"They believed that what they were doing was in the best interests of the troops," agreed Prober.

"They were wrong. They failed to consider the Charter of Rights. The judge has told the military . . . in effect, in the future consider the Charter of Rights."

© The Canadian Press, 2000