## Facts

- Sergeant (Retired) Michael Kipling, then a Canadian Forces member, was deployed with a detachment to the Middle East.
- Military authorities assessed a potential risk of exposure to weaponized anthrax and ordered all members to receive an anthrax vaccination.
- Reports existed raising concerns that the vaccine might be unsafe or hazardous.
- Kipling refused to submit to the vaccination and was returned to Canada.
- He was charged under National Defence Act (NDA) § 126 for refusing, without reasonable excuse, to submit to a vaccination when ordered.
- At trial, Kipling asserted that compelled vaccination without consent infringed Canadian Charter of Rights and Freedoms § 7 (security of the person).
- The military judge treated the inoculation as a bodily medical intrusion, found the vaccine unsafe and hazardous, concluded § 7 was violated, and entered a plea in bar staying the prosecution.

## Issues

1. Whether a plea in bar under Queen’s Regulations and Orders (QR&O) § 112.24(1) is a proper procedural vehicle to raise a Charter § 7 challenge to an NDA § 126 charge, and whether failure to provide statutory notice of a constitutional question barred adjudication of the Charter issue.
2. Whether the military judge erred by finding a Charter § 7 violation without determining whether any deprivation of security of the person was in accordance with the principles of fundamental justice.

## Decision

- The Court Martial Appeal Court of Canada allowed the Crown’s appeal.
- It held that a plea in bar under QR&O § 112.24(1) was not the proper mechanism for litigating the asserted Charter challenge in this posture.
- It held that the required notice to Attorneys General under Federal Court Act § 57(1) had not been provided, precluding proper determination of the constitutional question.
- It held that the military judge committed legal error by finding a § 7 breach without analyzing whether the deprivation accorded with the principles of fundamental justice.
- It set aside the stay of proceedings and ordered a new trial, declining to decide the merits of whether the vaccination order was constitutional.

## Legal Principles

- A plea in bar is confined to limited bars to the continuation of a prosecution and is not a general vehicle for broad constitutional challenges to the validity or application of military orders underlying charges.
- When the constitutional validity or applicability of legislation is put in issue, statutory notice to the Attorneys General is mandatory; absent notice, courts should not determine the constitutional question.
- A Charter § 7 analysis requires two steps: (1) a deprivation of life, liberty, or security of the person, and (2) a determination that the deprivation is not in accordance with the principles of fundamental justice.
- A finding of bodily intrusion or risk to health does not complete a § 7 claim unless the principles-of-fundamental-justice inquiry is addressed on an adequate record.

## Conclusion

The appellate court reversed the stay because the Charter challenge was raised through an improper procedural device, the mandatory constitutional notice requirement was not met, and the trial judge’s § 7 reasoning omitted the principles-of-fundamental-justice analysis; the matter was remitted for a new trial without resolving the constitutionality of compulsory anthrax vaccination on the merits.


R v. Kipling, 2002 CMAC 1 (C.M.A.C. Can. 2002)