Annex IV — Accommodation requests on religious grounds under the Canadian Armed Forces COVID-19 vaccination policy

Date: 1 August 2023

Issue

The aim of this Annex is to describe the approach to analyzing and determining whether requests for accommodation on religious grounds under the Canadian Armed Forces (CAF) COVID-19 vaccination policy were properly considered by the CAF authorities, in accordance with the Canadian Charter of Rights and Freedoms^{Footnote 1} (the Charter) and the applicable CAF policies.

Context

On 25 January 2020, the first case of the COVID-19 virus was identified in Canada. The Government of Canada implemented public health measures to limit the impact of the virus on Canadians.

On 11 March 2020, the World Health Organization assessed the situation related to the spread and severity of illness caused by the COVID-19 virus and declared it a pandemic.

On 9 December 2020, Health Canada authorized the first vaccine against COVID-19 and mass vaccination efforts began across Canada later that month.

On 6 October 2021, the Treasury Board Secretariat announced the Policy on COVID-19 Vaccination for the Core Public Administration Including the Royal Canadian Mounted Police (RCMP). The policy applied to the Department of National Defence (DND) employees, but not to CAF members.

On 8 October 2021, the Chief of the Defence Staff (CDS) issued the first Directive on the CAF COVID-19 vaccination. It introduced mandatory vaccination as a requirement for all CAF members to perform work-related duties.^{Footnote 2} It stated that “CAF members who are non-compliant with this Directive due to being unwilling to disclose their vaccination status and/or who attest to not be fully vaccinated will be directed to attend a virtual educational seminar provided by healthcare workers on the benefits of COVID-19 vaccinations.” The directive also stated that “CAF members unwilling to comply with this Directive may be subject to remedial or alternative administrative measures.”

On 3 November 2021, the CDS issued a second directive on the CAF COVID-19 vaccination (CDS Directive 002). It set out the requirements for requesting an exemption or accommodation on medical, religious or other protected grounds of discrimination. This directive clarified that members who have not complied with the CAF vaccination policy and received no exemption would be placed on remedial measures for misconduct. Members would be given 14 days to overcome the deficiency and get vaccinated. The CDS urged all members, except those unable on the basis of religious or medical grounds, to get fully vaccinated.^{Footnote 3}

On 5 November 2021, the Chaplain General released a document titled: “COVID-19 Vaccination – Accommodation based on Religious Grounds: Tool for Assessment”.^{Footnote 4} The tool provided a framework for assessing requests for exemption from the CAF vaccination policy or accommodation under the vaccination policy based on religious grounds. It referred to the CDS directive on CAF COVID-19 Vaccination and the Defence Administrative Order and Directive (DAOD) 5516-3, Religious or Spiritual Accommodation. This document also indicated the following:

1. In order to qualify for consideration for reasonable accommodation, the member will need to demonstrate a “sincerely held religious belief” that would preclude them from being vaccinated.
2. In order to establish such a belief, the claim will need to be assessed on the basis of:
   1. Whether the belief is religious in nature.

      (1) The member will be required to provide an affidavit explaining how the belief is religious and demonstrate the link between that belief and the need for reasonable accommodation. …

   2. Is the belief sincerely held? …
   3. Is the need to remain unvaccinated consistent with their professed religious belief? …

Sample questions were provided to assist chaplains and the Chain of Command (CoC) in assessing requests according to these criteria.

On 22 November 2021, the Office of the Chaplain General issued the “RCCHS Supplemental Guidance: COVID-19 Vaccination Accommodation Requests based on Religious Grounds”^{Footnote 5} (Supplemental Guidance). The stated aim of the Supplemental Guidance was to “provide a centralized reference for chaplains advising both CAF members and the CoC applying [the first CDS directive on CAF COVID-19 Vaccination and the CDS directive 002].” This document says the following about the process:

• 3. Once a member submits an accommodation request based on religious grounds, the CoC and the chaplain may ask relevant and focused questions in order to understand more fully the request. This is not to question the belief itself, but rather to be satisfied that the belief is sincere, congruent with past practices, and that the concern expressed concerning the vaccine is truly linked to a religious belief. …
• 6. Chaplains are strongly encouraged to work closely with legal advisors … to ensure that the rationale being applied to these requests is consistent across the CAF. …
• Ensure to send only one recommendation to the CoC. It seems that when there is a disagreement between chaplains, some CoCs receive multiple and divergent recommendations. In this regard, it is important to remember the steps to follow:
  1. Any recommendation by a chaplain must first be reviewed and confirmed by the supervising chaplain. In any instance where there is a disagreement between the unit chaplain and supervising chaplain, it will be sent to the Division/Formation chaplain for review. The Division/Formation chaplain, in consultation with their Command Chaplain, will make the final decision concerning the recommendation.
  2. The highest level of chaplain review for each recommendation will provide the recommendation in writing to the approving authority.

The Supplemental Guidance clarifies that arguments based on the Charter are not being considered since this is not a forum in which to do so. It also makes a distinction between the freedom of conscience and freedom of religion. In reference to the Canadian Human Right Act^{Footnote 6} (CHRA), it insists that freedom of religion is a recognized protected ground of discrimination, while freedom of conscience is not.

The Supplemental Guidance goes on to identify certain themes that emerged from requests already submitted. For instance, it notes that a number of requests expressed concerns about the use of stem cell lines from aborted fetuses in the development and testing of the COVID-19 vaccines, even though they have been in use for decades and that the origin of these cells is unknown.

The Supplemental Guidance suggests engaging in a dialogue with a member making the request, to clarify the details of their objection to the vaccine, to understand the link with their religious beliefs and to assess the sincerity of these beliefs.

On 10 December 2021, the Office of the Chaplain General issued the “RCCHS Supplemental Guidance 002: COVID-19 Vaccination Accommodation Requests based on Religious Grounds” (Supplemental Guidance 002). The stated aim of the Supplemental Guidance 002 was to “provide a centralized reference for chaplains advising both CAF members and the CoC in applying [the first CDS directive on CAF COVID-19 Vaccination, the CDS directive 002, and the CDS directive 002 – Amendment 1].”

This document reiterates the point that in assessing accommodation requests on religious grounds, the focus is not on questioning the belief itself, but rather to be satisfied that the belief is sincere, congruent with past practices and that the concern about the vaccine is truly linked to a religious belief. It clarifies that if a member disagrees with the decision by the CoC regarding their request for accommodation, that member may submit a grievance.

The Supplemental Guidance 002 cites subsection 3(1) of the CHRA, which lists the protected grounds from discrimination as follows:

14. The accommodation process addresses only prohibited grounds of discrimination under the CHRA. Whereas the CHRA at para 3(1) states:
    1. “3 (1) For all purposes of this Act, the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, marital status, family status, genetic characteristics, disability and conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered.”

Regarding the process, the advice remained the same, starting with a member submitting a request and the CoC, with the advice of a chaplain, assessing the request. If the CoC approves the request for accommodation or exemption from the COVID-19 vaccination policy based on a member’s sincerely held religious belief, the CoC then assesses options for a reasonable accommodation of that member.

The Supplemental Guidance 002 again describes several themes that became apparent from the requests already submitted and proposes questions that could be posed to members, to clarify their requests for accommodation and ascertain whether their belief is sincere and is of religious nature.

On 14 June 2022, the Government of Canada announced that the vaccination requirement for the Core Public Administration, including the RCMP, was suspended, effective 20 June 2022.

On 11 October 2022, the CDS issued Directive 003, which superseded all previous directives on vaccination and ended the mandatory requirement for all CAF members to be vaccinated. This directive specified that the change in the CAF vaccination policy is not retroactive in its application.^{Footnote 7}

Analysis

The Committee has received numerous grievances in which the grievors seeking exemption from the CAF vaccination policy submitted requests for accommodation on religious grounds. The following analysis is relevant to the majority of similar grievances before the Committee. The use of this Annex, addressing a common issue, is intended for consistency and clarity, in support of a fair review of these cases.

Freedom of Religion - a Protected Right

The Charter and the CHRA both provide for the right to equal treatment without discrimination. The legal test for determining whether there has been discrimination based on the CHRA comprises two parts. First, the person must establish a prima facie case of discrimination. This means demonstrating on a balance of probabilities that the complainant has a characteristic protected from discrimination, that they were treated adversely in their employment, and that the protected characteristic was a factor in the adverse treatment. Once a person established that an employment standard or policy constitutes discrimination based on religion, the onus shifts to the employer to show that the challenged standard or policy was based on a bona fide occupational requirement (BFOR). As per paragraph 15 (2) of the CHRA, in order to satisfy the BFOR requirement, “it must be established that accommodation of the needs of an individual or a class of individuals affected would impose undue hardship on the person who would have to accommodate those needs, considering health, safety and cost”.

For its part, subsection 2(a) of the Charter states the following^{Footnote 8}:

2. Everyone has the following fundamental freedoms:
   1. freedom of conscience and religion.

The duty to accommodate stems from the protection under the law of fundamental rights guaranteed by the Charter, including the freedom of religion.^{Footnote 9}

For the purpose of this Annex and in support of the Committee’s review of relevant grievances, the accommodation requests will be addressed through the Charter, although both contain legislative provisions protecting individuals from discrimination based on prohibited grounds that include religious beliefs.

For accommodation based on religious beliefs, the Supreme Court of Canada explained that “Section 2(a) of the Charter is limited, or engaged, when the claimant demonstrates that he or she sincerely believes in a practice or belief that has a nexus with religion, and that the impugned state conduct interferes, in a manner that is more than trivial, with his or her ability to act in accordance with that practice or belief.”^{Footnote 10}

Therefore, two questions are asked to determine if protected rights have been violated^{Footnote 11}:

1. Does the claimant have a sincerely held belief or practice that connects him/her to the divine, or to his/her spiritual faith?
2. If yes, has government action interfered with the claimant’s ability to act in accordance with his/her beliefs in a way that is more than trivial?

Subsection 2(a) of the Charter does not completely restrict the government from passing legislation or introducing a policy that impacts freedom of religion. Legislation or policy that has a trivial or insubstantial impact will not violate the Charter^{Footnote 12}. But as with all Charter rights and freedoms, reasonable and justifiable limits impacting this freedom may be introduced.

Religious Belief: a two-component test

The Supreme Court of Canada explained that “In essence, religion is about freely and deeply held personal convictions or beliefs connected to an individual’s spiritual faith and integrally linked to one’s self-definition and spiritual fulfilment, the practices of which allow individuals to foster a connection with the divine or with the subject or object of that spiritual faith.”^{Footnote 13} Freedom of religion under the Charter "consists of the freedom to undertake practices and harbour beliefs, having a nexus with religion, in which an individual demonstrates he or she sincerely believes or is sincerely undertaking in order to connect with the divine or as a function of his or her spiritual faith, irrespective of whether a particular practice or belief is required by official religious dogma or is in conformity with the position of religious officials.”^{Footnote 14} This understanding is consistent with a personal or subjective understanding of freedom of religion. Freedom of religion also protects objective obligations and both obligatory and voluntary expressions of faith. The Court explained that “It is the religious or spiritual essence of an action, not any mandatory or perceived-as-mandatory nature of its observance, that attracts protection. An inquiry into the mandatory nature of an alleged religious practice is not only inappropriate, it is plagued with difficulties.”^{Footnote 15}

Therefore, a person does not need to show an objective religious obligation to invoke freedom of religion. The Court clarified that sincerity of a belief simply implies an honesty of belief and “… the court’s role in assessing sincerity is intended only to ensure that a presently asserted belief is in good faith, neither fictitious nor capricious, and that it is not an artifice. … Assessment of sincerity is a question of fact that can be based on several non-exhaustive criteria, including the credibility of a claimant’s testimony …, as well as an analysis of whether the alleged belief is consistent with his or her other current religious practices.”^{Footnote 16}

However, the Supreme Court also warns that “Because of the vacillating nature of religious belief, a court’s inquiry into sincerity, if anything, should focus not on past practice or past belief but on a person’s belief at the time of the alleged interference with his or her religious freedom.”^{Footnote 17} Also, a person can present expert evidence to demonstrate that his or her belief is consistent with the practices and beliefs of other adherents of the faith, but such evidence is not necessary because “… the focus of the inquiry is not on what others view the claimant’s religious obligations as being, but rather what the claimant views these personal religious ‘obligations’ to be … Religious belief is intensely personal and can easily vary from one individual to another.”^{Footnote 18} The Supreme Court of Canada additionally explained that there is no requirement to engage in theological debates when examining the sincerity of a religious or spiritual practice or belief. The practice or belief in question does not need to be required by an official religious dogma, nor to be in conformity with the position of religious officials. A protected religious practice does not need to be part of an established belief system or even a belief shared by others. An individual only needs to demonstrate a sincere belief that the practice or belief is of religious significance to him or her. Consequently, it is not appropriate to adduce expert evidence showing sincerity of the belief or lack thereof.^{Footnote 19}

In short, at the first stage of the test for a religious freedom analysis, an individual claiming freedom of religion must show that:

1. he or she has a practice or belief, having a nexus with religion, which calls for a particular line of conduct, either by being objectively or subjectively obligatory or customary, or by, in general, subjectively engendering a personal connection with the divine or with the subject or object of an individual’s spiritual faith, irrespective of whether a particular practice or belief is required by official religious dogma or is in conformity with the position of religious officials; and
2. he or she is sincere in this belief, as long as the belief is not based on erroneous facts or frivolous excuses.

CAF’s Assessment of Requests for Accommodation on Religious Grounds

The CAF has adopted a comprehensive directive to deal with requests for accommodation based on a religious or spiritual beliefs: DAOD 5516-3, Religious or Spiritual Accommodation. This directive reads, in part, as follows:

• 2.2 The CAF must consider a request for an accommodation based on a religious or spiritual belief as long as it is a sincerely held belief of the CAF member or applicant and can be reasonably connected to religious faith or spirituality.
• 2.3 The CAF is required to approve a request for an accommodation based on a sincerely held religious or spiritual belief unless the accommodation or any accommodation other than that which was requested would:
  1. cause undue hardship;
  2. be against the law; or
  3. cause the CAF member or applicant to be relieved from having to meet one or more of the minimum operational standards related to the principle of universality of service set out in DAOD 5023-1, Minimum Operational Standards Relating to Universality of Service.
• 2.4 The duty to accommodate is the obligation of the CAF, by the adoption of measures, to eliminate disadvantages to CAF members and applicants resulting from a rule, policy, practice or barrier that has or may have an adverse impact on individuals or designated groups protected under the Canadian Charter of Rights and Freedoms and the Canadian Human Rights Act.
• 2.5 Undue hardship refers to the limit to which the CAF is expected to accommodate a CAF member or an applicant in a given situation, taking into consideration the following factors:
  1. the availability of alternatives to accommodate the CAF member or applicant;
  2. the realistic ability of the CAF to meet the costs associated with an accommodation; and
  3. the health and safety of the public, Department of National Defence (DND) employees, CAF members and applicants.
• 3.1 The process for making a request for an accommodation based on religious or spiritual grounds, and its consideration by the chain of command, is as follows:
  1. the CAF member or applicant must complete and sign Part 1 of form DND 2983-E, Request for Religious or Spiritual Accommodation, identifying clearly and in as much detail as is required, the exact nature of the religious or spiritual belief which requires an accommodation, and submit the form to:
     1. in the case of a CAF member, their CO through their chain of command, or
     2. in the case of an applicant, a designated recruiting authority, i.e. the CO of a CFRC;

     Note – Form DND 2983-E can be found on the DHRD intranet site.

  2. depending on the nature of the request, the CO may be the appropriate approval authority (see paragraph 3.2 of this DAOD). If the CO is not the approval authority, the CO must forward the request to the appropriate approval authority;
  3. the approval authority may seek clarification or amplification from the CAF member or applicant, or from other sources, as required; and
  4. the approval authority approves or denies the accommodation request (see the determining factors and considerations in paragraph 4.1).

Paragraph 4.1 of DAOD 5516-3 contains a table which sets out determining factors and considerations to assist approval authorities in making a decision and taking appropriate action upon receipt of a request for accommodation based on religious or spiritual grounds. The provisions of DAOD 5516-3 are aligned with the concepts developed by the Supreme Court of Canada and followed by the courts.

Following the release of the Supreme Court’s decision in Syndicat Northcrest v Amselem^{Footnote 20}, the Office of the Chaplain General released correspondence on the use of “sincerely held belief” concept in religious or spiritual accommodation requests.^{Footnote 21} This document is consistent with the direction and legal test outlined by the Court. Thus, the framework for assessment of requests for accommodation on religious grounds prior to the release of the CAF COVID-19 vaccination policy was sound and reasonable.

Assessment of Requests for Accommodation on Religious Grounds Following the CAF Policy on Vaccination against COVID-19

This part of the analysis will look into the application of DAOD 5516-3, the Chaplain General’s tool for assessing the requests for accommodation based on religious ground, and Supplemental Guidance for chaplains and the CoC, and the two-component test described above, with a view to assess whether such requests from the CAF members were properly considered and whether the overall approach was reasonable.

As stated above, the assessment process is triggered by a CAF member’s request for exemption or accommodation on religious grounds. The CoC, with guidance from chaplains and the tools developed by the Office of the Chaplain General, must determine if the member has established grounds in accordance with the two-components test. If a member has established a sincerely held practice or belief having nexus with religion and therefore protected by the Charter, then the Committee has to determine whether the vaccination requirement interferes more than trivially with the member’s exercise of their particular religious freedom.

As per the table to paragraph 4.1 of the DAOD, if grounds for an accommodation have been met, the CAF must next examine the requested accommodation, or consider any alternative accommodation, in order to determine if implementing accommodation would cause undue hardship to the CAF, would be against the law; or would impact on the member’s obligation to meet universality of service standards. Particularly, the Committee must determine if the CAF is permitted the interference under section 1 of the Charter by imposing reasonable and justifiable limits, acceptable in a free and democratic society.^{Footnote 22}

Having said this, I note that the Committee’s position on the proportionality test under section 1 of the Charter^{Footnote 23} not being met by the CAF COVID-19 vaccination policy still applies, as concluded in Annex I on constitutionality, regardless of whether accommodations based on religious or spiritual belief were or were not properly considered by the CAF authorities.

As explained in Annex I, the CAF vaccination policy set the requirement to be vaccinated as an expected behaviour stemming from the ethical principle of obeying and supporting lawful authority, in accordance with the Canadian Forces Code of Values and Ethics. The CDS urged all members, except those unable on the basis of religious or medical grounds, to get fully vaccinated. It is important to reiterate that the CDS Directive 002, which set out the requirements for requesting an exemption or accommodation on medical, religious or other protected grounds of discrimination, specified that members who have not complied with the CAF vaccination policy and received no exemption would be placed on remedial measures for misconduct, and might be released in some cases.

Based on the analysis detailed in Annex I, I find that the CAF members’ protected right under section 7 of the Charter was already triggered by their choice not to accept vaccination as a medical treatment and that members were aggrieved by the CAF vaccination policy because it was overly broad and disproportionate in its implementation.

Conclusions

Building on the conclusion contained in Annex I, I will be addressing the grievance files where an accommodation on religious grounds request was submitted using the following approach:

1. The request for accommodation was considered and the CAF authorities determined that the member did not satisfy the two-component test to trigger the protection under subsection 2(a) of the Charter or under the CHRA. As most grievances related to religious accommodation denials will hinge on this decision, it will be necessary to assess this determination. If I find that the two-component test was met, the member may have been aggrieved by both this denial and by the CAF COVID-19 vaccination policy itself (see Annex I). However, if the two-component test was not satisfied, a member might not be aggrieved by the decision regarding the accommodation request but would still be aggrieved by the CAF COVID-19 vaccination policy.
2. The request for accommodation was not considered or was ignored by the CAF authorities. Again, I will need to assess the accommodation request to determine if the two-component test was satisfied. If the test is satisfied, a member might be aggrieved by the absence of an accommodation, as well as by the CAF COVID-19 vaccination policy.
3. The request for accommodation was considered and the claim of a protected right under subsection 2(a) of the Charter was accepted, but the CAF authorities determined that a member could not be accommodated without undue hardship. I will therefore need to assess this determination that an undue hardship precluded accommodation. For those cases, a determination whether the decision not to accommodate was a reasonable limit to the grievor’s Charter rights has to be made. If it was a reasonable limit, a CAF member might not be aggrieved by the decision regarding accommodation but would be aggrieved by the CAF COVID-19 vaccination policy.

For cases where a member’s request for accommodation on religious grounds was denied and a member was placed on remedial measures – analysis detailed in Annex II would apply.

For cases where a member’s request for accommodation on religious grounds was denied and a member was released from the CAF, after being placed on remedial measures, analysis detailed in Annex III would apply.

Appropriate Redress

For the grievors aggrieved by the CAF COVID-19 vaccination policy only, no additional redress is recommended since the change to the policy under CDS issued Directive 003 ended the mandatory requirement for all CAF members to be vaccinated.

For the grievors whose requests for accommodation on religious grounds were addressed and denied, following which a member was placed on remedial measures, cancellation of these remedial measures would be recommended, as per Annex II.

For the grievors whose request for accommodation on religious grounds was denied and a member was released from the CAF, after being placed on remedial measures, cancellation of the release decision would be recommended, with financial compensation, as per Annex III.

Dated at Ottawa, this 1^st day of August 2023