Notwithstanding that the global pandemic subsided many months ago, this judgment remains pertinent for a variety of reasons, particularly for countries that share an Anglo Common Law tradition combined with the unique Crown-soldier relationship found in the United Kingdom, Canada, Australia, and New Zealand. (And the relevance extends beyond the fact that those four countries spell "defence" correctly.)
As a Canadian, this judgment is particularly informative in light of the similarities that can be drawn not only between the legal regimes of Canada and New Zealand, but also in how COVID-19 vaccination policies were promulgated in the armed forces of those two nations. Unlike what transpired in New Zealand, litigation concerning the COVID-19 vaccination policies in the Canadian Forces (CF) did not reach our apex court (or even the Federal Court of Appeal).
In Canada, although there were attempts to challenge the CF's policy regarding vaccination against COVID-19, the notable examples consisted principally of premature attempts to challenge the policy before the applicants had exhausted the CF grievance process (
Neri v Canada, 2021 FC 1443) and an attempt to bring an action on behalf of 330 claimants (but which was manifestly not a class action) that suffered from multiple shortcomings (
Qualizza v Canada, 2024 FC 1801).
There were multiple grievances brought by CF members under circumstances similar to what arose in New Zealand. Initially, these Canadian grievances benefitted from generally favourable 'Findings and Recommendations' (F&R) from the Military Grievances External Review Committee (MGERC). However, it appears that the Chief of the Defence Staff (CDS) in Canada largely rejected these F&R. Unlike in New Zealand, members of the CF did not raise these matters in litigation that reached the appellate level.
Consequently, the judgment in CDF v Four Members is illustrative of what may have arisen in Canada, had select personnel brought the matter before the Federal Court and successive appellate courts.
The trajectory of this case is also noteworthy. On first instance, the results of the judicial review before the High Court favoured the Crown. Churchman J held that that the purpose of the various instruments establishing the vaccination requirement was to maintain the operational efficacy of the Armed Forces in New Zealand by limiting the spread of COVID-19. That objective was sufficiently important to justify a limitation on the rights to refuse medical treatment and to manifest religion and belief.
Although the New Zealand High Court drew conclusions comparable to similar judgments in Canada, the Court of Appeal reversed that decision. Although the Court of Appeal accepted that there was sufficient justification for the limits on the rights protected by ss 11 and 15 of the New Zealand Bill of Rights Act [NZBORA] arising from the COVID-19 vaccination being placed in the baseline schedule for vaccinations, it found that the CDF had not demonstrated sufficient justification for adopting the policies described in the relevant Temporary Defence Force Order (TDFO) and related policy instruments.
The Court of Appeal did not find that the whole of the TDFO was invalid. The appeal had been argued at a level of generality which meant it could not identify specific parts which were valid. It also recognised that time had moved on and other regulatory settings had changed. For that reason the Court directed that the CDF reconsider the TDFO in light of its judgment.
The Court of Appeal faulted the CDF for failing to consider alternative means of addressing the need to maintain the efficacy of the Armed Forces during the pandemic. The Court of Appeal placed significant weight on evidence that the United Kingdom had adopted a less restrictive approach for its Armed Forces and held that the incremental limits imposed by the TDFO had not been justified.
The Court of Appeal concluded that the TDFO had not been shown to be a reasonable limit on the rights of the Armed Forces members who had challenged the policy. The litigation was brought under the NZBORA, and the Court of Appeal had to consider the appropriate remedy. The Court concluded that the specific policy provisions, standing alone, would likely not raise any concerns under the NZBORA. The Court also recognised that events had moved on since the TDFO was issued in May 2022. It concluded that a review of the TDFO was timely, if not overdue. The Court did not set the TDFO aside but ordered that it be reconsidered in light of the Court’s judgment, reasoning that it would be wrong “to engage in an inappropriately granular way with the performance by the CDF of his responsibilities in relation to the Armed Forces”. In the meantime, an interim order was made to protect the respondents pending the review.
On further appeal, the SCNZ held that the Court of Appeal failed to afford the CDF sufficient deference (or margin of appreciation) regarding the (temporary) policies implemented to address a global pandemic. Again, what is noteworthy in this case from a Canadian perspective, is the extent to which the SCNZ relies upon Canadian jurisprudence both in the interpretation of the NZBORA and regarding principles of deference in public and administrative law.
The SCNZ observed that, when reviewing legislation for proportionality and for consistency with protected rights under s 5 of the
NZBORA, New Zealand courts usually adopt the structured methodology developed by the Supreme Court of Canada in
R v Oakes, [1986] 1 SCR 103 and subsequent cases. Similarly, when examining deference to statutory decision-makers, the SCNZ relied upon Canadian jurisprudence, including
Dunsmuir v New Brunswick, 2008 SCC 9, in addition to domestic judgments and, as in Canada, permitted a relatively healthy margin of appreciation to military decision-makers "... with respect to operational effectiveness and military discipline ...", holding that the "... CDF is the decision-maker appointed under the legislation and likely to be in a much better position than the court to evaluate the relevant considerations."
Though speculative, I suggest that, had CF members sought judicial review of decisions by the Chief of the Defence Staff in Canada, in considering and determining grievances relating to the CF's COVID-19 vaccination policies, the results would likely have been comparable to CDF v Four Members.
This judgment merits review by practitioners who are concerned with statutory decision-making relating to the Crown-soldier relationship in Anglo Common Law jurisdiction, particularly within the context of the deference afforded to such decision-makers and the functionality of judicial review.
