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[Guest guest]

Amen to the Col. in the last paragraph. Finally... a higher upper echelon

who gets it. surely I'm dreaming.

(no offense to some of you... you know who you are ;-))

January 15, 2002

Ex-soldier who refused vaccine may be retried

By tossing out case, judge prohibited debate about soldiers' rights

v. military control, court rules: Furor over anthrax shot

Friscolanti

National Post

A Canadian air force sergeant who ignited a national debate over

soldiers' rights when he refused to take an anthrax vaccine could face a

second trial for ignoring his superiors, a military court has ruled.

Mike Kipling, a 26-year veteran of the Canadian Forces, left his post

in 1998 after refusing to be injected with a controversial anthrax drug

during a tour of duty in Kuwait.

The flight engineer was consequently charged with insubordination,

but in May, 2000, a military judge threw out the charge, ruling that the

Charter of Rights and Freedoms protects soldiers from taking " unsafe and

hazardous " drugs.

The Department of National Defence appealed the ruling. On Friday, an

appeals panel, citing procedural errors, ordered a new trial.

The original judge never should have dismissed the charges before the

hearing ended, the ruling says, because it prohibited both sides from

debating the central issue of the case: How does one balance the individual

rights of soldiers with the military's need to have ultimate control over

its troops?

" It was not sufficient for the military judge simply to conclude, as

he did by the mere order, that there was an infringement of personal

security, " wrote Chief Justice Barry Strayer of the Court Martial Appeal

Court.

" He was also obliged to consider ... whether this right to security

was nevertheless denied in accordance with the principles of fundamental

justice. "

Mr. Kipling, who joined the Canadian Forces at 19, was part of a unit

whose mission was to determine the extent of Iraq's military capabilities,

namely how many weapons of mass destruction it possessed.

In early 1998, just as the unit was en route to Kuwait, Canadian

intelligence authorities learned that Iraqi forces would unleash weaponized

anthrax if an armed conflict ensued.

The soldiers were told that, for their own protection, they would be

vaccinated against the potentially deadly bacteria.

Mr. Kipling was wary of the U.S.-made medication, which had been

linked to Gulf War Syndrome and other ailments ranging from fatigue to

memory problems. A U.S. doctor who testified at the original trial also said

some of the vaccine given to the unit was up to nine years old and past its

effective date.

Deciding the anthrax vaccine was probably more dangerous than his

mission, Mr. Kipling refused the injection and was sent home.

Although the appeals court has opened the door for a second hearing,

the decision to retry Mr. Kipling, 47, ultimately rests with the Department

of National Defence. Government lawyers are still considering their options,

a spokesman said yesterday.

Jay Prober, Mr. Kipling's lawyer, said he hopes officials decide to

leave the retired serviceman alone.

" They were worried that the previous decision would cause problems in

the field with discipline, " he said yesterday. " But that decision no longer

exists and if they decide to stop the prosecution now, then there's no

danger of getting that 'bad' precedent again. "

Convincing a court that Mr. Kipling's actions were wrong may also

prove difficult in light of the military's recent decision not to give the

anthrax vaccine to Canadian soldiers involved in current anti-terrorism

missions.

" I just hope for the sake of humanity that we leave him alone, " said

retired Colonel Michel Drapeau, who followed the case closely as a columnist

for the military magazine Esprit de Corps. " There is nothing to be gained.

What are we going to do, strap him to a chair and give him a needle? "

mfriscolanti@...

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