Military judge rules army can court martial retired soldier

A military judge ruled Tuesday the Canadian Armed Forces can court martial a retired sergeant charged with disobeying an order to take anthrax vaccine.

Colonel Guy Brais, the chief military judge presiding, adjourned the court martial earlier in the day to consider his ruling on whether the court has jurisdiction over former Sgt. Michael Kipling

Brais also ruled that the case against Kipling wouldn't be prejudiced if the court martial was heard on a military base.

Kipling's lawyer had argued that the National Defence Act doesn't allow a civilian to face a standing court martial. Kipling has retired from the military with an honourable discharge.

• RELATED: National Magazine story: That's An Order: Interview with Michael Kipling

Kipling disobeyed an order to take an anthrax vaccine in 1998 before heading to the Persian Gulf. He had concerns about its safety

A veteran with more than 26 years experience, he refused to take the vaccine, saying he'd taken it eight years earlier, during the Gulf War, and it had made him sick.

Kipling's lawyer, Jay Prober argues the court martial doesn't meet Canadian Charter of Rights standards as an independent, impartial tribunal.

He is also arguing that the court martial has no authority over Kipling, who retired early last year because of the charges.

Kipling says he never expected the military would be so relentless in its pursuit to put him on trial.

"I still wonder what the military is trying to prove. I guess it's not me they want. It's the cause," he says.

"Standing courts martial, according to Section 173 of the National Defence Act, may try only an officer or a non-commissioned member and of course he's neither," Prober said.

Health Canada hasn't approved the anthrax vaccine for general use, but it gave the military a special go-ahead for the troops.