The Canadian soldier who recently led a protest march in Ottawa now faces court-martial for speaking out against the federal government’s COVID-19 vaccination requirements while in uniform.
Warrant Officer James Topp was recently notified that his case will be allowed to be heard in military court rather than up his chain of command, according to the Army reservist’s civilian attorney.
Phillip Millar says the decision represents a second sea change after the Army initially offered his client a court-martial when he was charged in February, only to rescind the offer and send his case to Topp unit commanders.
“It’s hard to know what they’re doing, because I don’t think they really know what they’re doing,” Millar said. “But now they say it’s a court martial.”
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The decision raises the stakes for Topp, according to military law experts, as military courts can impose harsher sentences against members of the Armed Forces than if they were tried by their chain of command in what is known as a summary trial.
However, it also means that he will be allowed legal representation at trial, which would not necessarily have been the case had he been tried by his commanding officer, while his trial will receive much more public attention.
“Obviously the stakes will be raised in a public relations context,” said retired Lt. Col. Rory Fowler, now a military law attorney in Kingston, Ontario.
The Department of National Defense did not respond to questions about whether Topp’s case was changed from court-martial to summary trial and vice versa.
Topp was charged in February with two counts of conduct detrimental to good order and discipline after the Army reservist appeared in uniform in two online videos criticizing vaccination requirements for military personnel and other federal employees.
Members of the Canadian Armed Forces are severely restricted in the comments they can make while in uniform, particularly when it comes to criticizing government policies, in large part to protect the armed forces from any perception of politicization.
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Topp, who is now in the process of being released from the military, then led a months-long march from Vancouver that ended in Ottawa last week and was supported by many of the same organizers as this year’s “Freedom Convoy.”
Since then, it has become something of a symbol for Canadians who oppose vaccines, vaccine mandates and perceived government overreach. Some Conservative MPs have also joined him, including leader candidate Pierre Poilievre.
While Millar questioned the military’s back-and-forth with his client and said he planned to question the way Topp’s charges were handled, he nonetheless welcomed the latest decision to allow a court-martial.
That’s because Topp will now be able to have a lawyer present during his trial, where Millar said he plans to call expert witnesses to question the necessity and effectiveness of the military’s vaccination requirement.
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The requirement imposed by Defense Chief of Staff Gen. Wayne Eyre late last year remains in place even though a similar mandate for most other federal civil servants has now been lifted.
“It opens the door for us to call witnesses on the decision to charge him,” Millar said. “It opens the door for us to call experts on whether or not there was any science behind the mandate.”
While the switch from summary trial to court-martial means Topp will have an independent trial with legal representation, Fowler said it also means the Army reservist faces potentially harsher penalties if convicted.
In a summary trial, commanding officers are largely limited to giving reprimands and fines. However, if he is found guilty by court-martial, Topp faces the threat of disgraceful discharge from the army and up to two years in prison.
Retired Col. Michel Drapeau said that while there may have been a number of reasons why the military chose to move the case from summary trial to court-martial, he believed the latter was the appropriate venue to hear Topp’s case.
“It provides for a trial in an open court with all the legal guarantees of the Charter,” Drapeau said in an email. “It also provides for the provision of free legal support to the member.”
© 2022 The Canadian Press