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Former Canadian soldier's anti-vaccine protest close to 'mutiny,' prosecutor says

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A former Canadian soldier who publicly defied the military's COVID-19 vaccine mandate was trying to undermine the federal government while in uniform, a military prosecutor argued Wednesday, describing the behaviour as "very close to the legal definition of mutiny."

James Topp, a 53-year-old former warrant officer, pleaded guilty Tuesday to two counts of conduct to the prejudice of good order and discipline for posting anti-vaccine videos on social media before launching a protest march to Ottawa last year.

In the videos, Topp appeared in the uniform of the Princess Patricia's Canadian Light Infantry, where he had previously served.

The B.C. resident went on to lead a months-long march from Vancouver to Ottawa, and became a symbol for Canadians opposed to vaccine requirements and perceived government overreach.

The former soldier, who faces a maximum penalty of dismissal with disgrace, tearfully described how he contemplated suicide before making the videos in February 2022, after his refusal to get vaccinated put him at odds with the military and earned him a suspension from his civilian job at an RCMP training centre.

Two additional charges related to improperly wearing his uniform were withdrawn by the prosecution after Topp pleaded not guilty to both at the start of the proceedings. However, the prosecution argued Topp's wearing of the uniform constituted an aggravating factor in the remaining charges.

On Wednesday, prosecutor Maj. Ben Richard asked the judge for "a robust sentence" of a severe reprimand and a $5,200 fine.

The prosecutor alleged Topp created the videos opposing Canada's pandemic measures to "undermine his own democratically elected government."

"He deliberately chose to wear the uniform in his videos to gain more publicity" and "as a means to gain leverage against the government," Richard said.

"We are getting very close to the legal definition of mutiny," he added.

'HE WAS STRIPPED OF HIS IDENTITY'

Defence lawyer Phillip Millar countered that Topp's actions showed moral courage, even if his decision-making was misguided at a time of emotional and financial turmoil.

"He was stripped of his identity," Millar told the court. "He was not a bad soldier. He made an error, but for the right reasons."

The defence argued for an absolute discharge with no criminal conviction in the case, saying Topp's three decades of "humble, professional" military service should not be erased by a pair of social media posts.

"His motives were good even if his decision to wear a uniform that day was not," Millar said.

Topp testified that he was "concerned with the safety" of the vaccines. "It seemed it was something that was being done in a state of fear and very hastily," he told the court.

When Topp's reserve unit was called to assist with the November 2021 flooding in Hope, B.C., his vaccine status prevented him from joining the disaster response, he said.

"I got to a point where I did not want to live anymore," Topp said. "So I thought about it and in February I decided I needed to do something, so I did."

The former soldier claimed he was not seeking attention or trying to spearhead a movement when he made the videos. He said he donned his uniform from the Princess Patricia's Canadian Light Infantry because the unit "contributed to the type of person that I am."

Warrant officer James Topp leaves the Royal Westminster Regiment during an adjournment during his court martial in New Westminster, on Tuesday, Nov. 14, 2023. THE CANADIAN PRESS/Ethan Cairns

Eva Kouwenhoven testified on her brother's behalf, saying she felt the army "abandoned" Topp, and that he was "backed into a corner," over his vaccine refusal.

The start of the "Freedom Convoy" to Ottawa in January 2022 lit a "spark" in her brother and inspired him to march to the capital the following summer to call for an end to the vaccine mandate and the reinstatement of employees who lost their jobs for refusing to be immunized, she said.

Judge Catherine Julie Deschenes heard that Topp had attended briefings about the COVID-19 pandemic and the military's vaccine policy but he refused to attest to his own vaccine status.

In October 2022, the Canadian Armed Forces suspended its requirement that all uniformed personnel be fully vaccinated against COVID-19.

The new directive instead requires proof of vaccination for certain roles and responsibilities, including high-readiness units and those in remote regions where access to medical care is limited. 

Topp, who was released from the military earlier this year, joined the regular forces in 1990, deploying to Bosnia, Macedonia and Afghanistan, before transferring to the army reserves in 2019.

The judge is expected to deliver her sentence in the case on Thursday. 

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