Tewnion v. The Queen, 2003 FC 1011

Date: 20030902

Docket: T-1289-94

Citation: 2003 FC 1011

BETWEEN:

                                                                    GLEN TEWNION

                                                                                                                                                          Plaintiff

                                                                              - and -

                                                        HER MAJESTY THE QUEEN

                                                                                                                                                      Defendant

                                                            REASONS FOR ORDER

                                                  (Delivered from the Bench in Vancouver,

                                                         British Columbia on Wednesday,

                                                                      August 27, 2003)

[1]                 This is a motion for summary judgment brought by the defendant Crown. The action, as originally framed sought the setting aside of an administrative decision to release the plaintiff from service as a member of the Canadian Armed Forces. It also sought a declaration that certain of the plaintiff's Charter rights had been infringed together with damages and other consequential relief.

[2]                 By an earlier judgment, this Court struck out that part of the claim relating to the setting aside of the release decision so that all that remains is the claim for Charter relief. That claim is based upon both sections 7 and 15. There is a suggestion in some of the material that there may also be a claim based on section 2 but it was not advanced during argument and there is clearly nothing in the record which would support such a claim.

[3]                 In my view, there is clearly no case for trial based upon the alleged infringement of the plaintiff's section 7 rights. There is no material in the record which would allow a Court to determine that his release from service as a member of the Armed Forces impaired his life, his liberty or his security of the person. While I do not exclude the possibility of such a case being made out, it would go far beyond any section 7 claim that has so far been accepted by the Court and would require a very substantial body of facts and evidence to support it. In the absence of such facts and evidence, the claim simply fails.

[4]                 The plaintiff's argument to the effect that the release decision was made in breach of the principles of fundamental justice is, of course, irrelevant so long as there is no case made out for there having been a breach of the section 7 rights.

[5]                 It is the same, in my view, for the claim under section 15. It is said that the plaintiff is a "cross-dresser" and as such, suffers from a mental disability which is beyond his control. As such a sufferer, the argument goes. He is discriminated against contrary to the dictates of section 15.

[6]                 Quite apart from the fact that the evidence of the plaintiff's condition being beyond his control is extremely tenuous, there is nothing in the record to allow the Court to conduct the kind of analysis of the composition of the alleged group to which the plaintiff is said to belong and of that group, having been the subject of historic discrimination or as constituting, to use the words of some of the earlier cases, a discrete and insular minority.

[7]                 In fact, the evidence, such as it is, does not show that the plaintiff was released from the Forces because he was thought to belong to any particular group but rather because he was found to have indulged in conduct in public which was properly considered to be wholly inappropriate from a member of the Canadian Armed Forces. To put that another way, he was not released because of who or what he was, but because of what he had done. Whether or not he was rightly found to have done those things, is, of course, another matter. As I say, that part of the claim which alleges that the administrative decision to release him was flawed, has been struck out. Thus, the plaintiff's argument that the decision to release him was flawed on natural justice and administrative law grounds is therefore irrelevant to his claim for Charter relief, which is all that remains.

[8]                 The motion will accordingly be allowed and the action will be dismissed. The Crown is entitled to its costs to be assessed.

                                                                                                                                                               Judge                          

Ottawa, Ontario

September 2, 2003

                                                                 FEDERAL COURT

                              NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                 T-1289-94

STYLE OF CAUSE: Glenn Tewnion v. Her Majesty The Queen

PLACE OF HEARING:         Vancouver, British Columbia

DATE OF HEARING:           August 27, 2003

REASONS FOR ORDER : The Honourable Mr. Justice Hugessen

DATED:                                    September 2, 2003       

APPEARANCES:

Mr. Mel R. Hunt                                      FOR PLAINTIFF

Mr. Christopher Rupar              FOR DEFENDANT

SOLICITORS OF RECORD:

Dinning Hunter Lambert                         FOR PLAINTIFF

& Jackson

Victoria, B.C.

Morris Rosenberg, Deputy Attorney

General of Canada

Ottawa, Ontario                                      FOR DEFENDANT