Date: 20080121
Docket: T-1809-06
Citation: 2008 FC 69
Ottawa, Ontario, January 21,
2008
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
ARALT MAC GIOLLA CHAINNIGH
Applicant(s)
and
THE ATTORNEY GENERAL OF CANADA
Respondent(s)
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review brought by Captain Aralt Mac Giolla
Chainnigh from a grievance decision made by the Chief of Defence Staff, General
R.J. Hillier, (CDS) on August 28, 2006 under the authority of section 29.11 of
the National Defence Act (Act), R.S.C. 1985 c. N-5.
[2]
Capt.
Mac Giolla Chainnigh
joined the Canadian Forces in 1975 as a member of the Reserves. He was then 16
years of age. He transferred to the Regular Force in 1978 and enrolled in the Royal Roads Military College. He has
continued to serve in the Canadian Forces since that time and, at present, he
is a member of the teaching faculty at the Royal Military College in Kingston,
Ontario.
[3]
According
to Capt. Mac Giolla Chainnigh, he has, throughout his military career,
consistently expressed his disaffection for the British monarchy. His resistance
to monarchist symbols in the Canadian Forces began with a stated reluctance,
upon enrollment, to pledge the required oath of allegiance to Her Majesty. It
was only after he was assured that the oath was simply a figurative way of expressing
loyalty to the people of Canada that he agreed to take the oath.
[4]
Capt.
Mac Giolla Chainnigh initiated his grievance on June 12, 2001. The grievance
claimed that he had been subjected to a form of institutional harassment by the
obligation to participate in "outward displays of loyalty to an unelected
monarch of foreign origin" (i.e. Queen Elizabeth II). Capt. Mac Giolla
Chainnigh sought relief in the form of being excused from any duty to toast or
to pay respect to the Queen as the Head of State of Canada; from saluting or
paying respect to the Union Jack as a symbol of Canada; and from singing or
paying respect to the singing of “God save the Queen" as a symbol
of Canada. He claimed that these practices were politically offensive and in
conflict with his personal views.
[5]
On
the advice of the Canadian Forces Grievance Board (Board), the CDS rejected Capt. Mac Giolla Chainnigh's
grievance and it is from that decision that this application for judicial
review arises.
Adjudicative Background
[6]
Capt.
Mac Giolla Chainnigh's grievance was submitted for determination to the Initial
Authority which was, in this instance, the office of the Assistant Deputy
Minister, Human Resources (Military). Before resolving the grievance at that
level, advice was sought from the Canadian Forces Heritage Officer, Major P. E.
Lansey. The resulting report from Maj. Lansey described the role of the Queen
within the Canadian Forces. It also identified several devices and protocols
which are used to recognize the role of the monarchy in the military context.
[7]
Maj.
Lansey identified a number of customary items of dress and equipment within the
Canadian Forces that signify a linkage to Her Majesty and he pointed out that
all Canadian honours, including the Canadian Forces Decoration, emanate from
her.
[8]
With
respect to Capt. Mac Giolla Chainnigh's specific concerns, Maj. Lansey observed
that the Loyal Toast is an expression of respect and good health for the reigning
sovereign, made during formal dinners in the mess. This practice, he said, was
consistent with the internationally accepted custom of presenting similar
toasts to other visiting heads of state. A refusal to participate would be a
clear sign of rudeness and disrespect.
[9]
On
those limited occasions when the Union Jack is given recognition within the
Canadian Forces it is as a symbol of Canada's membership in the
Commonwealth and of allegiance to the Crown. Maj. Lansey also noted that the
Canadian Forces’ policies respecting flag etiquette follow the direction of the
Department of Canadian Heritage.
[10]
Maj.
Lansey observed that the playing of Royal Anthems, including God Save the
Queen, in the military context, is a form of salute to the Queen and it is a
practice that is also followed in the United States when she makes an
official visit there.
[11]
Capt.
Mac Giolla Chainnigh took issue with several aspects of Maj. Lansey's report.
He stated that he was "embarrassed to be associated with the
monarchy" and he questioned whether the British monarch “has a legitimate
claim to our loyalty". His objection to participating in the Loyal Toast
was expressed as follows:
…I recognize loyalty to the people of Canada alone. I could drink a toast
to Elizabeth as a person (if I knew her).
I could drink a toast to her as the Head of State of the United Kingdom, in respect for visitors from
that country. But I can not in good faith toast her as the “Queen of Canada”.
In doing so I would be implicitly declaring the truth of a premise that I
believe to be false.
[12]
Capt.
Mac Giolla Chainnigh expressed similar concerns about the use of the Union Jack
and the Royal Anthem as Canadian symbols, both of which he described as personally
offensive and harassing.
[13]
The
underlying premise of Capt. Mac Giolla Chainnigh’s grievance was that while he
did not object to participating in these practices insofar as they were expressions
of respect for the Queen in her role as Monarch of the United Kingdom, he did
object when those practices were linked to her roles as the Canadian Head of
State and Commander-in-Chief of the Canadian Forces.
[14]
The
determination of Capt. Mac Giolla Chainnigh's grievance at the initial stage
was not favourable to his position. In addition to finding that the concept of
institutional harassment did not exist in Canadian Forces policy, the grievance
was denied on the merits for the following reasons:
2. …In order to address your
grievance, one must identify the connection between two main concepts: the Queen’s
relationship with respect to the government of Canada and the CF is clearly established by
Reference C. Under section 9, the Queen is expressly vested with the executive
government and the authority of and over Canada. Section 17 specifies that the Parliament
of Canada includes the Queen as well as the Senate and the House of Commons.
Section 91 enables the Queen, with the advice and consent of the Senate and
House of Commons, to make laws in relation to the Militia, Military and Naval
Services and Defence in Canada, and section 15 vests the
command-in-chief of all Canadian military forces in the Queen. The role of the
Queen in relation to Canada is succinctly described in
the Oaths of allegiance and citizenship as the Queen of Canada.
3.
The
concept of loyalty involves strong feelings of support or allegiance, which is a
main principle of the CF. Loyalty means that CF members will fulfill their
commitments in manner that best serves Canada and the CF within the interests of
justice and respect of the law. In the context of the CF, loyalty and
allegiance to the Queen and specific demonstrations of that loyalty are
specifically provided for within the regulations and subordinate orders. Under
Queen’s Regulations and Orders 6.04, all Canadian citizens shall on enrolment
in the CF make an oath or affirmation to be faithful and bear true allegiance
to Her Majesty, Queen Elizabeth the Second, Queen of Canada her heirs and
successors according to the law.
4.
Reference
D contains the CF directives with respect to the paying of compliments.
Compliments such as saluting are formal marks of respect and courtesy. In Canada, military compliments are
paid only to the Sovereign, the Governor-General, members of the Royal Family,
recognized foreign royalty, foreign heads of state government, the Prime
Minister, the Minister and Associate Minister of National Defence,
Lieutenant-Governors and commissioned officers. The salute is required by
non-commissioned members to all commissioned officers and by all officers to officers
of higher rank. This is not a choice that CF members made, it is mandatory.
5.
Other
situations referred to in Reference C include making the toast to the Queen at
such events as mess dinners and standing during the playing of God Save the
Queen. These are signs of loyalty and respect for Her Majesty and are done
to show the allegiance and loyalty CF members have towards the head of their
military and State. The Queen is more than a foreign monarch, she is the Queen
of Canada.
[15]
Capt.
Mac Giolla Chainnigh was not satisfied with the reasons given for rejecting his
grievance and he asked that the matter be determined by the Final Authority,
being the CDS. In accordance with article 7.12 of the Queen’s Regulations
and Orders for the Canadian Forces (QR&O’s), the CDS referred Capt. Mac
Giolla Chainnigh's grievance to the Board for its consideration and
recommendations.
[16]
The
Board gave its report to the CDS on May 31, 2006 and it recommended that the
grievance be denied. The Board determined that the payment of respect to the
Queen within the Canadian Forces was consistent with her constitutional role as
the Head of State and as the military Commander-in-Chief. The Board also
resolved Capt. Mac Giolla Chainnigh's newly advanced Canadian Charter of Rights
and Freedoms (Charter) arguments by applying the authority of the
Federal Court of Appeal in Roach v. Canada
(Minister of State for Multiculturalism and Citizenship), [1994] 2 F.C.
406, 164 N.R. 370. The Board concluded that his assertion of infringement of
his freedoms of expression and religion under section 2(a) and (b) of the Charter
had not been established by "substantive evidence." The Board went
on to describe Capt. Mac Giolla Chainnigh's Charter
concerns as a reflection of his fundamental lack of understanding of the
governance structures of Canada. The Board appears to have concluded that,
in the context of a correct appreciation of the role of the Queen within Canada and the
Canadian Forces, Capt. Mac Giolla Chainnigh's concerns were trivial and did not
warrant constitutional protection.
[17]
The
CDS accepted the recommendation of the Board and denied Capt. Mac Giolla Chainnigh's
grievance by letter dated August 28, 2006. The reasons given by the CDS for
denying the grievance included the following:
In its analysis of your grievance, the
CFGB found that you were not subjected to harassment and that your
constitutional rights were not violated for having to outwardly pay respect to
the Queen. The CFGB also found that while you may personally oppose paying
respect to the Queen, the Queen’s position as Head of State is based in law,
not belief, and therefore CF members have a legal obligation to respect the
Queen’s lawful authority over them. I concur with these findings and I can
find no reason to conclude that showing respect to our Head of State is
anything but proper and lawful.
Regarding your specific contention of
institutional harassment, the CFGB found that there were no prohibited grounds
upon which you might link an allegation of harassment. I agree with this
finding. Compelling CF members to exercise their legal obligation to respect
lawful authority is not one of the prohibited grounds listed in section 14 of
the Canadian Human Rights Act. The CFGB also found that your constitutional
rights were not violated by having to make outward displays of loyalty to the
Queen. In R. v. Locke, the Supreme Court of Canada confirmed that a
citizen may not be excused from obeying the law based on their individual value
system. I also agree with this finding. The Queen is the constitutional and
legal Head of State of Canada.
[footnotes
omitted]
Issues
[18]
The
precise nature of Capt. Mac Giolla Chainnigh's concern with the CDS’ decision is
difficult to identify from his written or oral arguments. In its simplest form,
Capt. Mac Giolla Chainnigh’s concern is that by being obliged to
pay occasional compliments to the Queen and to the Union Jack and to
participate in the singing of God Save the Queen, his freedom of
expression and religious freedom under section 2(a) and (b) of the Charter
have been infringed and that this also constitutes harassment. He says that
the decision of the CDS on these issues was legally incorrect and otherwise
unreasonable. In particular, he contends that the CDS erred by imposing upon
him the obligation to prove that the impugned policies and protocols represented
a meaningful “burden of conscience.” Beyond these basic propositions, Capt. Mac Giolla Chainnigh's
legal argument becomes somewhat difficult to follow. Much of his additional
concern has to do with what he perceives as inconsistencies within Canadian
constitutional and governance structures and, thus, form the reasons for his
disaffection. For instance, he contends that, although the Queen is the legal
and constitutional Head of State for Canada, she has no
"natural" right to hold that position. He also asserts that a clear
definition of the Queen's powers within the Canadian Forces is lacking and that
he and others are confused and conflicted about that role. For instance, he questions
whether the Queen could order the Canadian Forces into combat contrary to the
wishes of the Canadian Parliament and he poses that a conflict of interest
problem could arise if the United Kingdom “were to invade Canada”. He also
asserts that hereditary class distinctions and monarchist symbolism are
inconsistent with Canadian values. Finally he contends that democracy and
monarchy are incongruent concepts which, despite the Canadian model of a
constitutional monarchy, cannot be reconciled. According to Capt. Mac Giolla Chainnigh,
the CDS also erred by failing to provide authoritative answers to these
critical questions and by otherwise misunderstanding or underestimating his
concerns.
[19]
With
respect to the issue of religious freedom, Capt. Mac Giolla Chainnigh argues
that the religiously-based rules of British monarchical succession are
inconsistent with Canadian values but beyond that, he fails to indicate how his
religious views or practices, if any, have been infringed.
[20]
To
bring some focus to the arguments made by Capt. Mac Giolla Chainnigh, I would
state the issues which I am required to resolve as follows:
(a)
Did
the CDS err in law in holding that Capt. Mac Giolla Chainnigh's rights under
section 2 of the Charter are not infringed by the universal application
of the impugned policies and protocols?
(b)
Did
the CDS err in law in holding that the application of the impugned policies and
protocols to Capt. Mac Giolla Chainnigh did not constitute a form of
harassment?
(c)
Was
the decision by the CDS to decline to grant an exemption to Capt. Mac Giolla Chainnigh
from the impugned policies and protocols reasonable in all of the
circumstances?
Analysis
Standard of Review
[21]
With
respect to issues of law, the parties agree that the appropriate standard of
review in this case is correctness. I agree with that view. However, with
respect factual determinations and the exercise of discretion by the CDS, some
deference is clearly owed. For such matters, I would adopt the thoughtful
analysis of my colleague, Justice Carolyn Layden-Stevenson, in Armstrong v.
Canada (Attorney General), 2006 FC 505, 291 F.T.R. 49 including the
following concluding passage:
37
Balancing the factors, I conclude that for findings of fact, the applicable
standard of review is that set out in the Federal Courts Act, that is,
they are reviewable only if they are erroneous, made in a perverse or
capricious manner or without regard to the evidence. This is equivalent to
patent unreasonableness. In all other respects, the decision of the CDS (in
this case the Grievance Authority) is subject to review on a standard of
reasonableness. See: McManus v. Canada (Attorney
General),
[2005] F.C.J. No. 1571, 2005 FC 1281 at paras. 14-20.
The Statutory and
Regulatory Framework
[22]
The
role of the Queen within the Canadian Forces is constitutionally and
statutorily established. Section 15 of the Constitution Act, 1867
designates the Queen as the “Command-in-Chief” of Canada's naval and
military forces. Section 14 of the National Defence Act establishes the
Canadian Forces as the armed forces of "Her Majesty".
[23]
The
practices and protocols that are at the root of Capt. Mac Giolla Chainnigh’s grievance
are mandated by Canadian Forces’ written policies which are created under the
authority granted to the CDS by Section 18(2) of the Act. The practices by
which members are required to show their respect and allegiance to the Queen
are described as “compliments”. Compliments are formal marks of respect and
courtesy which are said to be indispensable to service discipline. In the
Canadian Forces Manual of Drill and Ceremonial, the salute is described as a
traditional and basic demonstration of respect. It is a form of compliment
that is owed by members to the Sovereign, the Governor General, members of the
Royal Family, recognized foreign royalty, foreign heads of state or government,
the Prime Minister, the Minister and Associate Minister of National Defence,
Lieutenant Governors and commissioned officers. A salute is also required to be
given to personnel of higher rank with the compliment to then be returned.
[24]
Under
the Canadian Forces’ policy dealing with Honours, Flags and Heritage Structures,
the order and form of toasts to the Queen and to other heads of state is prescribed.
At formal mess dinners, "the health of Her Majesty the Queen" is honoured
by means of a Loyal Toast. A similar toast is required in recognition of an
officer or other distinguished person who is officially representing a foreign
state at a mess dinner. These provisions also recognize the use of the Union
Jack (subordinate to the National Flag) as a symbol of Canada's membership
in the Commonwealth and of allegiance to the Crown. The playing of God Save
the Queen as the Royal Anthem of Canada is approved for use in limited
circumstances, most notably during the presentation of the Loyal Toast when a
band is in attendance.
[25]
With
respect to Capt. Mac Giolla Chainnigh’s freedom of religion and freedom of
expression claims, the relevant provisions are sections 1, 2(a) and 2(b) of the
Charter:
|
Guarantee
of Rights and Freedoms:
1.
The Canadian Charter of Rights and Freedoms guarantees the rights and
freedoms set out in it subject only to such reasonable limits prescribed by
law as can be demonstrably justified in a free and democratic society.
Fundamental
freedoms:
2.
Everyone has the following fundamental freedoms:
a) freedom of conscience and religion;
b) freedom of thought, belief, opinion
and expression, including freedom of the press and other media of
communication;
[….]
|
Garantie
des droits et libertés:
1.
La Charte canadienne des droits et libertés garantit les droits et libertés
qui y sont énoncés. Ils ne peuvent être restreints que par une règle de
droit, dans des limites qui soient raisonnables et dont la justification
puisse se démontrer dans le cadre d'une société libre et démocratique.
Libertés
fondamentales:
2.
Chacun a les libertés fondamentales suivantes :
a) liberté de conscience et de
religion;
b) liberté de pensée, de croyance,
d'opinion et d'expression, y compris la liberté de la presse et des autres
moyens de communication;
[…]
|
The Claim to Freedom of
Expression
[26]
Although
many of Capt. Mac Giolla Chainnigh's reasons for objecting to the requirement
of paying compliments to the Queen are doubtful, unproven or demonstrably
wrong, the fact remains that they are views which he seems to honestly and
strongly hold and they are arguably entitled to the protection afforded by section
2(b) of the Charter. The CDS, however, did not agree that Capt. Mac Giolla Chainnigh's
freedom of expression had been infringed. That conclusion was based on a fair
reading of the majority decision in Roach, above. In Roach, the
issue was whether the requirement to pledge the oath of allegiance to the Queen
as a condition of obtaining Canadian citizenship could be a violation of
Mr. Roach’s freedom of expression. The majority of the Court
found that the requirement to state the
oath of allegiance in such circumstances could never constitute a
constitutional breach:
7 Given that the appellant does not
advocate revolutionary change (i.e., change contrary to the Constitution
itself), 2 his freedom of expression (paragraph 2(b)), freedom of peaceful
assembly (paragraph 2(c)) and freedom of association (paragraph 2(d)) cannot
conceivably be limited by the oath of allegiance, since the taking of the oath
of allegiance in no way diminishes the exercise of those freedoms. The fact
that the oath "personalizes" one particular constitutional provision
has no constitutional relevance, since that personalization is derived from the
Constitution itself. As it was put by Professor Frank MacKinnon, The Crown in
Canada, Glenbow-Alberta Institute, 1976, at page 69, "Elizabeth II is the
personal expression of the Crown of Canada". Even thus personalized, that
part of the Constitution relating to the Queen is amendable, and so its
amendment may be freely advocated, consistently with the oath of allegiance,
either by expression, by peaceful assembly or by association.
8 This is sufficient to dispose of
the appellant's challenge to the oath of allegiance on the basis of section 2
of the Charter. No facts would be pleaded that would prove the appellant's
allegation. It is "plain and obvious" and "beyond doubt" that
the appellant has no chance of success at trial in this regard.
[…]
14 Moreover, the burden imposed on
the appellant is only the minuscule one of the time and the effort involved in
the uttering of the twenty-four words of allegiance. To hold this to be a
coercive burden that would trigger the invocation of subsection 15(1) would in
my opinion be to trivialize the Charter.
15 Of course, the total consequences
of the swearing or affirming of these twenty-four words (as opposed to their
nominal burden) are not at all trivial. Not only are the consequences as a
whole not contrary to the Constitution, but it would hardly be too much to say
that they are the Constitution. They express a solemn intention to adhere to
the symbolic keystone of the Canadian Constitution as it has been and is, thus
pledging an acceptance of the whole of our Constitution and national life. The
appellant can hardly be heard to complain that, in order to become a Canadian
citizen, he has to express agreement with the fundamental structure of our
country as it is.
16 What our country may come to be,
on the other hand, as I have suggested in relation to section 2 of the Charter,
is for millions of Canadian citizens to work out over time, a process in which
the appellant can himself share, if he only allows himself to do so. He cannot
use his dream of a republican Constitution as a legal basis for denying the
legitimacy of the present form of government. The present Constitution could
indeed evolve into his ideal republic, provided that the intervening political
process were peacefully constitutional. If the appellant, idiosyncratically,
were to feel that thus pledging his allegiance to the existing Constitution
were a "burden", this would not be a burden of which the law could
take any cognizance. The Constitution, as it exists at any given time, cannot
be unconstitutional, nor can it be constitutionally burdensome. It is itself
the ultimate criterion by which all laws, actions and discriminatory burdens
are measured.
[27]
In
his dissenting opinion, Justice Allen Linden dealt with the problem which
arises when a person’s beliefs concerning constitutional principles are
seemingly out of step with legal reality. This is reflected in the following
passage from Justice Linden’s decision:
57 …It may not be unreasonable for
the appellant, if he truly holds the beliefs he claims to hold, to feel that,
by taking this oath, he is inhibited to some extent in his anti-monarchy
activities. In other words, his serious view of the oath might be taken
seriously. It may be that, after a trial, it might be concluded that the
appellant was being made to choose between his political principles and his
enjoyment of Canadian citizenship, something the Charter is supposed to
prevent. It may be that Mr. Justice MacGuigan's view would prevail. It may be
that section 1 might be invoked to justify any prima facie violation of the
Charter, or it might not. In light of the uncertainty surrounding this
question, it would be advisable, before resolving this matter, to have the
benefit of factual underpinnings and full legal argument based on those facts.
[28]
Justice
Linden went on to point out that the content of one’s expression is irrelevant
at the first stage of deciding whether an expression is entitled to prima
facie protection under section 2(b) of the Charter: see para. 60. In
the end, Justice Linden would not have summarily struck out Mr. Roach’s
claim in all of its aspects. He would have permitted the case to move forward
insofar as it involved a challenge brought under section 2(b) of the Charter.
[29]
With
respect to section 2(b) of the Charter, I am unable to identify any
meaningful distinction between the issues resolved in Roach, above, and
those which arise in this proceeding. Notwithstanding Justice Linden's
dissenting opinion, I am bound by precedent to apply the majority decision in Roach
in my assessment of the legal correctness of the CDS’ decision and, in the
result, I can only conclude that no legal error has been made out.
[30]
Even
if I am wrong in following Roach and concluding that Capt. Mac Giolla
Chainnigh's section 2(b) Charter rights were not engaged on this record,
I am satisfied that the Canadian Forces’ policies under review represent a
reasonable and demonstrably justified limitation and they would, therefore, be saved
by section 1 of the Charter. This becomes evident if one scrutinizes Capt. Mac Giolla Chainnigh's
grievance by way of the type of Charter analysis that was carried out by
the Supreme Court of Canada in Lavigne v. Ontario Public Service Employees
Union, [1991] 2 S.C.R. 211, 81 D.L.R. (4th) 545.
[31]
According
to the jurisprudence on section 2(b) including Lavigne, above, the
threshold for finding a prima facie infringement of a person's freedom
of expression under section 2(b) of the Charter is quite low. All that
it is required is proof that the purpose of the law is aimed at controlling
expression and, where that is so, a violation of section 2(b) is automatic: see
Lavigne, at para. 101.
[32]
Charter protection
can be applied to all forms of governmental control over expression. Most
often the protection is claimed where the effect of the law is to limit
expression but protection is also available where the control is exercised by
compelling expression: see Lavigne, above, at para. 102. Put
another way, the right to free expression necessarily includes the right to say
nothing at all. Indeed, in some contexts including this one, silence in the
face of mandated speech can carry a significant message.
[33]
In
this case, the purpose of the impugned policies and protocols was to put a
message into the mouth of Capt. Mac Giolla Chainnigh - a message with which he,
advisedly or not, fundamentally disagrees. Assuming that this is sufficient to
represent a prima facie breach of Capt. Mac Giolla Chainnigh’s
freedom of expression, it is next necessary to consider section 1 of the Charter.
Justification under
Section 1
[34]
The
second stage of the Charter analysis requires consideration of the test
established in R. v. Oakes, [1986] 1 S.C.R. 103 and which is restated in
the following passage from R. v. Edwards Books and Art Ltd., [1986] 2
S.C.R. 713, 35 D.L.R. (4th) 1 at para. 117:
117 Two requirements must be
satisfied to establish that a limit is reasonable and demonstrably justified in
a free and democratic society. First, the legislative objective which the
limitation is designed to promote must be of sufficient importance to warrant
overriding a constitutional right. It must bear on a "pressing and
substantial concern". Second, the means chosen to attain those objectives
must be proportional or appropriate to the ends. The proportionality
requirement, in turn, normally has three aspects: the limiting measures must be
carefully designed, or rationally connected, to the objective; they must impair
the right as little as possible; and their effects must not so severely trench
on individual or group rights that the legislative objective, albeit important,
is nevertheless outweighed by the abridgment of rights…
I turn, then, to the application of these
principles to facts of this case.
Legislative Purpose
[35]
The
protocols which Capt. Mac Giolla Chainnigh finds objectionable form a small
part of Canadian Forces’ regulations and policies dealing with compliments and
other forms of official recognition. The stated purposes for these rules are
to foster respect and loyalty, to enhance good order and discipline within the
ranks and to maintain the effectiveness of the hierarchical command structure.
Indeed, the requirement for members to obey lawful commands is self-evident and
it is not contested by Capt. Mac Giolla Chainnigh. These are also accepted
details of military life which Capt. Mac Giolla Chainnigh agreed to adhere to
when he joined in 1975.
[36]
I
accept that these rules, from which Capt. Mac Giolla Chainnigh seeks to be
excused, were established to fulfill a pressing and substantial purpose. Here,
I agree with the Respondent's characterization of their legislative purpose at
para. 70 of its factum:
70. Similarly, as the Commander in Chief
of the CF, all members of the CF are required to salute the Queen and obey all
her lawful commands and orders as she is their superior officer. The required
displays of loyalty to the Commander in Chief serve the objective of
symbolically saluting her, as well as expressing the CF’s loyalty generally in
following orders made in her name. The required displays of loyalty are but
instances of the general duty to salute one’s superiors, which maintains order
and discipline in the CF so as to ensure the prompt carrying out of lawful
commands and orders. Such routine acknowledgement of the chain of command
starting at the very top with the Queen helps maintain an effective military,
which is a pressing and substantial objective.
Proportionality
[37]
To
pass constitutional muster, there is a requirement that the measures adopted by
government be reasonable and proportional to their deleterious effects. This
part of the analysis requires a weighing of the benefits obtained from the means
adopted against their resulting harm to the freedoms of the person affected.
The measures taken must be fair and not arbitrary, rationally connected to
their intended purposes and carefully designed to ensure minimal impairment to
the right or rights in question.
[38]
The
Queen is, of course, Canada's constitutional Head of State and
Commander-in-Chief. It cannot be seriously disputed that she is legally at the
pinnacle of the Canadian Forces hierarchy, albeit in an emblematic role. The
obligation of members of the Canadian Forces to display respect to one another
and loyalty to their commanders is critical to the maintenance of good order
and discipline. It stands to reason that mandatory expressions of respect and
loyalty to the Queen are reasonable components of the broader system for
maintaining good order and discipline within the ranks.
[39]
In
contrast, the imposition upon Capt. Mac Giolla Chainnigh of the occasional
obligation to express loyalty and respect to the Queen in her capacity as Head
of State and Commander-in-Chief is not particularly profound. Such expressions
do not carry any connotation that Capt. Mac Giolla Chainnigh agrees
with Canada's present
constitutional arrangements. Within the broad limits of political freedom in Canada, he is free
to advocate for peaceful political and constitutional change commensurate with
his anti-monarchist views. Indeed, it appears from the record that Capt. Mac
Giolla Chainnigh's complaints have been treated with respect and concern within
the Canadian Forces since the time of his enrollment. His right to freely
express these views is best exemplified by his own evidence that, throughout
his career, he has consistently expressed disaffection for the British monarchy.
He makes no allegations that his career has been adversely affected by the
views he has expressed. He holds the rank of Captain and, by all appearances,
he is a respected member of the teaching faculty at the Royal Military College.
The grievance which gave rise to this application seems to have been given
considerable and appropriate attention at all levels. All of this belies Capt.
Mac Giolla Chainnigh's argument that his freedom of expression has been
significantly curtailed by the universal application of these rules. It is
also worth noting that the exemption of Capt. Mac Giolla Chainnigh from these
requirements would not represent a simple neutral expression on his part. Here,
I accept the views of Maj. Lansey that Capt. Mac Giolla Chainnigh's
refusal to participate in these practices would constitute a display of
rudeness and disrespect entirely inconsistent with traditional Canadian values
and accepted international protocols.
[40]
As
noted by Justice Bertha Wilson in Edmonton Journal v. Alberta, [1989] 2
S.C.R. 1326 and adopted for the majority by Justice Beverly McLachlin (as she
then was) in Rocket v. Royal College of Dental Surgeons of Ontario [1990]
2 S.C.R. 232, 71 D.L.R. (4th) 68, not all expression is equally
worthy of protection nor are all infringements of free expression equally
serious. The right to be infelicitous, misguided or rude, even in the
political context, is not a form of expression which, to my thinking, has a
particularly strong claim to protection.
Rational Connection
[41]
There
is an obvious rational connection between the above-stated purposes and the
methods chosen to achieve those purposes. Any system of effective management
requires universal rules of respect and decorum. In a military environment
loyalty and respect are essential ingredients of the command structure. The
requirement that all members periodically express that loyalty and respect to
one another and, in particular, to their superiors serves to reinforce those
basic principles.
Minimal Impairment
[42]
While
Capt. Mac Giolla Chainnigh seems to acknowledge the Queen's legal legitimacy as
"an empowered sovereign", he maintains that she has no
"natural" right to hold any position of constitutional significance
in Canada and, by extension, she ought not to be recognized within the Canadian
Forces. Because of those personal views, he wishes to be excused from any
obligation to participate in open displays of loyalty to the monarchy or to the
trappings of the monarchy. In other words, he feels that the Canadian Forces’
policies which oblige its members to show loyalty and respect Canada's Head of
State and to their Commander-in-Chief ought not to be applied to him. Although
it was not clearly articulated, Capt. Mac Giolla Chainnigh seems to be saying
that the universal application of these policies and protocols is an unnecessary
or excessive response to the need for order and discipline. He did argue that
the rights of members to opt out, at least for the reasons he espouses, is a
more reasonable approach and one which the CDS should have adopted.
[43]
One
of the obvious difficulties presented by Capt. Mac Giolla Chainnigh's claim to
individual relief is that it would create a precedent for others to opt out of
these and other protocols for all sorts of reasons, political and otherwise. A
chaotic and unworkable situation would arise in such an environment and it
would entirely undermine the maintenance of good order and discipline that is
essential to the effective operation of the Canadian Forces. Presumably, with
such a precedent, members could decline to show respect to other dignitaries or
heads of state or to decline to extend compliments to superior officers on the
basis of similar personal beliefs. When asked about this, Capt. Mac Giolla
Chainnigh was unable to offer a plausible basis for extending a privilege to
him which would not be available to others who might choose not to participate
for different reasons and in different circumstances. The problem is that
there is simply no bright line by which Capt. Mac Giolla Chainnigh's political
views can be distinguished from the beliefs of other members who might wish to
opt out of these or similar protocols for different reasons.
[44]
I
do not, therefore, agree that the universal application of these rules is
excessive to their intended purposes. Anything other than their universal
application would substantially detract from those purposes and it was therefore
reasonable for the CDS to decline to create exceptions. Any system that
allowed for an ad hoc exception would also have an element of
arbitrariness or unfairness which is, of course, a separate consideration in
any section 1 analysis.
The Claim to Religious
Freedom
[45]
Capt.
Mac Giolla Chainnigh's claim that his 2(a) Charter right to religious
freedom is infringed by the requirement that he participate in the Loyal Toast
or in the singing of God Save the Queen is fully answered by reference
to Roach, above, and there is no error in the CDS' application of that
decision in these circumstances.
[46]
There
is a recognized threshold for the application of section 2(a) of the Charter.
This point is well expressed by Justice Frank Iacobucci in Syndicat
Northcrest v. Amselem, 2004 SCC 47 [2004] 2 S.C.R. 551, at paras 56-59:
56 Thus, at the first stage of a
religious freedom analysis, an individual advancing an issue premised upon a
freedom of religion claim must show the court that (1) he or she has a
practice or belief, having a nexus with religion, which calls for a particular
line of conduct, either by being objectively or subjectively obligatory or
customary, or by, in general, subjectively engendering a personal connection
with the divine or with the subject or object of an individual’s spiritual
faith, irrespective of whether a particular practice or belief is required by
official religious dogma or is in conformity with the position of religious
officials; and (2) he or she is sincere in his or her belief. Only
then will freedom of religion be triggered.
57 Once an individual has shown that
his or her religious freedom is triggered, as outlined above, a court must then
ascertain whether there has been enough of an interference with the exercise of
the implicated right so as to constitute an infringement of freedom of religion
under the Quebec (or the Canadian) Charter.
58 More particularly, as Wilson J.
stated in Jones, supra, writing in dissent, at pp. 313-14:
Section 2(a) does not require the
legislature to refrain from imposing any burdens on the practice of religion.
Legislative or administrative action whose effect on religion is trivial or
insubstantial is not, in my view, a breach of freedom of religion. [Emphasis
added.]
Section 2(a) of the Canadian Charter
prohibits only burdens or impositions on religious practice that are
non-trivial. This position was confirmed and adopted by Dickson C.J. for the
majority in Edwards Books, supra, at p. 759:
All coercive burdens on the exercise of
religious beliefs are potentially within the ambit of s. 2(a).
This does not mean, however, that
every burden on religious practices is offensive to the constitutional
guarantee of freedom of religion... . Section 2(a) does not require the
legislatures to eliminate every minuscule state-imposed cost associated with
the practice of religion. Otherwise the Charter would offer protection
from innocuous secular legislation such as a taxation act that imposed a modest
sales tax extending to all products, including those used in the course of
religious worship. In my opinion, it is unnecessary to turn to s. 1 in order to
justify legislation of that sort... . The Constitution shelters individuals and
groups only to the extent that religious beliefs or conduct might reasonably or
actually be threatened. For a state-imposed cost or burden to be proscribed by
s. 2(a) it must be capable of interfering with religious belief or practice. In
short, legislative or administrative action which increases the cost of
practising or otherwise manifesting religious beliefs is not prohibited if the
burden is trivial or insubstantial: see, on this point, R. v. Jones,
[1986] 2 S.C.R. 284, per Wilson J. at p. 314. [Emphasis added.]
59 It consequently suffices that a
claimant show that the impugned contractual or legislative provision (or
conduct) interferes with his or her ability to act in accordance with his or
her religious beliefs in a manner that is more than trivial or insubstantial.
The question then becomes: what does this mean?
[47]
Capt.
Mac Giolla Chainnigh has not demonstrated how his religious beliefs or
practices would be infringed by the obligations of toasting the Queen, saluting
the Union Jack or singing God Save the Queen and, therefore, the
threshold for establishing a prima facie Charter breach has not
been met. The fact that British royal succession adheres to certain sectarian
principles does not, beyond the Royal Family, have anything to do with a person's
religious beliefs or practices and there is nothing in the Canadian Forces’
policies to suggest that these required expressions of loyalty to the Queen
carry any religious significance whatsoever. In these circumstances, it would
be generous to describe Capt. Mac Giolla Chainnigh's unstated religious
interests as having been affected in even a trivial way. Capt. Mac Giolla
Chainnigh's complaint that the CDS and the Board erred on this issue by
imposing upon him the obligation to establish a "coercive burden"
misconstrues how that term has been used in the relevant authorities. A
coercive burden is just another way of saying that the interference with one's
religious beliefs must be more than trivial: see Schachtschneider v. Canada,
[1994] 1 F.C. 40 (FCA) at pages 65-66. I am satisfied that the decision of the
CDS on this issue was correct and that Capt. Mac Giolla Chainnigh's burden of
establishing an infringement of his religious freedom was not met.
Harassment
[48]
Given
that these policies and protocols are constitutionally valid, that they do not
contravene human rights law and that the CDS’ decision to apply them
universally to all members of the Canadian Forces was both lawful and
reasonable, it necessarily follows that they cannot represent a form of
institutional harassment.
Conclusion
[49]
It
follows from all of the above that these measures are reasonable and
demonstrably justified and that the CDS’ decision was both correct in law and
reasonable. Whether it is wise for Canada to maintain its
linkages to the British monarchy is a matter for debate and resolution in the
political sphere. Since its inception, Canada has made several
legislative and constitutional changes by which our historical dependence and
linkages to the British Crown have been reduced. This is fundamentally a
political and democratic process driven by an evolving consensus within the
Canadian polity. But the fact remains that our present ties to the British
monarchy are constitutionally entrenched and unless and until that is changed
there is legitimacy within our institutional structures for demanding, in
appropriate circumstances, expressions of respect and loyalty to the Crown.
[50]
I
cannot think of any Canadian institution where an expectation of loyalty and
respect for the Queen would be more important than the Canadian Forces. There
are occasions in the military employment context (and, indeed, in any
employment context) where the organization can insist that its employees
maintain standards of decorum and respect and where the failure or refusal to
do so will justify the imposition of discipline. This is particularly obvious
in an environment of command and control management. Whether Capt. Mac Giolla
Chainnigh likes it or not, the fact is that the Queen is his Commander-in-Chief
and Canada's Head of
State. A refusal to display loyalty and respect to the Queen where required by
Canadian Forces’ policy would not only be an expression of profound disrespect
and rudeness but it would also represent an unwillingness to adhere to
hierarchical and lawful command structures that are fundamental to good
discipline. It follows from this that, within Canada’s existing
constitutional arrangements, the CDS’ decision was the only rational response
to Capt. Mac Giolla Chainnigh’s grievance.
[51]
Even
if I was left in some doubt about the necessity and value of these practices
(and I am not), I would still be obliged to uphold the CDS’ decision. That is
so because the adoption and application of standards of good order within the
Canadian Forces is, in this instance as in most, a matter best left to the
specialized judgment of those who are tasked to preserve it.
Costs
[52]
The
Respondent has requested costs and, given its success on this application, an
award of costs under Column II is appropriate.
JUDGMENT
THIS COURT ADJUDGES that this application for judicial review is dismissed with costs
payable to the Respondent under Column II.
“ R. L. Barnes ”
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