Chainnigh v. Canada (Attorney General), (2008) 322 F.T.R. 302 (FC)

• Judge: Barnes, J.
• Court: Federal Court (Canada)
• Case Date: September 20, 2007
• Jurisdiction: Canada (Federal)
• Citations: (2008), 322 F.T.R. 302 (FC);2008 FC 69

Chainnigh v. Can. (A.G.) (2008), 322 F.T.R. 302 (FC)

MLB headnote and full text

Temp. Cite: [2008] F.T.R. TBEd. JA.036

Aralt Mac Giolla Chainnigh (applicant) v. The Attorney General of Canada (respondent)

(T-1809-06; 2008 FC 69)

Indexed As: Chainnigh v. Canada (Attorney General)

Federal Court

Barnes, J.

January 21, 2008.

Summary:

The applicant, a Captain of the Canadian Forces, initiated a grievance claiming 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). He also alleged that his freedoms of religion and expression under ss. 2(a) and (b) of the Charter had been infringed. The Chief of Defence Staff rejected the grievance. The applicant applied for judicial review.

The Federal Court dismissed the application.

Armed Forces - Topic 7043

Military personnel - Employment and enrolment - Institutional harassment - The applicant, a Captain of the Canadian Forces, initiated a grievance claiming 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) - The Chief of Defence Staff (CDS) rejected the grievance - The applicant applied for judicial review - The Federal Court dismissed the application - The court held that "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" - See paragraph 48.

Armed Forces - Topic 7051

Military personnel - Employment and enrolment - Allegiance to the Queen - [See Civil Rights - Topic 395.3 and Civil Rights - Topic 1846.1 ].

Civil Rights - Topic 360

Freedom of conscience and religion - Exercise of - Evidence and proof - [See Civil Rights - Topic 395.3 ].

Civil Rights - Topic 395.3

Freedom of conscience and religion - Infringement of - Allegiance to the Queen - The applicant, a Captain of the Canadian Forces, initiated a grievance claiming 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) - He also alleged, inter alia, that his religious freedom under s. 2(a) of the Charter had been infringed - The Chief of Defence Staff (CDS) rejected the grievance - The applicant applied for judicial review - The Federal Court dismissed the application - With respect to the issue of religious freedom, the court held that the applicant had 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 had not been met - The applicant's complaint that the CDS erred on this issue by imposing upon him the obligation to establish a "coercive burden" misconstrued how that term had been used in the relevant authorities - A coercive burden was just another way of saying that the interference with one's religious beliefs had to be more than trivial - See paragraphs 45 to 47.

Civil Rights - Topic 1846.1

Freedom of speech or expression - Limitations on - Allegiance to the Queen - The applicant, a Captain of the Canadian Forces, initiated a grievance claiming 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) - He also alleged, inter alia, that his freedom of expression under s. 2(b) of the Charter had been infringed - The Chief of Defence Staff rejected the grievance - The applicant applied for judicial review - The Federal Court dismissed the application - With respect to the issue of freedom of expression, the court followed Roach v. Canada (F.C.A.) and concluded that the applicant's s. 2(b) Charter rights were not infringed - If it was wrong in that conclusion, then the court was satisfied that the Canadian Forces' policies under review represented a reasonable and demonstrably justified limitation under s. 1 of the Charter - See paragraphs 26 to 44.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - [See Civil Rights - Topic 1846.1 ].

Cases Noticed:

Roach v. Canada (Minister of State for Multiculturalism and Citizenship), [1994] 2 F.C. 406; 164 N.R. 370 (F.C.A.), folld. [para. 16].

Armstrong v. Canada (Attorney General) (2006), 291 F.T.R. 49; 2006 FC 505, refd to. [para. 21].

Lavigne v. Ontario Public Service Employees Union et al., [1991] 2 S.C.R. 211; 126 N.R. 161; 48 O.A.C. 241; 81 D.L.R.(4th) 545, refd to. [para. 30].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 34].

R. v. Videoflicks Ltd. et al., [1986] 2 S.C.R. 713; 71 N.R. 161; 19 O.A.C. 239; 35 D.L.R.(4th) 1, refd to. [para. 34].

R. v. Edwards Books and Art Ltd. - see R. v. Videoflicks.

Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; 102 N.R. 321; 103 A.R. 321, refd to. [para. 40].

Royal College of Dental Surgeons (Ont.) et al. v. Rocket and Price, [1990] 2 S.C.R. 232; 111 N.R. 161; 40 O.A.C. 241; 71 D.L.R.(4th) 68, refd to. [para. 40].

Syndicat Northcrest v. Amselem et al., [2004] 2 S.C.R. 551; 323 N.R. 59; 2004 SCC 47, refd to. [para. 46].

Schachtschneider v. Minister of National Revenue, [1994] 1 F.C. 40; 154 N.R. 321 (F.C.A.), refd to. [para. 47].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 1, sect. 2(a), sect. 2(b) [para. 25].

Counsel:

Aralt Chainnigh, self represented;

Gregory Tzemenakis and Agnieszka Zagorska, for the respondent.

Solicitors of Record:

Department of Justice, for the respondent.

This application was heard on September 20, 2007, at Ottawa, Ontario, before Barnes, J., of the Federal Court, who delivered the following decision on January 21, 2008.