Remembrance Day and Public Prayer

31 October 2023

[Author’s Note: I had intended on presenting a recap of the outcomes in various matters arising amidst the CF’s so-called “GOFO sexual misconduct scandal”.  I note that some public platforms have already done so.  While I will be doing so in the near future, an intervening issue has recently arisen that merits some attention.]

 

On 19 October 2023, the Canadian Forces (CF) released the Chaplain General Direction on Chaplain’s Spiritual Reflection in Public Settings.

Not surprisingly, this announcement raised a hue and cry from certain segments of Canadian society, particularly on social media, but also in the news media (albeit, predominantly on news media platforms that likely would not come as a surprise to many).

Amidst the finger pointing, shaming exercises, and increased politicization of an issue that is not nearly as alarming as some might be inclined to indicate, I thought that it might be worthwhile to inject a degree of legal analysis and reasoned commentary into the discussion.

Conveniently, the Chaplain General’s Direction has been posted publicly, so the general public can actually read the specific text, rather than relying on someone’s interpretation of what it supposedly means.  And I have hyperlinked the relevant Government of Canada website above.

And, while the Direction does mention “Remembrance Day” as an example of the type of ceremonies that would be relevant to the direction, it is not, strictly speaking, exclusively relevant to Remembrance Day.  However, since Remembrance Day is two weeks away, some people have chosen to characterize the Direction as “banning prayer at Remembrance Day”.

That’s not really what this Direction does.

And, unfortunately, the explanations offered by a variety of governmental actors hasn’t done much to clarify the issues.

Before we delve into the Direction itself, it will be useful to examine the principal judgment of the Supreme Court of Canada (SCC) upon which this Direction is predicated: Mouvement laïque québécois v Saguenay (City), 2015 SCC 16 [Saguenay].  I will also examine an earlier appellate judgment for the Court Marial Appeal Court of Canada (CMAC), R v Scott, 2004 CMAC 2 [Scott], that also touched upon prayer at CF ceremonies.  While, arguably, Scott has since been superseded by Saguenay regarding the significance of prayer within public ceremonies conducted by the CF, there may still be some utility in examining the previous judgment.

I will also offer a comment or two on the role of Chaplains in the CF in order to set the context for the subsequent discussion of the Direction.

And, since the objections to this Direction were raised in the context of Remembrance Day, and since Remembrance Day is less than two weeks away, I will offer a comment or two on how the Direction impacts (and doesn’t impact) Remembrance Day observances.

 

Mouvement laïque québécois v Saguenay (City), 2015 SCC 16

The Saguenay judgment is a key recent[1] judgment of the SCC regarding state religious neutrality.  Some critics of the judgment suggest that it represents a judicial preference for secularism, which is inconsistent with “freedom of religion” under section 2 of the Canadian Charter of Rights and Freedoms (Charter).  While such a view may be understandable, I suggest that it misconstrues the nature of the judgment and demonstrates a religious bias.

And, for the sake of transparency, I will acknowledge my own bias in discussing this issue.  I am not a person of religious faith.  My views reflect largely secular views.  And that probably isn’t surprising to most readers of this Blog in light of the legal pragmatism expressed in my Blog posts.  (I would be hesitant to characterize myself as a ‘legal realist’, though that particular perspective may be evident in much that I write.)

I was raised in a household that was, at least, nominally Protestant Christian.  Some members of my family profess strong religious faith.  Others do not.  It has certainly influenced my upbringing, and, like many nominally Christian households, we observed such holidays as Easter and Christmas.  The extent to which such holidays were observed due to cultural influence, as distinct from religious belief, is debatable.

However, I have observed far too much malice committed in the name of religion to be a strong adherent to the same.  My personal philosophy and beliefs were very likely influenced by the more objectively rational or positive aspects of any religious education that I may have received when I was younger.  Certainly, the ‘Golden Rule’ that I contend should lie at the heart of the exercise of statutory duties, powers, and functions was taught to me in “Sunday School” long before I studied legal theory.  And, whether or not one is a person of strong faith, that’s a pretty darned good rule by which to live.  I recently saw a rudimentary examination of several prominent faiths that drew the conclusion that a fundamental facet of all of them is: “Don’t be a jerk.”  I may be paraphrasing.

So … that is my bias.

The Saguenay judgment was unanimous in outcome.  That’s generally an indication of the strength of the judgment.  In a concurring judgment, Justice Abella agreed with the outcome, but differed from the majority regarding how she came to that conclusion.  In Saguenay, the SCC was ultimately examining a determination made by an administrative tribunal – the Quebec Human Rights Tribunal – functioning under statutory power granted by the Quebec legislature.  It was an appeal to the SCC of a statutory appeal conducted by the Quebec Court of Appeal.  This statutory appeal was akin to a judicial review; therefore, the “standard of review” was a central issue to the judgment.

Justice Abella would have applied a “reasonableness test” to the entirety of the determination by the Quebec Human Rights Tribunal.  The majority, on the other hand, applied a “correctness” test (a higher standard of scrutiny) to the Tribunal’s Charter analysis.  Arguably, the issue that set Justice Abella apart from the majority has largely been addressed in a subsequent judgement that has dominated administrative law in Canada for the past 4 years: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65.

While I encourage anyone who may be vexed by the adjudication of legal issues arising from the examination of “freedom of religion” under the Charter, or by how statutory actors are constrained, to read the Saguenay judgment in its entirety, I will offer a brief summary of the key underlying facts and history of the SCC judgment that are relevant for our purposes here.

The City of Saguenay (which was an amalgamation of several municipalities) had a tradition that, at the outset of the municipal council’s public meetings, the councillors would rise, and the mayor would read out the Lord’s Prayer – a Christian prayer. There were other indicia of the religious nature of the act (and of religious influences in the Council Chamber, including a crucifix attached to the wall); however, there is no reasonable dispute that this was a religious act.

Mr. Simoneau, a resident of the municipality, would attend these public council meetings.  A self-described atheist, he objected to the incorporation of the prayer into the council meetings.  Subsequently, the council adopted a by-law to regulate the recitation of the prayer.  Among other things, the by-law changed the wording of the prayer in an ecumenical sense and provided for a two-minute delay between the end of the prayer and the official opening of council meetings.  This appeared to be a rather transparent attempt to separate the prayer from the actual council meeting.  However, if the intent was supposedly to separate the prayer from the function of the council, a reasonable person would likely inquire why there had to be a municipal by-law governing the prayer.

Mr. Simoneau, backed by the “Mouvement laïque québécois”, was not satisfied and complained further to the Quebec Human Rights Tribunal that the incorporation of the prayer still contravened the Quebec Charter.

Mr. Simoneau and the Mouvement laïque québécois did not challenge the by-law under the Canadian Charter of Rights and Freedoms; they relied upon the Quebec Charter of Human Rights and Freedoms (Quebec Charter).  However, the SCC examined the relevance of the Charter, not the least because s 3 of the Quebec Charter is similar to s 2 of the Charter.

Before I delve into the legal analysis and conclusions adopted by the SCC, I will briefly turn my attention to many of the grumblings that typically arise when Saguenay is discussed by laypersons.

First, some people might assert that Mr. Simoneau was acting as a “busybody”, who attended the municipal council meetings with the sole or principal purpose of being “offended” so that he could complain and so that he could form the basis of a legal challenge by the Mouvement laïque québécois.

That is quite possible.  In fact, I’d suggest that it is quite probable, and I would be inclined to agree with that conclusion.  But that doesn’t alter the law, its application, or the analysis.

Also, one might be inclined to suggest that the municipal council was being disingenuous in enacting a by-law that stipulated that a prayer would “precede” the meeting separated by a 2-minute gap.

Why, precisely, was a municipal council enacting a by-law that not only required a prayer, but actually stipulated the wording of that prayer?

While Mr. Simoneau’s likely nature as a “busybody” was largely irrelevant to the application of the law, the council’s enactment of a by-law was certainly relevant.

Anyone with any degree of understanding of the role of religion in Quebec’s political history, and the friction between the “Church” – which, frankly, means the Roman Catholic Church – and the secularism of the “Quiet Revolution” will likely have a degree of understanding why this matter was so polarizing in Quebec.

In Simoneau c Tremblay, 2011 QCTDP 1, the Quebec Human Rights Tribunal held that it had jurisdiction to hear the complaint.  It held that the by-law contravened s 3 of the Quebec Charter and was incompatible with the state’s duty of religious neutrality.  Therefore, the by-law could not be saved under s 9.1 of the Quebec Charter.  Section 9.1 of the Quebec Charter is roughly equivalent to section 1 of the Charter.  However, section 9.1 of the Quebec Charter also expressly refers to maintaining proper regard to “… State laicity …” meaning the secular nature of the administrative state.  As a remedy, the Tribunal declared the by-law “inoperative and invalid” and ordered the respondent council to cease the recitation of the prayer and to remove “all religious symbols” from the rooms where the council’s meetings were held.  The tribunal also awarded $30,000 in compensatory and punitive damages to Mr. Simoneau.

A statutory appeal lay to the Quebec Court of Appeal: Saguenay (Ville de) c. Mouvement laïque québécois, 2013 QCCA 936.  The Court of Appeal quashed the Tribunal’s finding and decision.

While the court was unanimous in the outcome, Justice Hinton stopped short, in his concurring judgment, of examining the issue of protection of religious freedom.  Justice Hinton concluded that the matter could be determined on jurisdictional grounds alone and that, in keeping with the typical approach of appellate courts – that they will only decide those issues that are necessary to adjudicate in order to determine an appeal – the Court should limit itself to the determinative jurisdictional issue.  Justice Hinton agreed with the majority that the Tribunal at first instance exceeded its jurisdiction in concluding that the presence of religious symbols in the council’s meeting rooms violated sections 3 and 10 of the Quebec Charter.  Consequently, Justice Hinton concluded that the Court of Appeal did not need to proceed further and could quash the decision on that ground alone.

However, Justice Gagnon, writing for himself and Justice Morin, presented a broader analysis, concluding that the prayer, which referenced the cultural and historical heritage of the municipality, did not compromise the state’s religious neutrality.  Justice Gagnon concluded: “… objectively, there is no real conflict between Simoneau’s moral convictions and the events reported.”

Justice Gagnon wrote:

[63]        The duty of neutrality may only be fulfilled through a delicate but inevitable balance between the common good that the State is supposed to defend, which includes the preservation of its cultural heritage, and the right of each person to the respect of his or her moral beliefs.

[64]        There is no such thing in Quebec as a charter of secularism. In the absence of an official statement of principle on the values ​​that the State intends to protect in the context of its duty of neutrality, we must stick to the liberal rule that a religiously neutral State essentially means that no religious view is imposed on its citizens and that its government action, in all its forms, remains truly free from any influence of this kind.

[65]        This objective does not require that society be sanitized of all religious reality, including that which forms part of its cultural history. Moreover, in this regard, it should be recognized that some of the historical values ​​of Quebec society remain compatible with current values said to be neutral and universal.

 

Although he held that the by-law and the council’s actions did not contravene the state’s religious neutrality, Justice Gagnon found that the mayor acted without due reserve expected of an elected official.  Justice Gagnon concluded that he had:

… no reason to believe that Simoneau [had] acted abusively in attempting to put forward his moral convictions. He argued with a Mayor who saw in the claims of one of his citizens the opportunity to wage “a battle” on his own behalf and on behalf of the City. With this bad reflex, the Mayor has unnecessarily polarized the respective positions of the parties. [para 157]

 

I suggest that, throughout the judgment of the Quebec Court of Appeal, there is a strong sense of trying to justify religious belief as a reflection of cultural mores and values.  Certainly, this matter illustrated the ongoing tension between secularism and religious dogma in Quebec.

In the SCC, the Court had to address several issues, including “standard of review”.  However, the standard of review is not directly relevant to our present discussion, so I will focus principally on how the Court examined freedom of religion under s 2 of the Charter and s 3 of the Quebec Charter.

Section 3 of the Quebec Charter protects the freedom of conscience and religion of every person:

Every person is the possessor of the fundamental freedoms, including freedom of conscience, freedom of religion, freedom of opinion, freedom of expression, freedom of peaceful assembly and freedom of association.

 

Section 10 supplements s 3 and prohibits discrimination based on various grounds, including religion:

10.  Every person has a right to full and equal recognition and exercise of his human rights and freedoms, without distinction, exclusion or preference based on . . . religion . . .

Discrimination exists where such a distinction, exclusion or preference has the effect of nullifying or impairing such right.

 

Section 2(a) of the Charter is the constitutional counterpart of s. 3 of the Quebec Charter:

2.  Everyone has the following fundamental freedoms:

(a) freedom of conscience and religion;

 

The SCC held that the Quebec Human Rights Tribunal acted reasonably in finding that the by-law discriminated against Mr. Simoneau.

In the earlier judgment, the Quebec Court of Appeal applied a standard of “correctness” to all the Tribunal’s conclusions, but assessed the expert evidence on the basis of the standard of “palpable and overriding error” (which is the standard applied by appellate courts to the analysis of law and fact by subordinate courts).

However, in his analysis, Justice Gascon[2], writing for the majority of the SCC, held that, although the “correctness” standard applied to the question of law relating to the scope of the state’s duty of religious neutrality that flows from freedom of conscience and religion, the more deferential “reasonableness” standard applied to the determination of: the question whether the prayer was religious in nature, the extent to which the prayer interfered with the complainant’s freedom, whether it was discriminatory, the qualification of the experts, and the assessment of the probative value of their testimony.  Justice Gascon also concluded that, with respect to the religious symbols displayed in the Council Chamber, the Court of Appeal was right to find that, because the Quebec Human Rights Commission had not conducted an investigation into this question, it was not open to the Quebec Human Rights Tribunal to consider it.

The Court held that the by-law was religious in nature and that it favoured a religious perspective over a secular perspective.  It concluded that the “… exclusion caused by the practice and the By-law in the case at bar resulted in an infringement of Mr. Simoneau’s freedom of conscience and religion, and it follows that the prayer necessarily had the effect of impairing his right to full and equal exercise of that freedom.” [para 126].

Para 127 of the judgment summarizes the Court’s conclusions:

[127]                     In closing, as to the City’s by-law regulating the prayer, I will repeat that it was adopted after Mr. Simoneau had filed his complaint with the Commission, if not in reaction to that complaint. What the respondents hoped to do in adopting the By-law was to ensure that the prayer was consistent with the Quebec Charter on the basis of Allen v. Renfrew (County) (2004), 2004 CanLII 13978 (ON SC), 69 O.R. (3d) 742, a decision of the Ontario Superior Court of Justice that I will discuss below. In light of the analysis of the facts in the case at bar, however, that does not alter the outcome. A by-law adopted to regulate a discriminatory religious practice that is incompatible with the state’s duty of neutrality must also be discriminatory. Even though the By-law’s preamble indicates an intention [translation] “to ensure decorum and highlight the importance of the work of the councillors”, it can be seen from the evidence as a whole that this purpose was secondary. Decorum could have been ensured in many other ways that would not have led the City to adopt a religious belief.

 

In other words, the council attempted to justify the use of a prayer through a rather transparent attempt to reverse-engineer a justification.  It appeared that the council (and the mayor in particular) was determined to maintain the tradition of opening council meetings with a prayer because that is the way they had always done so.

And that turn of phrase may resonate with many CF personnel: “We are doing it this way because we have always done so …”.

Ultimately, Justice Gascon’s judgment in relation to religion within the public sphere can be summarized as follows:

1. Sponsorship of one religious tradition by the state in breach of its duty of neutrality amounts to discrimination against all other such traditions;
2. Non-belief is equally protected under religious freedom. Therefore, state neutrality is required so as to prevent discrimination, since a state-held belief would deny citizens’ “equal worth”.  This rejected the proposition by the Quebec Court of Appeal of “benevolent neutrality” since factual situations that “… reveal an intention to profess, adopt or favour one belief to the exclusion of all others …” will breach religious neutrality, regardless of the “traditional character” of the act. [para 88]
3. Canadian society has evolved to the point that the “… concept of neutrality according to which the state must not interfere in religion and beliefs … requires that the state neither favour nor hinder any particular belief, and the same holds true for non-belief. It requires that the state abstain from taking any position and thus avoid adhering to a particular belief. … it may not use its powers in such a way as to promote the participation of certain believers or non-believers in public life to the detriment of others.” [para 72]
4. A person’s rights to freedom of conscience and religion are breached where the “… price for [non-participation is] … isolation, exclusion and stigmatization”. The positioning of the prayer before the ‘official’ start of the council meeting did not accommodate those of other faiths but rather exacerbated discrimination. [para 120]
5. The requirement of state neutrality does not amount to preferential treatment toward atheism or agnosticism: “In short, there is a distinction between unbelief and true neutrality. True neutrality presupposes abstention, but it does not amount to a stand favouring one view over another. No such inference can be drawn from the state’s silence.” [para 134]
6. Prayer is not universal, even if it encompasses all religions. Since the prayer was still religious in nature, it violates the principle of neutrality. [para 137]

 

Justice Gascon also rejected the attempt to rely on the preamble to the Charter as a justification for prayer.  The preamble states: “Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law …”.  In response to this proposition, Justice Gascon held:

[147]                     … The preamble, including its reference to God, articulates the “political theory” on which the Charter’s protections are based…. It must nevertheless be borne in mind that the express provisions of the Canadian Charter, such as those regarding freedom of conscience and religion, must be given a generous and expansive interpretation. This approach is necessary to ensure that those to whom the Canadian Charter applies enjoy the full benefit of the rights and freedoms and, thereby, that the purpose of that charter is attained…. The same is equally true of the Quebec Charter. [citations omitted]

[148]                     Thus, the reference to God in the preamble cannot be relied on to reduce the scope of a guarantee that is expressly provided for in the charters. Professor L. Sossin explains this as follows in “The ‘Supremacy of God’, Human Dignity and the Charter of Rights and Freedoms” (2003), 52 U.N.B.L.J. 227, at p. 229:

The reference to the supremacy of God in the Charter should not be construed so as to suggest one religion is favoured over another in Canada, nor that monotheism is more desirable than polytheism, nor that the God-fearing are entitled to greater rights and privileges than atheists or agnostics. Any of these interpretations would be at odds with the purpose and orientation of the Charter, as well as with the specific provisions regarding freedom of religion and conscience under s. 2.

[149]                     This leads me to conclude that the reference to the supremacy of God does not limit the scope of freedom of conscience and religion and does not have the effect of granting a privileged status to theistic religious practices. Contrary to what the respondents suggest, I do not believe that the preamble can be used to interpret this freedom in this way.

 

There are undoubtedly some people who would disagree with this outcome and judgment.  They may even be inclined to bemoan ‘judicial activism’, ‘judicial elitism’, or whatever pejorative description serves to convey the fact that they disapprove of this outcome.

And, while I don’t tend to think of myself as a legal positivist, I will say this:

1. We are a democracy governed by the rule of law;
2. That concept extends to the respect for, and application of, the supreme law of the land – i.e., the Constitution;
3. The Constitution includes the Charter; and
4. Ultimately, the role of the courts, including the apex court, is to interpret and apply the laws of the land, including the supreme law.

 

In effect, it may be argued that, over time, the SCC has read into section 2 of the Charter something akin to what our American cousins would describe as a “non-establishment” provision.

I suspect that I show my own particular bias when I conclude that Justice Gascon’s judgment is a logical extension of mutual respect that underlies protection of rights.  This judgment does not outlaw religion.  It does not impair religious rights.  It does not augur a “War on Christmas”.  It merely reinforces governmental neutrality regarding religion and religious practices, including the absence thereof.

I have encountered CF statutory decision-makers who have struggled with the reasonable application of this judgment in the exercise of their duties, powers and functions.  In some cases, I suspect that their struggles arose out of their own adherence to a particular religious faith or belief, or even an indoctrinated adherence to tradition.  In those cases, I would suggest that they need to divorce their personal beliefs from their public statutory role.  I have commented on this before – CF statutory decision-makers, regardless of the leadership positions that they hold, must remember that they are not exercising personal duties, powers, and functions, but, rather, duties, powers, and functions conferred on them by statute – most frequently, by the National Defence Act.

In sum: “it isn’t personal”, so don’t make it personal.  Don’t make it about you.

Similarly, I suspect that some CF decision-makers struggle with these issues “… because we have always done it this way …”.  And if you keep bringing up ‘tradition’ as a universal justification for avoiding compliance with the law, then I’m going to break out my “Fiddler on the Roof” routine.  And I doubt very much that you want me to do that – the only thing worse than my singing is my dancing.  (Ahem … “… If I were a rich man …”).

 

R v Scott, 2004 CMAC 2

I can certainly sympathize with those who disagree with appellate decisions.  I have long held that the judgment in R v Scott, 2004 CMAC 2 represents a problematic conclusion.  I contend that my disagreement is predicated not upon a dissonance in values and belief, but on a reasonable interpretation of the evidence and issues that were considered by the court.  And I also contend that problematic elements of the judgment at trial (R v Scott, 2003 CM 290) led to a similarly problematic judgment on appeal, which reversed the judgment at first instance.

Like Saguenay, decided over a decade later, this matter concerned religious neutrality by the state – specifically, the CF.

Lt(N) Scott was charged with disobedience of a lawful command of a superior officer contrary to section 83 of the National Defence Act when he refused to remove his headdress, while on parade, when ordered to do so by the Parade Commander, Commander Heath, on 28 November 2002.

Specifically, Lt(N) Scott was on a parade for what was described as “Ceremonial Divisions” held at CFB Esquimalt.  In the judgment at first instance, the military judge observed:

The purpose of Ceremonial Divisions is to bring together the entire ships [sic] company, or for those ashore, the base personnel, for the purpose of permitting the reviewing officer to see and address his or her people, to present awards or promotions, and often to conduct an inspection. Ceremonial Divisions are held approximately four times a year at CFB Esquimalt. [para 3]

 

When the Parade Commander ordered “Remove Headdress”, Lt(N) Scott refused to remove his headdress and remained at attention, despite the order. Thereafter, the padre, Lieutenant-Commander Cudmore, recited the Naval Prayer and the band played a verse of the Naval Hymn (“Eternal Father, Strong to Save”). After this, the parade was brought to attention and the order was given to restore headdress. Then the reviewing officer, the Base Commander, was given an opportunity to address the parade.

Sometime prior to 28 November 2002, Lt(N) Scott had a conversation with his superior, Commander (Cdr) Smith.  Lt(N) Scott informed Cdr Smith that he was considering whether or not he would comply with the order to remove headdress on Ceremonial Divisions. Lt(N) Scott said he did not believe it was right to mix church and state. According to the judgment at first instance, Cdr Smith considered that Lt(N) Scott had a serious concern about removing his headdress on parade before prayers; however, he advised Lt(N) Scott that the order to remove headdress was a lawful order.

Lt(N) Scott did not deny the facts of his action.  His defence was grounded in freedom of religion under s 2 of the Charter.

At trial, the military judge, Cdr Lamont, held that it was not necessary to determine “…  whether the use of the current Naval Prayer at Ceremonial Divisions runs afoul of Charter section 2(a). The real issue here is whether, on the evidence in this case, the accused has established, on a balance of probabilities, an infringement or denial of his guaranteed right to freedom of conscience or religion.”

The crux of Cdr Lamont’s judgment was:

[27]               Ultimately, the accused interprets the action of removing his headdress on parade, prior to being led in prayer by the padre, as a visible sign that he, in so doing, subscribes to the tenets of religious belief which he, in fact, does not personally share. In my view, on the evidence led in this case, it is unreasonable to draw such a conclusion.

[28]               The act of removing one’s headdress, by itself, carries no religious connotation. It is unlike, for example, the gesture of the sign of the cross for Christian Roman Catholics or Eastern Orthodox Catholics. As was pointed out in the evidence and in argument, headdress is formally removed on other occasions to show respect for a visiting dignitary or to offer cheers in a traditional naval manner.

[29]               Of course, an otherwise religiously neutral act may acquire some colour from the surrounding circumstances. Simply kneeling is an example of such a neutral act, but kneeling and touching the forehead to the floor while facing in the direction of Mecca may have profound significance for the adherents of Islam.

[30]               In this case, Chief Petty Officer 1st Class Reynolds gave evidence of the significance of removing one’s headdress on parade prior to prayer. He testified that headdress is ordered removed out of respect for religion or out of respect for those on parade who wish to pray. In cross-examination, he disagreed with the suggestion that removing headdress was a religious act.

[31]               Captain(N) Heath, as the Parade Commander, gave the order to remove headdress. Captain(N) Heath testified that he did not consider the order he gave to be a religious one, and indeed, as far as he was concerned, there were no orders given on the parade relating to prayer. The evidence of Captain(N) Heath and Chief Petty Officer 1st Class Reynolds on this point was not undermined in cross-examination, nor was this evidence contradicted by any other evidence.

 

Consequently, Cdr Lamont found Lt(N) Scott guilty.

The CMAC disagreed and overturned Cdr Lamont’s finding.  Their judgment was not particularly long.  The crux of their finding was as follows:

[4]        The military judge’s finding of guilt was predicated on his finding of fact that the order to remove headdress did not have a religious connotation.  The judge purported to base that finding on his acceptance of the opinions given by the parade commander and a senior non commissioned officer who had been present at the parade. He also seems to have attached some importance to his finding that the prayer was “non-denominational.”

[5]        With respect, we think that the judge’s finding was unreasonable and is not supportable on the whole of the evidence. The “non-denominational” character of the prayer was wholly irrelevant except, of course, to the extent that it served to undermine the judge’s view that the order to remove headdress did not have a religious connotation. The order was only given once that day and immediately preceded the saying of the prayer.  A prayer is always and by definition religious. That character does not change depending upon the organized religion with which it may or may not be associated. In finding that the order to remove headdress did not have a religious connotation, the judge relied on the opinions of lay witnesses who had no particular qualifications on the question. However, the judge does not appear to have taken into account the opinion of another prosecution witness, the chaplain himself, who clearly was qualified, and who said that what he had conducted was a “short” service “of a religious nature.”  The judge’s disregard of that evidence is not explained.

[6]        Even more significantly the judge had before him a full account of the circumstances surrounding the occasion: the asking and receiving of “permission to carry on with prayers”; the fact that what was pronounced was in fact a prayer; the further fact that the chaplain was dressed in ecclesiastical garb, and that the prayer was followed by the playing of what is generally recognized as a hymn; and finally, the evidence of both the witnesses on whom the judge relied to the effect that the order to remove headdress would not have been given had the prayers  not been the next order of business. Indeed, paragraph 13 of the Canadian Forces Dress Instructions, A-AD-265-000/AG-001 itself seems to recognize the religious nature of the order to remove headdress for prayers in that it provides specific exemptions for persons whose religious beliefs require that their heads remain covered, notably adherents of the Jewish and Sikh religions.

[7]        It is simply impossible in these circumstances not to see both the order itself and the prayer that followed as having a religious connotation that required all those present at least to appear to participate in the sentiments expressed. There was no room for dissent, reservation, or abstention.

[8]        The fact that the appellant kept his hat on not because of religious convictions, but because of a lack of them, seems to us to be quite irrelevant. The order that was given and that he knowingly disobeyed was one with the acknowledged purpose, according to both prosecution witnesses and section 3 of the Canadian Forces Dress Instructions was to show “respect” for what was being done and not mere passive toleration.  That is to say, it was designed to constrain him to make a public gesture of approval for a religious ceremony in which he did not believe.  Since that is a purpose which is clearly inimical to the freedom of religion guaranteed by paragraph 2(a) of the Charter, the order given fails the first branch of the test laid down in R. v. Big M Drug Mart, 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295.

 

Again, before I delve into the law and its application, I will address a couple of contentions that often arise whenever this subject is discussed.

Some people might be inclined to conclude that Lt(N) Scott was being defiant for defiance’s sake, much as Mr. Simoneau was being a busybody.  Maybe, maybe not.  I have certainly encountered CF personnel who defy specific actions or orders for the sake of defiance.  However, aside from Lt(N) Scott’s religious beliefs (including the absence of religious belief), whether one might subjectively view his actions as those of a ‘busy-body’, or even if someone personally viewed his actions as “brazenly contumacious”, is not relevant to the interpretation and application of the law.  It would be relevant if he did not have legal excuse for disobedience.  But this matter turned on whether he had a lawful justification for refusing the order.  He may have had other, undisclosed, motivations for his conduct; however, if he did, those certainly were not presented in evidence before the court martial.

Lt(N) Scott was transparent with his views.  He described himself as an agnostic with atheistic tendencies.  And, while I may personally view such a description as disingenuous waffling – either you’re agnostic or you’re an atheist – as I note above, let’s not make this “personal”.  What was materially relevant was that Lt(N) Scott stated that he had no faith in any God.  And there was no evidence to the contrary.

But his refusal of the order to remove headdress was about more than his personal “non-belief”.  He had expressly indicated his politico-legal views to Cdr Smith: Lt(N) Scott believed that the presence of prayer on the parade improperly mixed religion and the state.  He was making a point.

On cross-examination, Lt(N) Scott confirmed that he objected to the presence of any religious aspect to parades, including “Ceremonial Divisions”. He agreed that his disobedience of the order was for the purpose of demonstrating his disagreement with the religious aspect of Ceremonial Divisions.  While Lt(N) Scott was clearly being defiant to make a point, he was also being transparent in doing so.  Cdr Lamont had no doubt that Lt(N) Scott was sincere when he testified that he was without religious faith.

I will use the term “non-believer” in light of the copious debate that surrounds the connotative meaning of “atheism” and “agnosticism”, including Lt(N) Scott’s ambiguity in describing the nature of his “non-belief”.

Whether or not there was any other underlying motivation on Lt(N) Scott’s part is largely irrelevant.  He transparently acknowledged his motive in denying the order to remove headdress.  And there is no evidence of any other motivation.  Nor does it alter the nature of what transpired on the parade.

As I say, both the trial judgment and the appellate judgment had problematic elements in the reasoning.

At trial, Cdr Lamont concluded that the “… act of removing one’s headdress, by itself, carries no religious connotation …”.  However, he also recognized that this act was a pre-cursor to an eventual religious act.  Cdr Lamont sought to distinguish between the two acts.  I suggest, however, that he overstated the distinction, perhaps to insulate his judgment from review, and that, in turn, led to the CMAC taking issue with this aspect of the judgment at first instance.

The order to remove headdress was clearly a pre-cursor to the subsequent naval prayer.  The CMAC was correct in concluding that the “non-denominational nature” of the prayer was irrelevant.  It was still a prayer.  And it appears that it was at least a prayer to a monotheistic deity, if not the “Christian God”.

With the benefit of the Saguenay decision – which neither Cdr Lamont nor the CMAC could have considered – we now know that the SCC has held that forcing a “non-believer” to make a decision between complying with a religious act or being singled out because of a religious practice can contravene freedom of religion.  A person’s rights to freedom of conscience and religion are breached where the price for non-participation is isolation, exclusion and stigmatization.

But how do we square that with Lt(N) Scott’s circumstances?

On its face, we can conclude, as the CMAC did, that it would be unjustified in a free and democratic society to punish someone under what is essentially a penal code for choosing not to participate in a religious practice.

The problem with that conclusion, however, is that Lt(N) Scott was not being ordered to pray.  He wasn’t being ordered to participate in a religious practice.  He was being ordered to remove his headdress. And, while it is clear that the removal of headdress is a pre-cursor to a religious act, and that Cdr Lamont appeared to over-state the dissonance between removing headdress and the prayer, one might equally argue that the CMAC overstated the nature of this act when it concluded:

…  the evidence of both the witnesses on whom the judge relied to the effect that the order to remove headdress would not have been given had the prayers not been the next order of business. Indeed, paragraph 13 of the Canadian Forces Dress Instructions, A-AD-265-000/AG-001 itself seems to recognize the religious nature of the order to remove headdress for prayers in that it provides specific exemptions for persons whose religious beliefs require that their heads remain covered, notably adherents of the Jewish and Sikh religions.

 

The fact that adherents to Jewish and Sikh religions and traditions are not required to remove their headdress is simply a recognition of their religious practices and, therefore, their religious freedoms under the Charter.  (And, frankly, for Sikhs, it would be utterly infeasible to do so.)  It does not render the removal of headdress a religious act.  And, unlike a Jewish or Sikh sailor, Lt(N) Scott had no religious barrier or objection to removing his headdress.

Lt(N) Scott was not being ordered to pray.  After removing his headdress in an act of uniformity within the parade, he could have stood there and reflected on anything, or nothing at all.

Ironically, neither the judge at first instance nor the CMAC focused on the issue that, for Lt(N) Scott, was foremost in his act of defiance.  Lt(N) Scott expressly stated that his act of defiance was intended to signal his belief that prayer should not be part of CF ceremonies.

Potentially, were we to apply Saguenay to Lt(N) Scott’s trial (notwithstanding that the SCC judgment post-dated the trial), one of the most compelling arguments that Lt(N) Scott could have presented was that he was forced to comply with a precursor to prayer or else risk being stigmatized.  However, such an argument would fail in light of Lt(N) Scott’s actions.  He could not contend that he was forced to comply out of fear of stigmatization.  He willingly chose not to comply “to make a point”, and even signalled to his chain of command, in advance of the parade, his intention to do so.

Where I believe that the CMAC erred was the conclusion: “The fact that the appellant kept his hat on not because of religious convictions, but because of a lack of them, seems to us to be quite irrelevant.”  Respectfully, that is the very point at the heart of the matter.  Absent any religious conviction regarding whether his headdress remained on his head, he had no compelling basis to refuse the order.

The CMAC went on to state:

… The order that was given and that he knowingly disobeyed was one with the acknowledged purpose, according to both prosecution witnesses and section 3 of the Canadian Forces Dress Instructions was to show “respect” for what was being done and not mere passive toleration.  That is to say, it was designed to constrain him to make a public gesture of approval for a religious ceremony in which he did not believe.  Since that is a purpose which is clearly inimical to the freedom of religion guaranteed by paragraph 2(a) of the Charter, the order given fails the first branch of the test laid down in R. v. Big M Drug Mart, 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295.

 

The CMAC overstates the conclusion, distinguishing between “respect” and “passive toleration”.  First, the rule in Big M Drug Mart does not speak to passive toleration.  Frankly, it remains unclear how “passive toleration” is distinguishable from any other form of tolerance.  And “respect”, or more accurately, respect for the views and beliefs of others, is, essentially, tolerance.

I contend that the actual issue that was before the court was whether someone who professes no religious beliefs at all, can be compelled to remove headdress as part of a parade.  Certainly, if someone is prohibited from, or incapable of, doing so based upon their own religious or cultural beliefs, then that is clearly a defensible exception to the order.

However, if the act of removing one’s headdress has no religious meaning for an individual – and it could not have had any religious meaning to Lt(N) Scott – then one would conclude that there is no meaningful objection to complying with an order that applies to the entire parade, but for those who have a reason under s 2 of the Charter to decline to comply in order to satisfy their own religious practices.

Part of the problem that I perceive in the prosecution of Lt(N) Scott was that the chain of command, through the military prosecutor, was “trying too hard” to justify the order to remove headdress.  In so doing, they drove the CMAC to the Court’s eventual conclusion.  I suggest that the principal motivator was the desire for a uniform parade.  That is something deeply ingrained in many military institutions.  It is one of the principal reasons why there are uniform drill movements on parade.  I suggest that this is one of the reasons why CANSOFCOM, despite not being an “element” of the CF, has its own distinctive uniform.  However, the prosecution presented evidence to try to establish that the removal of headdress was intended to show respect for other religions.  Ironically, that approach was more likely to contravene Lt(N) Scott’s rights under s 2 of the Charter than what I believe was the true reason for the order.

By obliging Lt(N) Scott – or any other CF member – to perform a specific act in order to “demonstrate respect for” any religion amounts to forcing them to express a belief that they may not have.  It may be that Lt(N) Scott – or any other CF member – may not actually respect certain faiths, or religious faith generally.  As I note above, in human history, monstrous acts have been perpetrated in the name of various religious faiths.

I contend that a far more compelling argument, and one that would not engage s 2 of the Charter in the same way, is that the order to remove headdress was intended for the sake of uniformity.  And, arguably, the requirement of “uniformity” has diminished over time.

While I may disagree with the CMAC’s reasoning, that does not alter the fact that the judgment is nevertheless binding in terms of enforcement of discipline in the CF.  It did not expressly stand for the proposition that CF parades cannot incorporate prayer (even though Lt(N) Scott expressly stated that his refusal of the order to remove headdress was intended to signal that very belief).  Certainly, in the two decades since the CMAC judgment, there have been prayers recited at various parades involving CF personnel.

However, Saguenay would alter the focus of examination in any subsequent case like Scott.  I suspect that, in the wake of the Saguenay judgment, one or two (or more) CF members will have been inclined to grieve their participation in any parade that incorporated prayer of any sort.  There do not appear to have been any courts martial similar to that of Lt(N) Scott in the past 20 years.  However, that is unlikely to stop CF members from testing boundaries based upon faith.  It will just alter how the chain of command responds.

And the Scott judgment was undoubtedly considered when developing the Chaplain General’s recent Direction.

 

Role of Chaplains

The role of Chaplains in the armed forces raised by Canada has evolved over time.  During previous armed conflicts – notably World War I and World War II – cultural norms and mores were different.  Certainly, the various iterations of the Chaplain service focused on Christian religious beliefs.  And there was no entrenched Canadian Charter of Rights and Freedoms.

Times change.  Society changes.  Laws change.

And the CF has had to adapt with those changes.  (However, we still adhere to Victorian principles of law governing the Crown-soldier relationship.  So, evidently, not everything changes.)

And, despite the state’s requirement of religious neutrality, there will remain a role for Chaplains (or whatever nomenclature may be used in the future) in the CF.  Although Canada (and, by extension, the CF) cannot manifest a preference for a particular religion, or religion generally, the CF must still provide for the morale and welfare of its personnel.  The CF provides medical and dental services for its personnel.  It provides counselling services for its personnel.  And, while people may debate how well the CF provides these services, it undisputedly does provide these services.  And, presumably, efforts are made to provide these services on a non-discriminatory basis.  That presumption is tested from time to time.  And the CF will likely continue to provide religious or spiritual support for those CF personnel who require it.  How it chooses to do so may evolve over time.

And some people may object to certain services being performed by clergy.  For example, during my “previous life” as an infantry officer, I had the privilege of serving as the regimental exchange officer with the Royal 22e Régiment – the “Vandoos”.  As you might expect, a significant percentage of the personnel at the 2^nd Battalion, where I served, were nominally Roman Catholic.  When screening for deployment – which many people refer to as “DAGing”, in reference to the acronym for “Departure Assistance Group” – personnel are required to screen for any potential problems in what can be characterized as their “homelife”.

This portion of the screening was typically conducted by CF social workers or Chaplains. Chaplains for units or bases that are predominantly Roman Catholic tend to be priests or pastoral assistants.  The latter are not priests, cannot perform all Roman Catholic sacraments, and are permitted to marry.

I recall many personnel in the unit demonstrating a preference for screening by a social worker or a pastoral assistant, expressing the concern, “What is a priest, who is not permitted to marry, and who must remain celibate, going to tell me about maintaining balance within my family?”, or words to that effect.  And, frankly, they have a valid point.

Nevertheless, Chaplains continue to provide services to the CF and the role of Chaplains is recognized under international humanitarian law.  And that role can extend to reminding personnel in a Tactical Operations Centre of their humanity as people cheer when watching live UAV feed of a precision strike that kills several presumed insurgents.

My point is this: there is still a role for Chaplains, notwithstanding that it has evolved, and likely will continue to evolve.

Nor do I believe that the CF is going to declare a “War on Christmas”.

 

Chaplain General Direction on Chaplain’s Spiritual Reflection in Public Settings

Before I get into a detailed discussion of the Chaplain General’s Direction dated 19 October 2023, I wish to take a moment to remind everyone of a couple of key considerations.

First, the Direction is not only ecumenical, conceptually, it extends beyond ecumenical direction.  It incorporates a recognition of the reality of the Saguenay decision.  It represents guidance for Chaplains.

But it is not an order to all CF personnel.  It cannot be such an order.  Chaplains cannot exercise command.  Article 3.31 of the Queen’s Regulations and Orders for the Canadian Forces, a ministerial regulation enacted under s 12(2) of the NDA, states:

3.31 – CHAPLAINS EXCLUDED FROM COMMAND

No chaplain shall exercise command over any officer or non-commissioned member.

 

Note that, unlike the regulation that reserves to the Judge Advocate General command over the Office of the Judge Advocate General and all legal officers “… whose duty is the provision of legal services …” to the CF (QR&O, art 4.081), or  “… command over a medical officer in respect of his treatment of a patient …” (QR&O, art 3.33), or the Chief of the Defence Staff direction regarding the “responsibility of medical officers” (QR&O, art 34.011), which delineate the direction for certain specialist officers, Chaplains exercise no command whatsoever.

[NB: One may exercise statutory duties, powers, and functions, despite not being permitted to exercise command.]

So, the Chaplain General’s Direction not only isn’t an order directed at CF personnel.  It technically isn’t an order even for Chaplains.  It is direction regarding the administration of “… the Royal Canadian Chaplain Service for the purpose of providing chaplain services to officers and non-commissioned members and the families of officers and non-commissioned members …”.

The Direction of 19 October 2023 is clearly designed to ensure that the CF complies with the supreme law of the land.

And the content of the Direction is not particularly surprising.  Frankly, what is surprising is that it took eight years for the Chaplain General to issue this Direction in light of the Saguenay judgment.  Eight years.

I’ve offered this observation before: the CF does not cover itself in glory when it comes to timely action.  Grievances typically take far too long to adjudicate.  Military police investigations (and, it appears, disclosure) proceed as a snail’s pace.  Even governmental appointments are slow to be made.  I long ago abandoned the idea of starting a ‘pool’ on when the Governor in Council would finally designate a new Chief Military Judge.  (For those, who care, it has been over 3 ½ years since the last Chief Military Judge retired.)

That doesn’t mean that the Direction is not without some elements that might be ambiguous or debatable.  For example, para 16 of the Direction is entitled “Enforcement”, a rather ominous title for direction from a Chaplain:

16.    The enforcement of this policy has two dimensions. The first is the educational component. In this regard, the Canadian Forces Chaplain School and Centre (CFChSC) will play a key role in integrating this new directive on spiritual reflection into all courses offered to chaplains during their career. The other component is administrative and disciplinary, as remedial measures, withdrawal of the Chaplain General’s mandate, or disciplinary actions may be taken in the case of a chaplain who does not comply with this directive.

 

Putting aside my concern that “education” is not an element of “enforcement”, I would be surprised if this direction is enforced under the Code of Service Discipline.  It is far more likely that non-compliance will be enforced “administratively” through the suspension or revocation of a Chaplain’s mandate, or through remedial measures.  That would certainly be consistent with much enforcement in the CF where statutory decision-makers or actors wish to avoid immediate scrutiny of decisions by constitutionally independent courts.

However, enforcement through the use of service infractions and summary hearings remains a distinct possibility, since those processes also do not give rise to the ‘risk’ of immediate scrutiny by an independent court – you know, the sort of scrutiny from which Mr. Simoneau and Lt(N) Scott benefitted.

I suggest that compliance could not be enforced through disciplinary (or administrative) actions purporting to enforce compliance with an order.  After all, while the Chaplain General can issue direction, he cannot issue orders.  However, that doesn’t necessarily preclude a charge under para 120.03(i) of the QR&O, which is fast becoming the “catch-all” service infraction: “otherwise behaves in a manner that adversely affects the discipline, efficiency or morale of the Canadian Forces”.

That said, ‘revocation of mandate’ is likely a far more significant consequence for a Chaplain who fails to comply with this direction.  It was also employed when certain Chaplains objected to the Chief of the Defence Staff’s COVID-19 Direction.

But what the Chaplain General’s Direction manifestly does not do is ban prayer from Remembrance Day ceremonies.

First, most Remembrance Day ceremonies are not organized by the CF.  The CF certainly participates, in a variety of ways, in such ceremonies, both large and small.  But most Remembrance Day ceremonies are organized by the Royal Canadian Legion or by other eleemosynary institutions.

Second, the Chaplain General’s Direction is applicable to Chaplains and does not constitute an order to all CF personnel.

Third – and perhaps most importantly – nothing bars anyone in attendance at a Remembrance Day ceremony, including anyone in uniform, from praying to whomever or whatever they wish to pray during a “moment of reflection”, or, indeed, at other times during the ceremony.

The Chaplain General’s Direction is not a ban on prayer.  And I am relatively confident that neither the Chaplain General nor the Chief of the Defence Staff has been developing a campaign plan for a “War on Christmas”.

While I remain unimpressed with a variety of aspects of the administration of the affairs of the CF – including continuing unreasonable delays in the determination or grievances, unreasonable decision-making facilitated by the absence of consequences for decision-makers, and the continued use of administrative processes for disciplinary purposes (to name but a few) – the Chaplain General’s Direction of 19 October 2023 is not something that merits the outrage or gnashing of teeth that I have seen in certain corners of social media.

What it does represent is respect for the rule of law.  And, frankly, that is a refreshing development in the administration of the affairs of the CF in light of many recent examples to the contrary.

 

[1] The Saguenay judgment is eight years old.  However, in terms of the incremental evolution of the law pertaining to section 2 of the Charter, it is still relatively “recent”.  I note, however, that it has taken eight years to finally release direction regarding its significance for CF ceremonies that might include prayer or reflection.  Much could be said about the time it has taken for this Direction to be developed.  However, the issue of the slow pace of policy development arising from key SCC decisions is a topic that must wait for another day.

[2] Justice Gascon was one of the three SCC judges appointed from Quebec.  Typically, where a judgment concerns a law specific to Quebec, and the Majority includes at least one of the judges appointed from Quebec, one of those judges will be called upon to write the judgment for the Majority.