# 2012-169 Others, Discrimination, Fundamental Freedoms

Case Summary

F&R Date: 2013–06–28

In his grievance, the grievor took issue with the inclusion of prayers in an official Canadian Forces (CF) function (change of command parad). He argued that this practice was contrary to subsections (s.) 2(a) and 15(1) of the Canadian Charter of Rights and Freedom (the “Charter”) which assures freedom of conscience and religion for every individual and equality before the law. As an atheist, the grievor alleged that the requirement to attend an official CF event, in the course of his duties, where a prayer to God was performed breached his fundamental rights and made him feel excluded and uncomfortable. As a remedy, he requested that the practice of including prayers in CF official functions, where members are required to attend, be discontinued.

The Chief of Military Personnel, acting as the Initial Authority, denied the grievance. He referred to a memorandum from the Chaplain's General Branch in which it was provided that the chaplain practice within the CF was nuanced and inclusive of all faiths, including atheists and agnostics. Also, the Initial Authority was of the view that the Charter does not protect individuals “from” religion in that there is no constitutional right such as non-belief. Rather, the Initial Authority stated that the Charter protects the right to practice a religion and, as such, he believed that the grievor's rights were not infringed. However, the Initial Authority directed the Chaplain General Branch to conduct a review to ensure that spiritual and religious aspects of CF routine and ceremonial events are conducted in a manner that positively recognizes the full range of spiritual beliefs, including atheism and agnosticism. He stated that the recitation of public prayers at ceremonies and parades are of some significance to the majority of CF members and that, as such, it should continue to be practiced.

After reviewing the jurisprudence, the Committee found that the grievor's belief (or non-belief) was protected under s. 2(a) of the Charter as it is inherently linked to the freedom of conscience and religion. The Committee recommended that the Chief of the Defence Staff (CDS) grant the redress and direct that prayers ought not to be part of changes of command parades or similar secular events, on the basis that the practice infringes upon s. 2(a) of the Charter – Freedom of Conscience and Religion. The Committee found, however, that s. 15(1) - Discrimination could not be applied in the circumstances.

CDS Decision Summary

The Chief of the Defence Staff (CDS) disagreed with the Committee's recommendation to grant the redress sought and direct that prayers ought not to be part of change of command parades or similar public events in the Canadian Armed Forces (CAF). The CDS agreed with the Committee's finding that the public prayers infringed the grievor's fundamental freedom of religion and conscience protected by paragraph 2(a) of the Canadian Charter of Rights and Freedom (the “Charter”) that includes freedom from religion. The CDS first expressed regret for the nine-year delay for the Final Authority to issue a decision. The CDS found that the Committee's recommendation to forbid prayer in any form at events went beyond the requirements found in the applicable jurisprudence. He found that the obligation placed on the State to remain religiously neutral does not mean that it must promote secularism as it would amount to promote one belief over the other. Having said this, the CDS agreed with the Committee's findings that things must change and stated that a joint Chaplain/Judge Advocate General working group established lawful and appropriate practices for the Chaplain General Branch. Chaplains of all faiths now wear scarfs with their military dress rather than clerical garb that does not indicate a religious denomination; public prayers in the CAF are now non-denominational prayers that do not reference any particular belief culture and include an invitation to all to either join in the prayer or to take the time for personal reflection. The CDS stated that this ensures that no CAF member is singled out, regardless of their beliefs. The CDS also noted that the grievor collaborated with a Padre in reaching out to Humanist Canada to recruit Humanist chaplains in the CAF. The CDS considers that the CAF made significant progress and continues to review and adapt its policies in this area.