6.
The text goes on to provide as follows:
“CHAPTER III
PROTECTION OF FUNDAMENTAL RIGHTS
AND FREEDOMS OF THE INDIVIDUAL
15. Whereas every person in
The Bahamas is entitled to the fundamental rights and freedoms of the
individual, that is to say, has the right, whatever his race, place of origin,
political opinions, colour, creed or sex, but subject to respect for the rights
and freedoms of others and for the public interest, to each and all of the
following, namely -
(a) life, liberty, security
of the person and the protection of the law;
(b) freedom of conscience,
of expression and of assembly and association; and
(c) protection for the
privacy of his home and other property and from deprivation of property without
compensation,
the subsequent provisions of this
Chapter shall have effect for the purpose of affording protection to the
aforesaid rights and freedoms subject to such limitations of that protection as
are contained in those provisions, being limitations designed to ensure that
the enjoyment of the said rights and freedoms by any individual does not
prejudice the rights and freedoms of others or the public interest.
…..
22. (1) Except with his
consent, no person shall be hindered in the enjoyment of his freedom of
conscience, and for the purposes of this Article the said freedom includes
freedom of thought and of religion, freedom to change his religion or belief
and freedom, either alone or in community with others, and both in public and
in private, to manifest and propagate his religion or belief in worship,
teaching, practice and observance.
(2) Except with his consent
(or, if he is a person who has not attained the age of eighteen years, the
consent of his guardian) no person attending any place of education shall be
required to receive religious instruction or to take part in or attend any religious
ceremony or observance if that instruction, ceremony or observance relates to a
religion other than his own.
(3) No religious body or
denomination shall be prevented from or hindered in providing religious
instruction for persons of that body or denomination in the course of any
education provided by that body or denomination whether or not that body or
denomination is in receipt of any government subsidy, grant or other form of
financial assistance designed to meet, in whole or in part, the cost of such
course of education.
(4) No person shall be
compelled to take any oath which is contrary to his religion or belief or to
take any oath in a manner which is contrary to his religion or belief or to take
any oath in a manner which is contrary to his religion or belief.
(5) Nothing contained in or
done under the authority of any law shall be held to be inconsistent with or in
contravention of this Article to the extent that the law in question makes
provision which is reasonably required -
(a) in the interests of
defence, public safety, public order, public morality or public health; or
(b) for the purpose of
protecting the rights and freedoms of other persons, including the right to
observe and practise any religion without the unsolicited interference of members
of any other religion,
and except so far as that
provision or, as the case may be, the thing done under the authority thereof is
shown not to be reasonably justifiable in a democratic society.”
7.
While the recitals to the Constitution express a commitment to the
supremacy of God and to an abiding respect for Christian values, it is not
suggested that this qualifies or limits the freedoms guaranteed by the
substantive text of Chapter III of the Constitution, though it could, arguably,
have some relevance to an issue of justification (particularly in the context
of ceremonial parades, not directly before the Board on this appeal). In
Chapter III, it is also common ground that article 15 is, in the present
context, introductory. So the constitutional issue before the Board turns on
article 22. Two main points arise, whether Mr Laramore was “hindered in the
enjoyment of his freedom of conscience” within article 22(1) and, if he was,
whether there was any justification for this under, in particular, article 22(5).
Hindrance
8.
The appellants accept, as did Allen P in her judgment (para 25), that
the Constitution and in particular Chapter III “which protects and entrenches
fundamental rights and freedoms to which all persons in the state are to be
entitled” is “to be given a generous and purposive approach”: Attorney
General of the Gambia v Momodou Jobe [1984] AC 689, 700. But they submit
that the concept of being “hindered”, which is used in article 22(1) is
carefully delimited.
9.
In this connection, the appellants submit that:
i)
Article 22 protects freedom of conscience in a manner which is more
limited than the protection that such freedom has under article 9 of the
European Convention on Human Rights and the Canadian Charter. They submit that
Sir Michael Barnett CJ, who cited and relied on Canadian authority in his
judgment, fell here into error.
ii)
Article 22(1) is directed in its first part to personal inner freedoms
and in its second to outward behaviour. There being nothing in the second part
that applies to the present situation, there was also nothing in the
arrangements for Christian prayers during colours parades to impinge on or
affect Mr Laramore’s inner views.
iii)
Article 22(2), limited to persons “attending any place of education”, is
a further indication that article 22(1) should not be read as covering the
present military context.
iv)
Whether Mr Laramore was “hindered in the enjoyment of his freedom of
conscience” must in any event be judged objectively.
v)
There could only be such hindrance if (a) Mr Laramore’s religion forbad
him to stay on parade in the manner prescribed by the 2006 Memorandum or, at
the least, if the interference with his freedom of conscience was (b)
substantial and/or (c) more than “merely indirect, incidental or
inconsequential”.
vi)
Even under article 9 of the European Convention:
“The Strasbourg institutions have
not been at all ready to find an interference with the right to manifest
religious belief in practice or observance where a person has voluntarily
accepted an employment or role which does not accommodate that practice or
observance and there are other means open to the person to practice or observe
his or her religion without hardship or inconvenience.”
This quotation comes from Lord Bingham of Cornhill’s
speech in R (SB) v Governors of Denbigh High School [2006] UKHL 15;
[2007] 1 AC 100, para 23. The appellants submit that this quotation is relevant
to Mr Laramore since he enlisted or re-enlisted in the Force in the knowledge
of its traditions and colours parades, which existed in the 1980s and were merely
restored by the 2006 Memorandum, after the intermission from 1993.
10.
Article 9 of the European Convention provides that:
“1. Everyone has the right
to freedom of thought, conscience and religion; this right includes freedom to
change his religion or belief and freedom, either alone or in community with
others and in public or private, to manifest his religion or belief, in
worship, teaching, practice and observance.
2. Freedom to manifest
one’s religion or beliefs shall be subject only to such limitations as are
prescribed by law and are necessary in a democratic society in the interests of
public safety, for the protection of public order, health or morals, or for the
protection of the rights and freedoms of others.”
The Canadian Charter of Rights and Freedoms provides:
“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.
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; ...”
11.
As to the appellants’ point (i) (para 9 above), article 9 of the
European Convention and articles 1 and 2 of the Canadian Charter both contain
outright conferrals or guarantees of freedom of conscience and religion,
subject to necessary or justifiable limitations. Article 22 of the Bahamian
Constitution operates, in contrast, by prohibiting any person being “hindered
in the enjoyment of his freedom of conscience”. The Board doubts whether this
is a difference of substance or likely to have real effect in practice. The
conferral or guarantee of freedom of conscience or religion constitutes a
promise that such freedom will be protected, and not interfered with by, the
state. The language of interference is commonly used when assessing whether
article 9 of the Convention is engaged: see eg the citation from Lord Bingham’s
speech in the Denbigh High School case (para 9(vi) above). The promise
in article 22 that “no person shall be hindered in the enjoyment of his freedom
conscience” can readily be equated with the concept of interference. Such
positive duties as the state may have to confer or guarantee freedom of
conscience are more visible in article 9 of the Convention and articles 1 and 2
of the Charter, but it seems to the Board likely that similar duties would be
held to arise implicitly under article 22 of the Constitution.
12.
The suggestion that article 22(1) deals in its first part with inner
freedoms and in its second part with outward behaviour (appellants’ point (ii))
is in the Board’s view a misreading. The first part of article 22(1) defines
the protection afforded. It covers both of what the European Court of Justice
recently called “the forum internum, the fact of having a belief, and
the forum externum, that is the manifestation of religious faith in
public”: Case C-188/15 Bougnaoui v Micropole SA, para 30. The second
part specifies various aspects of the freedom (of conscience), the enjoyment of
which is by virtue of the first part not to be “hindered”. By use of the word
“includes” it specifies them on a non-exclusive, rather than an exclusive,
basis.
13.
The submission in appellants’ point (iii) is that the provisions of
article 22(2) regarding education confirm that article 22(1) does not cover the
present military context. The Board does not consider that article 22(2)
provides any such indication. Pressed to its logical conclusion, the submission
would mean that it would not conflict with the Constitution to require a person
to receive religious instruction or to take part in or attend any religious
ceremony or observance (relating to a religion other than his or her own), so
long as he or she was not attending a place of education. Article 22(2) cannot
be read as defining or limiting the scope of article 22(1) in this way. It
would, for example, clearly conflict with article 22(1) to require all medical
workers to receive religious instruction or attend church. All that article
22(2) shows is that particular thought was given at the time when the
Constitution was being framed to the position in educational establishments.
That does not mean that the general provision in article 22(1) would not by
itself have been relevant, or that it is not relevant in situations outside
those covered by article 22(2) on which attention did not specifically focus in
1972. Further, as at the date of the Constitution (1973), the Force did not
even exist. So specific reference to its position could not then have been
made.
14.
The appellants’ point (iv), that whether Mr Laramore was hindered in the
enjoyment of his freedom of conscience must be judged objectively, requires
further consideration of what the enjoyment of freedom of conscience involves.
Freedom of conscience is in its essence a personal matter. It may take the form
of belief in a particular religion or sect, or it may take the form of
agnosticism or atheism. It is by reference to a person’s particular subjective
beliefs that it must be judged whether there has been a hindrance. No doubt
there is an objective element in this judgment, but it arises only once the
nature of the individual’s particular beliefs has been identified. This is not
the place to address the relationship between faith and works, still less their
relationship to salvation, in religious history or thought. In the United
States the First Amendment (“Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof, …”) has
been seen as involving a dichotomy between two concepts - freedom to believe
and freedom to act, it being said that “That the first is absolute, but, in the
nature of thing, the second cannot be”: Cantwell v Connecticut (1940)
310 US 296, 303-30. But beliefs feed into action (or inaction) as Chief Justice
Berger noted in Wisconsin v Yoder (1972) 406 US 203, 220, where Amish
parents had been convicted for their “actions” in refusing to send their children
to the public high school. In Freedom of Religion under the European
Convention on Human Rights (OUP, 2001), 75, Carolyn Evans quotes in this
connection a statement by HA Freeman, A Remonstrance for Conscience
(1958) 106 Pa L Rev 806, 826 that “great religion is not merely a matter of
belief; it is a way of life; it is action”. She adds (pp 75-76) that: “Forcing
a person to act in a way which is against the teachings of his or her religion
or belief … is not irrelevant to the core of many people’s religion or belief”.
A requirement to take part in a certain activity may be incompatible with a
particular person’s conscience, however much his or her internal beliefs are
otherwise unaffected and unchallenged.
15.
Point (v)(a), that there could only have been a hindrance if Mr
Laramore’s religion forbad his staying on parade during prayers, is answered by
the considerations identified in response to point (iv). What matters is not
what the Islamic religion says, if that were examined and found to have a clear
rule on the matter. What matters is Mr Laramore’s religiously based beliefs and
conscience. In any event, the word “forbad” puts the barrier too high. What is
required is “hindrance”, which is not the same as prevention: see eg Olivier
v Buttigieg [1967] AC 115, 135E (cited below).
16.
The other two aspects of point (v) are that any hindrance must be (b)
substantial and/or (c) more than merely indirect, incidental or
inconsequential. These two points were both accepted by Allen P as deriving
from Olivier v Buttigieg, Banton v Alcoa Minerals of Jamaica Inc (1971)
17 WIR 275, 282-283 and Hope v New Guyana Ltd (1979) 26 WIR 233, esp
265f-h and 306-312 (although in Hope, and the passage quoted in her
judgment from Hope, the word in fact used is “consequential”, rather
than “inconsequential”). None of these authorities, however, supports
proposition (b). Contrary to Allen P’s view, the court in Banton did not
define “hindrance” as “any collateral action calculated to substantially
interfere with the enjoyment of the right so as to significantly reduce its
value”. Rather, this was counsel’s submission to the court, relying “quite
resolutely” (as the court put it: p 282I)) on Olivier v Buttigieg. The
court’s response in Banton was that it would be necessary to examine Olivier
v Buttigieg (p 283A) - and, when it came to do so, it “was unable to detect
the least relevance of the decision in Olivier’s case to the issues raised
before this court” (p 288C).
17.
Far from supporting counsel’s submission in Banton, Olivier v
Buttigieg in fact points in an opposite direction - one of caution about
suggestions that a hindrance is so minimal as to be irrelevant. The Archbishop
of Malta had declared it a mortal sin to print, write, sell, buy, distribute or
read a left-wing weekly newspaper, the Voice of Malta. The Maltese
Medical and Health Department had followed this up by prohibiting all its 2,660
employees from taking the Voice of Malta into its hospitals and other buildings.
The Maltese Constitution provided that:
“13. (1) All persons in
Malta shall have full liberty of conscience and enjoy the free exercise of
their respective modes of religious worship. …
14. (1) Except with his
own consent, no person shall be hindered in the enjoyment of his freedom of
expression, that is to say, freedom to hold opinions and to receive and impart
ideas and information without interference …”
The issue was whether the editor of the Voice of Malta
had been hindered in the enjoyment of his freedom of expression. In holding
that he had been, the Board said:
“Though the [editor] was not
prevented from imparting ideas and information the inevitable consequence of
what was done was that he was ‘hindered’ and that there was ‘interference’ with
his freedom.” (p 135E)
The Board went on to reject a submission that the measure
of any resulting hindrance was slight and could be ignored as de minimis, for
two reasons: first, “the hindrance cannot, on the facts of the case, be classed
as minimal” (p 135G); and:
“In the second place, their
Lordships consider that where ‘fundamental rights and freedoms of the
individual’ are being considered a court should be cautious before accepting
the view that some particular disregard of them is of minimal account.” (p 136D)
18.
For proposition (c), the appellants rely in particular on statements in Hope’s
case, which observe that an effect may be too indirect, incidental and
consequential to constitute a relevant impediment. That can no doubt be so, but
the context in which those statements were deployed in Hope’s case was
very remote from and offers in the Board’s opinion no assistance to the
resolution of the present. Article 12(1) of the Constitution of Guyana
contained the same provision as that quoted above from article 14(1) of the
Constitution of Malta. For reasons of general governmental policy about which
(it was conceded) there was “nothing sinister”, restrictions were by law placed
on the importation of various items without a licence. These items included
newsprint and printing equipment. A newspaper and its editor challenged the
restrictions as a violation of article 12(1). In practice, there were
bureaucratic delays in the licensing system, but licences were granted in all
cases where they were sought, and the newspaper received licences for more
newsprint that it needed. In a judgment of great learning by Crane JA (later
Chief Justice of Guyana), the court used various tools to explain why there had
been no violation, among them the “pith and substance” rule, and whether the
effect of the law on freedom of expression was direct or merely “remote or
indirect” (a distinction which it itself saw as involving “the realm of
metaphysics, and more specifically that of aetiology”: p 309a). The court
identified Olivier v Buttigieg as a case of direct hindrance (which it
on any view was). The court’s conclusion in Hope’s case that there had
been no violation of article 12(1) is unsurprising. However the difference is
conceptualised, Hope’s case belongs to a different sphere from the
present. Here, as in Olivier v Buttigieg, the Board is concerned with
the immediate interface between a measure and a fundamental right (freedom of
conscience) the enjoyment of which is said to be “hindered” by the measure.
19.
Point (vi) concerns the significance of the fact that Mr Laramore
voluntarily joined and remained in the Force, accepting its rules. It is based
on Lord Bingham’s statement in his speech in the Denbigh High School
case that the Strasbourg institutions, had “not been at all ready to find an
interference with the right to manifest religious belief” in such contexts.
This in turn derived from a careful analysis of Strasbourg caselaw prior to
2006. The cases Lord Bingham cited were cases where there was a real choice
made to undertake a particular employment or activity with an accepted practice
or discipline, in circumstances where an alternative without such practice or
discipline could have been (or in some case could still be) chosen “without hardship
or inconvenience”.
20.
The nearest in context of the cases cited to the present is Kalac v
Turkey (Application No 20704/92), where a judge advocate complained that
his compulsory retirement from the army institutions amounted to an
interference with his freedom of religion. On the facts, it was due to his
membership and participation in the activities of a particular movement which
was “known to have unlawful fundamentalist tendencies” and membership of which
“breached military discipline and infringed the principle of secularism” (paras
8, 25 and 30). That is a context very considerably removed from the present. Mr
Laramore was not seeking to do anything contrary to fundamental military
discipline or principles (see also the evidential position, as elicited at
trial, to which the Board refers below). The Board regards it as more than a
little unrealistic to think of Mr Laramore as having a real choice. He
converted to the Islamic religion, as he was of course entitled to, in 1993,
long after first joining the Force; and the Board also regards it as no light
thing to expect a person who has committed himself to a military career to move
to civilian life, in the circumstances with which Mr Laramore was confronted in
1993 or 2006. Lord Bingham himself qualified his reference to taking up some
alternative occupation with the words “without hardship or inconvenience”.
21.
Still more importantly, Strasbourg thinking has moved on. In Eweida v
United Kingdom (Application Nos 48420/10, 59842/10, 51671/10 and 36516/10),
para 83, the European Court of Human Rights noted Lord Bingham’s statement and
the case law supporting it, but went on:
“However, the Court has not
applied a similar approach in respect of employment sanctions imposed on
individuals as a result of the exercise by them of other rights protected by
the Convention, for example the right to respect for private life under article
8; the right to freedom of expression under article 10; or the negative right,
not to join a trade union, under article 11 (see, for example, Smith and
Grady v the United Kingdom, nos 33985/96 and 33986/96, para 71, ECHR 1999‑VI; Vogt v
Germany, 26 September 1995, para 44, Series A no 323; Young, James and
Webster v the United Kingdom, 13 August 1981, paras 54-55, Series A no 44).”
Having said this, the Court concluded:
“Given the importance in a
democratic society of freedom of religion, the Court considers that, where an
individual complains of a restriction on freedom of religion in the workplace,
rather than holding that the possibility of changing job would negate any
interference with the right, the better approach would be to weigh that
possibility in the overall balance when considering whether or not the
restriction was proportionate.”
In the Board’s opinion, that is the appropriate approach to
follow under article 22(1) of the Constitution of The Bahamas.
22.
The Board has no doubt that Mr Laramore was “hindered in the enjoyment
of his freedom of conscience” in the present case. His conscience told him that
he should not be taking part in the prayers which were part of regular colours
parades. He made this point after he had converted to the Muslim religion in
1993, and he pursued it after the 2006 Memorandum reversed the dispensation
introduced in 1993. The effect of the 2006 Memorandum was that he was no longer
able to enjoy or give effect to his freedom of conscience by falling out during
prayers. Sir Michael Barnett CJ aptly quoted in this connection from the
judgment of Dickson J in The Queen v Big M Drug Mart Ltd [1985] 1 RCS
295, 336:
“Freedom can primarily be
characterized by the absence of coercion or constraint. If a person is
compelled by the state or the will of another to a course of action or inaction
which he would not otherwise have chosen, he is not acting of his own volition
and he cannot be said to be truly free. One of the major purposes of the
Charter is to protect, within reason, from compulsion or restraint. Coercion
includes not only such blatant forms of compulsion as direct commands to act or
refrain from acting on pain of sanction, coercion includes indirect forms of
control which determine or limit alternative courses of conduct available to
others.”
Big M Drug itself concerned a challenge by company
charged with unlawfully carrying on the sale of goods on a Sunday contrary to
the Lord’s Day Act. The freedom affected was that of persons prevented by the
Act from working on a Sunday. Even that was held to constitute a relevant
restriction by the court. It is not necessary to go so far in the present case,
but the first two sentences of the quotation from Dickson J’s judgment are in
the Board’s view in point.
23.
Before the courts below, the emphasis was on the order “Parade off Caps”
issued immediately before prayers during the regular colours parades; and
initially that was also how the appeal to the Board was presented. This was
also the basis of decision in the second Canadian case which Sir Michael
Barnett CJ located and cited: Scott v R [2004] 123 CRR (2d) 371. The
case concerned religious prayers during routine parades at a Canadian Forces base,
which were like the present preceded by an order to remove headdress. The
differences are that the soldier concerned had no religious convictions, had
(after having previously raised with his superior his concerns about being made
to participate in a prayer service in which he did not believe) refused to
remove his headdress (but had evidently continued to stand on parade) and was
being charged simply with that refusal. The court, in holding that the order
conflicted with paragraph 2(a) of the Charter, said (para 8) that:
“8. The order that was given
… 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. …
10. The fact that the
practice of pronouncing prayers at parades and requiring some form of public
assent thereto has been hallowed by a tradition of many years in the military
as well as other circles cannot justify a breach of the appellant’s Charter
rights. We emphasize that what was required of the appellant was active
participation in the religious ceremony with which he disagreed. The question
of enforced passive participation by mere presence is an entirely different issue
and one that we do not reach today.”
24.
The Board agrees with the court’s decision in Scott. It does not
accept that the “caps off” order can be understood as a mere gesture of respect
towards Christians, for whom it would have a deeper significance. Mr Laramore’s
position was not analogous to that of a Christian voluntarily entering a mosque
or Hindu temple. He was being required to be present and, while present, to
make a gesture which would naturally be understood, and was evidently
understood by Mr Laramore, as one of respect towards Christianity and the
Christian prayers being said. To have actively to participate in this way in a
Christian ceremony, in a way to which he in conscience objected, was in the
Board’s view to hinder Mr Laramore’s enjoyment of his freedom which he had
generally to live, by his words and conduct, in a way which was compatible with
his Muslim conscience.
25.
As in Scott, so in the present case the actual issue is whether
Mr Laramore was hindered in the enjoyment of his freedom of conscience by being
required to take part in a prayers ceremony which included a “caps off” order.
It is sufficient for the purposes of this appeal that the Board considers that
this positive requirement constituted such a hindrance. The evidence was also addressed
to this, the actual situation, rather than the situation as it might have been
or be, if the order had been simply to stand on parade during the prayers with
cap on, as those of Jewish or Sikh faith were allowed to do by the Canadian
Forces’ dress instruction in Scott.
26.
That said, the Board will say something further about the situation as
it might have been or be, if the Force had required or were to require
non-Christians to remain on parade, but to permit them to keep their caps on,
during the prayers part of the regular colours parades. As the Board
understands it, this would also have met with Mr Laramore’s conscientious
objection. Being made to stand on parade, even at ease, during the saying of
Christian prayers would in these circumstances also appear to the Board as on
its face a hindrance to Mr Laramore’s freedom of enjoyment of his conscience.
Reference was made to Lautsi v Italy (Application No 30814/06), where
one element in the reasoning was that a crucifix on the wall of each classroom
of the school attended by the claimant’s 12 to 13 year old sons was no more
than “an essentially passive symbol”, which could not be “deemed to have an
influence on pupils comparable to that of didactic speech or participation in
religious ceremonies”. Being required to attend classes in a room where there
is a religious symbol hanging on the wall is not the same as being required to
remain on parade while Christian prayers are being said. In the former case the
focus of what is happening is on the teaching, in the latter case it is on the
prayers. In the Board’s view, even if non-Christians were to be excused from
taking their caps off, the latter case could well be seen as involving a form
of sufficiently active participation to hinder a person such as Mr Laramore in
the enjoyment of his conscientious beliefs, assuming that these were as the
Board understands.
27.
In considering whether there was a relevant hindrance, for the purposes
of article 22(1), the Board has focused exclusively on the regular colours parades
during which prayers are said. This appeal does not concern, and the Board is
not deciding any issue regarding, the public ceremonial occasions on which the
Force is expected to attend, where a religious element can also be present. For
example, the Board understands that it is the practice for there to be a state
funeral for certain ministers or officials, with a religious element. There was
some, perhaps not entirely consistent, evidence about the extent to which the
Force was expected to be present throughout such ceremonies. But Senior
Lieutenant Fergusson in a witness statement dated 7 June 2012 indicated that
Force personnel are used for ceremonial duties at the organizational, national
and regional level in a large majority of which ceremonial events prayers are a
component. The 1993 and 2006 Memoranda were expressed to apply to both
ceremonial and colours parades. Assuming that, during some ceremonial parades,
attendance during religious prayers is required, the Board considers that
presence as part of the nation’s Forces during an official funeral and ceremony
presents different considerations to any which have to be determined on this
appeal. In so far as the decisions of the courts below struck down the 2006
Memorandum as regards both ceremonial and colours parades, the Board considers
that they went too far. The position regarding ceremonial parades is a separate
issue, which would, if it became necessary, have to be considered on its own
and on the basis of its own evidence.
28.
For the reasons given, the Board considers that Mr Laramore was hindered
by the 2006 Memorandum in the enjoyment of his freedom of conscience during the
regular colours parades during which prayers were said. That leaves for
consideration the issue of justification.
Justification
29.
The issue of justification can be taken quite shortly. The appellants’
case was preceded by strong assertions about the importance of uniformity of
behaviour, the resulting importance for good order and discipline of the
tradition reinstated by the 2006 Memorandum, and the serious consequences that
would ensue if Forces personnel were allowed to be exempted from prayers during
colours. This case faced in each respect the real problem that the dispensation
introduced by the 1993 Memorandum had operated for some 13 years, without there
being any evidence that it had affected the Force’s discipline or efficiency.
There were also some telling answers about the apparent insignificance from any
military viewpoint of the prayers during colours parades. Mr Clifford Scavella,
who was responsible for initiating the change brought about by the 2006 Memorandum
and was or shortly afterwards became Commodore of the Force, gave evidence.
Asked whether the prayers served any particular purpose at all, he answered “I
suppose it serves a purpose to some”. Asked whether, if the prayers were
removed, the force could be just as disciplined as it was with it in, his reply
was “I suppose so”. Asked why the “caps off” order was given, he accepted that
“From a military point of view it has no bearing” and that it was “simply
reverence”.
30.
Not surprisingly in the light of the above, there are concurrent
findings in the courts below that there was no justification for the hindrance
of Mr Laramore’s freedom. Sir Michael Barnett CJ said: “As [Mr Scavella]
conceded there was no clear military purpose for the prayer, which was only
conducted during the colours ceremony three days a week”. Conteh JA pointed to
the uncontradicted evidence that prayers were not especially necessary for military
discipline or prowess and the absence of any evidence that there had been a
decline in discipline on parade in the years 1993-2006. He also noted an oddity
about Mr Scavella’s evidence: “Mr Scavella in his witness statement … said that
he did not favour [the 1993] Memorandum, and would always excuse himself from
the parade formation when the order was called out for those who were of
religious beliefs other than Christianity, if they wished, to fall out, to do
so. There was no evidence of Mr Scavella’s own faith, but it is clear that he
dismissed himself from the parades for reasons other than religious”. Mr
Scavella’s witness statement in fact said that he dismissed himself “in order
to demonstrate the profound effect such a policy could have on a disciplined
organisation”, but, in the absence of any evidence that discipline or
organisation were affected, he appears to have assisted to demonstrate the
opposite.
31.
The present position has in this respect also some similarities with
that in Scott. The court there noted that paragraph 1 of the Charter
recognises the possibility of “reasonable limits prescribed by law and
demonstrably justified in a free and democratic society”. But it went on to say
(para 9) that on the facts:
“such a plea would almost certainly
founder on the proportionality test, the military having already demonstrated
the ease with which it can accommodate those whose religious scruples forbit
them from removing their headdress.”
That was said, because the Canadian Forces dress instructions
provided “specific exemptions for persons whose religious beliefs require that
their heads remain covered, notably adherents of the Jewish and Sikh religions”
(para 6).
32.
Any suggestion of justification under section 22(5) of the Constitution
or on any other basis therefore fails in this case.
Conclusion
33.
The result is that the Board will humbly advise Her Majesty that the
appeal should be dismissed, with the qualification that the declaration made by
Sir Michael Barnett CJ and upheld by the Court of Appeal to the effect that the
2006 Memorandum “is unconstitutional and is therefore null and void and of no
effect” should be limited so as to refer only to “the conduct of prayers during
morning/evening colours”, leaving the position regarding ceremonial prayers
open for further determination, should the Force wish to seek to uphold, or
reinstate the practice contained in, the 2006 Memorandum to that extent.
