Federal Court Demeans Our Military And Issues Unconstitutional Decision

Review of Court Constitutional Judgement , The Qualizza Decision,  Rendered  By Madame Associate Justice Catherine A. Couglan of the Federal Court of Canada On September 13, 2024 in Edmonton , Alberta

The Judge has erred.

Since 1982 the Courts of Canada have in their interpretation of the Constitution  Act of 1982 erred.

And so it is with this recent decision .

The opening words of the Charter reads :

‘Whereas Canada is founded on the principles that recognize of the Supremacy of God and the rule of Law:’

This framework for interpreting the Constitution has been ignored by the courts since 1982. Hence, the courts since then have failed to uphold the basic principles fundamental to our constitutional existence and constitutional integrity. 

1. In this present court ruling no mention is made of the opening words . Hence it fails to uphold the principles ungirding our Constitutional framework and therefore represents a failed decision . And the God referred to was a Judaeo Christian God, contrary to what the Courts  have said. The authors were all Christians and knew no other God. 

1. The Judgement mentioned Section 1 of the Charter . Section 1 makes any suspension of rights and freedoms subject to reasonable limits being established using the concepts of ‘demonstrably justify’ as found in a ‘ free and democratic society.’  No where in the Federal  Government’s covid policy does one find these conditions being met . The suspension of rights as variously described by many of the 330 service people has not been demonstrably justified in a free and democratic society. No cost benefit analysis has been used to justify the rights violations described nor has the Parliament been involved to satisfy ‘free and democratic society’ condition. 

So , we have the Judgement in error in its failure to abide by the guiding principles of the Constitution . This alone warrants its appeal . Sadly , both the Federal Court of Appeal and The Supreme Court of Canada have erred in this regard. Our Constitutional Framework has been violated by the very institution set up to uphold it. 

We are in a Constitutional Crisis.

And ,secondly , even if the Court had followed and considered the opening principles it erred  in its failure to apply Section 1 of the Charter. The conditions of this Section have not been met by the actions of the Federal Government of which the  military is a part. Simply following orders is not the ‘rule of law ‘ as found in the opening words of the Charter, part of our Constitution. 

1. What stands out in this case is the quantity, the sheer number of persons involved , and then the quality of  their particular described circumstance as a result of the mandates imposed by their superiors. It is worthwhile to describe some of them . Take Dennis John Paul Tondreau, Major (Retired) in the Canadian Armed Forces, of Navan, Ontario, Canada. Here is a 38 year veteran who served in Afghanistan, Sierra Leone, and the Balkans and in leadership roles.  In his affidavit at point 26:

26. Under paragraph 18 subsection a15 of the Directive, it states that “CAF members will maintain a respectful, productive, inclusive, and equitable work environment. Harassment or other prohibited conduct directed toward an individual for any reason, induding based on their vaccination status, will not be tolerated .. .” In accordance with the directive, I submitted a harassment complaint to the chain of command on March 30, 2023. The 33 CBG Commander subsequently rejected this harassment complaint in a letter addressed to me on 17 April 2023. Harassment complaint attached as Exhibit E. 

Another example at point 29

‘29. In this same paragraph it is stated that “accommodation measures for those individuals who are unable to be vaccinated should not be punitive in nature and should be provided up to the point of undue hardship to the organization.” Despite the direction provided, I was subjected to punitive measures as outlined in military grievances submitted concerning Transfer to the Supplemental Reserve, Miscellaneous Loss Kit Report, Compulsory Retirement Age Extension Request, and Release 5a. These four military grievances were subsequently rejected by the 33 CBG Commander in a letter addressed to me on 17 April, 2023, see attached as Exhibit F. ‘

Note the callous and non confidential way the Major’s information was handled :

‘31. As part of the Directives, members have to provide their vaccination status in Monitor Mass, a portal that lacks Protected B status. This allows non-medical personnel within my Chain of Command (CoC) to view my private medical information without my consent. 

32. I saw firsthand how the submission of an accommodation request from a unit member in November 2021 was handled. This request was quickly shared by officers and NonCommissioned Officers (NCOs) who criticized and ridiculed the member’s submission. ‘

Are not the officers’ rights being flaunted here ?

The Judge says in point 39–‘Once again, there are no material facts pled to support an intrusion upon the privacy

interests of any Plaintiff. Similarly, at paragraphs 133, 149 and 332 of the pleading, three Plaintiffs allege that their belongings were searched or seized. Again, however, no material facts are pled to particularize these allegations, or to connect or establish a connection to the Directives. ‘

Isn’t the fact that others were allowed to see the major’s private medical information a material fact that is pled in this affidavit?

And most startling in the Major’s affidavit is that the actions that his superiors applied that violated his rights were not mandatory upon the military  :

‘33. I served on OPERATION LASER and OPERATION PRESENCE as well as worked as a primary health care physician during the entire pandemic without a COVID-19 vaccine. Furthermore, the CAF was not required to conform to the GC policy however the CDS voluntarily applied the mandate to the CAF to “demonstrate leadership.” 

In other words the leadership forced a non mandatory policy as if it was mandatory. 

This is not the rule of law , but rule of people without the requisite authority. As US Judge Robert Bork ( The Book Coercing Virtue) has said ;

“ A functioning rule of law requires that law be understood to have force and moral weight of its own, a force and weight independent of the political and cultural struggles of the moment.”

These examples point to dedicated , loyal Canadians serving their country and having rights and freedoms stripped from them .

It seems Justice and Fairness is sacrificed for technical rules established by the Court. The Judge obviously never heard of the statement of Justice Aharon Barak, President of the Supreme Court of Israel ( 1995–2006) when he exclaimed: ‘The Judge must sometimes depart the confines of his legal system and channel into it fundamental values not yet found in it.’

Again , in points 20, 21, 22,23, and 24  the Judge goes out of her way to cite Court decisions establishing the rules for how to present a case. And then states  in point 30 

[30] I am satisfied that the pleading does not disclose a cause of action under s.2(a). The mere assertion that the Directives offend a religious belief is insufficient to support a cause of action.

Material facts must be pled to support both components of the s.2(a) framework.

From my reading of the descriptions of experiences described by plaintiffs such experiences warrant a sober consideration of the court given the rules used are dealing with other circumstances unlike in quantity and quality described here and unique and particular in this case.

1. In addressing Padre Morris , another Officer , and Section 2(d) of the Charter , the freedom of association,  the Judge in point 32 says———‘ [32] The pleading does not identify what specific activities are at issue. ‘ But Padre Major Morris specifically refers to being disallowed in the mess hall violating his normal freedom and freedom of association as well as a violation of Section 15, his equality rights . 

How more specific can one be?

1. Again under Section 7 where the Judge rules in point 35 that there were no material facts,  yet Padre Morris had his rights stripped from him. Is that not a material fact? This was done because of the Padre’s position on the vaccine mandate , a mandate which itself was not obligatory in the military service but imposed nevertheless.
2. In point 53 the Judge demonstrates what is obvious to many : that matters that are now self evident to the general population concerning the covid period still escapes the notice of the authorities , who , in other times and places would have been all knowing about the issue,  namely that the vaccines were and are experimental and involve gene therapy. This is not ,as the Judge describes , ‘ vexatious language ‘ but language used in the legitimate scientific literature.  For example, the work of renown international researchers Dr.Kevin McKernan and Dr. Jessica Rose among others.

This decision , therefore, errs in at least four ways:

A. It ignores the framework principles through which Charter issues are to be tried .

B . The actions of military leadership,  based as they are on the policy of the Federal Government , violates the intent of Section 1 of the Charter in that the authors intended such a Section 1 to be  used only in extreme conditions of war or the existence of the state was at stake. Section 4 of The Charter highlights this concept. 

C. The actions of the Military leadership, based as they are on the policy of the Federal Government , fail to meet meet the conditions of ‘demonstrably justify’ and ‘free and democratic society’ of Section 1 of the Charter. 

D. The Judge’s arguments on material fact and linkage from statement to evidence fails because it demeans and undermines  the credibility of the hundreds who are a part this case, the great military leaders,  and the military generally and in particular and most importantly mischaracterizes and denigrates  the evidence presented in the affidavits.

Honourable A. Brian Peckford PC

Only Living Signatory To The Patriation Agreement  of 1981, The Foundation Document of the Constitution Act 1982