Lieutenant (Navy) G.D. Scott v. The Queen
On 22 November 2004, the CMAC allowed the appeal of Lieutenant
(Navy) (Lt (N)) G.D. Scott who had been convicted at court martial
of disobedience of a lawful command contrary to section 83 of the
National Defence Act. Lt (N) Scott had been given a severe reprimand
and a fine of $3,000.00.
The facts in this case were not in dispute. Lt (N) Scott was ordered
to attend a Division’s parade at Canadian Forces Base Esquimalt on
November 28, 2002. During the parade, the chaplain of the unit
pronounced a short prayer that was followed by the playing of the
naval hymn. Prior to the prayer, as was tradition, the parade was
given the order to “remove headdress.” Lt (N) Scott did not remove
his headdress. At trial, Lt (N) Scott said that he did not comply
with the order because he felt that his Charter right to freedom
of religion had been violated by his enforced participation in a
religious ceremony for which he did not believe.
The trial judge’s verdict of guilty was predicated on the trial judge’s
finding that the order to remove headdress was a lawful command.
The CMAC found that the trial judge’s findings were unreasonable
and were not supportable by the evidence. The CMAC found that it
was clear that the order to remove headdress and the prayer that
followed had religious connotations. All Canadian Forces members
present had to at least appear to participate in the sentiments
expressed. The court mentioned, however, that in some cases,
military exigency might serve to justify the giving of orders that
may result in Charter breaches. This was not such a case. The
CMAC found that Lt (N) Scott’s disobedience was justified as
the order breached his Charter right to freedom of religion.
