Re: Torlyn's post. I agree with Mr. Monkhouse, nothing wrong in format with that post, although I respectfully disagree with parts of the substantive argument put forth:
Torlyn said:
I think you may be mistaken here... THe charter does not, and would not grant said quadrapalegic with CP in to the armed forces.. The caveat being "...[CCRF] guarantees the rights and freedoms set out in it subject only to (this is the important part) such reasonable limits prescribed by law as can be demostrably justified in a free and democratic society."
Agreed. Nobody gets into the CF because of the Charter. A person with CP would almost assuredly not get admission to the CF. That was an extreme example, and so was the Granny one earlier, although lots of service members are grand parents! With respect to the Section 1 onus placed on the CF, see para. numbered 38 below to see how muddled that can actually be. The thread is not just about admissions to the CF, in fact I meant it to be more about what happens if, for example, a member acquires a brain injury while serving. I would expect the CF to do a lot better with respect to the treatment of the injured than it has recently. In fact, the Charter and HR Code requires this be done, as seen below in this 2004 CHRC decision, where the CF actually tried to argue, in part, the Charter did not apply, but even if it did, they were in compliance with the Code:
â Å“[38] The third portion of the Meiorin analysis requires that the impugned standards be reasonably necessary for the employer to accomplish its purpose; i.e. the safe and efficient performance of the job. The CAF must establish that it cannot accommodate the complainant and others adversely affected by the standard without experiencing undue hardship. The CAF must ensure that the procedure, if any, to assess the issue of accommodation, addressed the possibility that it may discriminate unnecessarily on a prohibited ground. Second, the substantive content of either a more accommodating standard which was offered by the CAF, or alternatively the CAF's reasons for not offering any such standard must be assessed. As I have already found at paragraph 139 of the 2001 decision, the September 1995 guidelines, to the extent that they allowed for individual assessment, were reasonably necessary to accomplish the CAF's goal of ensuring that members meet universality of service. Thus they evidenced a more accommodating standard in assessing members suffering from CAD than the prior 1979 standards and bridging policies. Yet the CAF failed to use a more individualized accommodating standard, such as that found in the September 1995 guidelines, in assessing Mr. XXX (further elaborated upon below).â ?
Note: â Å“undue hardshipâ ? is a loaded legal term of art. In fact, the law requires an employer such as the CF to prove on a balance of probabilities that it would be impossible to accommodate an individuals request for Human Rights or Charter consideration, on grounds of disability or otherwise. This means either changing the job, or remuster, or some other alternative before claiming â Å“well, that's impossible because we are the army and our needs are inherently different.â ? The Meorin case noted above was one of gender discrimination involving a female forest firefighter in BC who could not pass newly implemented physical fitness standards. BC had to change the standards to meet the code. Is that an appropriate standard for the CF? The main quote, obviously, was from a case involving the air force.
Torlyn said:
â Å“I thought that as part of the military, you (not sure on the honourific... I'm in the application process right now, so in order to not ruffle feathers, I'll stick with honourific "you") are supposed to defend the beliefs, rights, and freedoms of Canadians. Given that the CCRF was created in order to codify said rights & freedoms, it seems somewhat hypocritacal to swear an oath to protect these rights, and then request/desire a different set of rules/regulations for those protecting these rights.â ?
In pith and substance, and despite the wording of the oath, members of the CF do not have to defend the beliefs, rights and freedoms of Canadians. If they did, it would create a positive obligation to defend every citizens belief, right and freedom, real or imagined. The CF defends tangible things like the territorial integrity of a land wherein citizens may hold whatever rights, freedoms and beliefs the Legislatures and Courts say they can have. It cannot defend an ideal, because ideals are intangible.
Here's a little hypocrisy for you:
â Å“Tailoring Standards to Probability of Involvement In Military Duties
[51] The December 1999 review also acknowledged that some within the CAF had argued that minimum physical capability standards ought to be tailored to rank or according to the probability of involvement in General Military Duties or physically demanding activities. For example, in the case of an officer, it conceded that Career Review decisions did not place much emphasis on whether the officer had the ability to perform General Military Duties. This was in part because the specification of duties was indefinite and also because of the greater managerial/supervisory responsibilities of officers and their more numerous options for staff employment. Unfortunately this argument of tailoring standards to probability of involvement had been internally rejected on the basis that:
".... consistency in policy was essential if credibility with the Human Rights Commission were to be maintained. In other words, the Working Group concluded that it would be better to defend a one-dimensional policy that looked consistent, but which had little or no empirical grounding, than to attempt to defend a differentiated policy that more accurately reflected the requirements of different rank levels."
Why the CHRC feels it is unfortunate to have consistency in policy and standards in a military organization simply reflects that they are the wrong organization to be reviewing Charter and Human Rights issues at the CF. You have to admit, it takes an extraordinary amount of calculated gumption to facially implement a one dimensional policy, ostensibly for all of the CF, and then start making exceptions to it on a case by case, rank by rank, gender over gender, race over race system of promotion, retention, remuster etc. Makes it tough for senior NCO's and Captains to look their troops in the eye and tell them that although they would prefer â Å“virtues such as honesty, persistence, team work and courageâ ?, when the chips are down, they'll have to take as a substitute the â Å“whiny "what's in it for me?" mentality that permeates our society. [thx. pbi ;D] This has lead to situations where, in the words of one Jurist, â Å“astonishingly disrespectfulâ ? conduct between a supposed aggrieved CF member and her superiors took place in an operational squadron. The result was an ordeal before the CHRC that, although thankfully unsuccessful, needlessly ruined the careers of some dedicated professionals.
If anybody wants references on any of the above, i would be pleased to oblige.
Cheers ....
