SIMON JAMES ELLIOTT Plaintiff v. HER MAJESTY THE, 2015 FC 877

Date: 20150717 Docket: T-2099-14 Citation: 2015 FC 877 Ottawa, Ontario, July 17, 2015 PRESENT: The Honourable Mr. Justice Locke BETWEEN: SIMON JAMES ELLIOTT Plaintiff and HER MAJESTY THE QUEEN Defendant JUDGMENT AND REASONS [ 1 ] This is a motion in writing to appeal a decision of Prothonotary Aalto dated April 10, 2015, which struck the present action.

For the reasons set out below, I dismiss the appeal and confirm Prothonotary Aalto’s decision. [ 2 ] The defendant acknowledges that, because the prothonotary’s order had the effect of disposing of the action, the Court should consider this matter de novo . [ 3 ] The defendant also acknowledges that a pleading may be struck only when it is “plain and obvious” that it has no merit, even assuming the allegations of fact therein to be true. [ 4 ] The Statement of Claim seeks an award of damages (general, special, and aggravated) following a decision of the Justice Minister (the Minister) to cease funding for certain religious services to inmates in federal correctional facilities.

The plaintiff alleges that, as a result of this decision, he lost the spiritual guidance of his imam. The plaintiff cites four legal grounds for his claim: 1 . negligence; 2 . violation of the plaintiff’s rights under

section 2(

a) of the Canadian Charter of Rights and Freedoms ,

Part I of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (UK), 1982, c 11 [the Charter ]; 3 . violation of the plaintiff’s rights under

section 7 of the Charter ; and 4 . violation of the plaintiff’s rights under

section 12 of the Charter . I. Issue: whether the claim should be struck for failure to disclose a reasonable cause of action pursuant to rule 221(1) (

a) of the Federal Courts Rules A. Alleged negligence [ 5 ] The defendant notes that there are four requirements for a finding of negligence: 1 . a duty of care; 2 . damage; 3 . causation; and 4 . foreseeability [ 6 ] The defendant argues that the plaintiff suggests no basis in law for duty of care that would oblige the funding of an imam for him. [ 7 ] The plaintiff has not responded to this argument. [ 8 ] I accept the defendant’s argument, and find that it is plain and obvious that this aspect of the plaintiff’s claim has no merit. B. Allegations of Charter violations [ 9 ]

Section 2(

a) of the Charter reads as follows: Fundamental freedoms Libertés fondamentales

2. Everyone has the following fundamentalfreedoms: 2. Chacun a les libertés fondamentalessuivantes : (

a) freedom of conscience and religion;

a) liberté de conscience et de religion; [10] The defendant asserts that this provision is intended to prevent the state from interfering with individuals’ religious beliefs andpractices, but does not extend to imposing a positive obligation on the state to provide the plaintiff with free access to his preferredmeans of practising his religion. [11]

Section 7 of the Charter reads as follows: Life, liberty and security of person Vie, liberté et sécurité 7. Everyone has the right to life, liberty andsecurity of the person and the right not to bedeprived thereof except in accordance withthe principles of fundamental justice. 7.

Chacun a droit à la vie, à la liberté et à lasécurité de sa personne; il ne peut être portéatteinte à ce droit qu’en conformité avec lesprincipes de justice fondamentale. [12] The defendant argues that the failure of the state to provide funding for an imam for the plaintiff does not constitute adeprivation of his life, liberty, or security, or any combination of these. In the absence of such a deprivation, there can be no violation ofsection 7 of the Charter. [13]

Section 12 of the Charter reads as follows: Treatment or punishment Cruauté 12. Everyone has the right not to be subjectedto any cruel and unusual treatment orpunishment. 12. Chacun a droit à la protection contre toustraitements ou peines cruels et inusités. [14] The defendant argues that an allegation of violation of

section 12 of the Charter requires the Court to consider “whether thetreatment or punishment is so excessive as to outrage standards of decency and surpass all rational bounds of treatment or punishment”:Piche v Canada (Solicitor General), [1984] FCJ No 1008 at para 455 (FCTD) (QL), aff’d (FCA), [1989] FCJ No 204(CA) (QL). The defendant also argues that this standard is relatively high. The defendant asserts that, based on this high standard, theMinister’s decision to cease funding Imams’ services in federal correctional facilities does not violate

section 12 of the Charter. [15] The plaintiff has not responded to any of these Charter arguments. [16] I accept all of the defendant’s arguments concerning the Charter issues, and find that it is plain and obvious that these aspectsof the plaintiff’s claim have no merit. II. Other issues [17] Because of the conclusions I have reached above, it is not necessary for me to consider the defendant’s other argument thatthe plaintiff’s claim constitutes an abuse of process. JUDGMENT THIS COURT’S JUDGMENT is that: 1.

The present appeal of the prothonotary’s decision is dismissed, and the striking of the action is confirmed.2. Costs of this appeal are awarded to the defendant in the amount of $300. "George R. Locke" Judge FEDERAL COURT SOLICITORS OF RECORD

DOCKET: T-2099-14 STYLE OF CAUSE: SIMON JAMES ELLIOTT v HER MAJESTY THE QUEEN MOTION IN WRITING CONSIDERED AT OTTAWA, ONTARIO PURSUANT TO RULE 369 OF THE FEDERAL COURTS RULES JUDGMENT AND REASONS: LOCKE J. DATED: July 17, 2015 APPEARANCES : Simon James Elliott FOR THE PLAINTIFF (ON HIS OWN BEHALF) Debjani Poddar For The Defendant SOLICITORS OF RECORD : William F. Pentney Deputy Attorney General of Canada Edmonton, Alberta For The Defendant