Legal Center

The Quest for Justice: Enforcing the Rights to Wear the 5K's
Satwinder Singh Gosal

"The only, purpose for which power can be rightfully exercised over any member of a civilized community against his will is to prevent harm to others. His own good either physical or moral, is not a sufficient warrant."

Since the philosopher, John Stuart Mill, enunciated the "harm principle" encapsulated in the above statement liberal democratic societies have generally enacted legislation in compliance with its perception of "harm", the minimum standards of civilized community and the "others" it seeks to protect. But who is being harmed, what kind of harm attracts government intervention, and who determines what values comprise a "civilized community"? The harm principle is easily applied when the victim and aggressor are clearly identified and the harm is of a physical nature. The application becomes troublesome when the rubric of harm is expanded to "spiritual harm". Does the harm caused by the change in perceived attitude to women?their denigration, for example, through the publication of hard core pornography?warrant state intervention? And if so, will legislation have any lasting impact on the attitude of men to women? Legislation in the absence of sincere education, either before its enactment or in conjunction with it, may be of little effect.

The issue becomes further complex when the "harm" is to individual conscience. The principle that individuals must be granted the greatest possible latitude in choosing their religious beliefs and acting upon them has been the cornerstone of the freedoms guaranteed by western?style democracies. However, in protecting this, freedom, the state must be vigilant against tacitly supporting one religion over another; the "neutrality" factor therefore assumes paramountcy.

In Ontario, the neutrality factor becomes blurred by the constitutional rights given to two religions which have the right to government benefits in educating their adherents. The issue now is one of whether any restraint on the ability of a nonmainstream religion to receive government benefits is in the least restrictive of the practices of that particular religion. In maintaining neutrality, and therefore in dispensing government benefits such as the right to attend a state-supported school, is it fair that some individuals be allowed to attend a school environment which provides access to harm-inflicting implements (woodwork tools) and others not merely because they wear an "implement" (the kirpan or ceremonial dagger) which is perceived to be of a greater threat? What evidence must the body which seeks to impose the restraint on individual conscience show before a genuine harm is shown to a sufficient threshold? Can or should such bodies, and even the judiciary, make determinations of what practices are central to a nonmainstream religion, especially when there is a conflict that the religious adherents claim threatens the very survival of the religion and does not merely inconvenience it?

These issues require a different approach when the age of those claiming religious freedoms is considered. Denial of the ability to attend school and thereby to socialize with people of different ages merely on the basis of the religious practice of the claimant is likely to result in greater detriment to the younger individual. This is because s/he is most impressionable and thus easily influenced by the expressed and implicit orthodoxies of the adult community and most sensitive to being perceived as different from the majority of his/her own peers.

As a backdrop to these issues, and permeating their resolution by the combination of the judiciary, community leaders and human rights experts, is the hazy concept of multiculturalism. Since the enactment of the principle of multiculturalism in 1971, its impact has depended on the purposes attributed to it by the different groups in society. For politicians, it has been a rallying cry at election time. For government agents, it has been a high ideal difficult to implement since any real resources to do so have been wanting. Ministers and official committees have lacked political magnitude and financial resources. School boards and provincial agencies, the most important source of putting into effect the goals of multiculturalism, are usually understaffed, and give reluctant support to the concept. More importantly, the concept recedes in the list of priorities in times of fiscal restraint. Above all, there is no substantial constitutional enshrinement of the principle. At best, section 27 of the Charter of Rights and Freedoms ("Charter") is an interpretive mechanism; it does not state that government legislation is unconstitutional if objectives in relation to the values of multiculturalism have not been considered or provided when governments enact legislation. While sections 2 to 7, and 15 of the Charter provide protection once a particular right, such as freedom of -expression or freedom of religion, has been violated, they. do not require governmental agencies to take pro-active initiatives to prevent prejudice and discrimination.

The ideal of cross-cultural understanding and tolerance of diversity of opinions is merely an ideal. Multicultural policies have repeatedly been animated by the objective of celebrating differences rather than appreciating them. Thus politicians will attend and encourage song and dance performances in their attempt to appease their ethnocultural constituency. They are less active, however, when these constituents demand support in, for example, the claim to wear a turban or a kirpan. The politicians realize that they must undertake the arduous and politically cumbersome task of first educating themselves about these different values and then educating the mainstream populace. They further realize that since the alleged victims are usually without political influence and since, in vocalizing the victims' concerns to the public, the ministers become even more unpopular, little political currency is lost by avoiding involvement in the struggles of the minorities. Unfortunately, it is politicians that generally assume leadership in defining what it is to be a Canadian, what values are indispensable in the Canadian social fabric and what is meant by the notion of Canadian citizenship.

If the rationale for political inertia in the vista of fostering a multicultural environment is accepted, then a fundamental safeguard of human rights legislation is forever discounted: resort to legislative remedies. In the usual course, the electorate is responsive to overt invasion of human rights. Mainstream agencies elevate the cause of the minority and help in raising the consciousness of the electorate. The media comes to the assistance of the aggrieved. However, when the minority is unable to arouse mainstream agencies and when the media is oblivious to their plight, the aggrieved are without protection. , Their solace is to resort to the judicial system. While even the most enlightened judiciary, one that has undergone cultural sensitization training and is aware of the grievances of the victim, may rule in favour of the minority, the result is of little effect. Indeed, the more sensational the allegation becomes, the smaller the likelihood of any real societal change in attitudes. This is because the mainstream, without the benefit of prior education as to the general demands of the minority, views the legal result as academic and not reflective of the "majority view". The victims are ridiculed and further chastised for the mere suggestion that the majority is insensitive to their culture.

As one commentator has aptly questioned with respect to the field of education:

"Should objectives to establish human rights provisions related to multiculturalism be regarded merely as desirable? Or should they be mandatory, which, if not achieved, would indicate a failure of either the learner or of the system."

Put in a different light, the concept of the "civilized community" in the harm principle becomes of central importance. What mechanisms are intact in Canadian society to make the values of tolerance, appreciation, and maximization of individual worth, without undue emphasis on the trappings of culture and class, a practical reality. Should government agents undergo cultural sensitization before delivering services? Should the judiciary and the media?

With the cases discussed here an attempt is made to examine the tension between the harm principle as perceived by major societal agents - large companies, school boards, parents' groups - and the freedom of individual conscience and expression as claimed by adherents of the Sikh religion. The interpretations of "harm", "others" and "civilized community" are directly or tacitly articulated but there has been little attempt to link these concepts with the principle of multiculturalism. A detailed legal analysis is not attempted; neither are all the cases involving Sikhs discussed. Whenever possible, explanations of the judicial process are offered in order to provide a minimal comprehension of that process. While this chapter is not intended to provide an examination of the religious tenets of Sikhism, passages from various decisions have been quoted at length in order to provide insight into how the Sikh community has examined the central issues surrounding its practices.

The Turban

(a) The Ishar Singh Case

Since the early 1950's, Security Investigation Services Limited (hereafter referred to as "Security"), a large firm in Toronto employing approximately 2,400 security guards, had adopted a policy to hire only clean-shaven candidates. The prospective employees also had to comply with the uniform requirement which demanded the wearing of a hat. From the viewpoint of Security, the reason behind this policy was twofold: the necessity for the public to easily identify security guards in situations of emergency, and the wish to match its guards "with the public image of what a security guard is."

Ishar Singh had come to Canada in 1969. He was a devout Sikh, registered with the Ontario government as a "minister of divinity of Sikhism". In 1975, he decided to apply for a job at Security. Ishar Singh had a different view of what the public image of a security guard should be. This was 1975, the era of multiculturalism, when the virtue of encouraging diversity was official policy.

On December 10, 1975, he attended the downtown Toronto offices of Security for an interview. He was concerned that would be both acceptable to the public (and therefore not a deterrent to potential clients) and consonant with its desire to maintain an esprit de corps. In cross examination, however, W. H. Watson, assistant regional manager of Security, admitted that Security had not conducted empirical studies to assess the attitude of the public as to what might indeed be an acceptable uniform code. He further conceded that over the years the policy had been modified. For example, the wearing of moustaches was made permissible in spite of the fact that at one time this image of the guard was unacceptable to the public.

Other Sikhs, including Ishar Singh's own son, now Guelph lawyer, T. Sher Singh, testified that their donning of a turban and wearing a beard had not been objectionable to their security guard employers. Additional evidence included a letter indicating that the Toronto Transit Commission, in 1974, had changed its policy so as to permit retention of the beard and turban by the prospective drivers of public vehicles.

Ishar Singh testified as to the essential tenets of the Sikh religion. He referred to an article written by the eminent Sikh scholar, Dr. Ganda Singh, which was entitled "On the Importance of Hair and Turban to the Sikhs":

The 'kes' or 'kesha', or hair is an indispensable main essential of the Sikh faith as enunciated by the Sikh Guns Gobind Singh at the time of the institution of the Sikh baptismal ceremony in 1699. It was, and is still, enjoined upon every Sikh at the time of his baptism to preserve the hair of his head, beard, etc., uncut and unshaven. With the shaving of his head and beard, a Sikh becomes an apostate and is excommunicated from the Sikh fold. He is then no longer recognized as a Sikh.

This is borne out by the commands of the Guru recorded in his Hukamnams or letters, in the Rules of Sikh conduct -- the Rahitnamas -- and in other books on the religion and history of the Sikhs compiled and written by contemporary and later writers from the beginning of the eighteenth century to the present day. The preservation intact of the kes or hair of the head and beard is further emphasized by putting the shaving of the hair under taboo as the first don't or Kurahit of the Sikh faith.

These essentials and don'ts are to be strictly observed as they form a part of the Sikh discipline.
The turban of the Sikh is an inseparable pact of his dress to keep his hair in good form and properly covered.

Professor Cumming found as a fact that Ishar Singh was a deeply religious individual who held his religious convictions with all sincerity. Thus his allegations were not frivolous and his grievances represented those of persons similarly situated. He further ruled that Security enacted and implemented the impugned policies and regulations without any malicious or discriminating intent.

The question then, as to whether the effect of excluding Ishar Singh and alt other devout Sikhs who could not comply with Security's policy on wearing turbans and keeping beards, was illegal as being contrary to the Code, had to be decided. The question was the first of its kind to be decided in Ontario and Canada and therefore was of significant precedential value. Professor Cumming concluded that a policy need not be discriminatory in intent to be discriminatory if in effect it was exclusive of certain target groups. To reach this conclusion, he conducted an extensive analysis of the philosophy underlying the Code as well as a detailed analysis of American case law which reflected on similar legislation.

Referring to the preamble of the Code, Professor Cumming noted that "[t]he belief in the fundamental equality of all persons... is fundamental to the fabric of our society." He then commented that such principles by themselves were worthless:

A society which espouses such a philosophy must also learn to be flexible in its practice to ensure that its professed philosophy becomes more than mere words... Ontario, as a society, encourages every person to practice the faith of his or her own choice. To truly respect and value different faiths is also to respect the different codes of dress and grooming dictated by those faiths. We cannot profess to encourage religious freedom, yet, at the same time refuse employment to persons who art exercising that religious freedom.

The absence of discriminatory intent was thus entirely irrelevant. Otherwise, employers could devise mischievous schemes which were neutral on their face but still precluded minority groups for reasons entirely unrelated to the condition of employment. Judicial decisions in Alberta had decided this issue. Thus, a hospital employer had discriminated when the collective agreement negotiated with male orderlies provided higher wages than the collective agreement with female nurses aides, despite the fact that the duties of both sexes were substantially the same.

American judges interpreting the 1964 Civil Rights Act were also of the view that it was the consequences of employment practices and not the underlying intent that was determinative in assessing the question of discrimination.

Professor Cumming now was confronted with determining the outcome of the second issue. Viewed from a different perspective, he asked whether the impugned regulation, on its face discriminatory, was nevertheless permissible and deemed non-discriminatory because any exception accorded to the minority group would pose an undue business hardship on the employer in its attempt to accommodate the minority groups. Thus, did "Security have an obligation to accommodate Mr. Singh's religious practice?" To what degree did the economic interests of the employer have to be subordinated to the religious practices of the employee?

Instructive was a decision of a labour arbitrator. In that case, a member of the Serbian Orthodox Church was discriminated against because he took an unauthorized leave of absence on the Christmas day of his faith, January 7, after having been denied leave for that day. The employer had denied leave because his absence would purportedly decrease production. Professor Cumming endorsed the judicial analysis of the arbitrator: "First, one decides whether the employee's request is important and valid; i.e. not trivial or arbitrary. Second, one determines the extent of the inconvenience that would be caused to the employer if the request were granted. Finally, the inconvenience to the employer and the importance of the request from the stand point of the employee must be balanced." In assessing the competing interests of employer and employee, the employer's ability to accommodate the employee's religious practice was all-important. Would the accommodation cause undue hardship?

In answering the last question, Professor Cumming further had to decide upon whom lay the legal obligation to show the nature of hardship or ease of accommodation. The answer was obvious. He decided that the obligation lay on the employers; they were in the best position to lead evidence as to how business practices and finances (evidence that was inaccessible to the employee) might be affected detrimentally by accommodating to the employee's particular practice.

With respect to the instant case, Professor Cumming had no hesitation in concluding that Security could accommodate Ishar Singh's bona fide religious beliefs without inflicting undue hardship on itself. Professor Cumming further remarked that the notion of perceived public discomfort with the idea of a turbaned security guard was unacceptable; this notion was "inconsistent with the idea of equality."

The Ishar Singh case indicated a significant departure in the legal interpretation of the concept of equality and discrimination. Henceforth, discriminatory effect and not intent was the relevant guide post. Employers could no longer hide behind the arbitrary veil of catering to public prejudice. They would have to justify their policies with hard facts.

The publicity surrounding the Ishar Singh case fostered a development of public awareness. The public had now to revise its image of the Canadian identity. Was Canada tolerant enough, as it claimed in international arenas, to accept in all its institutions people with different practices? Were Canadian values so shallow that the majority could claim that the core of the Canadian identity was under attack merely because the trappings of individuals were so different? Should mass public disapprobation toward a cultural practice, a disapprobation based on a lack of information about the practice, be sufficient to restrain that cultural justice? At its simplest, did being Canadian imply that one had to look like and adopt the practices of the mythic Canadian? Who was the "mythic" Canadian? In the eyes of many Canadians, many of whose ancestors had faced the same questions ("no Irish allowed"; "Jews go back home"; "Chinese pay a head tax"), their vision of Canada was guided by historical amnesia. Underlying their view of a Canadian is the Anglo-Celtic ideal. Forgotten was the fact that the early Canadian pioneer population comprised people of many different ethnocultural backgrounds: the Scots, the Irish, the Scandinavians, the Blacks.

Legal decisions in the vista of human rights are often Pyrrhic victories unless they reflect or generate social change. Thirteen years after the Ishar Singh case, the Canadian public was still unwilling to accept the legitimacy of the turban. Sikhs attempting to enlist the Royal Canadian Mounted Police were ridiculed. For over sixteen months, with politicians vacillating over their role in educating a biased public, the Sikh community was afflicted with the ignominy of public ridicule. Equality for all, it appeared to the Sikhs, was acceptable provided that privileges and rights. necessary for the enjoyment of these basic rights did not tamper with the bedrock of Anglo-Celtic "Canadian" symbols. The glorious "Canadian past", steeped in the exploits of the "Canadian pioneers", should be enshrined in perpetuity. Future generations of a new multicultural and, more significantly, multiracial composition would be forever reminded that their ancestors had made no contribution to the Canadian identity. The facts that Sikhs had been in Canada for almost a century; that the Sikh turban was central to the symbol of authority in the British Empire; that the British government in 1857 required by force of law that all soldiers of Sikh background maintain their 5K's, were conveniently forgotten. Clearly, the new minorities had to patiently bide such insults for many more generations before their values and their contributions would be validated by the Canadian mainstream.

(b) The Bhinder Case

Contemporaneous with Ishar Singh's challenge of prevailing attitudes to conspicuous minorities was the 'assault on federal human rights legislation by Karnail Singh Bhinder. The issue of whether the Canadian National Railway Company ("CN") had discriminated against Bhinder in requiring him to wear a hard hat in its coach yard has consumed much legal talent and is an annual topic of controversy for law students as they attempt to clarify the bounds of legal conservatism. The decision is more important than its result, which favoured CN, in that it evokes larger questions such as the function of specialized tribunals, the scope of review of the decision of such tribunals by the courts and the degree to which an unelected judiciary should attempt to safeguard the rights of minorities however unpopular. they may be in the view of the public, when the law itself is unclear on the point. The difficulty in reaching the decision is reflected in the fact that out of the ten judges who heard the case as it progressed from the Federal Court of Appeal to the Supreme Court of Canada, six favoured CN and four Bhinder. There were also several different interpretations of the same provisions of the Canadian Human Rights Act (the "Act"). Moreover, recently the Supreme Court has announced that in respect of several issues its decision was wrong; a rare instance in that hallowed Court's history.

Karnail Singh Binder, the son of a captain in the British army, was trained in England as an electrician. In 1974, as did many other Sikhs, he emigrated to Canada with his wife and three children, fleeing the racially intolerant climate in that country. Immediately upon his arrival in Canada he obtained employment with CN. He was a maintenance electrician in the Toronto Coach Yard of CN when on December 1, 1976, he was told by the general foreman that he would have to wear a hard hat.

As Ishar Singh had been, Bhinder was quick to make his choice. On December 7, 1978, he lodged a complaint of discrimination with the Canadian Human Rights Commission, alleging a violation of sections 7 and 10 of the Act which applies to all companies engaged in business practices in the federal jurisdiction. A board of inquiry consisting of three members, including Professor Cumming, found that CN had indeed engaged in a discriminatory practice and awarded Bhinder $14,500.00 for loss of salary and ordered CN to reinstate Bhinder, if he so desired.

CN applied to the Federal Court of Canada, Appellate Division, to have the decision of the Human Rights Tribunal set aside on the following grounds:

1. The Tribunal erred in interpreting the law as requiring discriminatory effect, and not merely discriminatory intent, as sufficient to attract protection of the Act.

2. The Tribunal was wrong in its interpretation of the Act in deciding that CN's safety hat requirement was not a bona fide occupational requirement ("BFOR"), that CN had a duty to accommodate the religious practices of Bhinder and that this could be done without undue hardship to CN's business.

3. The Tribunal made a legal error in concluding that the turban satisfied the requirements of federal labour codes legislation with respect to protective clothing and electrical safety regulations in that its findings were wrong in. fact and that the Tribunal did not have the mandate to consider legislation other than the Act in reaching its decision.

The three judges of the Federal Court were divided 2 to 1 in their conclusion that the Tribunal was incorrect in making its decision. The three different decisions are noteworthy in that they reflect the array of judicial techniques, often antagonistic, available to judges in reaching a desired result. Justice Kelly, for example, in deciding in favour of CN, followed the traditions of the judicial conservatives who are loathe to seek an expansive interpretation when the law is unclear. Any ambiguities, he asserted, had to be resolved by Parliament and not the unelected judiciary. Justice Le Dain, on the other hand, sided with Bhinder by resorting to interpretations that gave meaning to phrases in light of changing societal values.

The different personal philosophies of the judges were also apparent in their justifications. Thus Justice Kelly favoured values protecting the sanctity of life over conflicting values endorsing the priority of religious freedom:

Despite the admittedly high importance of protecting Human Rights as defined in the Act, in our society an even higher right exists - the sanctity of human life and the preservation of the individual's physical integrity. Killing or maiming, otherwise unjustified, cannot be tolerated because the perpetrator has claimed that his action is an expression of his religious belief.

Justice Heald, who penned the longer of the majority viewpoints, warned against the Court usurping the function of Parliament "under the guise of judicial interpretation" in making legal conclusions in determining duties imposed on employers when such duties had not been clearly delineated by the enabling legislation. Justice Le Dain, on the other hand, resorted to creative judicial interpretation to reach positions which had been firmly entrenched in common law jurisdictions such as the United States and Great Britain. He implied that in certain instances where it is evident that the legislature had not. directed its mind to the issues at hand, the judiciary has the inherent duty to fill in the gaps. The wait, often lengthy, for legislative change could inflict undue hardship on the aggrieved party. Each judge, therefore, was fixing his interpretation of the subject legislation in accordance with sound legal principles of statutory interpretation and in accordance with personal notions of whether individual or societal rights should prevail.

The first issue, whether sections 7 and 10 of the Act extended to adverse effect or indirect discrimination, was a revisitation of the conclusion in the Ishar Singh case. Justice Le Dain went to great lengths in reviewing American and British case law, in addition to the Canadian decisions, to establish that the notion that discrimination includes indirect discrimination had been firmly established in the common law jurisdictions. The problem facing Justice Le Dain was the decision of the Ontario Court of Appeal in Ontario Human Rights Commission v Simpson, Sears Ltd. in which the Court decided that discriminatory intent only was the sole factor in discerning whether there was discriminatory practice. The Court had noted that the American decisions were based on circumstances peculiar to that country; Canadian decisions, however, should reflect Canadian values. In any event, they noted that subsequent to the relevant Ontario Human Rights Code intact at the time of earlier decisions, including the Ishar Singh case, the Code had been amended to include "adverse effect" or "indirect discrimination", therefore implying that previously adverse effect was not a consideration mandated by Parliament (Why would legislation have been changed to include adverse effect as a ground of discrimination if Parliament had already meant to include the same ground, they reasoned).

Justice Le Dain cut the Gordian knot by reflecting on a phrase in section 10 of the Act which, to him, implied that the Act applied to situations of indirect discrimination.

Justice Heald's approach, one of judicial conservatism, was more direct:

Had Parliament intended, in section 10, to provide for 'adverse effect' legislation in the absence of intent, apt words could and should have been incorporated into the section.

Since Parliament had not so legislated, Justice Heaid was not about to imprint his own version of the law in the statute. In other words, who are we to second guess Parliament?

The second issue also involved considerable legal gymnastics: was the safety hat requirement, as applied to Bhinder, a BFOR? CN argued that since the Tribunal found as a fact that discriminatory intent was not a factor, and since the evidence indicated that it would face undue hardship in the nature of increased insurance requirements, the Tribunal had erred. Lawyers for Bhinder and the Canadian Human Rights Commission espoused the view adopted by the Tribunal: the defence of BFOR should be given limited application since the intent of the Act was to enhance protection against discrimination. The spirit of the Act and the reason for its original enactment should underlie any legal interpretation of its wording in situations such as this.

Two conflicting positions of the current state of the law with respect to BFOR were offered. On the one hand, CN argued that as long as the requirement was imposed in all sincerity and, on an objective assessment, with consideration of factors of economy, efficiency and the welfare of other employees, then the defence was tenable. Bhinder, however, argued that a more onerous approach was warranted; the employer had a duty to accommodate the individual employee's beliefs. This interpretation, as with that of the "adverse effect" notion of discrimination, had been clearly settled in English and American legal cases.

Justice Le Dain adopted a pragmatic approach. In the final balance, the issue of BFOR was a question of fact. A Tribunal that had its historical legitimacy grounded in its specialized knowledge of human rights issues should be accorded the utmost judicial deference when its findings of fact were being scrutinised. As long as the findings of fact and their legal conclusions were not perverse or capricious or made without due regard to the facts, then the Courts should hesitate in overturning those decisions. This analysis followed from the historical purposes for establishing specialised tribunals. Judges in courts of law had to decide on cases involving the full array of the different areas of law, a process which was lengthy and expensive. On the other hand, at least initially, cases before tribunals were less expensive and came to the fore relatively more quickly. More importantly, the decision makers brought to the tribunals specialised knowledge of the one area of law for which purpose the tribunal was created. In the instant case, the Tribunal had concluded that:

1) "The risk of head injury to Bhinder if he wore a turban instead of a
hard hat was insignificant or slight and that the risk of electrocution
was not of sufficient seriousness that it required to be taken into
consideration.

2) "Furthermore, there was no serious risk of injury to other fellow
employees or to the public.

3) "While there was some evidence of the possibility of electrocution, the
employee would have to be grossly negligent to be electrocuted in the
area that Bhinder was customarily working.

4) "The potential increase in cost of worker's' compensation to CN was
minimal in light of the number of employees that would be wearing the
turban and in view of the economic size of the employer."

In short, Justice Le Dain was expressing the notion, albeit tacitly, that human rights legislation should not be based on fantastic probabilities of harm (this same approach was to reappear in the "Kirpan" case).

The Federal Court's decision, favouring CN, was rendered on April 13, 1983, an auspicious date in the Sikh year as it marks the birth of the Khalsa, the values of which were at issue. On December 17, 1985, another holy period on the Sikh calender, the Supreme Court of Canada rendered its decision: almost exactly seven years after Bhinder had filed his complaint with the Canadian Human Rights Commission.

In their appeal to the Supreme Court of Canada, Bhinder's lawyers argued that the Federal Court. had been wrong when it restricted the scope of the Act to cover only intentional discrimination; the notion of BFOR had to be considered on a case by case basis and that a duty to accommodate did in fact exist at law.

The argument was considerably reduced in focus by the concurrent decision of the Supreme Court that day in the Simpsons Sears case: the decision which had posed an obstacle for Justice Heald with respect to whether the meaning of discrimination should be expanded to include "adverse effect." The Supreme Court finally decided that the definition of discriminatory practice in the Ontario Human Rights Code, and thereby the Canadian Human Rights Act, included adverse effect discrimination.

The sole issue now facing the Supreme Court was whether the hard hat rule was a BFOR. A recent precedent had already been established in a 1982 case involving the question of whether mandatory retirement at the age of sixty was such a requirement. The Supreme Court of Canada had defined the test as such:

"To be a bona ,fide occupational qualification and requirement a legislation, such as mandatory retirement at a fixed age, must be imposed honestly, in good faith, and in the sincerely held belief that such limitation' is imposed in the interests of the adequate performance of the work involved with all reasonable dispatch, safety and economy, and not for ulterior or extraneous reasons aimed at objectives which could defeat the purpose of the Code. In addition it must be related in an objective sense to the performance of the employment concerned, in that it is reasonably necessary to assume the efficient and economical performance of the job, without endangering the employee, his fellow employees and the general public."

In the eyes of three members of the five person majority of the seven member Court, the issue was one of whether the requirement was inadequate if it discriminated against employees that were generally in the occupation (hence a bona fide occupational requirement) or if it discriminated against even one employee, as the Tribunal concluded (hence not bona ride). For the majority, the case by case approach should be rejected. The BFOR was to be applied as the Act plainly and clearly (for the majority) stated - with respect to "a requirement for the occupation, not a requirement limited to an individual." The Tribunal had found that with respect to non-Sikhs the requirement was objectively sound. That was sufficient in the eyes of the Supreme Court. To read the requirement more narrowly and to have the defence restricted to situations where all employees must be accommodated required legislative change. Legislation had been changed in Great Britain in connection with the wearing of helmets by Sikhs. Until the legislation was similarly changed in Canada, certain practices having the effect of discrimination were permissible.

Chief Justice Dickson (with then Justice, and now Chief Justice, Antonio Lamer concurring) responded to the majority with a characteristically finally reasoned dissenting opinion. While on the Bench, Chief Justice Dickson had been renowned for his reasoned defence of individual liberties whether in the arena of criminal law or in Charter decisions or in the civil arena as in the subject case.

In the instant case, he not only managed to construe the legislation in a manner that distinguished civil rights legislation from other legislation such that a novel interpretation was offered but he managed to reconcile his view with prior caselaw. This task is a daunting one but, in terms of judicial neatness, is essential; if the law is seen as a progression of prior caselaw and not a sudden departure, its acceptance in judicial circles is more certain (even if it is a dissenting opinion).

Chief Justice Dickson prefaced his judgment by noting that judicial deference to specialized tribunals is a paramount principle when a Court is asked to review a decision of such a tribunal. This is because a Court is not engaging in an appeal in the sense commonly known. It is engaged in "judicial review". In an appeal the superior courts have the authority to overturn lower court decisions if an error of law has been made. Such an error may be occasioned by a wrong interpretation of the facts. When a court is asked to review the decision of a tribunal, the threshold of overturning a decision is higher. This is because tribunals have been created by provincial or federal legislation with a view to their sensitivity to a particular specialized area of the law, and since they are operated by individuals who themselves are legal specialists or academics in that area, then their decisions are generally paid greater heed by judges. If the decision is patently unreasonable, or has been made without total consideration for due process, or made in bad faith, only then will the courts overturn the decision. A differently constituted tribunal is then asked to reconsider the decision; the reviewing court itself does not make the new decision. Thus, the Federal Court determined that the Canadian Human Rights Commission misinterpreted its legislation (a serious error of law) in determining the scope of the discriminatory practices.

Chief Justice Dickson's main concern was that of interpreting the troublesome BFOR defence. That section stated:

" 14. It is not a discriminatory practice if

(a) any refusal, exclusion, expulsion, suspension, limitation, specification or preference in relation to any employment is established by any employer to be based on a bona fide occupational requirement."

Chief Justice Dickson stressed that with respect to a statute such as the Canadian Human Rights Act, different principles had to be adopted. This was not just another civil act such as one dealing with regulation of traffic or municipal by-laws. Since the Act was remedial in nature, it had to receive an expansive interpretation consistent with is principles. These principles were clearly enunciated in section 2:

"2. The purpose of this Act is to extend the present laws in Canada to give effect, within the purview of matters coming within the legislative authority of the Parliament of Canada, to the following principles:

(a) every individual should have an equal opportunity with other individuals to make for himself or herself the life that he or she is able and wishes to have, consistent with his or her duties and obligations as a member of society, without being hindered in or prevented from doing so by discriminating practices based on race, national or ethnic origin, colour, religion, age, sex or marital status, or conviction for an offence for which a pardon has been granted or by discriminating employment practices based on physical handicap."

The learned Chief Justice noted that the emphasis was clearly on the protection of the individual from the array of discriminatory practices. As such, then, the defence of BFOR would have to be interpreted narrowly and without defeating this purpose.

Did the employer merely have to assess the requirement with respect to practices in the general occupation or was the impact on the individual the major factor to be considered? Chief Justice Dickson has no hesitation in coming to the latter conclusion. The purpose of eradicating discriminatory practices would be illusory if the employer did not engage in this analysis. That Parliament intended this result was evident by the wording of the phrase "bona fide occupational requirement" : bona fide modified "occupational requirement";

A requirement which is prima facie discriminatory against an individual, even if it is in fact "occupational", is not bona fide for the purpose of s. 14(a) if its application to the individual is not reasonably necessary in the sense that undue hardship on the part of the employer would result if an exception or substitution for the requirement was allowed in the case of the individual.

This interpretation was permissible in light of the Etobicoke case which did not expressly forbid a case-by-case analysis of the defence of BFOR. Furthermore, if Parliament had intended to otherwise preclude this interpretation in enacting human rights legislation premised on eradicating discriminatory practices, it would have clearly spelled this out.

In what has become a major advancement in the law, Chief Justice Dickson created a duty to accommodate individual prances and thus adopted the view of Justice Le Dain (who was later appointed to the Supreme Court of Canada).

In the final analysis, the most important aspect of the case for the learned Chief Justice were the facts. CN would not be faced with more than a minimal increase in costs of Workers' Compensation insurance, Bhinder's safety and that of others near him would not be affected, he could function effectively in his employment without a safety helmet. There was no undue hardship to CN. In these circumstances, Bhinder's right to practice his religion was paramount.

A decision of the Supreme Court of Canada has profound implications. All judges throughout Canada are bound by the decision. Parliament also must accept the decision or change the legislation if they are uncomfortable with the judicial interpretation. Amending legislation implies overcoming all the obstacles inherent in the political process: satisfying special interest groups, adhering to a political agenda, assessing regional attitudes. Where popular opinion is divided, such as in the case of abortion legislation, a legislative decision is difficult to obtain; the difficult task of interpreting the political will is thrust into the hands of the judiciary. Once a decision of the Supreme Court is rendered, it may take decades for the Supreme Court to minimize the perceived injustices of that decision. By way of example, in the United States, vigorous stacking of the Supreme Court by a conservative executive with conservative judges has now enabled that executive to perhaps overturn a decision made in 1973 which permitted liberalized abortion.

Thus when the Supreme Court of Canada ruled in 1990 in the case Alberta Human Rights Commission v. Central Alberta Dairy Pool that the Bhinder case had been wrongly decided, the Bhinder case assumed legal significance more so than other decisions. The composition of the Supreme Court had changed significantly since the Bhinder decision. Only two of the original seven justices presided over the court in the Dairy Pool case. However, with Chief Justice Dickson presiding in what was to be one of his last decisions, he had an opportunity to revive his earlier analysis.

In the Dairy Pool case, Jim Christie claimed that the Central Alberta Dairy Pool discriminated against him by failing to accommodate his need to be absent from work on April 4, 1983 in order to respect his religious obligations as a member of the World Wide Church of God. The employer claimed that Mondays were exceedingly busy days; milk that had arrived over the weekend had to be processed expeditiously on Monday to prevent spoilage. The Board of Inquiry agreed -with Jim Christie; the lower courts did not. Relying on the Bhinder decision, they held that regular .attendance at work was a BFOR when viewed from the requirements of the occupation as a whole and therefore there was no duty to accommodate the complainant.

In writing for the Supreme Court, Madame Justice Wilson, who had disagreed with Chief Justice Dickson in the Bhinder case, now reached a different conclusion. After a thorough analysis of that case, she noted that the Bhinder decision had been much criticized, citing a passage from the Special Report to Parliament on the Efects of the Bhinder Decision on the Canadian Human Rights Commission (February, 1986):

The effect of the Bhinder decision is to ...put the Commission's ability to achieve its legislatively defined objectives in doubt. This can mean, for example, that workplaces may not have to be modified to enable disabled individuals to cam a livelihood; women who become pregnant and who require temporary modification of their duties may be forced from their jobs, person[s) who for religious reasons cannot work regular business hours may have difficulty finding employment. These are not merely hypothetical problems. Currently, the Commission is investigating 528 complaints alleging discrimination in employment. potentially, 33% of the complaints which concern religion or disability and 5% of the complaints dealing with sex discrimination might be affected by the Bhinder decision.

Madame Justice Wilson declared, "[i]t seems in retrospect that the majority of this Court may indeed have erred in concluding that the hard hat rule was a BFOR." Firstly, on the facts of the Bhinder case, the learned judge failed to see why the finding of fact of the tribunal should have been challenged. Secondly, she later appointed to the Supreme Court of Canada).

In the final analysis, the most important aspect of the case for the learned Chief Justice were the facts. CN would not be faced with more than a minimal increase in costs of Workers' Compensation insurance, Bhinder's safety and that of others near him would not be affected, he could function effectively in his employment without a safety helmet. There was no undue hardship to CN. In these circumstances, Bhinder's right to practice his religion was paramount.

A decision of the Supreme Court of Canada has profound implications. All judges throughout Canada are bound by the decision. Parliament also must accept the decision or change the legislation if they are uncomfortable with the judicial interpretation. Amending legislation implies overcoming all the obstacles inherent in the political process: satisfying special interest groups, adhering to a political agenda, assessing regional attitudes. Where popular opinion is divided, such as in the case of abortion legislation, a legislative decision is difficult to obtain; the difficult task of interpreting the political will is thrust into the hands of the judiciary. Once a decision of the Supreme Court is rendered, it may take decades for the Supreme Court to minimize the perceived injustices of that decision. By way of example, in the United States, vigorous stacking of the Supreme Court by a conservative executive with conservative judges has now enabled that executive to perhaps overturn a decision made in 1973 which permitted liberalized abortion.

Thus when the Supreme Court of Canada ruled in 1990 in the case Alberta Human Rights Commission v. Central Alberta Dairy Pool that the Bhinder case had been wrongly decided, the Bhinder case assumed legal significance more so than other decisions. The composition of the Supreme Court had changed significantly since the Bhinder decision. Only two of the original seven justices presided over the court in the Dairy Pool case. However, with Chief Justice Dickson presiding in what was to be one of his last decisions, he had an opportunity to revive his earlier analysis.

In the Dairy Pool case, Jim Christie claimed that the Central Alberta Dairy Pool discriminated against him by failing to accommodate his need to be absent from work on April 4, 1983 in order to respect his religious obligations as a member of the World Wide Church of God. The employer claimed that Mondays were exceedingly busy days; milk that had arrived over the weekend had to be processed expeditiously on Monday to prevent spoilage. The Board of Inquiry agreed with Jim Christie; the lower courts did not. Relying on the Bhinder decision, they held that regular attendance at work was a BFOR when viewed from the requirements of the occupation as a whole and therefore there was no duty to accommodate the complaint.

In writing for the Supreme Court, Madame Justice Wilson, who had disagreed with Chief Justice Dickson in the Bhinder case, now reached a different conclusion. After a thorough analysis of that case, she noted that the Bhinder decision had been much criticized, citing a passage from the Special Report to Parliament on the Effects of the Bhinder Decision on the Canadian Human Rights Commission (February 1986):

The effect of the Bhinder decision is to…put the Commission's ability to achieve its legislatively defined objectivies in doubt. This can mean, for example, that workplaces may not have to be modified to enable disabled individuals to earn a livelihood; women who become pregnant and who require temporary modification of their duties may be forced from their jobs, person(s) who for religious reasons cannot work regular business hours may have difficulty finding employment. These are not merely hypothetical problems. Currently, the commission is investigating 528 complaints alleging discrimination in employment. Potentailly, 33% of the complaints which concern religion or disability and 5% of the complaints dealing with sex discrimination might be affected by the Bhinder decision.

Madam Justice Wilson declared, "(i)t seems in retrospect that the majority of this Court may indeed have erred in concluding that the hard hat rule was a BFOR.." Firstly, on the facts of the Bhinder case, the learned judge failed to see why the finding of fact of the tribunal should have been challenged. Secondly, she proposed that the Bhinder decision is correct insofar as it pertains to cases involving direct discrimination (e.g. mandatory retirement). In those cases, the essance of the descrimination is in reference to the entire group. Hence, if the subject requirement is BFOR, then there is no duty to accommodate. But the Bhinder case was not one of direct discrimination, it was one of adverse effect, or indirect discrimination. In such circumstances, the courts ought to consider "whether the employer could have accommodated the employee adversely affected without undue hardship."

The appropriate test was now articulated as follows:

(1) was the rule rationally connected to the performance of the job and, if so

(2) did the respondent accommodate the employee up to the point of undue hardship. Henceforth, the focus would be on accommodating the individual. Factors to be considered would be financial cost, disruption of a collective agreement, problems of morale of other employees, interchangeability of work force and facilities. "Where safety is at issue both the magnitude of the risk and the identity of those who bear it are relevant considerations." In other words, has the employer adopted measures which are the least restrictive of individual rights? Have other reasonable attempts been made to accommodate the individual concerned?

The Bhinder and Dairy Pool cases illustrate the tremendous power the judiciary have with respect to changing social values. Once a decision is rendered, those affected must immediately seek to comply or face prosecution. Hence, employers would have to change the workplace to accommodate the religious nuances of employees. By extension, they would have to accommodate those employees with analogous problems; the physically handicapped for example. Ideally, such changes require a general shifting of attitudes among the mainstream communities as the directives in the workplace are implemented. This process of change then becomes critical. The vital issue then becomes one not of effecting change but of changing effectively. A disadvantaged individual who is suddenly vindicated in the workplace may find himself resented by colleagues who perceive that the individual in question is accorded preferential treatment. The victim becomes the wrongdoer. This scenario is all too common for those who constructively criticize perceived injustices, especially with the emergence of Charter issues. The task of society is thus less of how to legislate and more of how to educate concurrently.

These issues were perhaps no more lucidly demonstrated than in the "kirpan" cases.

(c) The Dashminder Singh Sehdev Case

Does a private school that strictly adheres to a uniform policy that prohibits external differences between its pupils violate the Ontario Human Rights Code? Is it permissible to curtail individual religious rights in the interests of minimizing outward differences! In 1988, Professor Cumming, now very familiar with the Sikh religion and practices, was confronted with this question in the case of Dashminder Singh Sehdev and Bayview Glen Junior Schools Ltd.

Dashminder Singh was a young Sikh, the son of conscientious Sikhs Hersharn Kaur and Pelinder Singh Sehdev. Hersharn Kaur was informed by the principal of Bayview Glen Junior School that her son would not be allowed entry to the school because the wearing of the turban was inconsistent with the uniform policy. As a compromise, Hersharn Kaur was willing to have her son wear a handkerchief ("patka") in the school colours. This was not acceptable to the school. The principal referred to the philosophical statement of the school which aimed at emphasizing equality among all pupils and in minimizing outward differences.

Bayview Glen believes in God and holds that He is the Supreme being, and the creator of the universe. Beyond that, the school subscribes to no specific religious dogma. Rather, we subscribe to those beliefs that am common to the major organized faiths. We actively promote those precepts and concepts that are common to those faiths in order to inculcate an awareness of the sameness that exists. It is our belief that so doing diminishes the emphasis put on differences by others. This outwardness in no way precludes the inalienable right of the individual to be different. Rather, we believe the differences, being personal, are best kept personal.

The philosophy statement continued by extolling the virtues of tolerance. It appealed to the right of parents to select school philosophies of their choice. Indeed, students reflecting 28 religions attended the school,. including Sikhs who had cut their hair.

Professor Cumming had no difficulty in finding that the school had indirectly discriminated against Dashminder Singh Sehdev. By now, the cases had established the relevant tests. The same participants in other cases had sensitized the Board to the Sikh tenets. Dr. Spellman, for example, who had testified in another landmark case, that of Pritam Singh v. Workmen's Compensation Board Hospital and Rehabilitation Centre, and was to testify in the definitive "kirpan case", testified with his characteristic lucidity as to the essential tenets of Sikhism. He traced its routes and its distinctive nature as a major world religion and not another cult. He demarcated the religion in contradistinction to Hinduism and Islam.

Dr. Spellman testified that these Sikh symbols [the five k's] manifest a theological statement that is the opposite of Hinduism. He stated that Hindu monks either shave their heads or have unkempt, matted and tangled hair, as symbolic manifestations that their appearance is of no significance, indicating a renunciation of the everyday word (sic) and that the divine is to be found in the dimensions of the spirit. In contrast, testified Dr. Spellman, Sikhism emphasizes that the divine is to be found in the real, contemporary world. Thus, Silos wear their hair in an opposite fashion to Hindu monks, to symbolize and indicate their different religious perspective. In this sense, unshorn hair to the Sikh represents spiritual vitality. As part of this requirement, a male Sikh must wear a turban and not any other form of head covering.

More importantly, Dr. Spellman testified that there could not be compliance with Sikhism or self-respect unless the above requirements were satisfied. Sikhism was more than a belief; "essential to the belief is the practice of the religion according to its symbols and requirements."

Professor Cumming readily concluded that the school uniform policy was discriminatory. He dismissed the philosophy of promoting tolerance but denying the outward display of differences as a contradiction.

If a Sikh student is denied the right to wear long hair and a turban in the pursuit of the "promotion of sameness", then clearly there is no honouring of "differences" and clearly the "inalienable right of the individual" (as quoted in the philosophy statement) is a sham.

Professor Cumming referred to a decision of the British House of Lords, the highest court of Great Britain, which dealt with almost identical facts. In the case, Mandla C. Serva Singh and Another v. Dowell Lee and Others, the Law (the British equivalent of the Supreme Court judges) Lords declared that a restriction on access to school was only justifiable when the restriction was imposed without regard to the ethnic origins of that person. The "justifiable defence" in Great Britain was remarkably similar to the BFOR in Canada. Except, as a result of the Simpson Sears case, a duty to reasonably accommodate the complainant had been established. With respect to Dashminder Singh Sehdev, the school had refused even to slightly modify their uniform policy (allowing the prospective student to wear a turban in the school colours).

Professor Cumming referred to several other cases in different jurisdictions to support his conclusion that the defence of BFOR had not been met. Thus, in Christie v. Central Alberta Dairy Pool, an employer was not entitled to the degree that the employee, a member of the World Wide Church of God, could be dismissed for giving notice that he could not work on a particular holy day.

Professor Cumming finally had to consider whether the school was exempted from the provisions of the Act by virtue of s.17, which exemption is applicable to, among others, educational institutions that are

primarily engaged in serving the interests of persons identified by a prohibited ground of discrimination.

Such a provision would exempt the school from provisions of the Ontario Human Rights Code, Professor Cumming hypothesized, if the school was restricted to Anglicans. Since the Bayview Glen School expressly invited students from all creeds to attend, it could not be considered to be providing services to persons identified by one religion. The policy of this exception, Professor Cumming concluded, was to allow special interest groups to promote their own interests and to acknowledge the value of encouraging diversity in Ontario society.

In the balance, Professor Cumming was surprised that the case had progressed thus far. To him, an enlightened philosophy of race relations in Ontario could support no other position.

"Frankly, it would be surprising to me if the Board of Directors did not, upon reflection, simply modify their uniform policy to accommodate Sikhs and orthodox Jews. By doing so, they would be more truly giving effect to a policy of tolerance and respect for the religion of all peoples.

The school was ordered to cease and desist in administering its uniform policy and directed to allow Sikhs and students of other religious backgrounds to attend while maintaining their dress and appearance.

The philosophy of tolerance, encouragement of diversity and promotion of the individual's right to be different according to religious dictates was gaining judicial acceptance. However, public acceptance was somewhat subdued. The politicians were also timid in supporting minority rights. In 1991, as the federal Solicitor General vacillated on his decision to allow Sikh candidates in the RCMP to wear turbans, popular sentiment throughout Canada was overtly hostile to the respect for individual convictions. Any defence of such rights was seen as a betrayal of the national spirit. Canadian culture was to be viewed from an Anglo-Celtic orientation. In February 1990, the Chief Commissioner of the federal Human Rights Commission lamented the unprecedented increase of racism in Canada. A report in the Toronto Star at the same time concluded that two out of three Canadians admitted to being a bigot.

Multiculturalism was viewed as a noble platitude. The Federal Cabinet refused to overturn a decision of the Canadian Radio Telecommunications Commission to award the last remaining Toronto-area FM frequency this centenary to a Western Canada based country and western station despite a strong dissent on the part of Chief Commissioner Keith Spicer and a coalition of multicultural groups in Toronto.

Into this arena of public intolerance was projected the most visible of issues testing the limits of societal tolerance for individual expressions of religious belief: the right of a baptised Sikh student and teacher to wear a ceremonial miniature sword or "kirpan" to school.

The Kirpan case (Ontario Human Rights Commission and Harbhajan Singh Pandori v. Peel Board of Education) was of itself the culmination of all the cases discussed so far. From a legal viewpoint, the principles enunciated in the decision were writ large in the predecessor cases. Such decisions, however remained in the ivory towers. Neither the mainstream community nor the Sikh community itself had internalised any of the principles. Indeed, if they had both read the case of Pritam Singh v. Workmen's Compensation Board Hospital and Rehabilitation Centre, one wonders if the Kirpan case would have been necessary. The importance of familiarity with decisions of the Ontario Human Rights Commission by all change agents in society cannot be underestimated. They contain references to seminal articles throughout common law jurisdictions on the issues at hand. They further reflect on what ought to be done in a society predicated on the values it considers as important to its existence.

(d) The Pritam Singh Case

In 1981, Professor Frederick Zemans rendered his decision as Chair of a Board of Inquiry convoked under the Ontario Human Rights Code to determine if Pritam Singh had been discriminated against in his treatment and therapy programme at the Workmen's Compensation Board Hospital and Rehabilitation Centre in North York. Pritam Singh was a devout Sikh who had chosen at the age of sixteen. to be baptised. He entered the Respondent hospital after sustaining a back injury at work in 1978. One day, after returning to the locker room following a swimming therapy programme, he was informed by the Attendance Counsellor that either he wear a one inch "symbolic" kirpan or leave the kirpan with the hospital security personnel prior to entering the premises. The Hospital was invoking its policy which prohibited "possession of an offensive weapon on the property". Pritam Singh never returned, preferring instead to file a complaint with the Ontario Human Rights Commission. Professor Zemans' decision is a fine example of a scholarly analysis suffused with important information about the religious practice of the Sikhs. Patiently, he exhorts the nonSikh reader to question the meaning of a "tolerant society".

I agree with Chairman Peter Cumming (in the Ishar Singh case] that a society which believes in the fundamental equality of all persons must be prepared to accept various and often unique forms of expressing personal religious beliefs. We justifiably pride ourselves on the civil liberties of our young nation and we must be prepared to put our tolerance to the hard and difficult tests.

He chided the Hospital administration for failing to discuss the meaning of the alleged "dagger" with patients who complained about the wearing of the kirpan. While the hospital had admitted over twenty thousand patients in the last two years, no assault had been perpetrated by a knife, let alone a kirpan. Moreover, no attempt had been made by the administration to educate themselves about the Kirpan. As in other instances involving religious minorities, visceral reactions to the different practices and not rational policy had guided the administration's handling of the case.

I have concluded that the respondent hospital made no effort to accommodate the legitimate religious practice of the complainant. There was no attempt by the hospital to attempt to educate their staff or patients and to integrate the complainant into a therapy programme which he was entitled to receive. The hospital in my opinion took a unilateral and seemingly arbitrary position which denied Mr. Singh treatment within their facilities.

No research had been undertaken on the Kirpan or the Sikh religion.

Professor Zemans' decision is a brief dissertation on the essence of the SK's, the Kirpan in particular, and is thus an invaluable source of information for Sikhs and non-Sikhs alike. In this regard, the testimony of Dr. John Spellman, a professor of Asian Studies at the University of Windsor, was critical. On the purpose of the Kirpan, he stressed that it was "not simply a weapon that could be replaced by another weapon such as a gun". In fact, the kirpan was not designed as a weapon. Therefore, with respect to the issue of whether it was a weapon or not, the question of the intent for its design and use was of central importance.

"To emphasize the kirpan as a weapon fundamentally in the sense of weaponry would not be as accurate or correct as to indicate the kirpan as a symbol ... ". It is more the symbolic significance of the kirpan which includes as you rightly say, that of protection and defence, but it is also understood to be used as - for uprooting evil, or as symbol of uprooting evil which really doesn't involve one in physical combat generally. It is understood as a sign of independence, and freedom in the sense that there was a time in Punjab history, when only (sic) when Sikhs were not allowed to wear the kirpan, and so they did so, and they do so, and it represents that freedom and that independence to do so."

Furthermore, the kirpan is a symbol internal to the wearer; it does not have to be worn such that it is visible to the outside world.

What if the kirpan were to be removed by another person? Dr. Spellman testified that the wearer had an obligation to resist the removal:

It is a fundamental belief of all Khalsa Sikhs that they should never allow their kirpan to be removed by force from their person.

Could the kirpan be removed temporarily by the wearer? This was a theological question which the Board did not address in great detail. Dr. Spellman testified that since there are no priests in the Sikh religion it is not possible to obtain prior dispensation for removing the kirpan. It was possible, however, to get subsequent absolution. The unanswered question thus revolved around the issue of whether it was normally and legally permissible for a government to allow a Khalsa Sikh to remain in a state of sin by forcing him or her to remove his/her kirpan and obtain subsequent absolution. For example, if the kirpan was to be removed everyday, would the concept of absolution have any meaning and would the significance of wearing the kirpan be drastically eroded.

The more difficult question was whether the Ontario Human Rights Code permitted the wearing of a kirpan of any size. The Sikh religion does not stipulate any requirements of size. Thus the accepted practice had to be assessed. However, Professor Zemans recognized a more fundamental dilemma: could he or a member of the judiciary determine whether a "belief which, although consistent with one's creed, and sincerely held, is not an essential requirement of that creed". Could he declare a kirpan greater in length than one foot was not essential for a Khalsa Sikh to practice his religion?

A review of American case law indicated that the US courts were loathe to restrict the religious practices of adherents of established religions. It was not the "business of courts to say ... what is a religious practice or activity ...". However, limits have been imposed on fundamental liberties "Just as one may not yell "fire" in a crowded theatre when there is no fire, one may not kill an unsuspecting person in order to make a religious sacrifice."

Ascertaining compelling legitimate state interests that would warrant overriding of individual liberties was a daunting task. Was there a genuine risk or harm? There was absolutely no evidence that Pritam Singh intended to use his kirpan as an offensive weapon. or in an offensive manner. Canadian caselaw indicated that in determining the purposes for which a knife is being used, one must commence with the premise that it is being used for peaceful purposes.

Was the hospital administration justified in invoking their offensive weapon policy? The administration claimed that it was responding to complaints from other patients. Yet how frequently would patients be exposed to the kirpan? Pritam Singh only displayed the kirpan when changing or swimming. When some patients complained, their source of fear was confronted with an explanation of the religious value of the kirpan. None of these complainants then testified before the Board as to a lingering fear.

Professor Zemans then enunciated a very important principle with respect to ascertaining when individual liberties may be curtailed.

In my opinion, we cannot infringe upon the practices of religious minorities simply because of unreasonable apprehensions of other members of society.

In short, Professor Zemans upheld the view that the religious beliefs of a minority could not be trammelled merely because the majority disagreed with the practice or found it irritating. A civilized community therefore would only be judged on the basis of its treatments of minorities. Any unjustifiable infringement of their rights was in itself an erosion of the notion of a civilized community and is, to that extent, a greater harm to all.

The Kirpan Case

Few cases in the area of human rights have generated as much controversy in recent years in Ontario as the kirpan case. The legal history of the case which commenced in 1987 with the application by Sukhdev Hundal, at that time a seventeen year old student, for a mandatory order compelling the Peel Board of Education to allow him to wear the kirpan while attending high school, had many inadvertent but significant repercussions for the Sikh community. For one, the case indicated how misunderstood the Sikh culture and religion has been in Ontario. Secondly, as the Sikh community began to become more involved with the information-gathering process, the case displayed a profound lack of understanding by the general Sikh congregation of the fundamental tenets of their religion. Concepts such as dispensation for committing a sin, the role of the panj pyare in administering amrit, the entire process 61 becoming an amritdhari Sikh and the attendant rights and obligations had to be examined in depth for the first time. At the very least, the Kirpan case galvanised Sikhs and the leaders of Sikh institutions into introspection. Unlike the controversy over whether Sikh Mounties should be allowed to wear the turban, this was not an issue around which the vast majority of Sikhs could unite. A certain segment of the community was not prepared to weather public ridicule over a practice which to some had outlived its purpose; especially in Canada. On the other hand, the amritdhari were unable to adequately explicate the role of the kirpan in the Sikh faith.

The Ontario public was less than tolerant in exploring the issue of religious freedom in this case. Religious freedom and the respect for individual's right of self-expression were concepts easily recognised. Many members of the public however saw the issue as a simple one - the Kirpan was a dagger; a dagger could not be allowed to be worn by young students. To them, the argument that the Kirpan is not a weapon but a spiritual instrument appearing as a weapon was a mere foil. To compound the problem, the Board of Education, the guardians of the entire community, was quick to listen to the majority view and made little effort to acquaint itself with the Sikh viewpoint.

The subtleties of the case sets it aside from the cases already examined. For one, in previous cases, the final arbiter of the dispute, whether a Board adjudicator or a judge, had only to resolve (albeit difficult resolutions) the competing interests of employers or educators on the one hand and those of the individual on the other. In the Kirpan case, the arbiter was given the additional task of deciding whether certain religious practices were integral parts of Sikhism. Specifically, how long could a Kirpan be for it to be legitimately labelled a Kirpan. Could a small replica placed around the neck suffice? Could the Kirpan be blunted or, furthermore, stitched in its harness (gatra) without losing its religious value? To what degree should individual practices be tolerated?

Moreso than in other cases, the cultural sensitivities (or alleged lack thereof) of the media became a central issue. In captioning lead articles by describing the Kirpan as a "dagger", the media was accused of fostering biases which prevented a balanced understanding of the central issues. As the Sikh leaders retorted, to affix the Kirpan with the label of a dagger, and therefore to imply that it was a dangerous weapon, was to make the very conclusion of the issue which beset the Ontario Human Rights Commission. Thus, during the Board of Inquiry, a resident of Peel began to collect thousands of signatures from neighbours calling for the banning of the Kirpan from the school.

The Sikh community found itself unable to unite over the issues at hand. For the strict adherents, there was no possibility of compromise as to the fundamental integrity of the Kirpan. The right to wear the Kirpan had been mandated by Guru Gobind Singh when he formed the Khalsa in 1699. An amritdhari Sikh, in this context, should be allowed to wear a kirpan of any size. Other Sikhs, nearly all non-amritdhari, were unable and, unwilling to take such a position. To them, the essence of a Kirpan could be compromised; the tip could be blunted, or a replica could allow the individual to observe the spirit, if not the exact practices of the last Guru. Some Sikhs were willing to conclude that the Kirpan should not be allowed to be worn by school children. They feared that fanatical young Khalsa might be overcome by temporal whims and be tempted to use the Kirpan in fits of anger. Moreover, they argued, integration into a multicultural environment required the elimination of certain practices which perhaps had outlived their initial purposes.

As the case progressed it became abundantly clear to the Sikhs that they had failed to present a favorable image of themselves to the public. One Sikh community leader lamented amongst his equals that at the least a video recording of the Sikhs and their practices should long ago have been disseminated to educators and other change agents in the Canadian mainstream' in order to dispel stereotypes. Certainly, it became all too painfully apparent that belying the legal argument was the social context of the perception of Sikhs.

The Kirpan case commenced in the summer of 1988 when a lawyer hired by Sukhdev Hundal, Paramvir Singh, and the International Sikh Youth Federation made application to the Brampton Courts for immediate relief when Sukhdev Hundal and Paramvir Singh were prevented from studying with their classmates while wearing the Kirpan. The application was dismissed upon a technicality.

Later that year, Harbhajan Singh Pandori, a teacher, filed a complaint pursuant to the Human Rights Code alleging he had been discriminated against by the Peel Board when he was informed by one of its officials that a Kirpan was construed as a weapon and therefore its wearing at school contravened discipline policies enacted in accordance with regulations passed under the Education Act. Negotiations with the School Board proved futile. The latter took the intractable position that in light of the increasing use of knives in the Peel region, the presence of a Kirpan increased the possibility of violence since it was perceived by non-Sikhs as a weapon. In meeting with the Sikh community, the School Board refused to follow the policies of neighbouring Boards such as North York and Etobicoke where the wearing of a Kirpan was permitted (the Etobicoke Board of Education imposed a limit of six inches in size).

Further, the Board was not convinced that despite the fact that no school boy in any commonwealth jurisdiction had ever used the Kirpan as a weapon, they possessed a positive duty to educate the parents and students alike about the meaning of the Kirpan as had been the practice in Surrey, British Columbia, where two hundred Khalsa students donned the Kirpan. For the Peel Board, the reduction of risk of physical harm, no matter how remote, superseded religious freedoms. So firm was the Peel board's views that it even refused to meet with the Minister of Citizenship who requested the opportunity to discuss the matter before the final decision of the Board was made.

The Minister of Citizenship convoked a Board of Inquiry, to be chaired by Dr. W. Gunther Plaut, an eminent scholar and jurist. Appearing before Dr. Plaut were the Ontario Human Rights Commission and Harbhajan Singh Pandori (the two complainants), the Peel Board of Education, (the respondent) `and the Federation of Sikh Societies of Canada, which was granted intervenor status since it had displayed a sufficient interest in the dispute as a representative Sikh organization (no other Sikh associations had applied for such status).

The legal issues were simple: did Sikh students and teachers ,.have the right to wear the Kirpan at all times and at anywhere on school premises? If the right to wear the Kirpan were to be allowed, would its accommodation by the Board cause it an undue hardship. The more difficult task was to compile and assimilate the facts, the production of which was extraordinarily diffcult for reasons soon to be discussed.

As a witness, the Ontario Human Rights Commission summoned Dr. John W. Spellman, now a visiting Professor at Harvard Law School and no stranger to Boards of Inquiry. His testimony was vital in establishing the historical and religious context in which the "Panch Kakar", or 5K's of the Sikhs had evolved. He lucidly explained the concept of the Kirpan in Sikh theology and daily practice - how it represents "law and morality, justice and order and has become an instrument of the "divine itself'. Repeatedly he stressed that Khalsa Sikhs must wear the kirpan, otherwise they would become fallen Sikhs, or patit:

The five K's become central in establishing [Sikh] identity. They become physically, visibly central, but they also become spiritually central, because [ ....] the forms of identification not only remind others of their identity, and in that sense they become a form of inward and outward identification recognition.

As to the size of the Kirpan, Dr. Spellman noted that this was a question of independent choice. Neither the spiritual canons nor the edicts of the Akal Takhat, some of the sources of Sikh practices, had established a precise standard.

However, he stated unequivocally that a miniature replica was not an acceptable representation of the Kirpan. On this note, Dr. Spellman expounded both the practice of administering amrit by the panj pyare and the process of baptism. Before the initiate to the Khalsa is baptised, s/he is questioned as to his/her thorough familiarity with the obligations upon the wearing of the kirpan and the 5K's. This process is the culmination of a catechism similar to that in other religions. Only after the panj pyare (5 beloved Sikhs) are convinced of the individual's knowledge and commitment is s/he baptised.

Of central importance to Dr. Spellman was the fact that during the century of the presence of the Sikhs in Canada, there had only been three or four cases of abuse of the Kirpan:

"If it is evidence for anything, 1 think it is evidence for the extraordinary restraint and self-control that this community has shown in the use of this symbol in the country."

Dr. Spellman further strongly disagreed with the view of some that a Kirpan could be stitched to the gatra so that it could not be removed. This violated the integrity of the Kirpan. Moreover, as the intervenor wrote in its submission, accepted by the Board, the Kirpan is often used to stir the parshad at religious ceremonies and therefore, in these limited circumstances, has to be removed.

The Commission submitted a letter from the Shromani Gurdwara Parbandhak Committee ("S.G.P.C.") in Amritsar, Punjab, in response to a series of questions concerning the Kirpan. The SGPC is repeatedly requested, and has the authority, to issue binding edicts with respect to Sikh practices. Dr. Plaut summarised the responses:

i) No definite site of the Kirpan has been fixed, although it should not
be reduced to a mere formal size. A one foot Kirpan is usual.

ii) Children's Kirpans will usually be smaller than those of adults.

iii) No baptised Sikhs may remove his/her kirpan under any circumstances.

iv) There is no religious injunction that the kirpan must be worn in plain view. "It should be worn sensibly and not shyly, certainly without any sense of concealment."

v) The kirpan should be easily removable from the sheath. It must not be
sewn, though the handle may be tied down.

vi) A baptised Sikh is not to use the Kirpan in anger as a weapon; if he/she does so, that person is guilty of misconduct. In case of any such complaint the Panj pyara will summon the person, judge him/her and pronounce the penalty. Non-appearance or insubordination may result in religious excommunication, following which the observant community likely ostracise the person concerned.

The Commission also summoned Inderjit Singh Mehat, B. Ed, M. Ed, (a multicultural officer for the B.C. Ministry of Education), with a view to contrasting the pro-active, and thereby more tolerant, race relations policy in British Columbia School Boards as compared to its Ontario counterparts. (To this end, it may be noted that tile Ontario Secondary School Teachers' Federation endorsed the Peel Board's position). About 200 Khalsa students attend schools in the Surrey schools, yet their presence had not exacerbated violence in Surrey. Asked to compare the differing attitude of the Surrey School Boards and the Peel School Boards, Mr. Mehat speculated that there were greater numbers of Sikh students and teachers in the Surrey School Board, hence reducing fear of the unknown. He opined that Peel educators might have been activated by stereotypes of Sikhs as liars and violent.

The Peel Board introduced witness such as educational psychologists and educators who canvassed the issue of violence in schools. Carolyn Parish, at that time Chair of the Peel Board, perhaps expressed the emotional sentiment of many non-Sikhs:

"I would have presumed [the kirpan] was a potential weapon, and that when 1 saw ... the kirpans that evening, that the weight of them, even the weight of the scabbards, was very overpowering. It was obviously a weapon."

She would have preferred to have the kirpan secured in the gatra and worn under clothing.

Other witnesses repeated the theme that the kirpan's potential as a weapon necessitated its proscription. In response, the Commission argued that "while many objects can be used as weapons leg. screwdrivers) they are not so designed. Thus, kirpans which appear as weapons - are designed as religious objects"

Ms. Zubeda Vahed, the only multiculturalism and race relation officer for the Peel Board, was asked by the Commissior to comment on the Ministry of Educations' guidelines with respect to ethnocultural equity in schools and its implementation in Peel as reflected by Policy X48, the Peel Board policy banning the kirpan. She concluded that the language employed by the Board would give the impression to Sikhs that their culture was not validated by official policy and therefore was not consistent with the Ministry's goals and objectives to promote

education that will enable all students to feel that their culture and identity are validated by the educational system, develop a positive self-image that includes pride