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Legal Center
Canadian Judicial Opinions Regarding
the Sikh Religious Identity
Grant v. Canada (Attorney General)
(T.D.)
John
R. Grant, Kenneth E. Riley, Howard S. Davis, who
together form a unincorporated association known as the
"Lethbridge R.C.M.P. Veterans' Court Challenge Committee",
each on their own behalf and on behalf of the unincorporated
association, and Kirsten M. Mansbridge (Plaintiffs)
v.
The Attorney General of Canada, the Solicitor General of
Canada, Normand D. Inkster, Commissioner of the Royal
Canadian Mounted Police (Defendants)
and
Alberta Civil Liberties Assoc., Sikh Society of Calgary,
Alberta Inter-religious Coalition, World Sikh Organization,
Canadian Human Rights Commission (Intervenors)
[1995]
1 F.C. 158
[1994] F.C.J. No. 1001
Court File No. T-499-91
Federal
Court of Canada - Trial Division
Reed J.
RCMP
-- Action to prohibit RCMP Commissioner from allowing wearing
of religious symbols as part of uniform -- RCMP Regulations
amended in 1990 to allow implementation of policy to encourage
recruitment of visible minorities -- No constitutional barrier
preventing Commissioner from allowing wearing of Khalsa
Sikh turban in place of stetson.
Constitutional
law — Charter of Rights — Fundamental freedoms
— Freedom of religion — Whether amendment to RCMP
Regulations, Commissioner's Standing Orders unconstitutional
as contrary to Charter, s. 2(a) — Legislation with
religious purpose not necessarily infringing s. 2(a) —
No necessary religious content to interaction between member
of public and police officer wearing identification of religious
persuasion as part of uniform — No coercion on member
of public to share officer's religious beliefs.
Constitutional law — Charter of Rights — Life,
liberty and security — Convention of neutrality applying
to police forces under Charter, s. 7 — Police officers
expected to operate in neutral fashion, free from political,
religious allegiances — Conventions not constitutional
guarantees, not legally enforceable — No evidence of
deprivation of "liberty or security" by RCMP officers
wearing turbans — Visible manifestation of Sikh officer's
religious faith as part of uniform not creating reasonable
apprehension of bias — No evidence of state intrusion
into life, liberty, security of plaintiffs.
Constitutional law — Charter of Rights — Equality
rights — Plaintiffs arguing state recognition of one
religious group as opposed to others discriminatory under
Charter, s. 15 — Special privilege to officers wearing
Sikh turban not discriminatory — Employers required
to accomodate employees to alleviate adverse effect discrimination
— Commissioner seeking to encourage recruitment of
visible minorities into Force — No constitutional barrier.
Practice — Parties — Standing — Requirements
for public interest standing met — Serious issue raised
by litigation — Plaintiffs having established real,
continuing interest in retaining religious neutrality of
RCMP uniform — Personal interest resulting from past,
present connection with Force — No reasonable, effective
alternative means to bring issue before courts.
The
plaintiffs sought an order prohibiting the Commissioner
of the RCMP from allowing the wearing of religious symbols,
such as a turban, as part of the RCMP uniform, and a declaration
that the Commissioner's actions in this regard were unconstitutional.
The possibility of changing the RCMP dress code to allow
for the wearing of the Khalsa Sikh turban and other symbols
of that religion first became of concern to the RCMP in
1980 following enactment of the Canadian Human Rights Act.
A report, prepared in 1982 by the Canadian Human Rights
Unit of the RCMP, described the tenets of Sikhism, some
of its history and the significance of the wearing of various
religious symbols. It identified the amendments which should
be made to the RCMP Regulations and the Commissioner's Standing
Orders to allow for the wearing of the turban and other
items of religious significance by Khalsa Sikhs. No action
was taken to implement the recommendations contained in
the report. In mid-1987, the RCMP began to endorse and implement
affirmative action policies directed at the recruitment
of visible minorities; later that year, the issue of the
wearing of turbans by Sikh members was raised again, after
which the Commissioner gave instructions that the recruiting
teams could tell Sikh applicants that they would be allowed
to wear beards and turbans. Finally, in April of 1989, a
bulletin was issued by the Commissioner to effect a change
in the Administration Manual by changing the relevant Standing
Orders. The proposed change raised a strong opposition and
serious concerns, particularly in western Canada where the
RCMP is the police force with which the public comes into
daily contact. Moreover, western Canadians have always had
great pride in and attachment to the traditions of the RCMP.
Despite that opposition, the RCMP Regulations were amended
in March of 1990, and an application form was created for
Sikhs who wished to wear the turban and the other religious
symbols. Two individuals were exempted from wearing the
felt hat referred to in subsection 64(1) of the amended
Regulations. The issues canvassed were: 1) whether the plaintiffs
had standing; 2) freedom of religion and paragraph 2(a)
of the Charter; 3) fundamental justice and section 7 of
the Charter; 4) discrimination and section 15 of the Charter;
5) multiculturalism and Charter, section 27 and 6) whether
the Commissioner's actions, if unconstitutional, were saved
by section 1.
Held,
the action should be dismissed.
1)
The plaintiffs met the three requirements for public interest
standing. First, this litigation raised a serious issue:
whether there was a constitutionally protected right that
RCMP members, in exercising the powers of the state, do
so without exhibiting their adherence to particular religious
beliefs. Second, the plaintiffs have met the requirement
of possessing sufficient interest, as citizens, in the subject-matter
of the litigation. They have established a real and continuing
interest in retaining the religious neutrality of the RCMP
uniform. They had a personal interest as a result of past
and present connection with the Force. They have spent their
time, money and effort, first, to lobby Members of Parliament
and then by commencing this litigation. There was no merit
in the argument that granting standing herein could result
in an opening of the floodgates causing the courts to be
overburdened and scarce judicial resources inappropriately
consumed. The third requirement was that no other reasonable
and effective way of getting the issue to court existed.
It was most unlikely that an existing member of the RCMP
would launch such litigation, or an aggrieved member of
the public make a complaint to the RCMP Public Complaints
Commission. The plaintiffs did not allege that actual bias
or improper action on the part of an officer has occurred;
rather, they alleged that a reasonable apprehension of bias
will exist. They asserted that, when a religious symbol
is allowed as part of the uniform, the appearance of impartiality
is undermined. In order to meet the test of a "reasonable
and effective" alternative, it is necessary to demonstrate
more than a possibility that litigation might occur. There
were no reasonable and effective alternative means to bring
the issue before the courts.
2)
Not all legislation with a religious purpose infringes paragraph
2(a) of the Charter. It is necessary to demonstrate that
the religious purpose is such as to either constrain an
individual's chosen religious practices or expression or
to compel participation in religious practices or observances
which the individual would not freely choose. The interaction
of a member of the public with a police officer who carries
an identification of his religious persuasion as part of
his uniform does not constitute an infringement of the former's
freedom of religion. There is no necessary religious content
to the interaction between the two individuals. In the case
of interaction between a member of the public and a police
officer wearing a turban, there is no compulsion or coercion
on the member of the public to participate in, adopt or
share the officer's religious beliefs or practices. The
only action demanded from the member of the public is to
observe the officer's religious affiliation. The preamble
of the Charter should not be used to interpret the freedom
of religion guarantee set out in paragraph 2(a) because
that paragraph, being unambiguous in the present context,
requires no interpretive assistance. Preambular statements
are interpretive guides, not substantive provisions.
3)
Many of the activities in which police officers engage fall
within the purview of section 7 of the Charter. The concept
of fundamental justice carries with it the requirement that
decisions are to be taken by a decision-maker free of any
indicia which can lead to the raising of a reasonable apprehension
of bias. There is a convention of neutrality with respect
to police forces in Canada which includes the expectation
that their dress will not manifest political or religious
allegiances. Conventions are not, however, legally enforceable;
they are flexible and change over time. A convention is
not a constitutional guarantee. There was no evidence that
any person has been "deprived" of his "liberty
or security" by either of the two RCMP officers wearing
turbans, or has experienced a reasonable apprehension of
bias in the context of such deprivation. The plaintiffs'
evidence was entirely theoretical and speculative. The assertion
that a visible manifestation of a Sikh officer's religious
faith, as part of his uniform, will create a reasonable
apprehension of bias was not based upon any concrete evidence.
There was no evidence of any state intrusion into the life,
liberty or security of the plaintiffs or of any person whom
they represent.
4)
Not only was there no concrete instance of discrimination
before the Court but the agreed statement of facts stated
that the RCMP would consider any request for exemption on
religious grounds on a basis similar to that on which the
Khalsa Sikh's request to wear the turban was granted. In
order to prove discrimination, there has to be some evidence
that equal concessions had been requested and denied and
that there was an equality of position with respect to the
individual granted an exemption and those who were not.
On the evidence, the Commissioner's Standing Orders did
not offend section 15 of the Charter. Under both the Canadian
Human Rights Act and section 15 of the Charter, rules of
general application which have an adverse effect on an individual
because of characteristics which fall within prohibited
grounds of discrimination will be held to result in "adverse
effect discrimination." When adverse effect discrimination
exists, employers are required to accommodate employees
so as to alleviate the effect. The crucial consideration,
when the decision to accommodate the Sikh turban was made,
was the desire to encourage the recruitment of visible minorities
into the force. The focus of this litigation has not been
whether the Commissioner was required to make the changes
he did, but whether there was any constitutional obligation
preventing him from doing so. There was no such constitutional
barrier. The Commissioner would not, on the other hand,
have been in breach of the Charter had he not acted as he
did.
5)
Charter section 27 (which concerns preservation of the multicultural
heritage of Canadians) was an interpretive provision which
did not have to be resorted to since there was no ambiguity
in the relevant provisions of the Charter.
6)
Nor was resort to Charter section 1 necessary, the Commissioner's
actions not having offended any constitutional provision.
Statutes
and Regulations Judicially Considered
An
Act respecting the Public Lands of the Dominion, S.C. 1872,
c. 23.
Canadian Charter of Rights and Freedoms, being Part I of
the Constitution Act, 1982, Schedule B, Canada Act 1982,
1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44],
ss. 1, 2(a), 7, 15, 27.
Canadian Human Rights Act, S.C. 1976-77, c. 33.
Canadian Human Rights Act, R.S.C., 1985, c. H-6.
Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as
am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to
the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix
II, No. 5], s. 93.
Education Act, R.S.O. 1980, c. 129.
Public Service Employment Act, R.S.C., 1985, c. P-33, s.
33.
Quebec Act, 1774 (The), R.S.C., 1985, Appendix II, No. 2.
Royal Canadian Mounted Police Act, R.S.C., 1985, c. R-10,
ss. 21 (as am. by R.S.C., 1985 (2nd Supp.), c. 8, s. 12),
25 (as am. idem, s. 16), Part VI (as am. idem).
Royal Canadian Mounted Police Regulations, C.R.C., c. 1391,
s. 85.
Royal Canadian Mounted Police Regulations, 1988, SOR/88-361,
ss. 55, 56, 64 (as am. by SOR/90-182, s. 1).
Cases
Judicially Considered
Applied:
R. v. Big M Drug Mart Ltd. et al., [1985] 1 S.C.R. 295;
(1985), 60 A.R. 161; 18 D.L.R. (4th) 321; [1985] 3 W.W.R.
481; 37 Alta. L.R. (2d) 97; 18 C.C.C. (3d) 385; 85 CLLC
14,023; 13 C.R.R. 64; 58 N.R. 81;
Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; (1985),
24 D.L.R. (4th) 536; [1986] 1 W.W.R. 481; 69 B.C.L.R. 145;
23 C.C.C. (3d) 289; 48 C.R. (3d) 289; 18 C.R.R. 30; 36 M.V.R.
240; 63 N.R. 266;
R. v. Beare; R. v. Higgins, [1988] 2 S.C.R. 387; (1988),
55 D.L.R. (4th) 481; [1989] 1 W.W.R. 97; 71 Sask. R. 1;
45 C.C.C. (3d) 57; 66 C.R. (3d) 97; 36 C.R.R. 90; 88 N.R.
205;
Andrews v. Law Society of British Columbia, [1989] 1 S.C.R.
143; (1989), 56 D.L.R. (4th) 1; [1989] 2 W.W.R. 289; 34
B.C.L.R. (2d) 273; 25 C.C.E.L. 255; 10 C.H.R.R. D/5719;
36 C.R.R. 193; 91 N.R. 255.
Considered:
Bhinder et al. v. Canadian National Railway Co. et al.,
[1985] 2 S.C.R. 561; (1985), 23 D.L.R. (4th) 481; 17 Admin.
L.R. 111; 9 C.C.E.L. 135; 86 CLLC 17,003; 63 N.R. 185;
Canadian Council of Churches v. Canada (Minister of Employment
and Immigration), [1992] 1 S.C.R. 236; (1992), 88 D.L.R.
(4th) 193; 2 Admin. L.R. (2d) 229; 5 C.P.C. (3d) 20; 8 C.R.R.
(2d) 145; 16 Imm. L.R. (2d) 161; 132 N.R. 241;
Zylberberg v. Sudbury Board of Education (Director) (1988),
65 O.R. (2d) 641; 52 D.L.R. (4th) 577; 34 C.R.R. 1; 29 O.A.C.
23 (C.A.);
O'Sullivan v. M.N.R., [1992] 1 F.C. 522; (1991), 84 D.L.R.
(4th) 124; [1991] 2 C.T.C. 117; (1991), 91 DTC 5491 (T.D.);
Thomson Newspapers Ltd. v. Canada (Director of Investigation
and Research, Restrictive Trade Practices Commission), [1990]
1 S.C.R. 425; (1990), 65 D.L.R. (4th) 161; 54 C.C.C. 93d)
417; 29 C.P.R. (3d) 97; 76 C.R. (3d) 129; 47 C.R.R. 1; 106
N.R. 161; 39 O.A.C. 161;
R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; (1986),
35 D.L.R. (4th) 1; 30 C.C.C. (3d) 385; 87 CLLC 14,001; 55
C.R. (3d) 193; 28 C.R.R. 1; 71 N.R. 161; 19 O.A.C. 239;
Reference Re Bill 30, An Act to amend the Education Act
(Ont.), [1987] 1 S.C.R. 1148; (1987), 40 D.L.R. (4th) 18;
77 N.R. 241; 22 O.A.C. 321;
Canada (Attorney-General) v. Sander (1992), 96 D.L.R. (4th)
85; [1992] 2 C.T.C. 289 (B.C.S.C.);
Osborne v. Canada (Treasury Board), [1991] 2 S.C.R. 69;
(1991), 82 D.L.R. (4th) 321; 37 C.C.E.L. 135; 91 CLLC 14,026;
4 C.R.R. (2d) 30; 125 N.R. 241;
Fraser v. Public Service Staff Relations Board, [1985] 2
S.C.R. 455; (1985), 23 D.L.R. (4th) 122; 18 Admin. L.R.
72; 9 C.C.E.L. 233; 86 CLLC 14,003; 19 C.R.R. 152.
Referred to:
Thorson v. Attorney General of Canada et al., [1975] 1 S.C.R.
138; (1974), 43 D.L.R. (3d) 1; 1 N.R. 225;
Nova Scotia Board of Censors v. McNeil, [1976] 2 S.C.R.
265; (1975), 12 N.S.R. (2d) 85; 55 D.L.R. (3d) 632; 32 C.R.N.S.
376; 5 N.R. 43;
Minister of Justice of Canada et al. v. Borowski, [1981]
2 S.C.R. 575; (1981), 130 D.L.R. (3d) 588; [1982] 1 W.W.R.
97; 12 Sask. R. 420; 64 C.C.C. (2d) 97; 24 C.P.C. 62; 24
C.R. (3d) 352; 39 N.R. 331;
Finlay v. Canada (Minister of Finance), [1986] 2 S.C.R.
607; (1986), 33 D.L.R. (4th) 321; [1987] 1 W.W.R. 603; 23
Admin. L.R. 197; 17 C.P.C. (2d) 289; 71 N.R. 338;
Operation Dismantle Inc. et al. v. The Queen et al., [1985]
1 S.C.R. 441; (1985), 18 D.L.R. (4th) 481; 12 Admin. L.R.
16; 13 C.R.R. 287; 59 N.R. 1;
Re Resolution to amend the Constitution, [1981] 1 S.C.R.
753; (1981), 34 Nfld. & P.E.I.R. 1; 125 D.L.R. (3d)
1; [1981] 6 W.W.R. 1; 95 A.P.R. 1; 11 Man.R. (2d) 1; 39
N.R. 1;
Re Canada (Commissioner of the Royal Canadian Mounted Police),
[1994] 3 F.C. 562 (C.A.);
Commission scolaire régionale de Chambly v. Bergevin,
[1994] S.C.J. No. 57 (QL).
Authors
Cited
Hogg,
Peter. Constitutional Law of Canada, 3rd ed., Scarborough:
Carswell, 1992.
Kaufmann, Walter. Religions in Four Dimensions:
Existential
and Aesthetic, Historical and Comparative. New York: Readers'
Digest Press, 1976.
ACTION
for an order to prohibit the RCMP Commissioner from allowing
the wearing of religious symbols as part of the RCMP uniform
and for a declaration that his actions in this regard were
unconstitutional. Action dismissed.
Counsel:
J.
J. Mark Edwards for plaintiffs.
T.C.R. Joyce, Q.C., and Linda J. Wall for defendants Attorney
General of Canada and Solicitor General of Canada.
S.N. Frost for Royal Canadian Mounted Police.
F. Andrew Schroeder and Palbinder K. Shergill for intervenor
World Sikh Organization.
Brian A.F. Edy and Shirish P. Chotalia for intervenors Alberta
Civil Liberties Assoc., Sikh Society of Calgary and Alberta
Inter-religious Coalition.
David Corry for intervenor Canadian Human Rights Commission.
Solicitors:
Nelligan/Power,
Ottawa, for plaintiffs.
Deputy Attorney General of Canada for defendants.
Schroeder, Pidgeon & Company, Vancouver, for intervenor
World Sikh Organization.
Edy, Dalton, Calgary, for intervenors Alberta Civil Liberties
Assoc., Sikh Society of Calgary and Alberta Inter-religious
Coalition.
Canadian Human Rights Commission, Ottawa, for intervenor
Canadian Human Rights Commission.
--------------------------------------------------------------------------------
The
following are the reasons for judgment rendered in English
by
1 REED
J.:— The plaintiffs seek an order that the Commissioner
of the Royal Canadian Mounted Police (RCMP) be prohibited
from allowing the wearing of religious symbols as part of
the RCMP uniform. They seek a declaration that the actions
of the Commissioner in this regard are unconstitutional.
The decision to allow the wearing of the Khalsa Sikh turban
instead of the traditional wide brimmed "mountie"
stetson, as part of the uniform of the RCMP, is the focus
of this litigation.
2 The
plaintiffs assert that it is inappropriate, indeed, illegal
and unconstitutional for a religious symbol to be incorporated
into the uniform of the national police force of Canada.
The plaintiffs base their challenge on paragraph 2(a), sections
7 and 15 of the Canadian Charter of Rights and Freedoms
[being Part I of the Constitution Act, 1982, Schedule B,
Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix
II, No. 44]] (Charter). These provisions guarantee: (1)
freedom of religion; (2) that the principles of fundamental
justice apply to any deprivation of life, liberty or the
security of the person; (3) that every individual is equal
before and under the law. The plaintiffs did not press the
argument, raised in their statement of claim, that the Commissioner
exceeded his authority, under the relevant regulations,
by authorizing the wearing of an RCMP issue turban as part
of the significant uniform. [See Note 1 below] Nor did they
press the argument that the Commissioner improperly delegated
his authority.
--------------------------------------------------------------------------------
Note
1: The regulations authorize the granting of exemptions
from wearing items of the significant uniform, see infra
p. 189.
------------------------------------------------------------------------------
3 The
defendants assert that the change in the uniform was made
to remove a barrier to the employment of Khalsa Sikhs as
members of the RCMP. It is asserted that this barrier existed
because Khalsa beliefs require the wearing of the turban
together with other religious symbols. The defendants assert
that the change was made: (1) to further the ability of
those affected to exercise their religious freedom; (2)
to reflect the present day multicultural nature of Canada;
(3) to promote the more effective operation of the force
by allowing recruitment of members of a visible minority.
The defendants say that in any event the plaintiffs do not
have standing to bring this action. The intervenors, in
general, support the positions taken by the defendants.
4 I
will consider the evidence under the following headings:
the expert evidence concerning symbols, religion and secularism;
Sikhism and some of its history; the development of the
policy by the RCMP; opposition to and concerns about the
proposed change; the implementation of the policy; policing
and police uniforms. The legal arguments which have been
raised will then be dealt with in the following order: whether
the plaintiffs have standing; freedom of religion and paragraph
2(a) of the Charter; fundamental justice and section 7 of
the Charter; discrimination and section 15 of the Charter;
multiculturalism and section 27 of the Charter and justification
under section 1 of the Charter.
Symbols,
Religion and a Secular Society
5 Dr.
Gualtieri, a professor in philosophy and religion at Carleton
University, gave evidence relating to the nature and function
of symbols, the nature of religion and the type of conditions
which promote religious toleration. Symbols are shorthand
ways of communicating messages. This can easily be seen
by thinking of a stop light or a road sign which contains
no writings but conveys a message by shape and colour alone.
Religious symbols are also shorthand ways of communicating
messages. They convey messages about the value systems and
world view (Weltanschauung) of adherents to the particular
religion. A religious symbol may be "decoded"
differently by an adherent to the religion and by someone
who is not an adherent. For example, Deputy Commissioner
Moffat, who supervised the development of the turban policy,
gave evidence that he did not think of the turban as a religious
symbol. To him, the turban is a cultural manifestation and
signifies only a person coming from India. For the Khalsa
Sikh, however, the wearing of the turban is a public demonstration
of his, or her, allegiance to Sikhism and to that religion's
values and goals. It is a sign of devoutness and dedication.
6 Dr.
Gualtieri observed from his study of religions, that all
religions, even those that are not expressly militant, implicitly
reach for domination of others because each makes claims
to the exclusive knowledge of truth concerning fundamental
precepts and values. While he is saddened by the spread
of what he calls present day secular modernity, which he
characterizes as the modern secular religion, he observes
that the adoption of such results in a social structure
where divergent conventional religious traditions more easily
find freedom of expression than is the case in a less secular
society. Dr. Gualtieri sees secular modernity as also expressing
itself through symbols--one such being the uniforms of the
law enforcement officers of the state.
7 Thus,
in Dr. Gualtieri's opinion, religious pluralism, tolerance
and mutual respect are best guaranteed when the state maintains
as much neutrality as possible towards all traditional religions.
Such neutrality is fostered when the symbols of the state
are not mixed with those of any religion and, in his view,
this is particularly important in those state institutions
which exercise the coercive powers of law enforcement.
8 Dr.
Beyer, a professor in the Department for the Study of Religion
at the University of Toronto, gave evidence concerning the
various types of relationships which have existed, and which
exist, between religious authorities and political authorities.
He referred to situations in which the two coalesce, such
as medieval Christian Europe and the modern theocratic state
of Iran. He referred to the doctrine of the separation of
church and state which developed in the late 18th century
prior to the time of the French and American revolutions.
In his opinion it is always difficult for states to remain
separate from all religious connections. This is so because
modern states legislate in areas over which religions also
claim competence. Dr. Beyer referred to several modern examples
where this difficulty is evident; one being India. He describes
the constitution of India as attempting to achieve religious
neutrality by the equal privileging of all religions rather
than the privileging of none. In his view this way of trying
to achieve state neutrality has been partly responsible
for the high instance of politicized religion on the Indian
sub-continent since independence in 1947: the explicitly
religious and separatist nationalism of the Sikhs in the
Punjab and the Muslims in Kashmir, which have been met,
in turn, by the growth of Hindu nationalism expressed, for
example, through the Bharatiya Janata Party.
9 In
my view, the experts, that the defendants called to rebut
the evidence of Drs. Gualtieri and Beyer do not fundamentally
disagree with most of that evidence. On some occasions the
rebuttal experts misunderstood or mischaracterized that
evidence. In general however, I took the rebuttal evidence
to be more the expression of a different perspective or
emphasis rather than outright disagreement.
10 The
rebuttal evidence asserts that there is nothing inherently
contradictory in a liberal democracy giving some support
for one or more religious traditions. This is clearly true.
No one would deny that England is a liberal democracy, yet
the head of state, the Queen, is also the head of the Church
of England. It is asserted that, as a practical matter,
in Canada, there is simply no chance that civil strife will
be created by allowing the wearing of the Khalsa Sikh turban
by some of our police officers. We are a highly tolerant
society and perhaps more importantly, today, at least, highly
secular. I do not think many Canadians would quarrel with
those assertions. The rebuttal evidence also asserts that
there has not been, in Canada, a long tradition of having
an expressly articulated constitutional principle which
requires the drawing of a line between religious authorities
and state authorities, as has been the case, for example,
in the United States. Again, it is obvious that the Canadian
Constitution does not contain an explicit textual requirement
that there be separation of church and state as exists in
the anti-establishment clause of the Constitution of the
United States. [See Note 2 below]
--------------------------------------------------------------------------------
Note 2: Amendment I (1791)
Congress
shall make no law respecting an establishment of religion,
or prohibiting the free exercise thereof; or abridging the
freedom of speech, or of the press; or the right of the
people peaceably to assemble, and to petition the Government
for a redress of grievances.
--------------------------------------------------------------------------------
11 With
respect to Canada's history of a lack of separation of church
and state, Dr. Bercusson referred to the provisions of The
Quebec Act, 1774 [R.S.C., 1985, Appendix II, No. 2] which
exempted Roman Catholics from the repressive laws of England,
which would otherwise have applied. He referred to the partnership
between church and state which was thereby forged and which
lasted in Quebec until the Quiet Revolution of the 1960s.
He referred to the clergy reserves which were one of the
causes of the rebellion of 1837 in Upper Canada and which
resulted in the public sale of those lands with the proceeds
being used for municipal purposes. He referred to the denominational
schools which are constitutionally protected in some provinces
and to section 93 of the Constitution Act, 1867 [30 &
31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982,
c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item
1) [R.S.C., 1985, Appendix II, No. 5]]. He referred to the
exemptions which have existed from compulsory military service
for conscientious objectors and to certain changes which
were made to the Dominion Lands Act [An Act respecting the
Public Lands of the Dominion, S.C. 1872, c. 23] of 1872
to allow for homesteading by groups who might settle together
in villages or hamlets rather than live in individual homes.
He argues that this last was an exemption on religious grounds
since the groups for whose benefit it was enacted, such
as the Mennonites, practised communal living.
12 Dr.
Bercusson sees this history as demonstrating that Canada
has not adopted and does not adhere to a political ideology
which insists on the actual separation of religion and the
state. He states that in matters religious, in Canada, the
relationship between the state and its citizens has always
been one, which has not been resolved in any abstract sense
or on the basis of principle, but pragmatically on a case-by-case
basis. He also agreed, however, that the Canadian people
would be surprised to hear his view that there were no constraints,
as a matter of principle, to prevent the government from
favouring one or more religions, that there was no principle
of state neutrality in religious matters.
13 Dr.
Cooper expressed the view, as I understand it, that the
granting or withholding of religious privileges by the state
should be determined not in recognition of the truth of
any given religious position or as a matter of general right
but according to whether such granting or withholding of
privilege is likely to contribute to, or derogate from,
civil peace. Dr. Morton took a similar view stating that
it was a proper exercise of a state's discretion to grant
religious exemptions or privileges by reference to the particular
circumstances of each case. He wrote that the proper exercise
of the state's discretion in granting religious exemptions
or privileges "will depend as much in contingent circumstances
as on principle" and that the decision whether or not
to grant such is "best judged by legislatures and other
relevant policy makers."
14 Most,
if not all of the witnesses agreed that there has been an
increasing insistence that the state be neutral with respect
to religious matters in Canada. Some would argue that this
has become more pronounced since the adoption of the Charter
in 1982 with its guarantees of religious freedom, equality
and non-discrimination. A recent manifestation of this is
the change to the opening prayers in the House of Commons.
This increasing insistence on state neutrality has also
been connected to the demographic changes which have meant
that Canada is now home to many culturally diverse groups.
Sikhism
and Some of its History
15 A
description of the tenets of Sikhism, some of its history
and the significance of the wearing of various religious
symbols can be found in a report prepared in 1982 [See Note
3 below] by a member of the Canadian Human Rights Unit of
the Staffing and Personnel Branch of the RCMP. This report
was subsequently used by the force when developing what
came to be known as "the turban policy." In addition,
evidence respecting the Sikh religion was given by Dr. William
McLeod and Mr. Gian Singh Sandhu.
--------------------------------------------------------------------------------
Note
3: Exhibit 2--Tab 2.
--------------------------------------------------------------------------------
16 The
RCMP report underlines the monotheistic, indeed arguably
monistic, nature of Sikhism. It describes the Sikh's belief
in the social virtues of compassion and social equality,
as well as the emphasis which is put on co-operative service
to the community. [See Note 4 below] The brotherhood of
all individuals is emphasized. [See Note 5 below] Mr. Sandhu
gave evidence that the equality of all people was a fundamental
principle of Sikh faith and that the turban itself was a
reminder of equality. The wearing of the other religious
symbols is also a constant reminder to the wearer of the
commitment to honesty, integrity and fairness to all which
is required by the Sikh faith. The RCMP report states:
. .
. the turban's function has to do wholly with religious
and social identity and cohesion. Its purpose is symbolic,
making it possible to distinguish Sikhs from non-Sikhs.
Note
4: The author of the RCMP report wrote:
Sikhs
are monotheistic, believing in a personal God. The sole
repository of spiritual authority is the Adi Granth. In
the event of disputes, spiritual or temporal, a conclave
is summoned to meet at the Akal Takht "Throne of the
Timeless" a building erected by the sixth Guru, Harogobind
in Amritsar. Resolutions passed have spiritual sanction.
Sikhism forbids representation of God in pictures and the
worship of idols. In essence the disciple is called to follow
the path to spiritual salvation--Moksa--set out in divine
revelation first revealed to Guru Nanak and then the subsequent
nine Gurus. Sikhism calls for an integrated, balanced life
of meditation and daily routine life. This consists in honest,
hard work and selfless service to the community, a sharing
of goods and a keen self awareness.
Note
5: Although marriage outside one's caste is not met with
approval.
--------------------------------------------------------------------------------
17 The
turban's importance dates from the late 17th-early 18th
century (1675-1708). At that time, the continued existence
of Sikhism, which had been born in the early 16th century,
was under threat from neighbouring peoples. The then Guru,
[See Note 6 below] Gobind Singh, whose father had been martyred
by a Mogul emperor for refusing conversion to Islam, decided
to transform the Sikhs into a fighting force. He created
the sacred society of soldiers-saints called the Khalsa
"The Pure." A dress code evolved which consisted
of the wearing of the five Ks: kesh (uncut hair); kara (a
steel band worn on the right wrist, symbolizing courage
and as a reminder never to commit a moral mistake by striking
out thoughtlessly); kirpan (a double-edged sword, initially
a symbol of bravery and a weapon of self-defence); kachh
(underpants which must not come below the knees, once worn
in combat to secure clothing close to the body) and kangha
(a wooden comb, carried in the kesh, to be used daily to
keep the kesh clean). Since it became necessary to keep
the uncut hair neat and tidy, the Sikhs adopted the turban.
Dr. William McLeod, an expert in Sikhism and a professor
of history from the University of Otago, New Zealand, gave
evidence that the wearing of a turban eventually became
mandatory for male members of the Khalsa. [See Note 7 below]
Whether or not the wearing of the turban is in fact mandatory
is not free from debate. [See Note 8 below]
--------------------------------------------------------------------------------
Note
6: As I understand the evidence, there is only one divine
guru but there are ten people who were successive embodiments
thereof.
Note
7: Transcript, at p. 475:
. .
. and the kesh [sic], it has to be covered, you can't wear
the hair uncovered, and for this reason the Sikhs have adopted
the turban. They had always adopted the turban, but it becomes
absolutely mandatory for any member of the Khalsa.
Note
8: See infra, at pp. 182-183.
--------------------------------------------------------------------------------
18 The
RCMP report describes the history which gave rise to the
formation of the Khalsa:
[Guru
Gobind] forged a group that felt like a single family and
united some of the features of traditional asceticism (including
the unshorn hair and beard) with an emphasis on soldiering
and great courage. "It is also likely that, by making
his followers easily recognizable by virtue of their turbans
and beards, the Guru wanted to raise a body of men who would
not be able to deny their faith when in danger but whose
external appearance would invite persecution and in turn
breed courage to resist it''. [See Note 9 below]
. .
This departure from the strict pacifism of the first five
gurus, whose writings form the bulk of the Granth, occurred
after the execution of the fifth and ninth gurus, when the
last guru turned his followers into warriors, saying: "When
all other means have failed, it is righteous to draw the
sword". Gradually Sikhs acquired the reputation of
being the best soldiers of India.
--------------------------------------------------------------------------------
Note
9: Walter Kaufmann, Religions in Four Dimensions:
Existential
and Aesthetic, Historical and Comparative. New York, 1976,
at p. 301.
--------------------------------------------------------------------------------
19 The
Sikhs earned the respect of the British for their fighting
qualities. The British insisted that every soldier accepted
into the Indian Army (that is, the British Army in India),
had to undergo Khalsa initiation and thus had to wear the
five Ks and the turban. The insistence on the wearing of
the turban made the members of the army fierce fighters
because it visibly connected their ethnic and religious
identity to their conduct. The Indian Army, after 1857,
fought for the British in places such as Hong Kong and Singapore.
Sikhs also fought for the British during the First World
War in the trenches of France and during the Second World
War in the Middle East, in North Africa and in Italy.
20 Sikhs
comprise five groups. The first is the Amrit-dharis, those
who have been initiated into the Khalsa and must wear the
five Ks. They are a comparatively small number of all Sikhs,
about 15%. If one has been initiated into the Amrit-dharis
but commits a grievous sin, such as cutting the hair, then,
having broken one of the vows the individual becomes an
apostate and is known as a Patit-dharis.
21 Many
Sikhs however have not taken initiation but do observe the
five Ks. They are known as the Kes-dharis. They are a very
large group, particularly outside India. A fourth group
are the Sahaj-dharis who do not recognize the code of discipline
which requires the wearing of the five Ks. They are small
in number. A fifth group comprises those who come from Khalsa
backgrounds but who have cut their hair. There is no specific
name for them. They are quite numerous in Canada and elsewhere
outside India.
22 Mr.
Sandhu gave evidence of his experiences as a Sikh immigrating
to Canada and of his involvement with the World Sikh Organization.
He was born in the Punjab in 1942 and came to Canada with
his family in 1970. He went to Williams Lake, British Columbia,
where his in-laws were located. He felt uncomfortable wearing
his turban. He felt that he was not accepted. He took off
his turban and cut his hair. He has now established his
own business and employs 72 people. His family have grown
and prospered. His four children have all been educated
in Canada. One is an elementary school counsellor, one a
lawyer, one a PhD student and one in business with his father.
Mr. Sandhu has become re-initiated into the Amrit-dharis.
His children encouraged him to do so because he had been
teaching them about the Sikh religion but was not practising
part of it. He explained how sad and uncomfortable he felt
when he took off his turban and cut his hair and how pleased
he is now to be able to wear the turban and not feel ostracized.
In part, this change has come because the sight of turbaned
Sikhs is becoming more common in his community and therefore
more accepted. He explained that, in his view, the reaction
of many Canadians to the turban was the result of unfamiliarity
with it and uncomfortableness because it was strange and
different to them.
23 The
World Sikh Organization, which Mr. Sandhu represents, was
formed after the storming of the Golden Temple in Amritsar
by Indian forces in 1984. The purposes of the World Sikh
Organization are: to promote the preservation of the Sikh
religion; to strive, through peaceful means for the establishment
of a Sikh nation (i.e., Khalistan in the Punjab); to promote
communication amongst Sikhs around the world; to work for
universal brotherhood, peace, justice, freedom of religion
and speech and to promote Sikh interests world wide. The
World Sikh Organization has as one of its aims the education
of others about Sikhism. It strives to counteract the international
public opinion which sometimes characterizes Sikhs as militant
and violent. This characterization has resulted from the
actions of a few of its more radical members, such as those
responsible for the Air India crash. With respect to the
establishment of an independent Sikh state of Khalistan,
those Sikhs who support this initiative, in general, envisage
a state where politics and religion coalesce. Sikhs living
in India do not belong to the World Sikh Organization. The
conflict between the Sikhs and Hindus in India, following
the assassination of Mrs. Ghandi and the widespread massacre
of many Sikhs, is well known. [See Note 10 below]
--------------------------------------------------------------------------------
Note 10: The RCMP report of 1982 states:
The
destiny of the Sikh community is a sensitive issue with
all Sikhs. Most Sikhs have long lived in the Punjab, however,
when the great partition of 1947 was made, the Punjab was
divided. Roughly 2,500,000 Sikhs lived in the part given
to Pakistan, and about the same number in India. When the
fighting and migrations were all over, the surviving Sikhs
were in India, none in Pakistan. Those who fled the new
Muslim state had to leave behind their homes, their very
rich agricultural lands, temples, and virtually all their
possession. The Muslims who moved in the opposite direction
were mostly landless tenants. This was due in part to the
fact that the whole idea of Pakistan was to have a Muslim
state. It also developed into a long and extremely bloody
history of hatred between Sikhs and Muslims. The Muslims
had executed several of the early leaders of the Sikhs,
along with their children; the Sikhs, seeking revenge, have
put large numbers of Muslims to the sword; the Muslims have
retaliated, and all this bloodshed has not been forgotten.
[Footnote omitted.]
--------------------------------------------------------------------------------
24 The
World Sikh Organization is one of several Sikh organizations
which lobbied for a change to the RCMP uniform. Mr. Sandhu
explained how the change has helped make Sikhs in Canada
feel more comfortable here and how it has encouraged the
younger members of that community to seek employment with
law enforcement organizations.
Development
of the Turban Policy
25 The
possibility of changing the RCMP dress code to allow for
the wearing of the Khalsa Sikh turban and other symbols
of that religion first became of concern to the RCMP in
1980. It was assumed that a change in the RCMP uniform was
going to be necessary because of the provisions of the Canadian
Human Rights Act, S.C. 1976-77, c. 33. The Canadian Human
Rights Tribunal had recently decided that the Canadian National
Railways was not justified in discharging a Sikh for refusing
to wear a hard hat on the job (the Bhinder case). It was
in this context that the report concerning Sikhism was prepared
within the RCMP in 1982. That report identified the changes
that it was thought would be necessary to both the Royal
Canadian Mounted Police Regulations [C.R.C., c. 1391] (RCMP
Regulations) and the Commissioner's Standing Orders, to
allow for the wearing of the turban and other items of religious
significance by Khalsa Sikhs.
26 The
RCMP Regulations prescribed the "significant"
uniform (the dress or ceremonial uniform) of the RCMP as
comprising a felt hat, scarlet tunic, blue breeches with
a yellow cavalry stripe, brown Strathcona boots and jack
spurs and such other items as the Minister might approve.
[See Note 11 below] Different requirements were prescribed
for women members about which more will be said later. The
"working dress" or "service order" (all
non-significant dress) of the RCMP is prescribed by the
Commissioner's Standing Orders, as are requirements respecting
personal appearance (e.g., no unauthorized ornamentation
on the uniform; face must be clean shaven; hair must be
short).
--------------------------------------------------------------------------------
Note
11: C.R.C., 1978, c. 1391, s. 85 which subsequently became
Royal Canadian Mounted Police Regulations, 1988, SOR/88-361,
s. 64.
--------------------------------------------------------------------------------
27 The
Commissioner's Standing Orders are set out in an Administration
Manual (Manual) and changes thereto, in so far as the standards
of dress not governed by the RCMP Regulations are concerned,
can be made by the Commissioner alone. No approval by way
of order in council is required. The RCMP is constituted
under the Royal Canadian Mounted Police Act, [See Note 12
below] and pursuant to that Act the Commissioner, who is
appointed by the Governor in Council, has the control and
management of the RCMP under the direction of the Solicitor
General of Canada.
--------------------------------------------------------------------------------
Note
12: R.S.C., 1985, c. R-10, as amended.
--------------------------------------------------------------------------------
28 The
RCMP report discussed aspects of the operation of the RCMP
which would be affected by making the proposed changes to
the uniform: tradition; uniformity of dress; ease of public
identification of uniformed officers; safety considerations.
The first three were not considered to weigh heavily enough
to warrant refusing to change. With respect to the fourth
the report noted:
The
Canadian Armed Forces, Canadian National Railway and Minister
of Correctional Services, have all been challenged under
the Canadian Human Rights Act by Sikhs claiming that these
organizations have Dress regulations that prevent them from
obtaining employment, thereby, discriminating, based on
religion. Judgements have been made in favour of the Sikhs
in all cases, with appeals upholding the original decision.
From these examples one can conclude that it would be fruitless
for the Force to defend a similar challenge implemented
by a Sikh.
The British Army for years have allowed Sikhs to wear turbans
and beards. Recently, the Canadian Armed Forces was challenged
by a Sikh, and when the Commission pointed out the discriminatory
infraction, they agreed to comply with the religious demands,
however, the Sikh did not follow through with his application.
29 The
report of 1982 ended by recommending that changes be made
to allow Sikhs to retain their uncut hair and beard and
to wear the turban and the other symbols of their religion.
It recommended that the necessary changes be made to both
the RCMP Regulations and the Manual. No action was taken
to implement these recommendations. It appears that senior
officials in the RCMP decided to wait until there was a
successful challenge in the courts to the RCMP uniform requirement
before any change was made.
30 In
October of 1984, the then Deputy Assistant Commissioner,
N. D. Inkster, who was Director of Operations and Personnel,
attended a symposium in Vancouver. The subject of that symposium
was policing in multicultural/multiracial urban communities.
When he returned to Ottawa, he wrote an internal memorandum
indicating that it had been brought to his attention that
the RCMP recruiting standards discriminated against Sikhs
because of the requirements that officers be clean shaven
and were required to wear specific types of headgear. He
wrote "this will have to be changed." He asked
for recommendations as to how such changes should be accomplished.
In response, the report which had been prepared in 1982
was brought forward. Internal memoranda of the time indicate
that attention was again directed to the requirements placed
on officers when performing certain duties, to wear specific
types of headgear (e.g., helmets when on motorcycle duty
or when involved in riot control; fur hats in cold weather).
While Deputy Assistant Commissioner Inkster apparently recommended
that an exemption [See Note 13 below] be adopted to allow
Sikhs to wear the various symbols of their religion. This
recommendation was not endorsed by the more senior members
of the Force and nothing was done to effect any change.
--------------------------------------------------------------------------------
Note
13: The exemption contemplated was one which read:
If
you are unable to comply with the dress regulations on any
of the proscribed grounds of discrimination listed in s.
3(1) of the Canadian Human Rights Act, submit memorandum
through channels and your case will be judged on an individual
basis.
--------------------------------------------------------------------------------
31 The
issue again surfaced in the summer and fall of 1985. In
December of 1985 one finds an internal memorandum which
notes that the Supreme Court had overruled the Canadian
Human Rights Tribunal's decision in the Bhinder case. [See
Note 14 below] The Supreme Court held that the requirement
that Bhinder wear a hard hat was a bona fide occupational
requirement and that the Canadian Human Rights Act allowed
such to be imposed even though the requirement might be
discriminatory. It was held that there was no duty to accommodate
Mr. Bhinder under the Act.
-------------------------------------------------------------------------------
Note
14: Bhinder et al. v. Canadian National Railway Co. et al.,
[1985] 2 S.C.R. 561.
--------------------------------------------------------------------------------
32 In
March of 1986, in response to enquiries by N. D. Inkster,
who was now Deputy Commissioner (Administration), an internal
memorandum noted that the Canadian Armed Forces had reported
that its decision to permit turbans was the result of a
Canadian Human Rights Act complaint in 1979. The "permission,"
given in response to that complaint, was that turbans could
be worn and facial hair remain uncut (for religious reasons)
providing this did not impede the officer in the conduct
of his duties. It was also noted, however, that if a Sikh
joined the Armed Forces and was placed in a position which
required the wearing of special equipment, he or she had
to conform to those requirements. The Armed Forces do not
accommodate a Sikh by transferring that individual into
a position or positions so as to allow him or her to avoid
the wearing of specialized equipment. The evidence does
not disclose that there are any turbaned Sikhs in the Armed
Forces.
33 Information
obtained by the RCMP from the Metro Toronto Police in April
of 1986 indicated that that force allowed the wearing of
turbans by Sikhs but that individuals who did so were restricted
from engaging in certain duties. They were not permitted
to go on industrial sites where hard hats were required.
They were not permitted to do traffic duties where hard
hats were required. They were not allowed to perform duties
where a respirator or gas mask was required.
34 In
June of 1986, the then Solicitor General, Perrin Beatty,
responded to a letter from the Federation of Sikh Societies
of Canada stating that while he appreciated the Federation's
suggestion that practising Sikhs be allowed to retain their
religious emblems on joining the Force, he did not believe
this was necessary. He noted that the inability to do so
did not appear to be an inhibiting factor, since those Sikhs
who were presently members of the Force were willing to
wear the same uniform as everyone else. He indicated that
he was aware that different religions have unique customs
and stated that when these were not incompatible with the
requirements of the Force, they did not serve as a bar to
serving in the Force.
35 In
August 1986, the then Solicitor General, James Kelleher,
responded to another letter from the Federation of Sikh
Societies of Canada and reiterated the position previously
given by Mr. Beatty. In December of 1986, the Commanding
Officer of "E" division, located in Vancouver,
was advised by a subordinate of Deputy Commissioner Inkster:
. .
. no firm policy has been developed relative to permitting
Sikhs to wear a turban or other religious emblems with our
uniform. The force will continue to welcome visible minorities
within our ranks, however at this time it is not felt that
changes to our dress code should be made to accommodate
any specific religion. Religious customs which are not inconsistent
with the requirements of the force will not be a bar to
engagement.
36 In
mid-1987, the RCMP began to endorse and implement affirmative
action policies directed at the recruitment of visible minorities.
[See Note 15 below] One such target group was identified
as "South-Asian (Indo-Pakistani)." It is not necessary
to describe the affirmative action initiative in detail
except to say that it involved the establishment of an Advisory
Committee, composed in part of members of the various visible
minority groups, to advise the Commissioner. It involved
as well the establishment of various recruitment teams who
were to actively recruit from the target groups.
--------------------------------------------------------------------------------
Note
15: Non-caucasians and women.
--------------------------------------------------------------------------------
37 In
September of 1987, the issue of the wearing of turbans by
Sikh members was again raised. This did not originate with
the Advisory Committee. Nor did it originate from the recruitment
teams. It appears to have been raised by the Human Rights
Section of the RCMP [See Note 16 below] which was aware
that the Force was trying to encourage the recruitment of
visible minorities. The Commissioner had asked for imaginative
proposals to enhance such recruiting.
--------------------------------------------------------------------------------
Note
16: A few years ago, we examined the concept of headdress
design for a baptized Sikh. The project was abandoned, to
be "reconsidered should a baptized Sikh ever apply."
This, of course, is not good enough, and does not denote
much of an effort when we consider that many years ago,
the Metropolitan Police Commission (Toronto) amended the
force's dress regulations to accommodate the wearing of
the turban.
--------------------------------------------------------------------------------
38 In
October of 1987, a memorandum was prepared for the Deputy
Director of Personnel (Planning) with respect to religious
issues and recruiting criteria. That memorandum identified
four types of religious requirements that might be of concern
to the RCMP when recruiting applicants from visible minority
groups: prohibitions against engaging in certain activities
(e.g., carrying or using a firearm); prohibitions against
working on specific religious holidays (e.g., the Sabbath);
requirements respecting the wearing of clothing or emblems
of religious significance; prohibitions against cutting
body hair. It was noted by Assistant Commissioner Allen
that the policy of the Force was that no accommodation could
be made by the RCMP with respect to requirements of the
first two types but that no applicant should be refused
employment in the Force as a result of the second two.
39 In
December of 1987, Commissioner Inkster gave instructions
that the recruiting teams could tell Sikh applicants that
they would be allowed to wear beards and turbans. The memorandum
indicated that Sikh applicants should be told that the RCMP
had a long tradition of being clean shaven and uniform in
dress, of which the RCMP was proud, and it was hoped that
the applicants would join that tradition. At the same time
the applicants were to be told that if they chose not to
do so they would not be penalized. The Commissioner's internal
directive of January 6, 1988, reads:
As
discussed, I think it is time we put to bed the issue of
wearing a turban and facial hair as would be a requirement
for orthodox Sikh members. I would like the policy to read
as an exception being made for religious purposes and applicable
only to Sikhs
40 It
then took some time for the details of the policy to be
worked out. This involved consultations with various members
of the Sikh community, internal negotiation and discussions
with Edmonton City Police and the Toronto Metropolitan Police.
The Edmonton City Police had a policy based on that used
by the Canadian Armed Forces. The evidence does not disclose
that any turbaned Sikhs were, at the time, members of that
force. One of the issues which was of major concern was
whether Sikhs would be allowed to wear turbans but restricted
in the duties to which they would be assigned (i.e., not
assigned to any which required the wearing of special head
gear) or allowed to wear turbans except when their duties
dictated the wearing of specific headgear. The Toronto Metropolitan
Police seemed to follow the first, the Canadian Armed Forces
and the Edmonton City Police seemed to follow the second.
41 With
respect to this issue, Manjit Singh, who was a member of
the Commissioner's Advisory Committee, advised those in
charge of developing the policy that turbans were worn primarily
to keep the hair neat. He is reported as having advised
that turbans were not worn at home and that in so far as
training as a police officer was concerned, during sports,
or physical activities:
. .
. a Sikh member could wear a "handkerchief" [patka]
over the hair . . . For swimming, an ordinary swimming cap
can be worn. Given to that periods between classes at the
Academy (15 minutes) a Sikh could be permitted to wear a
PATKA which appears to be a large "handkerchief"
and would be tied over the hair . . .
. . .
The various duties in the Force where helmets are required
was discussed. Mr. Singh's position was that generally speaking
the wearing of a helmet for various duties was pretty well
a matter of the individual member's individual discretion
and many may be prepared to wear them as required. The real
restriction is appearing in public "bare-headed"
and he saw no problem with a member who might be employed
on Tactical Troop duties removing his turban in private
and putting on the helmet.
42 Finally
in April of 1989 a bulletin was issued by Commissioner Inkster,
to effect a change in the Manual, by changing the relevant
Standing Orders. That Bulletin reads:
1.
General
a. Members
who practice the Sikh religion may wear:
1. an
RCMP-issue turban in place of the standard issue headdress
provided it conceals the hair and is neat;
2. under the uniform, a small Kirpan, the symbolic Sikh
sword, or replica thereof, having a maximum overall length
of 3 1/2";
3. a Kara, i.e. a symbolic Sikh iron bracelet, and a Khanga,
i.e. a Sikh comb worn in the hair under the turban; and
4. facial hair and other uncut hair provided the following
criteria are complied with:
1. Uncut
hair will be concealed under the issue turban.
2. Facial hair will be neatly secured and tied, and if necessary,
a fine netting material the same color as the hair will
be used to keep it neat.
b. Apart
from the exceptions outlined in 1.a., all other rules concerning
dress and appearance will apply.
c. A member of the Sikh religion may obtain the turban cloth
and badge, by submitting form 1216 to Headquarters, ATTN:
Material Management Branch.
43 At
the time, it was not realized by those making the decision
that a change to the significant uniform of the Force could
not be made through administrative directive only. When
this became apparent, the above quoted Bulletin was reissued,
in August of 1989, with the added caveat:
This
directive will not be effected until the appropriate regulation
is implemented.
Opposition
and Concerns About the Proposed Change
44 One
of the most interesting reactions to the proposed change
came in August of 1989 from a Sikh who was already a member
of the Force. He wrote:
1. It
is apparent from the Commissioner's reply to Mr. HUGHES'
question that he sincerely believes in the multicultural
proliferation of Canada; however, I respectfully submit
it is equally obvious that the issue of the turban as part
of the Force's uniform has not been presented to the Commissioner
in a balanced manner. . . . I wore a turban while growing
up in India and I have worn the uniform of the Force since
1973; this, I believe, entitles me to make a submission
on the issue.
2. The biggest problem the Force faces is in defining who
a "Sikh" is. Sikhs themselves cannot agree on
a definition, and as a result we have placed ourselves on
a continuum --with bearded and turbanned Sikhs on one end
of it and clean-shaven Sikhs on the other end. Both extremes,
as well as those in the middle, believe that they are Sikhs
if they practice the philosophy of the religion. However,
the segment that wears the turbans and the required symbols
of Sikhism professes that it is purer than the rest. In
the middle are Sikhs who wear the turban but trim their
beards and do not wear the symbols. The clean shaven Sikhs
believe that the symbols are immaterial to the philosophy
of life as taught by Sikhism. . . . Whose definition of
a Sikh does the Force accept and why? . . .
3. There is nothing in the Sikh religion that makes the
wearing of the turban mandatory. The religion requires a
Sikh to wear five symbols, and I am sure that the Commissioner
is familiar with them. The wearing of the turban is merely
through custom . . .
...5.
If the Force allows the wearing of the turban in uniform,
will it also defend the actions of the member who retaliates
when the turban is disgraced? Through years of custom, the
Sikh turban has come to embody the self-respect, religious
beliefs, and the cultural pride of its wearer. It is acceptable
behaviour in India to inflict injury--even death --to one
who maliciously knocks the turban off a Sikh's head. . .
. [W]ill the Force condone such acts of retaliation based
on the member's religious beliefs?
45 The
plaintiff, Kirsten Mansbridge, reacted to the announced
policy change. Her husband had been a member of the RCMP.
Her son and son-in-law are now members. She has belonged
to the ladies auxiliary of the RCMP Veterans in Calgary
since 1986 and previously was a member of the ladies auxiliary
in Winnipeg. In mid-1989, when the news of the proposed
change became public, she and her two sisters decided to
organize a petition addressed to members of Parliament.
At that time, as has been noted, while the Commissioner
had announced that the change was to occur, the requisite
change to the RCMP Regulations had not been made and the
then Solicitor General, Pierre Blais, had stated that he
had not yet made up his mind. It seems clear that the initiative
of Mrs. Mansbridge and her sisters was motivated by their
great pride in the traditions of the RCMP and a reluctance
to see changes in the uniform occur. Mrs. Mansbridge stated
that when she and her sisters started the petition:
. .
. we wanted to show, I guess our, our disappointment in
what the government was doing because of the traditions
of the RCMP . . . we felt something was . . . being taken
away from the traditions of the RCMP and the world wide
image of the RCMP, not that we ever frowned upon . . . the
wearing of turbans. [See Note 17 below]
--------------------------------------------------------------------------------
Note
17: Transcript, at p. 62.
--------------------------------------------------------------------------------
46 The
petition they drafted reads, in part:
HUMBLY
SHEWETH
WHEREAS the R.C.M.P. has a long and honourable tradition
known and admired world wide and
WHEREAS the distinctive uniform is recognized and respected
by the public and other police forces in Canada and other
countries, we see no merit or value or reason to allow changes
in the R.C.M.P. uniform or dress code. We see a distinct
danger of future wholesale changes to dress and tradition
by allowing turbans and ceremonial daggers to become part
of the R.C.M.P. uniform. Other religious or ethnic minorities
will argue for equal rights to incorporate minor or major
aberations [sic] resulting in the eventual loss of a distinctive,
recognizable and proud tradition.
WHEREFORE the undersigned, your Petitioners, humbly pray
and call upon Parliament to preserve the distinctive heritage
and tradition of the R.C.M.P. by retaining the uniformity
of dress code with all the recognizable color and trappings
that have such great historical value for this country.
The pride and "Esprit de Corps" should not be
jeopardized by any concessions to religious or ethnic minorities
which result in changes to this truly great Police Force
and its proud traditions and uniform.
AND as in duty bound your Petitioners will ever pray.
47 It
is not surprising that individuals from Western Canada particularly
Alberta, reacted so strongly to the announced change. The
RCMP played a role in the history of the West that it did
not play elsewhere in this country. The RCMP was originally
formed as the North West Mounted Police. That Force was
sent west to help avoid the bloody conflicts between the
Indians and encroaching settlers that had occurred in the
United States. The North West Mounted Police were successful
in this. As Mrs. Mansbridge notes, the RCMP eventually obtained
a world wide reputation and the symbol of a "mountie,"
in what is known as the "significant uniform,"
has become synonymous with Canada. This symbol appears,
she notes, on much government tourist advertising. The main
training college of the Force, to this day, is located in
Regina. In the Western provinces, indeed, in all provinces
except Ontario and Quebec, the RCMP are the police with
whom people come in daily contact. [See Note 18 below] It
is not hard to understand why Western Canadians have great
pride in and attachment to the traditions of the RCMP.
--------------------------------------------------------------------------------
Note
18: The RCMP, although a national police force, operate
in all provinces except Ontario and Quebec, as the provincial
police force.
-------------------------------------------------------------------------------
48 In
any event, the reaction which Mrs. Mansbridge and her sisters
received to their efforts was, in her words, "astounding."
They had envisaged organizing a petition of a very local
nature and of limited scope. The overwhelming support they
received for their efforts encouraged them to expand their
efforts and to turn what had originally been intended to
be a very modest effort into a much more significant campaign.
They eventually obtained over 210,000 signatures to the
petition. In addition, organizations expressed their support:
service clubs; seniors' clubs and municipal organizations
such as the Association of Rural Municipalities of Saskatchewan.
Nineteen indian band councils passed resolutions. Mrs. Mansbridge
and her sisters received between 5,000 to 8,000 letters
of support. Initially they threw the letters away because
they were not organized to keep or respond to them. Some
of these letters were from current serving members of the
RCMP who did not want to be publicly identified. Some of
the communications sent to Mrs. Mansbridge and her two sisters
included money to support their campaign. The three sisters
spent approximately $4,000 each of their own money.
49 Mrs.
Mansbridge and her sisters had been advised to send the
petition to the relevant members of Parliament. However,
since the change required was to regulations and not a statute,
the approval of Parliament was, of course, not necessary.
A committee of Cabinet Ministers would make the decision.
When the petitions to the members of Parliament were not
successful and the regulation authorizing the Commissioner
to implement the changes was put in place by Cabinet, [See
Note 19 below] Mrs. Mansbridge and her sisters were inundated
with telephone calls. They then turned their efforts to
raising funds to challenge the Commissioner's action in
court.
-------------------------------------------------------------------------------
Note
19: Technically by Order in Council although in fact it
is those members of Cabinet who are members of the relevant
Cabinet Committee who make the decision.
--------------------------------------------------------------------------------
50 The
plaintiffs, Grant, Riley and Davis are all ex-RCMP officers.
They are all members of the RCMP Veterans Association in
Lethbridge, Alberta. When news of the proposed change became
public, Mr. Davis initiated a petition for which he obtained
about 500-700 signatures. He forwarded this to his local
Member of Parliament. He became aware of the petition being
circulated by Mrs. Mansbridge and her sisters and of their
activities. When it became clear that the petition activities
were not successful, the plaintiffs Grant, Riley and Davis
also turned their attention to a possible court challenge.
On April 30, 1990, the Lethbridge Division of the RCMP Veterans'
Association authorized the establishment of the Court Challenge
Committee to challenge the constitutionality of subsection
64(2) of the RCMP Regulations, 1988. That Committee consisted
of the plaintiffs Grant, Riley and Davis. The Lethbridge
Division was subsequently advised by the Dominion Executive
of the Association (from Ottawa) that such a challenge would
violate the regulations of the Association. In response
the plaintiffs Riley, Grant and Davis formed the Lethbridge
RCMP Veterans' Court Challenge Committee, an unincorporated
association, and in that capacity solicited support and
funds for the present litigation.
51 The
plaintiffs joined forces to solicit funds. They received
8,000 to 9,000 letters supporting their cause and 75 percent
of these contained a financial contribution. Again, some
of these came from current RCMP members who did not want
to be publicly identified. The support came largely from
southern Alberta because this is where the plaintiffs spent
most time making their appeal. Support was received, however,
from individuals residing in every province of Canada as
well as in the Northwest Territories and some from Canadians
residing abroad. Mr. Davis gave evidence that the direct
cost to him, for example, for the purchase of postage stamps
etc. for which he had kept receipts, was $1,800-$2,000.
This did not include expenses he incurred for which he kept
no receipts such as gasoline, the use of his car and other
travel expenses.
Implementation
of the Policy
52 As
noted above, the significant uniform of the RCMP was and
still is defined by the RCMP Regulations. Those regulations
were amended in March of 1990 (SOR/90-182) [See Note 20
below] and now read:
--------------------------------------------------------------------------------
Note
20: Pursuant to authority under s. 21(1) of the Royal Canadian
Mounted Police Act, R.S.C., 1985, c. R-10, as amended [R.S.C.,
1985 (2nd Supp.), c. 8, s. 12].
-------------------------------------------------------------------------------
64.
(1) Subject to subsection (2), the significant uniform of
the Force, the design of which is to be approved by the
Minister, shall, together with such other items of uniform
as the Minister approves, consist of a felt hat, scarlet
tunic, blue breeches with a yellow cavalry stripe, brown
Strathcona boots and jack spurs.
(2) The Commissioner shall determine the occasions on which
members are required to wear the significant uniform referred
to in subsection (1) and may exempt any member from wearing
any item thereof on the basis of the member's religious
beliefs. [Underlining added.]
53 An
application form was created for Sikhs who wished to wear
the turban and the other religious symbols:
STATEMENT
OF RELIGIOUS BELIEFS
APPLICATION FOR EXEMPTION
AND UNDERTAKING
Name: . . . . . . . . . . . . . . . . . .
Regimental
Number: . . . . . . . . . . . . . . .
1. I,
. . . . . . . . . . . . . . . .. hereby state that I am
a member of the Sikh religion and that I am required, on
the basis of my religious beliefs, to maintain uncut facial
and head hair (KESH), and to wear a KARA, a KIRPAN, a KHANGA,
a KACHH and a TURBAN.
2. Subject to paragraph 3, I hereby request that the Commissioner,
on the basis of my religious beliefs, grant me an exemption
from wearing the required headdress with the RCMP uniform,
including the significant uniform of the RCMP.
3. Notwithstanding that I may be granted the exemption requested
in paragraph 2, I hereby undertake to perform all duties
assigned to me by the RCMP and to wear any special headdress
or safety equipment that is necessary for bona fide operational
reasons or is required by law.
. .
. . . . . . . . . . . . . . . . . . . .
Signature Date
[Underlining
added.]
54 The
Commissioner, in response to an application, has exempted
one individual from wearing the felt hat referred to in
subsection 64(1) of the RCMP Regulations. The Commissioner
thereafter delegated his authority under subsection 64(2)
of the RCMP Regulations to the Deputy Commissioner (Administration)
pursuant to a document signed on March 23, 1992. The Deputy
Commissioner (Administration) has exempted one other person
from wearing the felt hat on the basis of an application
by that member. The RCMP relies on a member's statement
in the application to the effect that he or she is a member
of the Sikh religion and is required on the basis of his
or her religious beliefs to wear a turban.
55 In
addition to exempting the two members from wearing the required
head dress of the Force, the Commissioner has prescribed
RCMP-issue turbans which are to be worn in the place of
the stetson and the standard working head dress of the Force.
The colour of the cloth for the turban to be worn with the
significant uniform matches that of the stetsons. The colour
of the cloth for the working or dress uniforms (blue) matches
those uniforms. In addition three patka cloths are issued.
The Manual also requires that an RCMP badge is to be affixed
to the front of the blue turban. [See Note 21 below] The
two members who have been granted an exemption from the
standard head gear are also allowed to wear the kanga, the
kara, a kachh and a kirpan. The kesh is also permitted (unshorn
head hair and uncut, untrimmed beard).
--------------------------------------------------------------------------------
Note
21: Bulletin UDM-49, issued November 9, 1990, now in the
Uniform and Dress Manual, chapter 1.
-------------------------------------------------------------------------------
56 The
agreed statement of facts states that if an application
for an exemption from the requirements of the significant
or working uniforms of the RCMP was made by a member of
any other religious group, that request would be considered
in relation to the applicant's religious affiliation, the
tenets of the particular religion and the RCMP's operational
requirements. These latter would include a consideration
of whether the exemption, if granted, would in any way impede
the officer's law enforcement responsibilities and whether
the RCMP requirements from which exemption was sought constituted
a bona fide operational requirement under the Canadian Charter
of Rights and Freedoms and the Canadian Human Rights Act.
It is also agreed that impartiality, bias, perceived impartiality,
perceived bias and separation of Church and state were not
taken into consideration by the Commissioner and the RCMP
at the time the policy change was being proposed.
Policing
and Police Uniforms
57 There
have been many changes to the significant uniform of the
RCMP over the years. The first uniform of the Force, in
1873, included a pill box style forage cap, a scarlet Norfolk
jacket, tan breeches, white gauntlets and black boots with
jack spurs. The red jackets were adopted because the British
militia had worn red jackets and Canada's aboriginal people
respected that militia. The pill box hat was also borrowed
from the British militia. The pill box hat proved to be
totally unsuitable for life on the prairies and members
of the force informally began to use the stetson. It gave
more protection from wind, sun and rain. The full dress
uniform was changed in 1876 to include as its main components
a "pith" helmet with a spike, along with the scarlet
jacket and blue breeches with a yellow stripe. The Strathcona
boots were adopted after a contingent of the RCMP, which
served in the Boer war, returned to Canada and promoted
their use. The stetson was formally adopted by the RCMP
at the turn of the century and was included in the dress
code of 1904.
58 As
well as the many changes to the uniform over the years,
there are different uniforms for different functions (e.g.
war time service, northern duty, riot control). Also, in
1975, when women were first allowed to join the RCMP an
order in council was passed to prescribe a significant uniform
for women which comprised a blue skirt (instead of breeches)
and a cloth forage cap (rather than a stetson). The women
wore shoes instead of Strathcona boots and jack spurs. The
scarlet tunics were more like blazers than the male version.
More recently, at the request of the women members of the
Force, this has been changed so that women now wear the
same significant uniform as the men.
59 Dr.
Roderick MacLeod gave evidence with respect to modern day
police forces and the role of the uniform. He gave evidence
that there is a need for the members of a police force to
be perceived as being impartial. He described some of the
history and referred to occasions on which impartiality
had not existed:
Uniforms
are one of the defining characteristics of the modern police
forces that came into existence about a century and a half
ago. Together with organizational changes like payment by
salary rather than fees and greater numbers, they are what
sets the new police created by Peel's Metropolitan Police
Act of 1829 apart from the ancient office of constable.
All historians who have examined the subject agree that
uniforms were adapted from the military. They represented,
in some sense, a militarization of what had always been
a civilian office. . . . The first commissioners of the
London Metropolitan Police prudently decided to make their
uniforms as unmilitary as possible, with top hats and long-tailed
blue coats. . . .
. . .
The second and related requirement for the successful functioning
of the new police was that they must be, and must be seen
to be, impartial in politics and in religion, insofar as
religion went beyond being a private, confessional matter.
Democracy could function after a fashion with police forces
that were openly partisan; but the political process in
such circumstances was invariably violent, brutal and corrupt.
This is nicely illustrated by the prolonged struggle to
exclude the Orange Order from the Toronto Police force between
1834 and 1860. The Orange Order in Upper Canada in that
period stood for Tory politics and protestant religion and
it was quite prepared to fight to preserve their ascendancy.
In the 27 years between 1839 and 1866, Greg Kealey counted
28 riots in Toronto, most involving sectarian violence between
Orangemen and the city's growing Roman Catholic minority.
Membership in the Orange Order became the key to employment
in the Toronto police. . . . In the frequent sectarian riots
the police openly sided with the Orangemen who participated.
By the middle of the 1850s the situation in Toronto had
reached such proportions that even moderate Tories like
the young Attorney General, Johan A. Macdonald, had concluded
something must be done. After several years of sustained
pressure from the provincial government and threats to subsume
the city police into a provincial force, Toronto reluctantly
turned control of their force over to an independent police
commission. In 1859 the commission passed a regulation prohibiting
police officers from being members of secret societies.
This ban remained in effect for the rest of the century
but was interpreted to mean that membership in the Orange
Order would be tolerated but not active involvement in the
society. [Footnotes omitted.]
60 Dr.
MacLeod noted that strict requirements of neutrality were
placed upon the North West Mounted Police. In 1903, an inspector
of the force asked permission to take part in an Orange
parade in Regina. He was refused permission on the ground
that active participation in that type of organization was
not permitted. Dr. MacLeod gave opinion evidence that individuals
who are subject to control by a police force worry when
members of that force are identified with a particular political
or religious group. They worry that individuals so identified,
when carrying out their duties, will be harder on those
who are not members of the group to which the officer belongs
and, even more, they worry that the officer will be easier
on those who are members of that group.
61 One
of the requirements of the RCMP is that its members act
impartially in the enforcement of the law. The oath which
members take specifically requires that they perform their
duties "without fear, favour or affection of or toward
any person."
62 Until
1985, the Royal Canadian Mounted Police Act, R.S.C., 1985,
c. R-10, section 25, stated:
25.
Every member who
. .
.
(e) wears the emblem, marker or insignia of any political
party or in any way manifests political partisanship,
is
guilty of an offence, . . .
63 In
1985 the section 25 was repealed and replaced [as am. idem,
s. 16] by a "Code of Conduct" which provides,
in part, as follows [SOR/88-361]:
55.
A member, while in uniform, shall not, unless performing
a specific duty, attend a political meeting or take part
in any social or other activity which could create the impression
of partisanship toward any political party.
56. Subject to section 57, a member shall not wear or display
the emblem mark or insignia of any political party, or publicly
display political partisanship in any other matter.
64 The
RCMP Regulations [See Note 22 below] specifically provided
and still provide detailed directions with respect to the
wearing of certain medals and insignia and authorize the
Commissioner to prescribe rules respecting the subject generally.
The Manual created pursuant to the Commissioner's Standing
Orders contains the following provision:
--------------------------------------------------------------------------------
Note
22: SOR/88-361.
-------------------------------------------------------------------------------
K.1.e
When in uniform:
. .
.
3. you may wear only the following jewellery:
1. a
wrist watch, a medic-alert bracelet, a plain ring, an engagement
or wedding ring, ornamentation, e.g. a necklace and a watch
chain, a Kara and a Kirpan, not exceeding 8.75 cm in length.
NOTE:
A Kirpan and ornamentation, when worn, must not be visible.
The
underlined wording was added with the changes to the Manual
to provide for the wearing of turbans.
65 Professor
Manning, a sociologist who has written extensively on various
aspects of the police and its role in society, gave evidence
that the police uniform, in the eyes of the public, symbolizes
the state and its authoritative role as a regulator of society
through the enforcement of laws. He asserts that the police
symbolize morality as well. The police uniform by its very
uniformity helps to de-emphasize the personal characteristics
of officers. A uniform symbolizes equality and equal treatment
which is essential to the exercise of legitimate authority.
Professor Manning's evidence was that a citizen's perception
of unequal treatment can erode trust and police legitimacy.
Standing
66 The
defendants and the intervenors argue that the plaintiffs
do not have standing to pursue this litigation. None of
the plaintiffs have personally met either of the two turbaned
officers. Although some of the plaintiffs are retired RCMP
officers, none are currently members of the Force.
67 The
requirements for public interest standing have been developed
in a number of cases: Thorson v. Attorney General of Canada
et al., [1975] 1 S.C.R. 138; Nova Scotia Board of Censors
v. McNeil, [1976] 2 S.C.R. 265; Minister of Justice of Canada
et al. v. Borowski, [1981] 2 S.C.R. 575; Finlay v. Canada
(Minister of Finance), [1986] 2 S.C.R. 607. The most recent
decision in this regard is Canadian Council of Churches
v. Canada (Minister of Employment and Immigration), [1992]
1 S.C.R. 236. The three requirements for public interest
standing are that: (a) a serious issue be raised by the
litigation; (b) the plaintiff have either a direct interest
or a genuine interest as a citizen in the issue; (c) there
is no other reasonable and effective manner by which the
issue may be brought to court.
68 That
there is a serious issue raised by this litigation is evident
from the discussion of the issues which will follow. It
would be redundant to summarize them in detail here. In
general terms the issue which is raised is whether there
is a constitutionally protected right, a public right, that
our national police force be required when exercising the
powers of the state to do so without exhibiting at the same
time their allegiance to a particular religious group.
69 With
respect to the plaintiffs' interest in this issue, their
counsel is right when he argues that the litigation is unusual
in that it is the plaintiffs who are seeking to assert a
public right (the value of state institutions operating
free of religious identification) while the government is
asserting the private right (an individual's right to free
expression). More usually the government asserts rights
in the name of the public interest which individuals challenge
as being an infringement of their private rights. There
is a tradition of viewing government as the guardian of
the public interest. Although the plaintiffs assert that
the government is not acting in this fashion in this case,
it should be acknowledged that the classification of what
is a public interest and what is a private interest is fraught
with difficulty. It is not unusual to find that a claim
includes both. In this case, the defendants, while asserting
the private right of individuals to freedom of expression,
also assert that the policy change embodies a public interest,
that of having an effective and efficient police force.
70 In
my view, the plaintiffs have demonstrated an interest as
citizens at least equal to that demonstrated by Messrs.
Thorson, Borowski and McNeil in the litigation they pursued.
Their interest is also at least equal to that held by the
plaintiffs in Operation Dismantle Inc. et al. v. The Queen
et al., [1985] 1 S.C.R. 441, although standing in that case
was not discussed. I think this comparison alone is sufficient
to justify the conclusion that the plaintiffs have met the
requirement that they possess sufficient interest, as citizens,
in the subject-matter of the litigation.
71 The
plaintiffs have also, to the extent that it is a relevant
consideration, involved themselves in the subject-matter
of the litigation. In the Canadian Council of Churches case,
[See Note 23 below] that organization was said to have demonstrated
a real and continuing interest in the problems of refugees
and immigrants. The plaintiffs in this case have similarly
established a real and continuing interest in retaining
the religious neutrality of the RCMP uniform. They have
a personal interest as a result of past and present connection
with the Force. They have spent their time, money and effort,
first, to lobby members of Parliament concerning the change
and then to bring this litigation to court. In the so doing
they have received communications and funds from a cross-section
of people, including present members of the RCMP. I think
it is accurate to say that, in a way, they are representing
this cross-section of citizens when pursuing this litigation.
-------------------------------------------------------------------------------
Note
23: At p. 254.
--------------------------------------------------------------------------------
72 I
recognize the concerns, expressed in the Canadian Council
of Churches decision, that granting standing to public interest
groups may open the floodgates to litigation, much of it
perhaps trivial, which could potentially overburden available
judicial resources. I note however that there has been no
evidence of this occurring since the broadening of standing
by the decision in Thorson and subsequent cases. I have
some difficulty with the argument that granting standing
in a case such as the present could signal an opening of
the floodgates so that the courts will be overburdened and
scarce judicial resources inappropriately consumed. I would
think that the costs of litigation alone would prevent that
occurring, not to mention the psychological and emotional
stress and frustration which attend involvement in litigation.
For similar reasons, I find it hard to accept that a host
of trivial issues will be brought before the courts by public
interest groups. I note that private interest litigation
is not without its fair share of triviality at times. In
the absence of some evidence that the broadening of standing
which the Supreme Court has effected, has led or is leading
to the difficulties described, I am reluctant to place much
emphasis on those factors.
73 I
turn then to the arguments concerning whether or not another
reasonable and effective way of getting the issue to the
court exists. Counsel for the defendants argues that an
existing member of the RCMP might bring such litigation,
or that an aggrieved member of the public could take a complaint
to the RCMP Public Complaints Commission. [See Note 24 below]
I am not persuaded that either of these fits the category
of a "reasonable and effective" means. It is most
unlikely that a serving member of the RCMP would commence
an action, for the same reason that serving members provided
money to the plaintiffs on condition that they not be publicly
identified, the potential repercussion for their careers
which could arise as a result of challenging the Commissioner's
decision. While members of the public can pursue a complaint
before the Public Complaints Commission, if an officer acts
in a biased or improper manner, the issue that the plaintiffs
are raising is not of that nature. They are not alleging
that any actual bias or improper action has occurred. They
are alleging that a reasonable apprehension of bias will
exist. Mrs. Mansbridge gave oral evidence that she knew
the oath an RCMP constable is required to take requires
that the individual swear that he or she will execute his
or her duties without fear, favour or affection. The plaintiffs'
position is not directed to the personal integrity or professionalism
of the existing officers; it is of a more abstract or general
nature. They assert that once a religious symbol is allowed
as part of the uniform, the appearance of impartiality is
undermined. Even if this kind of complaint could properly
come within the jurisdiction of the Public Complaints Commission,
I am not convinced that that can lead to adjudication by
the courts. As I understand that legislation, the Commissioner,
together with the Minister, is the ultimate arbiter of those
complaints. [See Note 25 below]
--------------------------------------------------------------------------------
Note
24: Royal Canadian Mounted Police Act, R.S.C., 1985, c.
R-10, Part VI, as amended [as am. idem].
Note
25: See, Re Canada (Commissioner of the Royal Canadian Mounted
Police), [1994] 3 F.C. 562 (C.A.).
--------------------------------------------------------------------------------
74 Another
suggested avenue by which a challenge might arise, it is
said, is through a potential or existing member of the RCMP,
who wished to obtain accommodation for his or her religious
beliefs, and who was refused such accommodation. It is clear,
however, that this would not raise the issue which the plaintiffs
seek to have adjudicated. The would-be plaintiff in such
a case would not necessarily be seeking to challenge the
Commissioner's decision but would more likely be seeking
to broaden it.
75 The
one avenue of possible future challenge which I find most
plausible relates to the plaintiffs' arguments respecting
section 7 of the Charter. It is conceivable, for example,
that a Hindu or Muslin might raise an objection to turbaned
officers, by way of action for a declaration, in much the
same way the present case is framed, particularly, if that
person found himself or herself being policed by such officers
in a dispute with members of the Sikh community. On reflection,
I have concluded that this possibility does not undercut
the plaintiffs' right to bring the present action.
76 At
most the defendants' arguments are that a possibility exists
that an alternative action might be brought. In the Canadian
Council of Churches, the alternative litigation was not
a mere possibility or a matter of speculation about actions
which might arise. There was actual litigation (thousands
of cases) in the courts below. In order to meet the test
of a "reasonable and effective" alternative, I
think it is necessary to demonstrate more than a possibility
that such litigation might occur. I am of the view that
in the present case, the claim which is being asserted is
not one with respect to which there exists a reasonable
and effective alternative means to bring that issue before
the courts.
Freedom
of Religion
77 The
plaintiffs argue that the constitutional guarantee of freedom
of religion is breached when members of the public are forced
to interact with or confront police officers who are wearing,
as part of the uniform of the state, a religious symbol
which demonstrates the officer's allegiance to a religious
group different from that to which the particular member
of the public belongs. Paragraph 2(a) of the Canadian Charter
of Rights and Freedoms provides:
2.
Everyone has the following fundamental freedoms:
(a)
freedom of conscience and religion.
78 In
R. v. Big M Drug Mart Ltd et al., [1985] 1 S.C.R. 295, the
Supreme Court held that the purpose of the legislative provision
being challenged was critical in deciding whether that legislation
constituted an infringement of freedom of religion:
If
the legislation fails the purpose test, there is no need
to consider further its effects, since it has already been
demonstrated to be invalid. Thus, if a law with a valid
purpose interferes by its impact, with rights or freedoms,
a litigant could still argue the effects of the legislation
as a means to defeat its applicability and possibly its
validity. In short, the effects test will only be necessary
to defeat legislation with a valid purpose; effects can
never be relied upon to save legislation with an invalid
purpose. [See Note 26 below]
--------------------------------------------------------------------------------
Note
26: At p. 334.
--------------------------------------------------------------------------------
79 Counsel
for the plaintiffs argues that in the present case the religious
purpose of the amendment to the RCMP Regulations [See Note
27 below] and the Commissioner's Standing Orders is apparent
on their face: to exempt certain members of the RCMP from
the uniform requirements imposed upon all other members
on the basis of the member's religious beliefs. In addition,
it is argued that that exemption is for the advantage of
only one religious group, the Khalsa Sikhs. Counsel states
that the apparent neutrality of the amended Regulations
is belied by the history of the development of the policy
which preceded the amendment: the RCMP 1982 report; the
Commissioner's directive that the exemption only relate
to Sikhs; the process and form established by the RCMP to
claim exemption; the changes to the RCMP uniform which were
made so as to incorporate the Khalsa Sikh turban (by material,
colour, headband and badge) into the RCMP uniform. It is
argued that the amended regulation clearly has a religious
purpose, and one specific to one particular religious group,
and is therefore unconstitutional as contrary to paragraph
2(a) of the Charter.
--------------------------------------------------------------------------------
Note
27: SOR/90-182.
--------------------------------------------------------------------------------
80 I
do not interpret the cases cited as standing for the proposition
that all legislation with a religious purpose infringes
paragraph 2(a) of the Charter. In my view, it is necessary
to demonstrate that the religious purpose is such as to
either constrain an individual's chosen religious practices
or expression or to compel or coerce participation in religious
practices or observances which the individual would not
freely choose.
81 In
Big M Drug Mart, it was held that:
Freedom
can primarily be characterized by the absence of coercion
or constraint. If a person is compelled by the state or
the will of another to a course of action or inaction which
he would not otherwise have chosen, he is not acting of
his own volition and he cannot be said to be truly free.
One of the major purposes of the Charter is to protect,
within reason, from compulsion or restraint. Coercion not
only includes such blatant forms of compulsion as direct
commands to act or refrain from acting on pain of sanction,
coercion includes indirect forms of control which determine
or limit alternative courses of conduct available to others.
Freedom in a broad sense embraces both the absence of coercion
and constraint, and the right to manifest beliefs and practices.
Freedom means that, subject to such limitations as are necessary
to protect public safety, order, health, or morals or the
fundamental rights and freedoms of others, no one is to
be forced to act in a way contrary to his beliefs or his
conscience. [See Note 28 below] [Underlining added.]
--------------------------------------------------------------------------------
Note
28: At pp. 336-337.
--------------------------------------------------------------------------------
82 In
Zylberberg v. Sudbury Board of Education (Director) (1988),
65 O.R. (2d) 641 (C.A.), regulations requiring public schools
to open or close each day with religious exercises consisting
of scripture or other suitable readings and repeating the
Lord's prayer or other suitable prayers was held to violate
paragraph 2(a) of the Charter. This was so despite the fact
that a pupil or the pupil's parents could obtain exemption
for the pupil from these exercises. The Ontario Court of
Appeal held that despite the fact that a child might be
exempted:
. .
. the reality is that it [the requirement of scripture reading
and prayers] imposes on religious minorities a compulsion
to conform to the religious practices of the majority .
. . . The peer pressure and the class-room norms to which
children are acutely sensitive, in our opinion, are real
and pervasive and operate to compel members of religious
minorities to conform with majority religious practices.
. . .
[The regulation] also infringes freedom of conscience and
religion in a broader sense. The requirement that pupils
attend religious exercises, unless exempt, compels students
and parents to make a religious statement. [See Note 29
below]
--------------------------------------------------------------------------------
Note
29: At p. 655.
--------------------------------------------------------------------------------
83 Counsel
for the plaintiffs argues that the incorporation of religious
symbols into the uniform of the RCMP similarly imposes a
type of pressure or compulsion, on members of the public
who are compelled to deal with that officer, to acknowledge
the religious tradition of the officer in question.
84 I
have not been persuaded that the interaction of a member
of the public with a police officer who carries an identification
of his religious persuasion as part of his uniform, constitutes
an infringement of the former's freedom of religion. There
is no necessary religious content to the interaction between
the two individuals. In Big M Drug Mart the effect of the
legislation was to compel participation in the religious
observance of Sunday as a day of rest. In Zylberberg, again,
the Court found that the effect of the legislation, despite
an opportunity to exempt oneself, was to coerce participation
in religious exercises. This was particularly so, given
that one was dealing with young children who are sensitive
to peer group pressure. In the case of interaction between
a member of the public and a police officer wearing a turban,
I do not see any compulsion or coercion on the member of
the public to participate in, adopt or share the officer's
religious beliefs or practices. The only action demanded
from the member of the public is one of observation. That
person will be required to observe the officer's religious
affiliation. I cannot conclude that observation alone, even
in the context of a situation in which the police officer
is exercising his law enforcement powers, constitutes an
infringement of the freedom of religion of the observer.
85 I
was referred to the recent decision of Mr. Justice Muldoon
in O'Sullivan v. M.N.R., [1992] 1 F.C. 522 (T.D.). In that
decision Mr. Justice Muldoon discussed the significance
of the preamble of the Charter in which it is said that
"Canada is founded upon principles that recognize the
supremacy of God and the rule of law." The plaintiff
in the O'Sullivan case was asserting a right to deduct a
certain amount of money from his income tax because he did
not want his tax dollars to support abortions. Mr. Justice
Muldoon wrote of the preamble:
What
then is meant by this preamble? Obviously it is meant to
accord security to all believers in God, no matter what
their particular faith and no matter in what beastly manner
they behave to others. In assuring that security to believers,
this recognition of the supremacy of God means that, unless
or until the Constitution be amended--the best of the alternatives
imaginable-- Canada cannot become an officially atheistic
State. . . . [See Note 30 below]
--------------------------------------------------------------------------------
Note
30: At p. 536.
--------------------------------------------------------------------------------
. .
.
Thus, while the secular State is bound to defend, that is
to guarantee, everyone's freedom of conscience and religion,
it is not bound or even permitted, to promote every expression
or manifestation of conscience and religion, just as it
is not bound to promote every manifestation of freedom of
opinion and expression, some of which are defamatory. Indeed,
it is the constitutional entrenchment of these very disparate
freedoms which demonstrates the inherent secularity of the
Canadian State. The sorry story of human strife and savagery
in the name of God amply shows that the resolutely secular
state is the sure foundation of everyone's security, even
if it leaves something, or much, for sincere believers to
desire. [See Note 31 below] [Underlining added.]
--------------------------------------------------------------------------------
Note
31: At pp. 542-543.
--------------------------------------------------------------------------------
86 I
do not disagree with Mr. Justice Muldoon's comments but
preambular statements are interpretive guides. They are
not substantive provisions. I am not prepared to use the
preamble to interpret the freedom of religion guarantee
set out in paragraph 2(a) of the Charter in the way counsel
suggests because I have not been persuaded that there is
an ambiguity in that paragraph, in the context of this case,
which requires interpretive assistance from the preamble.
Fundamental
Justice
87 Section
7 of the Canadian Charter of Rights and Freedoms states:
7.
Everyone has the right to life, liberty and security of
the person and the right not to be deprived thereof except
in accordance with the principles of fundamental justice.
88 There
is no doubt that many of the activities in which police
officers engage fall within the purview of section 7. For
example, in Thomson Newspapers Ltd. v. Canada (Director
of Investigation and Research, Restrictive Trade Practices
Commission), [1990] 1 S.C.R. 425, compelling individuals
to be interviewed (under oath) and seizing records for the
purposes of investigation were reviewed in the light of
section 7. In Canada (Attorney-General) v. Sander (1992),
96 D.L.R. (4th) 85 (B.C.S.C.), seizing business records
pursuant to warrants for investigatory purposes was reviewed.
Also, the concept of fundamental justice carries with it
the requirement that decisions are to be taken by a decision-maker
free of any indicia which can lead to the raising of a reasonable
apprehension of bias (except of course in cases where the
doctrine of necessity applies). This requirement is one
of the cardinal principles of natural justice. The decisions
in this regard are legion. It is also clear from the decision
in Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486 that "fundamental
justice" includes elements of substantive and not merely
procedural fairness. It is a broader concept than "natural
justice."
89 Counsel
for the plaintiffs argues that the police, being the arm
of the state which is primarily responsible for law enforcement
and which operates in a discretionary and quasi-judicial
manner, is concerned on a continuing basis with matters
relating to the life, liberty and security of the person.
In addition, in the performance of those functions, particularly
in exercising powers of investigation, arrest and prosecution,
it is argued that the police must exercise their powers
in accordance with the principles of fundamental justice
and these include the requirement that such powers be exercised
in a context free of any reasonable apprehension of bias.
90 Counsel
links this analysis of section 7 to what he asserts is a
constitutional convention that our police forces operate
in a neutral fashion, free from all indications of political
or religious allegiance. He alleges that a constitutional
convention central to our system of government requires
that police officers of the state not only act in an impartial
manner but exhibit an appearance of impartiality when exercising
law enforcement powers. Reference is made to the decisions
in Osborne v. Canada (Treasury Board), [1991] 2 S.C.R. 69
and Fraser v. Public Service Staff Relations Board, [1985]
2 S.C.R. 455. Both those cases deal with the convention
that members of the Public Service are expected to act in
as politically neutral a way as possible and to exhibit
the appearance of neutrality. On that basis, certain limitations
are placed on their freedom of expression and their right
to participate in political activities. In the Fraser case,
Chief Justice Dickson referred to "the public interest
in both the actual, and apparent, impartiality of the public
service." [See Note 32 below] And in Osborne, Mr. Justice
Sopinka referred to "[t]he existence of a convention
of political neutrality, central to the principle of responsible
government." [See Note 33 below]
--------------------------------------------------------------------------------
Note
32: At p. 470.
Note 33: At p. 86.
--------------------------------------------------------------------------------
91 I
accept that the evidence in the present case establishes
that a convention of neutrality exists with respect to police
forces in this country and that this includes the expectation
that their dress will not manifest political or religious
allegiances. As Dr. McLeod testified such a principle has
been honoured in practice although it has not been the subject
of much written commentary or debate. I do not think however
that this assists the plaintiffs' case. Conventions are
not legally enforceable. [See Note 34 below] Conventions
by definition are flexible and change over time. The convention
under discussion in the Osborne and Fraser cases obtained
legal force from its embodiment in a statute, [See Note
35 below] not from its status as a convention. A convention
is not a constitutional guarantee.
--------------------------------------------------------------------------------
Note
34: Re Resolution to amend the Constitution, [1981] 1 S.C.R.
753; Hogg, Constitutional Law of Canada (1992), at pp. 17-18.
Note
35: S. 33 [Public Service Employment Act, R.S.C., 1985,
c. P-33].
-------------------------------------------------------------------------------
92 A
more significant difficulty with the plaintiffs' section
7 argument however is that the evidence which has been led
to support it can only be described as being quite speculative
and vague. There is no evidence that any person has been
"deprived" of his or her "liberty or security"
by either of the two RCMP officers wearing turbans. There
is no evidence that any person has experienced a reasonable
apprehension of bias in the context of such deprivation.
There is no evidence, for example by a Hindu or Muslim that
that individual would entertain a reasonable apprehension
of bias if deprivation occurred. Mrs. Mansbridge's evidence
went no further than to say that turbaned officers "could
appear" not to be neutral to herself and other Canadians
who are not used to religious symbols being part of a police
uniform. At the same time, I understood her evidence to
be that she really would not fear bias from such officers.
93 There
is no evidence concerning what duties are being given to
the turbaned officers. It is possible that the duties are
such that they are not placed in situations where the concerns
which the plaintiffs describe could arise (perhaps the officers
operate solely in a plain clothes capacity or perform functions
where there are no direct interactions with members of the
public). The plaintiffs' evidence has all been theoretical
and speculative. The assertion that a visible manifestation
of a Sikh officer's religious faith, as part of his uniform,
will create a reasonable apprehension of bias is not based
upon any actual concrete evidence. The plaintiffs speculate
that this could occur. One can equally speculate that it
will not. One can speculate that the tensions between Sikhs
and others, at other times and on other continents, simply
do not pertain in Canada. It may very well be that most
Canadians are like Deputy Commissioner Moffat and do not
interpret the turban as a religious symbol or they may see
it as benign or as an indication of integrity and strength.
I am not prepared to make a finding that section 7 has been
or will be infringed on the basis of the evidence before
me.
94 The
analysis which is to be undertaken when applying section
7 is set out by Mr. Justice La Forest in R. v. Beare; R.
v. Higgins, [1988] 2 S.C.R. 387, at page 401:
To
trigger its operation there must first be a finding that
there has been a deprivation of the right to "life,
liberty and security of the person" and, secondly,
that that deprivation is contrary to the principles of fundamental
justice. Like other provisions of the Charter, s. 7 must
be construed in light of the interests it was meant to protect.
It should be given a generous interpretation, but it is
important not to overshoot the actual purpose of the right
in question. . . . [Underlining added.]
95 The
first requirement has not been met. There is no evidence
of any state intrusion into the life, liberty or security
of the plaintiffs or of any person whom they represent.
Discrimination
96 I
turn then to the argument that the amended regulation and
the Commissioner's Standing Orders are discriminatory. Section
15 of the Charter states:
15.
(1) Every individual is equal before and under the law and
has the right to the equal protection and equal benefit
of the law without discrimination and, in particular, without
discrimination based on race, national or ethnic origin,
colour, religion, sex, age or mental or physical disability.
97 Similar
difficulties exist with the plaintiffs' arguments concerning
section 15 as exist with those based on section 7. Indeed
counsel for the plaintiffs did not vigorously pursue his
argument under this heading.
98 The
plaintiffs' argument is that the Regulations and Commissioner's
Standing Orders are discriminatory because they allow Khalsa
Sikhs to display their religious symbols but deny this to
all other groups. Mrs. Mansbridge's evidence was that the
Regulations and Orders were discriminatory because her family
members were prohibited from wearing their religious symbols.
At the same time, no witness has been called who claimed
an exemption on religious or other similar ground and who
had been refused. Not only is there no concrete instance
of discrimination before me but the agreed statement of
fact states that the RCMP would consider any request for
exemption on religious grounds on a basis similar to that
on which the Khalsa Sikh's request to wear the turban was
granted.
99 Counsel
seeks support for his argument under section 15 by reference
to the decisions in Reference Re Bill 30, An Act to amend
the Education Act (Ont.), [1987] 1 S.C.R. 1148 and R. v.
Edwards Books and Art Ltd., [1986] 2 S.C.R. 713. In the
Education Act (Ont.) case it was held that legislation which
extended public funding for Roman Catholic schools from
grade ten to grade twelve was constitutionally valid. This
was so because there is an express constitutional provision
(section 93 of the Constitution Act, 1867) which prescribed
special treatment for separate or dissentient schools. The
majority decision also seemed to say that section 29 of
the Charter, [See Note 36 below] which expressly preserves
denominational school rights, was not required to preserve
the validity of the amendment to the Education Act [R.S.O.
1980, c. 129] (Ontario) because of the express provision
in section 93. At the same time the Supreme Court held that
in the absence of such an express provision the providing
of funding to denominational schools would not sit well
with section 15 of the Charter. The majority judgment reads
in part, at pages 1197-1198:
This
does not mean, however, that such rights or privileges [conferred
by post-Confederation legislation under Section 93(3) of
the Constitution Act, 1867] are vulnerable to attack under
ss. 2(a) and 15 of the Charter. I have indicated that the
rights or privileges protected by s. 93(1) are immune from
Charter review under s. 29 of the Charter. I think this
is clear. What is less clear is whether s. 29 of the Charter
was required in order to achieve that result. In my view,
it was not. I believe it was put there simply to emphasize
that the special treatment guaranteed by the constitution
to denominational, separate or dissentient schools even
if it sits uncomfortably with the concept of equality embodied
in the Charter because not available to other schools, is
nevertheless not impaired by the Charter. It was never intended,
in my opinion, that the Charter could be used to invalidate
other provisions of the Constitution, particularly such
a provision as s. 93 which represented a fundamental part
of the Confederation compromise. Section 29, in my view,
is present in the Charter only for greater certainty, at
least in so far as the Province of Ontario is concerned.
[Underlining added.]
--------------------------------------------------------------------------------
Note
36: Nothing in this Charter abrogates or derogates from
any rights or privileges guaranteed by or under the Constitution
of Canada in respect of denominational, separate or dissentient
schools.
-------------------------------------------------------------------------------
100
The decision of Estey J. (Beetz J. concurring) concurred
in the result stating at page 1206:
It
is axiomatic (and many counsel before this Court conceded
the point) that if the Charter has any application to Bill
30, this Bill would be found discriminatory and in violation
of s. 2(a) and s. 15 of the Charter of Rights.
101
In R. v. Edwards Books, the question raised was whether
a Saturday exemption to a general Sunday closing requirement
might not offend section 15 of the Charter in so far as
Muslims were concerned. Their weekly day of religious observance
is Friday. Mr. Justice La Forest, at pages 804-805 noted:
Indeed,
the more serious long-term question may be whether an exemption
restricted to Saturday can meet the demands of the equality
provision, s. 15, rather than whether the Act is valid without
that exemption. . . . Section 15, however, was not in force
at the time the offences charged here took place and I need
not enter further into the matter.
102
The plaintiffs rely on the statements in these cases which
indicate that, in the absence of an express constitutional
provision to the contrary, state funding for the schools
of one religious group would contravene section 15 of the
Charter and that, had section 15 been in force at the time
the Edwards case was commenced, it is possible that legislation
which provided for weekly closing days on Saturday and Sunday,
being focused on Jewish and Christian practices, would contravene
section 15 of the Charter because it did not take account
of the religious practices of other groups. The argument
is that state recognition of one religious group as opposed
to others is discriminatory.
103
I accept, of course, the comments in the two decisions cited.
At the same time, I am still of the view that they were
predicated on an assumption that concrete evidence would
be brought forward to prove the discrimination which was
alleged. It is only in such circumstance that the challenged
legislation will fall for infringing section 15 rights.
In my view, in order to prove discrimination, there has
to be some evidence that equal concessions had been requested
and denied and that there was an equality of position with
respect to the individual granted an exemption and those
who were not. In the case of legislation which prescribes
a weekly closing day, a member of a religious group that
does not set aside any particular day of the week for religious
observances could hardly be said to be discriminated against
because the legislation did not allow for his or her preference.
Similarly, it may be that no other religious groups beside
the Sikhs place religious importance on the wearing of a
particular kind of apparel. In that event it would be hard
to conclude that the special privilege being given to those
wearing the Sikh turban was discriminatory. In conclusion,
on the basis of the evidence which has been put before me
I have not been convinced that I can conclude that the Commissioner's
Standing Orders offend section 15 of the Charter.
104
The defendants and the intervenors, particularly the able
argument of Ms. Chotalia for the Alberta Civil Liberties
Association, turn the plaintiffs' argument respecting discrimination
on its head. They argue that the Commissioner's decision
was designed to prevent discrimination occurring to Khalsa
Sikhs. As such they argue that that decision offends none
of the provisions of the Charter, indeed that it is required
by section 15 of the Charter.
105
The law with respect to the requirements of section 15 is
well known and, since counsel argued before me, the Supreme
Court has dealt with this area of the law again in Commission
scolaire régionale de Chambly v. Bergevin, [1994]
S.C.J. No. 57 (QL). [See Note 37 below] In summary, under
both the Canadian Human Rights Act [See Note 38 below] and
under section 15 of the Charter, rules of general application
which have an adverse effect on an individual because of
characteristics which fall within prohibited grounds of
discrimination will be held to result in "adverse effect
discrimination." In Andrews v. Law Society of British
Columbia, [1989] 1 S.C.R. 143, at page 164 it was said:
--------------------------------------------------------------------------------
Note
37: De minimus test has been discounted.
Note 38: R.S.C., 1985, c. H-6.
--------------------------------------------------------------------------------
The
concept of equality has long been a feature of Western thought.
As embodied in s. 15(1) of the Charter, it is an elusive
concept and, more than any of the other rights and freedoms
guaranteed in the Charter, it lacks precise definition.
. .
.
It is a comparative concept. . . . It must be recognized
at once, however, that every difference in treatment between
individuals under the law will not necessarily result in
inequality and, as well, that identical treatment may frequently
produce serious inequality. This proposition has found frequent
expression in the literature . . . but . . . nowhere more
aptly than in the well-known words of Frankfurter J. in
Dennis v. United States, 339 U.S. 162 (1950), at p. 184:
It
was a wise man who said that there is no greater inequality
than the equal treatment of unequals.
106
When adverse effect discrimination exists, employers are
required to accommodate employees so as to alleviate the
effect. The present case is a perfect example of what has
now become a trite observation: accommodation for the purpose
of ensuing the equal treatment of unequals, by its very
nature, involves, in turn, the unequal treatment of individuals.
107
What is considered to be a reasonable accommodation required
from an employer depends on a number of factors. Some examples
of the kinds of factors have been identified in the jurisprudence
are: the economic consequences for the employer; the size
of the employer's organization; the magnitude of any safety
risks and who would bear the costs of the injury that might
arise; the degree of interference with the operation of
the employer's business including problems of morale that
might result from a prospective accommodation measure and
the interchangeability of work force and facilities available
to an employer. It is argued that the Commissioner in this
case recognized that he would be required to accommodate
the Sikh turban and that is what he did.
108
I am not entirely convinced that the Commissioner's decision
was driven by a conviction that he was required to make
the accommodations he did by reasons of the Canadian Human
Rights Act or the Charter. While this was his motivation
at one time (e.g., in the 1984-1986 period) the crucial
factor in 1987-1988, when the decision was actually made,
seems to have been to encourage the recruitment of visible
minorities into the force. Nevertheless, I am willing to
accept that the desire to meet the Canadian Human Rights
Act and Charter standards could have been one of the Commissioner's
objectives and that it was a laudable one.
109
In the context of this case, however, I am not prepared
to make a finding that if the Commissioner had not acted
as he did, he would have been in breach of the Charter.
That is not the focus of this litigation and I am not convinced
that the evidence which has been adduced allows me to reach
that conclusion. That issue has not been the subject of
an adversarial proceeding. In addition, it would be necessary
to decide what accommodation would be appropriate and indeed
whether such required the changes to the uniform which were
made. The focus of this litigation has not been whether
the Commissioner was required to make the changes he did,
it is whether there is any constitutional obligation preventing
him from doing so. Thus, as I have already indicated, I
am not prepared to find that, had the Commissioner not acted
as he did, he would have been in breach of the Charter.
Multiculturalism
110
Several arguments were made concerning section 27 of the
Charter:
27.
This Charter shall be interpreted in a manner consistent
with the preservation and enhancement of the multicultural
heritage of Canadians.
111
This is an interpretive provision and since I have not found
any ambiguity in the relevant provisions of the Charter,
I do not need to rely upon it. I note however that I do
not find it particularly useful in this case. In my view
there are equally balanced arguments on both sides. Counsel
for the defendants argues that multicultural concerns underpin
the Commissioner's decision because Khalsa Sikhs are accommodated
into the RCMP without having to give up elements of their
faith which are important to them. Also, the image of the
force as a multicultural one is enhanced and it has an increased
capacity to respond to problems which might arise within
the Sikh community. Counsel for the plaintiffs argues that,
in so far as the police are concerned, in a multicultural
society the religious and cultural values of each is best
preserved when the pivotal institutions of the state remain
religiously neutral. The police are included as one of the
pivotal institutions which should be governed by that precept.
I find both these arguments to be convincing. I would not
find section 27 to be particularly helpful in this case,
if I had found it necessary to resort to it.
Demonstrably
Justified in a Free and Democratic Society
112
Since I have concluded that there is no constitutional impediment
to the Commissioner acting as he did, it is not necessary
for me to deal with the argument that had such existed the
Commissioner's actions would nevertheless be justified under
section 1 of the Charter.
Costs
113
Counsel for the plaintiffs, at the end of the proceedings,
asked that costs not be awarded against his clients. The
litigation which they have brought is public interest litigation
and they have very limited resources of their own. Funds
were of course solicited and obtained from a large number
of members of the public. Counsel for the plaintiffs asserts
that this, however, has already been spent.
114
There is of course no evidence before me concerning the
amount which has been used or the potential for further
public funding. On reflection, I have decided that I will
not make an order respecting costs until after any evidence
the parties may wish to submit in this regard has been adduced
and there has been full argument (in writing if the parties
wish), concerning the applicable rules of law, including
the relevant jurisprudence. It is only the parties who are
covered by this request. No costs would be awarded to the
intervenors in any event since they joined the litigation
voluntarily.
115
It may be that the parties will be able to settle the question
of costs between themselves. If so, they should seek a consent
order in this regard. If settlement is not possible then
counsel should notify the Registrar as to when and in what
manner they wish to make representations.
Conclusion
116
There is much evidence which shows that there is a strong
public interest in having a police uniform which is devoid
of any symbolism which identifies the allegiance of the
officer to a particular religious group. There is evidence
that the alleged religious requirement that Sikhs wear a
turban is not as categorical as some assert. Indeed the
application form which a Sikh member must sign on joining
the RCMP, requires that officer to wear other headgear.
The Commissioner based his decision to allow the turban
to be worn as part of RCMP uniform on his understanding
that not to allow such would discriminate against Sikhs
and, in any event, the wearing of the turban would operate
as a demonstration and an acceptance of the present day
multicultural nature of Canada. These are laudable objectives.
The only question for the Court however is whether there
is a constitutional barrier to the Commissioner acting as
he has done. On the basis of the jurisprudence as it exists
and the particular evidence which was put before me, I cannot
find such a barrier. The plaintiffs' claim will accordingly
be dismissed.
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