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Canadian Judicial Opinions Regarding the Sikh Religious Identity

Ontario Human Rights Commission
and Harbhajan Singh Pandori v. Peel Board of Education*

Indexed as: Peel Board of Education v. Ontario Human Rights
Commission
(Div. Ct.)

3 O.R. (3d) 531
[1991] O.J. No. 639
Action No. 793/90

Ontario Court (General Division), Divisional Court
Campbell, Austin and McKeown JJ.

April 2, 1991 **

* Application for leave to appeal to the Court of Appeal dismissed with costs to the Ontario Human Rights Commission, August 12, 1991 (Finlayson, Carthy and Arbour JJ.A.).

** Released April 26, 1992.

Human rights — Discrimination — Religion — Policy of school board prohibiting wearing of Sikh ceremonial dagger on school property discriminating against Sikhs — Such policy not reasonable in light of absence of any evidence of safety risk.

A complaint was filed with the Ontario Human Rights Commission about a policy adopted by the respondent school board prohibiting the wearing of the kirpan, the Sikh ceremonial dagger, on school property. The Board of Inquiry determined that the policy was contrary to s. 10 of the Human Rights Code, 1981. The Board of Inquiry found that the policy discriminated against Sikhs, that it was enacted in good faith, but that it was not reasonable in the circumstances as there had never been an incident of kirpan-related violence in any school system in Canada. Alternatively, the Board of Inquiry found that if the policy was a reasonable one, the school board could accommodate the use of kirpans without hardship. It was ordered that the policy be withdrawn and that Sikhs be permitted to wear a kirpan to school subject to certain safety restrictions and limitations. The school board appealed.

Held, the appeal should be dismissed.

There is no reason to give a restricted application of the Code to schools.

The onus of proof on the question of reasonableness was on the school board. That the Board of Inquiry was alive to the genuine concerns of the school board about safety was reflected in the many safeguards built into the order. The Board of Inquiry carefully addressed itself to the proportionality between the objective of safety in the schools and the requirements of freedom of religion. In the absence of any concrete evidence of safety risk, it could not be said that the Board of Inquiry committed any error in law or in principle.

Cases referred to

Hothi and R. (Re) (1985), 14 C.R.R. 85, 18 C.C.C. (3d) 31 sub nom. Re Singh and R., 33 Man. R. (2d) 180, [1985] 3 W.W.R. 256 (Q.B.), affd (1985), 35 Man. R. (2d) 159, [1986] 3 W.W.R. 671 (C.A.), leave to appeal to S.C.C. refused (1986), 43 Man. R. (2d) 240n, 70 N.R. 397n; Peel Board of Education v. Ontario Human Rights Commission (1990), 72 O.R. (2d) 593, 38 O.A.C. 144 (Div. Ct.)

Statutes referred to

Human Rights Code, 1981, S.O. 1981, c. 53, Part I, "Freedom from Discrimination", ss. 1 [am. 1986, c. 64, s. 18(1)], 4(1) [am. 1986, c. 64, s. 18(5)], 8, 10 [rep. & sub. 1986, c. 64, s. 18(8)], 10(1), (1)(a), (2)

APPEAL from a decision of a Board of Inquiry under the Human Rights Code, 1981 upholding a complaint of discrimination against a school board.

Marilyn Y. Ginsburg and Anthony D. Griffin, for Ontario Human Rights Commission, complainant (respondent in appeal).

Harbhajan Singh Pandori, appearing in person.

Robert G. Keel, for respondent (appellant in appeal).

The judgment of the court was delivered by

--------------------------------------------------------------------------------

CAMPBELL J. (orally):—This appeal from a Board of Inquiry under the Ontario Human Rights Commission raises the issue whether the Peel Board of Education (the board) may prohibit Khalsa Sikhs from wearing in schools the metal-bladed kirpan or ceremonial dagger required by their religion.

The board developed a no-weapons policy after a number of knife incidents and a concern about increasing use of knives and violence in the Peel schools. The school board took the view that the presence of a kirpan, because it can be used as a weapon and is perceived by non-Sikhs as a weapon and not as a religious symbol, can create an added danger in a volatile environment. The no-weapons policy included kirpans. That policy was supported, on the grounds of safety concerns, by the Ontario Secondary School Teachers' Federation.

The Peel board tried without success to find a compromise to let the students wear, as do some Sikh members of the police force in London, England, a small symbolic replica instead of a real kirpan with a metal blade. For religious reasons this proposed compromise was not acceptable to the affected individuals and their families. Another compromise was explored, the stitching of the kirpan into its sheath to prevent its removal, but this was also rejected as religiously unacceptable.

There have been, in the Metropolitan Toronto area, three reported incidents of violent kirpan use. One involved a plea of guilty to attempted murder after a stabbing with a kirpan. In one street fight, a man was stabbed in the back with a kirpan. In one case, a kirpan was drawn for defensive purposes.

None of these incidents was associated with any school. The only incident associated with a school was when a 10-year-old Sikh boy, walking home from school, was assaulted by two older boys. He put his hand on the handle of his kirpan before stepping back and running away, without drawing the kirpan from its sheath.

There is no evidence that a kirpan has ever been drawn or used as a weapon in any school under the board's jurisdiction.

Kirpans are prohibited on Canadian air plane flights. The Manitoba courts have held that a judge has authority to exclude kirpans from a courtroom: Re Hothi and R. (1985), 33 Man. R. (2d) 180, [1985] 3 W.W.R. 256 (Q.B.), affd (1985), 35 Man. R. (2d) 159, [1986] 3 W.W.R. 671 (C.A.); leave to appeal to S.C.C. refused (1986), 43 Man. R. (2d) 240n, 70 N.R. 397n.

Sikhs may wear kirpans in schools in Surrey, British Columbia. Although no other Ontario school board has expressly addressed the issue with the same depth as the Peel board, students may wear kirpans in the North York Board of Education and the Etobicoke Board of Education (which has a limit of six inches in size). No school boards in the Metropolitan Toronto area have a policy prohibiting or restricting kirpans. There is no evidence that kirpans have sparked a violent incident in any school, no evidence that any other school board in Canada bans kirpans, and no evidence of a student anywhere in Canada using a kirpan as a weapon.

The Board of Inquiry under Human Rights Code, 1981, S.O. 1981, c. 53, after hearing extensive evidence, determined that the Peel Board of Education policy prohibiting the wearing of a kirpan by teachers or students in classrooms or on the property of the board was contrary to s. 10 [rep. & sub. 1986, c. 64, s. 18(8)] of the Human Rights Code. It was ordered by the chair of the Board of Inquiry, W. Gunther Plaut, that the policy be withdrawn and that Khalsa Sikhs, be they students, staffs or teachers, be entitled to wear a kirpan to school subject to a number of safety restrictions and limitations set out in the order of the Board of Inquiry.

The relevant provisions of the Code are as follows:

1. Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or handicap.

. . . .
4.(1) Every person has a right to equal treatment with respect to employment without discrimination because of ... creed ...

. . . .
8. No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part (i.e., Part I, entitled "Freedom from Discrimination")

. . . .
10.(1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,

(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances ...

. . . .
(2) The Commission, a board of inquiry or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

The Board of Inquiry put the issue as a clash between the right to religious freedom and the school's duty to preserve safety:

In reaching my conclusion I have constantly kept in mind that we have here a clash of two rights: the religious freedom of Khalsa Sikhs and the right of the Peel Board to establish disciplinary boundaries and to maximize safety in its realm. Put another way, the school must preserve discipline and maximize the safety of students and staff. At the same time it must zealously guard and maintain religious freedom.

The Board of Inquiry concluded that the policy discriminated against Khalsa Sikhs, that the policy was enacted in good faith but was not reasonable in the circumstances, that no incident of kirpan-related violence had ever happened in any school system, that the evidence was incapable of proving that more than a vague risk exists when kirpans are admitted into the school system, and alternatively, if the policy was a reasonable one, the board could accommodate the use of kirpans without undue hardship.

The Board of Inquiry ordered that students, staff and teachers were entitled to wear their kirpans to school so long as they were of reasonable size, worn under the wearer's clothing and not visible, and that they be sufficiently secured so that removal would be rendered difficult. It was made part of the order that principals have the right to ensure that the limitations were being observed, were able to modify the requirements when advisable, suspend the right to wear the kirpan if it was misused by the wearer, and that temporary restrictions if reasonable could be imposed if there was a need for special measures having regard to the level of violence in a particular school.

The Peel school board appeals on the grounds that:

(1) Schools are "special places" and the application of the Human Rights Code, 1981 must be interpreted in light of the special setting of the schools.

(2) The board's policy is reasonable in the circumstances.

(3) The board would suffer undue hardship if deprived of its policy.

Issue 1: Special Places

The application of the Human Rights Code, 1981 to schools and educational services was made clear on a preliminary motion in this case: Peel Board of Education v. Ontario Human Rights Commission (1990), 72 O.R. (2d) 593, 38 O.A.C. 144 (Div. Ct.).

There is no reason to give a restricted application of the Code to schools. The Board of Inquiry addressed itself to the particular concerns that arise in a school environment, as it has a duty to do with the particular concerns that arise in any environment that comes within the reach of the Human Rights Code, 1981.

Issue II: Reasonableness

The onus of proof on the question of reasonableness was on the Peel board and the Board of Inquiry dealt with the evidence exhaustively and took the view that the three incidents of violence in the community involving kirpans did not translate into concrete evidence of risk in the school setting. We can see no error in principle in the way it applied its judgment to the facts of this case, particularly in light of the lack of any incident of kirpan-related violence in any school system.

That the Board of Inquiry was alive to the genuine concerns of the board about safety and the reasons for its policy, is reflected in the many safeguards the chair built into his order to meet the concerns of the board, including the power of the school authorities to intervene in the case of actual or threatened misuse of kirpans and the power of the school authorities to add restrictions if a climate of increasing violence should develop.

The Board of Inquiry carefully addressed itself to the proportionality between the objective of safety in the schools and the requirements of freedom of religion.

In the absence of any concrete evidence of safety risk, and having regard to the safety features built into the order by the Board of Inquiry, we are not satisfied that there was any error in principle on this issue.

Issue III: Undue Hardship

The onus was on the board under s. 10(2) of the Code to show that it could not accommodate the needs of Khalsa Sikhs without undue hardship. Although we do not necessarily agree with all the observations of the Board of Inquiry in respect of the role of teaching assistants, we are not satisfied there was error in respect of this issue having regard to the question of the magnitude of the risk. The Board of Inquiry, in any event, dealt with hardship as an alternative conclusion only and nothing in its conclusions on undue hardship controlled the decision under appeal.

Conclusion

In conclusion, there was ample evidence to support all the findings of fact of the Board of Inquiry. There was no error in law in its interpretation of the Human Rights Code, 1981 and no error in principle in the application of the Code to the facts of this case.

In spite of Mr. Keel's able argument the appeal is dismissed.

It is agreed by all counsel, and by Mr. Pandori who appears in person, that it is reasonable that the implementation of the order should not take place before the end of the school year and it is so ordered.

It is agreed that costs should be fixed against the Peel school board in favour of the Commission in the amount of $3,000.

Peel Board of Education v. Pandori

IN THE MATTER OF The Ontario Human Rights Code, 1981, as amended;
AND IN THE MATTER OF the Complaint dated June 21, 1988, made by Harbhajan Singh Pandori alleging discrimination with respect to employment because of creed by The Peel Board of Education;
AND IN THE MATTER OF the Complaint dated December 21, 1988,
made by the Ontario Human Rights Commission alleging discrimination with respect to services and facilities because of creed by The Peel Board of Education

Between
Harbhajan Singh Pandori and Ontario Human Rights Commission,
complainants (respondents in appeal) (respondents on motion for leave to appeal), and
The Peel Board of Education, respondent (appellant in appeal)
(applicant on motion for leave to appeal)

[1991] O.J. No. 3200
Court File NO. A49/91

Ontario Court of Appeal
Toronto, Ontario
Finlayson, Carthy and Arbour JJ.A.

August 12, 1991.
(2 pp.)

Counsel:

Anthony D. Griffin for the Ontario Human Rights Commission.
Robert G. Keel for the respondent (appellant in appeal) (applicant on motion for leave to appeal).

The judgment of the Court was delivered by

1 FINLAYSON J.A. (endorsement):— Application for leave dismissed with costs to the Ontario Human Rights Commission.

FINLAYSON J.A.

QL Update: 970321
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