September 23, 2014 | By David Dias (canadianlawyermag.com)
The Canadian Sikh Association says it will consider whatever legal options remain, if lobbying efforts fail to reverse a decision by Ontario last week to reject a motorcycle helmet exemption for devout Sikhs.
In a letter dated Aug. 14 and sent to the CSA, Premier Kathleen Wynne sums up the province’s decision:
“After careful deliberation, we have determined that we will not grant this type of exemption as it would pose a road safety risk. Ultimately, the safety of Ontarians is my utmost priority, and I cannot justify setting that concern aside on this issue.”
Manohar Singh Bal, the CSA’s secretary, says he was dismayed by the decision, particularly given the years of work and promises made by the Liberal Party that it would work with the community to resolve the issue.
“Last year, when we met with the minister of transportation,” says Bal, “he himself suggested that he had two bills ready in his drawer.” One bill would offer a general exemption to Sikhs; another would provide an exemption for all roads except 400-series highways.
Bal says the organization would have been comfortable with such a compromise, but was told, given the Liberal party’s minority position, they would also need the support of the New Democrats and the Conservatives.
Now Bal says the province has flip-flopped — despite being handed a majority government and having received support for the exemption, in writing, from the other political parties.
In Ontario, the helmet law as it applies to Sikhs was first challenged in 2008, when the Ontario Human Rights Commission took up the cause of Baljinder Badesha, who was fighting a $110 ticket he received a few years prior for refusing to wear his motorcycle helmet.
Scott Hutchison, a constitutional lawyer at Henein Hutchison LLP, represented the OHRC in that case, arguing reasonable accommodation is justified for Sikh motorcyclists, given that observant Sikhs would otherwise be unable to access a standard mode of transportation.
Ontario Court Justice James Blacklock, however, ruled against Badesha and the OHRC, issuing a 35-page decision. In it, he writes an exemption would render the helmet law unwieldy, since anyone violating it could simply claim they were devout.
“The officer wouldn’t know if he was dealing with a devout Sikh or not, unless he took the word of the accused.”
The original challenge brought by the Ontario Human Rights Commission in 2008 sought an accommodation exemption based on the province’s Human Rights Code. A subsequent appeal of the decision to the Ontario Superior Court in 2011 upped the ante, focusing on Charter rights violations. In the end, Justice John Takach found no error in the lower-court ruling.
In Wynne’s letter to the Canadian Sikh Association, she was quick to bolster the legality of her decision by referencing the previous rulings:
“As you know, the issue of balance between religious accommodation and public safety has been considered by the courts in Ontario which, on this issue, have found that Ontario’s mandatory helmet law does not infringe on the Charter of Rights and Freedoms, nor the Ontario Human Rights Code.”
But exemptions to the helmet law already exist in British Columbia, Manitoba. and the U.K., so there’s some question as to whether the province’s decision will stand up to political pressure.
Hutchison believes the issue will be litigated if it can’t be resolved at a political level. Reasonable accommodation, he says, is based on the idea that if you can, without undue hardship, allow somebody to have an exemption from the general rule, then you are normally expected to do that.
“Keep in mind that all of the things that are being said about why it’s so important that we deny this exemption were said 25 years ago — that you couldn’t be a Mountie and wear a turban, or you couldn’t be a construction worker and wear a turban.”
He says a Sikh helmet exemption poses a minimal risk.
“Listen, there’s a compelling argument to be made that nobody should be allowed to ride motorcycles at all,” says Hutchison. “Or nobody should smoke cigarettes. Or any number of things that are dangerous activities that are engaged in by a relatively small group of people. You could make that argument, but that’s not really the way we’ve decided to organize ourselves as a society.”
Still, Hutchison says a political solution would be preferable to some kind of new appeal.
“Pursuing it in the courts is an expensive and time-consuming way of advancing public policy,” says Hutchison.
It’s a sentiment shared by Bal at the CSA: “Maybe one of the political parties will introduce a private member’s bill. That would be one possibility,” he says.
“If we see light at the end of the tunnel, we will continue to pursue that. Failing that, we will have to look at legal options. . . . We will simply challenge the law as they have done in British Columbia.”
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