Safety trumps turban, Quebec court rules
Sikhs to appeal on grounds of relative danger
The port of Montreal requires hard hats for all workers on its property. Three Sikh truck drivers who perform regular pickups at the port have a religious conviction that forbids them putting anything on their heads except a five- to six- metre length of wrapped cotton.
Last week, the Quebec Superior Court sided with the port. Sikhs wearing turbans can still enter its premises, but unless they put on a hard hat, they have to stay in their trucks.
“We’re living in a world of moral panic about danger,” said Julius Grey, lawyer for the three appellants.
While the last 30 years have seen Canadian Sikhs achieve religious accommodation for the turban ( dastaar) in the Canadian Armed Forces, the RCMP, on passport photos and in B.C. traffic law, the Quebec court is only the latest legal body to mandate protective headgear.
In 2006, an attempt by two B.C. dock workers to get helmet exemptions for Sikh longshoremen failed on arbitration.
There was a similar outcome in 2008, when two B.C. mill workers objecting to a mandatory hard- hat policy were reassigned to a lessdangerous part of the mill.
That same year, an Ontario court rejected the argument of a turban- wearing Sikh man, who was ticketed while riding his motorcycle without a helmet.
More recently, in 2014, Ontario Premier Kathleen Wynne rejected the Canadian Sikh Association’s request for a religious exemption on motorcycle helmets. “Ultimately, the safety of Ontarians is my utmost priority,” she wrote.
In fact, the World Sikh Organization of Canada now advises against trying to convince Canadian courts to permit Sikh exemptions for protective headgear.
“Largely it’s about liability, they don’t want to be on the hook for any accident that involves a turban wearer,” said Balpreet Singh, the organization’s legal counsel.
Singh was instrumental in a 2012 decision that allowed kirpans — a small, stylized sword worn by Sikhs — to be permitted in Toronto courtrooms. But speaking to the National Post by phone, he suggested Canadian law hits a brick wall over trading safety for religious accommodation.
No Canadian court will back a turban exemption “if there is a genuine risk of injury or death,” he said.
There are only two provinces where turban- wearing Sikhs are exempt from a safety requirement.
In Manitoba, “bona fide members of the Sikh religion” do not have wear helmets while motorcycling. In B. C., a similar motorcycle helmet exemption for any Sikh who “has unshorn hair and habitually wears a turban composed of five or more square metres of cloth.”
The B. C. exemption, enacted after a 1999 human rights tribunal decision, was made with the full knowledge it would likely result in more Sikhs getting killed on highways.
“However ... I am not persuaded that the increased risk associated with nonhelmeted motorcycling is so substantial that it constitutes undue hardship,” wrote tribunal member Frances Gordon.
Hard hats were a moot point at the port of Montreal until 2004, when the rule was enacted in response to an amendment to the federal Criminal Code mandating employers had a “legal duty to take reasonable steps to prevent bodily harm” to workers.
Sikh truck drivers in turbans could still enter the port, but they had to stay in their trucks until a worker in a hard hat located and loaded the load they were picking up. This turned a 20- minute process into a marathon of up to two hours.
The Quebec court acknowledged the rule infringed on the religious rights of the three men, as guaranteed in the Charter of Rights and Freedoms. Nevertheless, it noted there had been 27 head injuries involving trucks at the port in 1999-2008.
“In light of the laws and regulations that govern their activities, the choice to require hard hats on all port workers, including the appellants ... is amply justified,” its decision read.
Grey intends to appeal, arguing t he case has a good chance to win on the grounds of “relative safety.” It should be up to his clients to decide whether they want to take the risk of being hurt.
“It was the French philosopher Jacques Attali who said that in the future, all policy will be dictated by insurance companies,” he added.