Peel Board of Education v. Ontario (Human Rights Comm.) and Pandori
1990-07-06
Ontario Board of Inquiry
CHRR Doc. 90-104
Harbhajan Singh Pandori and Ontario Human Rights Commission Complainants
v.
Peel Board of Education Respondent
Before: W. Gunther Plaut, Chair, Board of Inquiry
Comm. Decision No.: 385A
Appearances by: Anthony D. Griffin and Marilyn Ginsburg, for the Commission Robert G. Keel and John L. Razulis, for the Respondent Harbhajan Singh Pandori, on his own behalf
DRESS AND GROOMING CODES — EDUCATION — school board policy forbidding the wearing of kirpans to school — RELIGION AND CREED — TEACHERS AND PROFESSORS — Sikh teacher refused to remove kirpan resulting in loss of employment — STUDENTS — Sikh students denied permission to wear kirpan to school
Summary: The Board of Inquiry finds that the Peel Board of Education contravened the Ontario Human Rights Code when it introduced a policy prohibiting Sikh teachers and students from wearing kirpans on school property.
Harbhajan Singh Pandori is a teacher who taught for the Peel Board of Education from 1983 to 1987. In the summer of 1987 Mr. Pandori became a Khalsa Sikh and began to wear the kirpan, which is a ceremonial dagger, as well as the other four symbolic items which baptized Sikhs are required to wear at all times. In 1988 Mr. Pandori was informed that the Peel Board of Education had passed a resolution prohibiting the wearing of kirpans on school property. As a Khalsa Sikh Mr. Pandori could no longer teach in the region and he sought employment in Etobicoke instead.
The Ontario Human Rights Commission alleged that baptized students of the Sikh faith are also discriminated against by the policy and that two students in particular were discriminated against when they were prohibited from attending classes because they were wearing kirpans.
The Board of Inquiry finds that the policy of the Peel Board of Education has an adverse impact on Sikhs who cannot teach or attend school in Peel region schools and at the same time honour the requirements of their religious faith.
While the Board of Education argues that the policy is necessary to prevent any violent use of the kirpans, the Board of Inquiry finds that there is no evidence to support this reasoning. There have been no incidents of violent use of the kirpan by Sikhs in any Canadian schools. In light of this, the Board of Inquiry rules that the policy cannot be justified as a bona fide requirement of the Board of Education to ensure that safety in the schools is maintained.
The Board rules that Khalsa Sikhs, whether teachers or students, are entitled to wear kirpans to school in the Peel region as long as the kirpans are of a reasonable size, are worn under the wearer's clothing, and are well secured.
No damages were requested and none are awarded.
[See also (sub nom. Peel Bd. of Education v. Ontario (Human Rights Comm.)) (1990), 1990 CanLII 12517 (ON HCJ), 12 C.H.R.R D/91 (Ont. S.C.).]
Cases Cited
Bhatia v. Chevron U.S.A. Inc., 734 F.2d 1382 (9th Cir. 1984): 212
British Columbia (Human Rights Comm.) v. College of Physicians and Surgeons of B.C. (May 27, 1976) (B.C. Bd.Inq., Getz) [unreported]: 144
Canadian National Railway Co. v. Canada (Human Rights Comm.) (1987), 1987 CanLII 109 (SCC), 8 C.H.R.R. D/4210, 87 C.L.L.C. para. 17022 (S.C.C.): 168
Canadian National Railway Co. v. Canada (Human Rights Comm.) and Bhinder, (sub nom. Bhinder v. Canadian National Railway Co.) 1985 CanLII 19 (SCC), [1985] 63 N.R. 185, 7 C.H.R.R. D/3093: 209
Canadian Odeon Theatres Ltd. v. Saskatchewan (Human Rights Comm.), 1985 CanLII 183 (SK CA), [1985] 3 W.W.R. 717 (sub nom. Huck v. Canadian Odeon Theatres Ltd.) 6 C.H.R.R. D/2682: 169
Dhaliwal v. B.C. Timber Ltd. (No. 1) (1983), 1983 CanLII 4681 (BC HRT), 4 C.H.R.R. D/1520; (1984), (No. 2) 1984 CanLII 5065 (BC HRT), 6 C.H.R.R. D/2532 (B.C. Bd.Inq.): 153
Gohm v. Domtar Inc. (No. 4) (1990), 12 C.H.R.R. D/16 (Ont. Bd.Inq.): 170
Hothi v. R., 1985 CanLII 3672 (MB QB), [1985] 3 W.W.R. 256 (Man. Q.B.); (1985), 1985 CanLII 3682 (MB CA), 35 Man. R. (2d) 159 (C.A.); (1986), 43 Man. R. (2d) 240 (S.C.C.): 195
New York v. Partap Singh, 516 N.Y.S.2d 412 (Civ.Ct. 1987): 194
Ontario (Human Rights Comm.) v. Etobicoke (Borough) (1983), 1982 CanLII 15 (SCC), 3 C.H.R.R. D/781: 159, 180
Ontario (Human Rights Comm.) and O'Malley v. Simpsons-Sears Ltd. (1986), 1985 CanLII 18 (SCC), 7 C.H.R.R. D/3102: 141, 167, 180
Panesar v. Nestlé Co. Ltd., [1986] 1 C.R. 144 (C.A.): 212
R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295: 164
R. v. Dhamrait (May 7, 1985), (Ont. Dist. Ct.) [unreported]: 198
R. v. J.M.G. (1986), 1986 CanLII 151 (ON CA), 56 O.R. (2d) 705 (C.A.): 203
R. v. Singh (1990), (Ont. Dist. Ct.) [unreported]: 199
Sehdev v. Bayview Glen Junior Schools Ltd. (1988), 1988 CanLII 8934 (ON HRT), 9 C.H.R.R. D/4881 (Ont. Bd. Inq.): 207
Sherwood v. Brown, 619 F.2d 47 (9th Cir. 1980): 210
Singh v. British Rail Engineering Ltd., [1986] 1 C.R. 22 (E.A.T.): 210
Singh v. Security and Investigation Services Ltd. (May 31, 1977), (Ont. Bd. Inq., Cumming) [unreported]: 208
Singh v. Workmen's Compensation Board Hospital (1981), 1981 CanLII 4326 (ON HRT), 2 C.H.R.R. D/459: 187, 189
Singh and Ontario (Ministry of Correctional Services) (Nov. 6, 1980), (Grievance Settlement Board) [unreported]: 211
Tuli v. St. Albert Protestant Bd. of Education (1986), 1986 CanLII 6485 (AB HRC), 8 C.H.R.R. D/3736 (Alta. Bd.Inq.): 191
Legislation Cited
Canada
Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B of the Canada Act, 1982 (U.K.), 1982, c. 11
ss. 8, 10(b): 204
s. 27: 164
Canadian Human Rights Act, S.C. 1976–77, c. 33: 209
Alberta
Individual's Rights Protection Act, R.S.A. 1980, c. I-2: 114
Ontario
Education Act, S.O. 1980, c. 129: 1
s. 22: 32
s. 235, 236: 32, 205
s. 236(a): 204
Human Rights Code, 1981, S.O. 1981, c. 53
s. 1: 1, 2, 138, 139, 145, 146, 147, 196
s. 4: 138
s. 4(1): 1
s. 8: 1, 138
s. 10: 1, 146, 156, 158
s. 10(1): 156, 221, 223
s. 10(1)(a): 160, 162
s. 10(2): 156, 160, 184, 188, 219, 221, 223
Municipal Elections Act of Ontario, R.S.O. 1980, c. 308: 31
Authorities Cited
Black's Law Dictionary (5th ed.): 161
Concise Oxford Dictionary (7th ed.): 161
Ontario, Ministry of Education Changing Perspectives (Toronto: Queen's Printer, 1989): 126
Stroud's Judicial Dictionary (5th ed.): 161
Thomas, Barb, Combatting Racism in the Workplace (Toronto: Cross-Cultural Communications Centre, 1983): 67
— — . "Principles of Anti-racist Education," Currents, Fall 1984: 67
Webster's Ninth New Collegiate Dictionary: 161
Words and Phrases Legally Defined, John B. Saunders, ed. 2d ed. (Don Mills, Ont.: R. De Boo, 1969): 161
I. The Issue
1. BACKGROUND
1a. The case before this Board consists of two joint complaints against the Peel Board of Education,1 launched on June 24 and December 21, 1988, respectively. The former was laid by Mr. Harbhajan Singh Pandori, a teacher, claiming infringement of his rights as a practising Sikh under ss. 4(1) and 8 of the Ontario Human Rights Code, 1981 (S.O. 1981, c. 53, as amended; cited as the "Code"), and the latter by the Ontario Human Rights Commission (the "Commission"), alleging that ss. 1, 8, and 10 had been offended by a policy of the Peel Board restricting the religious rights of Sikh students as well as teachers. The respondent denied that such infringement had taken place and that in fact it had legitimately exercised the rights given it by the Ontario Education Act (S.O. 1980, c. 129, as amended) and discharged the responsibilities arising therefrom.
2Respondent applied to the Supreme Court of Ontario (Divisional Court) to quash the complaint laid by the Commission, and pleaded that for two reasons this Board of Inquiry had no jurisdiction in their case: that one, education was not one of the services covered by the Code, and that two, education was under the jurisdiction of the Education Act. On March 9, 1990 the Court rejected the respondent's application, stating that education constituted a "service" within the meaning of s. 1 of the Code and, further, that the Code had precedence over the Education Act. The Peel Board decided not to appeal, and the hearings before this Board of Inquiry resumed to consider the full range of the complaints.
3The hearings were also joined by the Federation of Sikh Societies of Canada who were admitted as interveners and who in time presented this Board with a written submission (cited as "Interv.").
4b. Seen from the complainants' perspective, the issue is the right of a Sikh to wear his/her full religious accoutrements, which include a kirpan (the meaning of kirpan will be examined in some detail infra), and to do so at all times and anywhere, including within school precincts. If this were proscribed, practising Sikhs, if of school age, would be denied a public school education, and if accredited as teachers, would be barred from pursuing the profession of their choice.
5Seen from the respondent's perspective, the issue is the right and duty of the Peel Board to maintain proper discipline in the schools, comprising the right to ban all weapons from school properties. In doing so it has defined the kirpan, which has the appearance of a dagger, as a weapon, and has therefore prohibited its wearing on school grounds. Denying the Board of Education the right to set a weapons policy could infringe seriously upon its ability to regulate the schools in Peel Region.
6We deal, then, with a case in which two rights collide:
(i) the right of each person to a free and untrammelled exercise of religion, and
(ii) the right of the Peel Board to set proper policies aimed at protecting all who come within its purview.
7The Peel Board of Education bans all weapons from its schools and specifically identifies kirpans as weapons. However, baptized (Khalsa2) Sikhs who must always have a kirpan on their persons, insist (and Sikh clerical authorities support this view) that a kirpan is not a weapon but a spiritual instrument and only appears as a weapon and therefore falls outside legitimate school concerns.
8c. Since I was the target of numerous missives from members of the public, I felt constrained to enter a statement into the record of the hearings of March 26 setting forth the function and nature of a Board of Inquiry as an independent body. I reiterated that my decision would be based solely on what was brought before me during these hearings and on the laws which govern them. Outsiders wishing to be heard could approach the parties to the case at bar in order to have them bring their concerns before me, the adjudicant, and such concerns would in that way become part of the record and be carefully considered. Or they might apply for intervener status if their interests so warranted.
9My sole task is to interpret the law as it stands in the light of the evidence brought before me, cognizant, of course, of the role of courts and boards of inquiry in shaping the contents of public standards, as reflected in the use of such terms in the Code as "reasonable," "undue hardship," and "safety."
2. THE KIRPAN
10a. John W. Spellman, Ph.D., professor at the University of Windsor, a teacher of comparative religion and a renowned student of Sikhism, testified at the hearings and was accepted as an expert on the subject.
11He explained that Sikhism is a religion founded by Guru Nanak in the 15th century and developed further by nine succeeding Gurus, ending with Gobind Singh. (A brief survey of Sikh history was also provided by Interv. 1–4.) But, he said, describing Sikhism merely as a "religion" does not do it full justice.
Sikhism is certainly a religion, but it is far more than a religion. It is also a people. It is, by some, considered to be a nation. It is certainly a culture. It is a creed. It is also an ancestry. Sikhism is all of these things because like Judaism and Hinduism and unlike Buddhism or Christianity, it is significantly influenced by the practice of a people, rather than focusing primarily on a specific teacher, though teachers are obviously central. (Evidence ["Ev."] II 51)
12b. Sikhs are concentrated in India and especially in the Punjab, but many have migrated to other parts of the world. It is estimated that presently about a quarter-million Sikhs live in Canada. Of these, more than ten percent are Khalsa, that is to say, they have gone through the ceremony of Amrit Dhari, which is often referred to as a form of baptism.
13Since assuming certain obligations for life requires a mature understanding of the religion, there is no particular age when Sikhs may choose to become Khalsa. They may be only ten or twelve years old or even younger, though this is rare; they will more likely make the decision in their later teens or as adults. Men and women alike may assume the obligations.
14c. Once they become Khalsa they have many duties, such as the regular recital of prayers, tithing, abstinence from tobacco, alcohol, and other stimulants. Also, they are now obligated never to part from the panch kakar which they must always have on their bodies, an obligation instituted by the tenth Guru, Gobind Singh. In Canada these panch kakar are generally known as the five Ks. Dr. Spellman explained them as follows:
Kesha (unshorn hair) represents the inviolability of the human body.
the complete man who is physically and spiritually the image of God is conceived in Sikh scriptures as a man with hair and turban on his head. (Ev. II 75)
Kanga (a comb) is needed to remove dead hair.
It represents hygiene . . . ridding oneself of impurities and what is morally undesirable. (Ev. II 81)
Kara (a metal bracelet).
This is the symbol of perfection . . . a reminder of the wearer to be mindful of his role of spiritual aspirant and useful citizen . . . The kara is also on the right hand which is the hand [with which] most people perform their deeds [and] is a constant reminder to perform good deeds. (Ev. II 82)
Kach (or kachera, special drawers) is a symbol of restraint of passion, of chastity, and a constant reminder of the prohibition of adultery, both in lusting and in deed. (Ev. II 85–6)
Kirpan. The expert witness insisted that all translations of the word, such as knife, sword, or dagger, are misleading, and that it would be best to leave it untranslated.3 While the kirpan arose out of a particular culture and had at one time the function of a sword, it long ago lost this aspect, and has become completely spiritualized. It now speaks of law and morality, justice and order, and has become "an instrument of the divine itself." (Ev. II 95)
15Dr. Spellman compared the sword-like appearance of the kirpan to the mace, which was used in times of war as a club and which from that point of view is a weapon, but which long ago became a symbol of power, order, and dignity.
16The kirpan, like the kara, must be made of iron, which nowadays is cast as steel. Dr. Spellman emphasized that the use of this material was essential for the two symbols. Since iron was widely available even to the poor, it assumed the aspect of commonality, simplicity, and equality. (Ev. II 83–4)
17d. While all Sikhs may, and are in fact encouraged, to wear the five Ks, baptized or Khalsa Sikhs must wear them, lest they break their holy vows and become patit, persons who have fallen away from their religious obligation.
The five Ks become central in establishing [Sikh] identity. They become physically, visibly central, but they also become spiritually central, because . . . the forms of identification not only remind others of the identity of Sikhs, they also remind Sikhs of their identity, and in that sense they become a form of inward and outward identification and recognition. (Ev. II 78)
18e. The kirpan, as one of the five Ks, is thus far more than a religious adornment. Mandated to be worn always, it is an integral part of a Khalsa Sikh's person and cannot be properly compared with a cross which a Christian might choose to wear. Not wearing the kirpan at any time, day or night, constitutes a grievous transgression for a Khalsa Sikh.
19f. The witness produced for the Board of Inquiry an array of differently sized kirpans. They are in appearance like special forms of daggers, are customarily encased in sheaths or scabbards, curved near the tip, which gives them an old-fashioned, distinctly ceremonial look, and something like miniature scimitars. They do not appear as knives in the ordinary sense of that word, though they could be used as such, and, the witness said, are so used on ceremonial occasions when the food is blessed. The smallest kirpan introduced as an exhibit had a blade of three inches, while the largest kirpans (which were not exhibited) are said to look like ceremonial swords. (Exhibits 5 to 10 are photographs of the full range of kirpans which were shown at the hearings.) [The] intervener recommends that I accept a four-inch blade as a "reasonable representation of the kirpan emblem." (Interv. 18)4
20According to Dr. Spellman, determination of the size is left to the wearer; a child or other small person would choose a smaller kirpan, a larger person might choose a larger one.5 There is no absolute minimum size which a kirpan must have, though Dr. Spellman averred that miniaturization defeats the purpose of the symbol. The intervener, however, suggested that for school purposes a three-inch blade, with an overall kirpan length of seven inches, be permitted for all students except the largest. (Interv. 19)
21The kirpan is attached to a strap called guthra and fastened to it in a manner which holds it fairly securely in place but allows it to be removed without much trouble. As already noted, the kirpan must be made of steel; a wooden or plastic blade would not qualify. (Ev. II 98)
22g. Dr. Spellman was at great pains to characterize Khalsa Sikhs in Canada as a thoroughly trustworthy and altogether admirable group who try to live by and cherish the high moral and ethical standards of their faith. Furthermore, they are abstemious and notably resistant to the drug culture. He emphasized that they have had an exemplary record of respecting the law of the land and that in a hundred years of residence there have only been three or four cases of inappropriate use of the kirpan.
If it is evidence for anything, I think it is evidence for the extraordinary restraint and self-control that this community has shown in the use of this symbol in this country. (Ev. III 177)
23h. In the cross-examination the opinions of certain Sikh writers and the experiences of other Sikhs were brought to the attention of the witness, opinions and experiences which were divergent from the standards Dr. Spellman had enunciated.
24The witness averred that while there were certain variations or forms of Sikhism, they had no institutionalized form, as did the Christian denominations or branches of Judaism. Orthodoxy, that is to say the Khalsa, is the standard, though again, within this orthodoxy, there are varying standards of strictness.
Yes, there are . . . those who insist on greater strictness. So, for example . . . the Khalsa Sikh who was going to Los Angeles [by plane and was asked to surrender his kirpan for the duration of the trip] a fundamentalist might take the position you cannot do it . . . under any circumstances . . . That fundamentalist position does not dominate Sikhism, either in India or in Canada, though it exists. (Ev. III 91–4)
25h. There was finally the question of whether a kirpan could be stitched to the guthra in such a way that it could not come out and therefore render the kirpan inoperable as a potential weapon. Dr. Spellman held that such a procedure would infringe the integrity of the kirpan and therefore be objectionable.6
26When faced with the opinion of Mr. Singh Bal, speaking on behalf of the Ontario Council of Sikhs who, though aware that such stitching was not proper practice, were nonetheless ready to accommodate the Peel Board to this extent, Dr. Spellman indicated that Mr. Bal was most likely not Khalsa, and besides, that the Council was not representative of all Sikhs. There was in fact no such representative organization in Ontario or Canada. (Ev. III 147–8)
27i. Dr. Spellman's two-day testimony left me with the understanding that, with the exception of basic Khalsa obligations — such as having the five Ks on one's person — certain details of religious behaviour were interpreted more strictly by some and less strictly by others, and that many decisions lay with the conscience of the faithful. The witness himself, however, represented what he called "standard" (or fundamentalist) behaviour as the guide to follow (and so did the intervener).
(i) What size of kirpan a Khalsa Sikh might choose to wear was his/her personal choice;
(ii) While "standard" Sikhism does not approve of miniaturization of the kirpan, some Sikhs might consider a miniature kirpan an acceptable size;
(iii) Some Khalsa Sikhs will surrender their kirpan when travelling on airplanes, considering this is a situation of compulsion;
(iv) Dr. Spellman doubted that, as was related, a Khalsa Sikh could have received permission from the panch pyari (the "five beloved," who are the spiritual leaders of a congregation) at a certain gurdwara (the local congregation or temple) to surrender his kirpan to the security police at an airport and stow it with his luggage. (Ev. III 141–2)
(v) Whether to wear the kirpan inside or outside of one's clothing is a personal choice;
(vi) There is no one Sikh organization that speaks for all members of the community in Ontario or Canada. (Ev. III 148)
28j. On December 18, 1989, Ms. Marilyn Ginsburg, Counsel for the Commission, addressed a letter to the Shiromani Gurdwara Parbandhak Committee (SGPC) in Amitsrar, India, which is considered the supreme religious instance of the Sikh faith. Ms. Ginsburg asked a series of questions concerning the kirpan and received an answer, dated February 19, 1990. The response arrived during the hearings and by agreement was entered as Exhibit 24. Respondent counsel's agreement emphasized, however, that notwithstanding the importance of the SGPC's opinions they were not necessarily followed by all Sikhs in Canada, and that it was with this understanding that the letter was admitted as an Exhibit.
29The SGPC advised as follows:
(i) No definite size of the kirpan has been fixed, although it should not be reduced to a mere formal sign. A one-foot kirpan is usual.
(ii) Children's kirpans will usually be smaller than those of adults.
(iii) No baptized Sikh may remove his/her kirpan under any circumstances.
(iv) There is no religious injunction that the kirpan must be worn in plain view. "It should be worn sensibly and not shyly, certainly without any sense of concealment."
(v) The kirpan should be easily removable from the sheath. It must not be sewn, though the handle may be tied down.
(vi) A baptized Sikh is not to use the kirpan in anger as a weapon; if he/she does so, that person is guilty of misconduct. In case of any such complaint the panch pyari will summon the person, judge him/her, and pronounce the penalty. Non-appearance or insubordination may result in religious excommunication, following which the observant community would likely ostracize the person concerned.
3. UNCONTESTED FACTS
30The respondent did not dispute that the kirpan has important spiritual significance for Sikhs, but averred that, nonetheless, its appearance makes it a weapon in the eyes of other beholders, and therefore fits the meaning of the Board of Education's general policy, which prohibits all weapons on school property.
The relevant policy of the Peel Board in this regard was presented to me as an agreed statement of facts. (Exhibit 2) It comprised the following matters.
a. General
31The Peel Board of Education is a public Board of Education which provides elementary and secondary public school education pursuant to, and in accordance with, the provisions of the Education Act, and the trustees of the Board are elected pursuant to the provisions of that Act and the Municipal Elections Act of Ontario (R.S.O. 1980, c. 308, as amended).
32Sections 235 and 236 of the Education Act list among the duties of teachers and principals "to maintain proper order and discipline." Section 236(m) states:
[It is the duty of a principal of a school in addition to his duties as a teacher] subject to an appeal to the Board, to refuse to admit to the school or classroom a person whose presence in the school or classroom would in his judgment be detrimental to the physical or mental well-being of the pupils.
Section 22 of the Act deals with suspensions, appeals, and expulsions.
b. Discipline Policy
33Since 1976 the Board has maintained an Operating Procedure which prohibits weapons on school grounds,7 and in 1979 the Board developed a discipline policy. Both were instituted in response to increased violence in Peel schools, and both remain in effect. In September 1987, the Board enlarged its discipline policy by including specific prohibitions against weapons and adding a requirement that this information be communicated to parents, students, and staff. This was known as Policy No. 48.
34In the spring of 1988, a Sikh student who had recently become Khalsa began wearing a kirpan to school. After prolonged discussions and negotiations with the affected family as well as various Sikh groups, the Peel Board, on December 13, decided in an 18 to 3 vote to amend the existing Policy No. 48. Item 13 had stated:
The Board shall require each principal to include a statement in the school's discipline policy to communicate to parents, students and staff, that the possession and/or display of weapons on school property (buildings and land) may result in a recommendation being presented to the Board of Education for expulsion of that student.
35Now a new item 14 was added:
In keeping with item 13 above, students will not be allowed to possess weapons of any nature, including kirpans, on school property. Baptized Sikh students who wear kirpans will be subject to the following regulations:
(i) If the kirpan is left at home, students are welcomed and encouraged to participate in all school activities.
(ii) A Sikh student may attend school wearing a symbolic representation of the kirpan provided that symbolic representation does not involve a metal blade that could be used as a weapon.
(iii) It is a requirement of the Peel Board of Education that these regulations be communicated annually to all students and to new students upon registration. (Exhibit 29)
This new policy of the Board was supported by the principals and vice-principals in the Peel Board of Education.
II. Summary of Other Testimony
36This Board of Inquiry was not faced with disputed questions of fact or the credibility of witnesses and their testimony. What the witnesses (save for Dr. Spellman) presented to this Board was a recital of personal experiences, of meetings held and resolutions passed, of surveys and trends, all buttressed by seventy-four exhibits. The veracity of any of the witnesses' statements was never in question. All delivered their testimony with a knowledge of their assigned tasks and spoke clearly to the particular issues before them.
37With certain exceptions, the testimony proffered was important for setting the framework of the dispute. In recounting the essential parts of the testimony brought before me, I will present them in the order best suited for a logical exposition of the issues, and not necessarily in the order in which the witnesses appeared at the hearings.
1. MR. PANDORI, COMPLAINANT
38Educated in Canada, a Sikh with a B.A. degree from the University of Toronto and an M.A. degree from McGill, Mr. Pandori taught for the Peel Board of Education at night school from 1983 to 1987, and during the day from 1987 to 1988 as a supply teacher. In the summer of 1987 he became Khalsa and wore the five Ks in accordance with his vows. (Ev. IV 117) He encountered no problems until, in 1988, he was informed by Mr. Michael Miller that the Peel Board had established a policy defining the kirpan as a weapon and had prohibited its wearing on school grounds. (Ev. IV 128)8
39Mr. Pandori decided that, as a Khalsa Sikh, he could therefore no longer teach in the region and subsequently laid a charge against the Peel Board under the Code. He made it clear, however, that he sought neither special nor general damages; he only wished to have the Board of Inquiry restore him to his right to exercise his religion peacefully and without interference.
40The complainant is now a supply teacher for the Etobicoke Board of Education which has no express "kirpan policy." He advises the principal of the school that he is a Khalsa Sikh and wears the five Ks, and has not encountered any difficulties. Thus Mr. Pandori is able to wear his kirpan at all times. While in school, he places it under his clothing, between two undershirts, so that, should someone attack him and try to take his kirpan, it would not be readily located. At other times, and especially in the gurdwara, he carries the kirpan on the outside of his clothing.
41The witness testified that as a Khalsa he is never separated from his kirpan, not at night nor when he takes a shower. The only exceptions to this constancy occurred during three air trips, when he was forced to surrender the kirpan. When he consulted about his dilemma with the panch pyari he was told to pray and to make atonement for his violation, in the hope that others would be spared similar indignity.
42Mr. Pandori, with great bitterness, informed this Board of the reaction of his young daughter, who had come home from school (then in Peel region) and brought with her a copy of the Handbook which had been distributed to all students. (This guide book, which is to acquaint families in the region with the school system and its workings, specifically mentions that the Sikh kirpan is prohibited in all schools.) The child felt that the Handbook, by its mention of Sikhs, demeaned her badly. (Ev. IV 151)
43In the witness's mind, the procedures of the Peel Board had little to do with safety or other considerations. Rather, this was but another aspect of a pervasive majoritarian attitude which he (like his daughter) characterized as racially motivated. Sikhs are readily identifiable by their habit, and this provokes a cluster of anxieties and prejudices. This experience is not confined to Sikhs, of course, many other visible and even non-visible minorities have been subjected to discrimination of all sorts, and it is precisely to this that the Code directs itself.
44The impact which the Peel policy had on the Pandori family was clearly profound. The kirpan is not just another issue to be dealt with in a new land, it touches the deepest layers of faith and emotion. In the Pandori family, rejection of the kirpan was clearly a question testing their integrity and humanity.
2. DAVID WELDON, WITNESS FOR THE RESPONDENT
45Mr. Weldon, B.Sc., M.Ed., Superintendent of Operations for the Peel Board, handled day-to-day affairs for this, the largest school board in the nation, which, in January 1990, was responsible for nearly 90,000 students, 5,740 teachers, and a staff of nearly 2,000 in 160 schools. As already noted, the Peel Board publishes an Information Handbook for its students which acquaints them with matters they need to know. In its 1990–91 issue (Exhibit 30),9 the Board, in pursuance of its Policy No. 48, included a section entitled Discipline Policy (pp. 22–4), which notes the prohibition of weapons and refers specifically to the kirpan (see supra, I 3, "Uncontested Facts").
46Mr. Weldon recounted in some detail the meetings he attended which were designed to arrive at some arrangement by which baptized Sikhs could continue in the Peel schools. The question of wearing replicas, or securing the kirpan so it could not be extracted from the sheath, faltered on the insistence of some Sikh representatives that this was not permissible in Sikh tradition, while apparently other Sikhs thought that a compromise in this respect was possible. No accommodation could be reached; one side wanting the disabling of what, in the eyes of non-Sikhs, was a potential weapon, while the other could not agree that this was possible. The witness testified that he would have recommended any suitable arrangement to the Peel Board. (Ev. VI 40 et seq.; Exhibits 18 to 22) Eventually the above-noted policy was adopted (Minutes of the December 18, 1988 Board meeting are found in Exhibit 36).
47At this point, there were in Peel one baptized Sikh teacher (the complainant) and two students who sought the right to wear the kirpan and were affected by the ruling (a third student had moved away). The students were Paramvir Singh and Sukhdev Hundal, the former in elementary and the latter in secondary school. The application of the Board's policy was delayed until meetings could be held with the parents of the two students. However, the discussions were not fruitful.
48Thereupon private instruction was arranged for Sukhdev Hundal in the principal's office (where he could continue to wear the kirpan) and a special teacher was assigned to help him in his work. (Ev. VI 68) However, after a while, the student found the situation intolerable and returned to class, wearing his kirpan, whereupon he was suspended for insubordination. He is now attending school in Etobicoke.
49Paramvir Singh was withdrawn from his school, his parents having decided to educate him at home "till his right is restored." (Letter by Jasbir Singh to the Brandon Gate Public School, dated January 17, 1989 Exhibit 39)
50Mr. Weldon then turned to an analysis of violence that had taken place in the school system during 1988, and especially to incidents involving knives (VI 85 et seq.; Exhibits 40 to 43). The latter occurrences were increasing and the public had become more aware of them. The witness was convinced that there was also a presence of undiscovered weapons, but no body searches or electronic detectors have been introduced. It was the principals' responsibility to deal with all incidents and report serious breaches to Mr. Weldon.
51The impact of such violence is large, the witness testified, and the emotional impact on the student body, the teachers, and the parents is great. Each incident requires up to a week of staff time, and especially so when police presence is required.
52On March 23, 1990 the witness received a letter from the Ontario Secondary School Teachers' Federation, District 10, Region of Peel ("OSSTF"), which affirmed support for Sikhs and other minorities in their quest for human rights and equal treatment, yet which supported the Peel Board's kirpan policy.
53Mr. Weldon was aware that the neighbouring school boards of North York and Etobicoke have no weapons policy that would prohibit kirpans. He also admitted that he had not brought this information to the attention of the Peel Board prior to its December 13 meeting, and that it was simply not explored in depth. (Ev. VI 136) He felt, however, that North York's verification procedures were inadequate. The testimony did not elicit reasons why the Peel Board's policy should be different from that of its neighbours or, for that matter, vice versa.
54According to the witness, Peel's policy was pro-active and not simply reactive, and it was developed in good faith. (Ev. VI 105, 109) The bottom line was the enhancement of safety:
I think also the persence [of the kirpan] . . . would create in the minds of some staff and some students, also a degree of unease or hardship by virtue of the fact that this item was present in the school or in the classroom. (Ev. VI 109)
55In cross-examination, Mr. Weldon agreed the policy had resulted in differential treatment of Sikh students, and that the isolation of Sukhdev Hundal from the other students was detrimental to his social development and clearly undesirable, though it might actually have advanced his academic levels.
56The witness denied the introduction of the policy was designed as a sop to fearful parents. (Ev. VI 169) Rather, the policy was well publicized because there was a rising climate of violence along with a phenomenal rise in the number of students. To be sure, safety policies were policies of prediction and, to his knowledge, there had been no kirpan-related incidents in North York or Etobicoke. Still, the absence of kirpans was clearly a reduction of risks (however small it might be), and that was the objective. He further stated that he believed that teachers wearing kirpans constituted a lesser risk than students wearing them.
57No testimony was led to explain why, though the boards in Toronto, Scarborough, North York, and Etobicoke had no specific kirpan policy, the Peel Board found it necessary to introduce one. Clearly, there were different perceptions of what constituted safety, but why these differences were present was not explored. In the formulation of Policy No. 48, as amended, they appeared to have played no role.
3. MESSRS. INDERJIT S. MEHAT, ROY HARDIE, RALPH PRENTICE, WITNESSES FOR THE COMMISSION
58Messrs. Mehat, Hardie, and Prentice were called by the Commission to explain the kirpan experience in School District No. 36 (Surrey) in British Columbia, and in the school boards of North York and Etobicoke in Ontario.
59Mr. Mehat, B.Ed., M. Ed., who is a Sikh but not Khalsa, works as a multicultural officer for the Ministry of Education in B.C. He related the following facts and experiences, all relating to the Surrey Board.
60Students of East Indian background form about 6 to 8 percent of the student population of 40,000 (Ev. IV 21). He estimated the majority of Indo-Canadians to be Sikhs and their number in the neighbourhood of 400. Among these are 200 Khalsa, the largest such group in Canada. They are located primarily in the northern part of Surrey.
61Three occurrences involving a kirpan were brought to his attention. In one, a child who was wearing a kirpan was allowed to stay in school after it became clear he was a baptized Sikh. In the second, a primary student was sent home, but returned after his parents decided that he was too young to have full religious responsibility. The third was a meeting with a delegation of parents of sixth to eight grade students who objected to Sikhs wearing kirpans in school, but their fears were stilled and the matter was thus resolved.
62Concerns had been raised about potential and actual violence. Certain youth gangs were active, some of them of Asian origin, but kirpans never figured in any incident. (Ev. IV 37) The School Board has been considering a weapons policy, but the kirpan has not figured in the discussion and is banned nowhere in B.C. This also applies to teachers and reflects the Surrey Board's policy on multiculturalism, racism, and human rights:
The Board endorses the concept of active and positive multiculturalism, and encourages schools to offer programs which promote respect for the human rights of minority groups, and which help pupils appreciate other cultural heritages.
All District programs and operations will protect the rights of all individuals and will comply fully with the statutory requirements and provisions of the Criminal Code of Canada, our nation's Charter of Rights, and the Human Rights Code and the School Act of British Columbia. (Exhibit 16)
63This may be compared to the Peel Board's Statement of Policy on the same subject:
The Peel Board of Education is committed to a philosophy [of] respect for the racial, ethnic and cultural plurality of our society, and the objective of this policy is to ensure that equal rights and opportunities exist for all staff and students throughout the Peel Board. (Exhibit 17)
64Then follow eleven paragraphs which delineate how this policy is to be put into effect. In comparing the two boards' statements it became evident that both enunciate the same ideals and that, if anything, the Peel policy is worded more strongly. Clearly, then, with both boards having the same high objectives, their perceptions differ only on how the principles should be translated into practice when faced with a specific issue, such as the wearing of the kirpan. Perhaps, the witness opined, fears of the unknown and hard-to-dislodge stereotypizations ("Sikhs are liars and violent") played a role in Peel. They might be alleviated if there were Sikhs in the system, both students and teachers, who could function as role models. (Ev. IV 84)
65The witness expressed support for the placing of certain limitations on the wearing of a kirpan, such as straps that would make the removal of the kirpan from its sheath difficult but not impossible. "I think those are appropriate, reasonable accommodations in themselves," he suggested. (ibid.)
66Although there are far more Khalsa Sikhs in Surrey than in Peel, the presence of fully accoutred Sikhs has not given rise to kirpan-related violence in Surrey.
67Yet the Peel Board, strongly affirming the same multicultural ideals, has a different view of the same issue. This contrast between the Surrey and Peel boards is noteworthy, but in essential parts it was not conclusive. No statistics on weapons-related violence in B.C. schools were led that would allow for a meaningful comparison. In Mr. Mehat's view, the difference probably related to the different compositions and experiences of the two school populations. For this purpose he drew on observations by Barb Thomas, a writer on racial problems10 and extrapolated:
We grow up in a society interacting with one another, accepting common norms, and as a result of that commonality of experiences there is a commonality of results of our actions . . . If we have stereotypes and prejudices and perceptions that are culturally determined, related to the kirpan, then we are going to take action which will likely develop biased results because of our stereotypes and our perceptions and cultural orientations . . . If they are shaped within a mono-cultural perspective, that mono-cultural perspective will still translate into discrimination and systemic racism.
We can decrease this systemic racism by utilizing a very multi-cultural perspective in terms of the issue of the kirpan, and that is something Barb [Thomas] talks about. (Ev. IV 66–8)
68Mr. Mehat's final conclusion was that the issue of kirpans in schools will be seen differently in different environments. He seemed to feel that the treatment of Sikh religious needs by the Peel Board was not just a matter of safety but was culturally motivated and may even have had stereotypical or racist judgments built into it. In making these observations Mr. Mehat was clearly speculating; neither he nor Mr. Pandori (who had also used the term "racist") attempted to offer proof that prejudice had indeed been a factor in the formulation of the amended Policy No. 48.
69Mr. Hardie is the Superintendent of the Student, Community, and Administrative Services Department of the North York Board of Education. He related that in the 1987/88 school year the matter of the kirpan first surfaced, in part because the ongoing discussions in Peel raised questions in North York as well.
70He initiated a dialogue between the school system and Mr. T. Sher Singh, Director of the Macauliffe Institute of Sikh Studies, to determine the best way to deal with the question of Sikh students wearing their kirpans to school. (He was aware that Mr. Singh was not Khalsa. (Ev. IV 185–6))
71Subsequently, in September 1988 (some three months prior to the amendment of Policy No. 48 by Peel), he issued a memo to all principals and vice-principals. It described the background of Sikhism and explained that today the kirpan has a purely spiritual and non-martial connotation.
72If a request was received, or if a student was known to wear a kirpan, the memo recommended various procedures. The principal was to be notified and a verification that the student is a baptized Sikh was to be obtained from the Macauliffe Institute. The principal then would decide to grant or deny permission to wear the kirpan, assemble all relevant documents for filing, and notify staff and superiors in the system. If permission was granted, program modification, where necessary, would be implemented. (Thus, the kirpan-wearing student might be excused from contact sports, such as wrestling.)
Each situation should be handled on an individual basis and should be concerned with the fundamental issues of
– safety for all
– respect for human rights
The principal may remove the privilege of wearing the kirpan in the school, given any violation of safety procedures or inappropriate use of the kirpan. (Exhibit 14)
73Examination-in-chief established that no denial of a kirpan was recorded in North York schools. It was estimated that altogether there were no more than five to ten Khalsa Sikh students in the system. The witness stated that, if non-Sikh students wished to wear a kirpan, he would find out whether the applicants were serious in their desire to become Khalsa, and then would make his decision.
74This memo was issued as a procedure and not as a trustees' policy, to enable the Board to deal flexibly with new developments and to conform with the Board's race and ethnic relations policy, which is an inclusive policy requiring the honouring of religious observance.
75Cross-examination established that the procedure had not been submitted to the trustees; that, while principals and vice-principals were consulted, the OSSTF and the elementary school boards' association were not. The witness was aware that in March 1989 a resolution by the Ontario Public School Boards' Association ("OPSBA") endorsing the Peel policy was passed (Ev. IV 181; the resolution was filed as Exhibit 20):
The OPSBA goes on record as supporting the position of the Peel Board of Education that although kirpans worn by baptized Sikhs have religious significance, they have the potential to be used as weapons and that students who insist on wearing kirpans should be excluded from school, according to the Board policy, and be provided with an acceptable program of home instruction.
76In sum, Mr. Hardie was satisfied, and his superiors obviously agreed with him, that there was reliable Sikh opinion to support his program, that it worked satisfactorily and safely, and that there was therefore no need to engage in further studies, or for North York to emulate the example of Peel, or to follow the resolution of the OPSBA.
77He also stated, like Dr. Spellman, that violence was a general term that encompassed more than physical acts, and that all violence, however, perpetrated, was his concern. (Ev. IV 184)
78Mr. Prentice, the Commission's final witness, is Associate Director with the Board of Education of Etobicoke, Ontario. In his Board, too, there is no general policy with regard to kirpans; however, as in North York, an administrative procedure is in place. The relevant subject is contained in minutes of an executive meeting held on August 31, 1987.
Our position with respect to the wearing of kirpans by Sikhs in the schools is as follows. We will allow a student to wear a small 6-inch symbolic kirpan if it's properly secured and secured beneath the student's clothing. The student, for his own safety, should not be allowed to wear the symbolic kirpan while attending physical education classes. If such classes are compulsory, then the parents might wish to formally request an exemption on religious grounds. This matter was approved by the Executive Committee. (Exhibit 22)
79The procedure was instituted after discussions with representatives of the Sikh community. The witness opined that the Board's flexible attitude was working well to date and, since the procedure did not require any notification or permission, he did not know the exact number of kirpan-wearing students in Etobicoke. He thought that the number would be relatively small. (Ev. IV 203–5)
80The witness also stated that the complainant, Mr. Pandori, was presently teaching in the system, and that a Mr. Hundal, who had been a student at Central Peel Secondary School, was attending a secondary school of the Etobicoke Board. (It was likely Sukhdev Hundal referred to in earlier testimony by Mr. Weldon.)
81When asked to comment on the use of the term "symbolic" in the above-noted procedure, Mr. Prentice said there was no attempt to create precise religious terminology. (Ev. IV 215)
82It appears, then, that the Etobicoke Board is more restrictive than the North York Board in three respects: that it stated the maximum length of the permissible kirpan, that it notes the need for securing the kirpan, and that it excludes students wearing kirpans from physical education.
It is less restrictive, however, in that the student does not require a principal's permission to wear the kirpan nor does his/her baptism have to be verified.
83Finally, a number of letters from various Metro Toronto school constituencies were filed and entered as Exhibit 23. They included the University of Toronto, York University, George Brown and Humber Colleges, and Scarborough Board of Education, all of which wrote that they did not have a kirpan policy, the matter not having arisen. The Toronto Board of Education seemed to be somewhat receptive to the idea of expanding its weapons policy to include such a feature.
At present, then, none of the schools canvassed in the area of Metro Toronto has a kirpan policy. Peel is adjacent to, but not part of, this area.
4. MS. CAROLYN PARRISH, WITNESS FOR THE PEEL BOARD
84Ms. Parrish has a background as teacher and writer, has been a trustee of the Peel Board since 1985, and its chair since November 1988. The trustees' meeting of December 13, 1988, at which the "kirpan amendments" to Policy No. 48 were adopted, was the first full meeting she chaired after having been elected.
85As a trustee she had been present at the May 10, 1988 meeting at which the suspension of Sukhdev Hundal was discussed. (Minutes of that meeting are contained in Exhibit 45.) Those in attendance were shown various kirpans. In recalling her own feelings at that meeting Ms. Parrish said:
I would have presumed [the kirpan] was a potential weapon, and that when I saw . . . the kirpans that evening, that the weight of them, even the weight of the scabbards, was very overpowering. It was obviously a weapon. (Ev. VII 8)
86When asked whether, in her view, the respect for other cultures and religions required by the Board's policy on multiculturalism conflicted with its policy on kirpans, the witness answered in the negative.
87She also indicated that she would personally be satisfied that a kirpan could be permitted if it was worn under the person's clothing and was properly secured (assuming that this was religiously acceptable to the wearer).
88Ms. Parrish testified that the staff had suggested to the trustees that the kirpan be treated as a weapon. But the trustees delayed their decision until further background was available, recognizing that they had insufficient information before them — only the staff documents to which letters from the International Sikh Youth Federation were appended. The final decision of the Board was not taken until December 13.
89At the December 13 meeting, further delegations of Sikhs made submissions to the trustees, who were told that there were possibilities of securing the kirpan and that it could be worn under one's clothing. There was also a letter from the Minister of Citizenship who requested the opportunity to discuss the issue with representatives from the Board and the administration before a final decision was made. (Minutes of the meeting, Exhibit 36)
90But the Board voted to proceed forthwith, and it amended the Discipline Policy (No. 48) in the manner already explained: a kirpan was to be considered a potential weapon and therefore could not be worn in Peel schools. It is not my task to speculate why the trustees did not wish to meet with the Minister and instead decided to proceed with their decision. My task is to decide whether the decision they reached was compatible with the provisions of the Code.
5. MS. LYNDA PALAZZI, AND MESSRS. TONY PONTES, WILLIAM MALCOLM (MAC) CAMPBELL, AND NORMAN D. GOLLERT, WITNESSES FOR THE PEEL BOARD
91I have grouped these witnesses together because they are directly involved with the two Khalsa students, Sukhdev Hundal and Paramvir Singh, who were affected by the new Policy No. 48.
92Ms. Palazzi was, in August 1987, Superintendent of Schools in Meadowvale (a family of schools in Peel), and a year later became Superintendent of Programs for the Peel Board. In her former capacity she became involved with problems surrounding the kirpan and was soon convinced that she was dealing with a potential weapon. She traced her participation in the controversy (Ev. VIII 10 et seq.) and never wavered in her view that a kirpan was, in the perception of non-Sikhs, a weapon, and that in any case its potential as such was clear.
93This insistence stood in contrast to the attempt by the Commission, made at various times during the hearings, to define what was a "weapon." In its view, while many objects can be used as weapons (e.g., screwdrivers) they are not so designed. Thus, kirpans — which appear as weapons — are designed as religious objects. Therefore, the inclusion of the kirpan in Policy No. 48, where it appears under the weapons provisions, represents a flawed understanding of what kirpans really are.
94In my opinion, this line of argumentation, while intellectually intriguing, has its limitations. It introduces a philosophical question as to whether the nature of an object is independent of its beholder. Without entering this discussion, it was clear from Ms. Palazzi's testimony that she viewed the kirpan from one perspective while Sikhs viewed it from another. That difference ran like a thread throughout the hearings.
95Mr. Pontes, Vice-Principal of Central Peel Secondary School, chanced upon Sukhdev Hundal in the hallway, while the student was talking to other students outside the cafeteria, comporting himself so as inadvertently to expose his kirpan. (Ev. IX 79) At the direction of his principal, Mr. Rose, the witness learned from Sukhdev that the item he was wearing was a religious object and that:
he was the only Sikh wearing a kirpan at Central Peel Secondary School, and that he had been wearing it for approximately one month . . . He further stated that the wearing of the kirpan was permitted by the police force and the Workmen's Compensation hospital and therefore should be permitted in school. (Ev. IX 82)
96At this time Mr. Pontes was quite ignorant of the Sikh faith and its requirements and received some help from Dr. Banwatt, a member of the Canadian Sikh Society. Certain compromise suggestions were explored, but they came to nothing. Dr. Banwatt also suggested that the Sikh student might perhaps be able to obtain an exemption from his religious advisors, the kind one might obtain for medical reasons, but this did not seem feasible. (Ev. IX 86) The student was permitted to remain in class until a reasoned decision could be reached.
97Mr. Pontes contacted Sukhdev's parents and invited them to a meeting on April 28. While they could not attend, their son Sukhdev did, as did Dr. Banwatt and Mr. Suneet Singh of the International Sikh Youth Federation. However, the discussion produced no resolution of the issue and it concluded with Mr. Pontes, who had been in touch with his superiors, informing Sukhdev that, although the Board did not want to deprive him of his education, he could not be allowed to continue wearing his kirpan in class and would instead be provided with alternate forms of instruction.
98A further meeting was now arranged, at which Sukhdev's parents and Ms. Palazzi, then Mr. Pontes's Superintendent of Schools, would be present. Meanwhile, Sukhdev, when he continued to appear at school with his kirpan, was not permitted to join his class but was given space adjacent to the principal, where he received work from the teachers and was at times given individual instruction.
99On the morning of May 2 (the day for which a meeting was planned with Sukhdev's parents and others):
Sukhdev politely indicated that he was frustrated, that he could no longer remain in the office, that he felt he could not learn as well by himself as he could in class with the teacher and with his classmates. (Ev. IX 100)
100At this point, Mr. Pontes notified Ms. Palazzi. The principal, Mr. Rose, also tried to convince Sukhdev to remain in the office. When he refused he was suspended for the remainder of that day as well as the next day for "persistent opposition to authority." (Memo to the Peel Trustees, signed by Ms. Palazzi and Messrs. Rose and Pontes, dated May 9, Exhibit 46)
101Later that day a meeting was held at the Meadowvale Field Office which, among others, was attended by Sukhdev, his father, Mr. Suneet Singh, Ms. Palazzi, Mr. Rose, and Mr. Pontes. (Exhibit 53) They discussed the matter of suspension, were informed of the permissive way the issue was handled in Alberta, and Mr. Singh insisted that the issue was not "opposition to authority" but rather the right to practise one's religion. The meeting was an exchange of opinions; subsequent to it the above-mentioned memo was drawn up and the entire issue debated by the Peel trustees at their next meeting.
102Mr. Pontes's testimony, while it did not add any new facts, does put the process clearly in view: He was the one to discover that a student was wearing a kirpan; he started with little knowledge of the Sikh faith; he informed his principal about what he had seen and what the student had claimed; and the principal in turn asked for guidance from his superiors. Everyone began to learn about Sikhism; Sukhdev's family was contacted; and two meetings were arranged to see how the matter could be resolved. In the end, the previously noted clash of opinions occurred: the Sikhs saw the kirpan as an exclusively religious object; the administration, while acknowledging the kirpan's religious connotation, saw it primarily as a weapon and felt that it had to be prohibited under the existing weapons policy.
103Mr. Gollert, M.A., has wide teaching and administrative experience and was the Operations Officer for the Peel Board with whom Mr. Pontes was in touch. The case of Suneet Singh Tuli in Alberta had made him sensitive to the needs of Sikh students (Ev. VIII 61), and he had advised Mr. Pontes to treat the Hundal case with respect for religious sensitivities.
104His testimony supported that given by Mr. Pontes and in addition touched on some broader issues. Thus, the witness had prepared a survey of violent incidents involving knives (Exhibit 40) and in June 1988 wrote to his superior, Mr. Fraser:
I continue to be concerned regarding the growing incidence of weapons (knives) in three different schools. (Exhibit 58)
105He made contacts with other school boards to ascertain their weapons and kirpan policy. This survey included the school boards of Hamilton, London, Etobicoke, North York, Toronto, Halton, Durham, Ottawa, York, and Scarborough, all in Ontario. Most had no weapons policy as such, and none had a specific kirpan policy. (Exhibit 59)
106Mr. Gollert also inquired about the kirpan policy of the Peel regional police force, but the information on which he reported (Ev. VIII 85) has since been updated. On May 9, 1990 By-Law Number 142 was amended in Schedule "A" s. 5.16(ii) to read:
. . . such members who have applied for and received permission to deviate from the prescribed standard of appearance as noted in Paragraph 5.16(i) may wear:
(a) a Kirpan under the police uniform . . .
However, since a police officer is already armed, it appears to me that this policy does not impact on the instant case one way or another.
107Mr. Gollert further related that he had met with Sikh community members and had explored avenues of compromise, but found that no group could lay down a universally accepted rule and that it was in the end up to individuals to determine the strictness of their observance.
108In the end he concluded that kirpans constituted an added danger in a volatile environment, and it was he who contributed to the proposal for the modification of Policy No. 48, which went over the signature of Mr. Weldon. (Exhibit 35) He thought it to be "inconsistent to allow a selected student, or a number of students, to carry kirpans." (Ev. VIII 64)
109He also testified about a certain Khalsa student whose religious habits were said to have differed from those of others. But while I admitted Mr. Gollerts' testimony over Commission counsel's objections, I have come to the conclusion that this testimony has no weight beyond suggesting what was already part of the record: that there are different levels of strictness in the Sikh religion as there are in any other. Even Khalsa Sikhs do not interpret their obligations in exactly the same manner.
110In sum, Mr. Gollert's testimony emphasized the growth of knife-related violence. It also showed that the kirpan of the Peel Board was not based on models of other boards, but grew out of opinions and considerations developed primarily in Peel.
111Mr. Campbell, M.A., M. Ed., was a teacher for seven years and has been an administrator for twenty-one. In 1987/88 he was the Principal of Ridgewood Public School, where Paramvir Singh attended as a student in fourth grade. The school population was ethnoculturally quite diverse.
112Paramvir was a capable student; and he attended ESL classes.11 (Ev. X 43–4) He had enrolled in the fall of 1987, but it was not until November that the principal learned that ten-year-old Paramvir was wearing a kirpan because he was Khalsa. His parents admitted that this was a rather young age.
113Mr. Campbell, in a conference with the parents, indicated that he would allow the boy to wear his kirpan, as long as he would wear it hidden under his clothes, and that he would not use it improperly. He also suggested that Paramvir not talk about it, apparently fearing that other boys might become unduly interested in the strange item.
114The witness also learned of a neighbouring school where a girl student was allowed to wear her kirpan, and he had become aware of the Tuli case in Alberta, in which a Khalsa student who had been denied the right to wear his kirpan had invoked the Individual's Rights Protection Act, R.S.A. 1980, c. I-2 (the case will be discussed in Section III, infra). In consequence of this, he permitted Paramvir to keep on wearing his kirpan, as long as he observed the above-noted conditions. This was at the beginning of November 1987.
115It was not until the end of May 1988 that Mr. Campbell was contacted by his superiors with regard to young Singh. (Ev. X 14) He was advised of the existing policy of the Peel Board, which he understood to mean that a 3.5-inch kirpan would be permissible, while a kirpan of greater length would not. (Ev. X 77) Thereupon, together with his superintendent, he again met with the family. They were advised by letter that the required maximum length 3.5-inch kirpan was available in the Toronto area. (Ev. X 25; Exhibit 69)
116Paramvir then came to school with a much larger kirpan, which he wore on the outside of his clothing. On request by the principal he hid it underneath, but at this point he did his work in an area supervised by the principal. The latter took a great interest in the boy, helped him personally, and had him return to class occasionally, and allowed him to attend an awards assembly while supervised by an adult. Mr. Campbell's supervisor, Mr. Norm Gollert, approved of his handling [of] the matter.
117On June 17 an incident occurred which, in the view of the respondent's counsel, was of great significance. Paramvir was walking home with a friend when he was verbally assaulted by two older boys. It appears that the word "punch" (a word not known to Paramvir) played some role, and, in order to demonstrate what it meant, the older boy punched Paramvir on the shoulder.
Paramvir then . . . clasped his hand to the handle of his kirpan and said, "This is the way we punch in India" . . . The boys then stepped back and were, to a degree, alarmed by the incident. (Ev. X 47; Mr. Campbell's full memo about the incident was submitted as Exhibit 72)
118All agreed that Paramvir had not extracted the blade from the sheath and that after his implied threat he had run away. Though all of this happened outside the school, one of the boys reported the incident to Mr. Campbell who called all participants into his office and explained the gravity of the matter. All of them regretted the incident and apologized. (Ev. X 71)
119Mr. Campbell stated that he had not undertaken any program to acquaint the student body with the meaning of the kirpan as a religious symbol. (Ev. X 68–9) Quite clearly, he hoped that the less one said about it the better; once the students' attention was drawn to the presence of kirpans, another possibility for violence was created.
120The present policy of the Peel Board makes this type of discretion of course impossible. But viewing it all in all he now supports the new, restrictive policy.
When [students] want to be . . . overly assertive [they] may use what they have at their access. That is often the sharp tongue, the negative communication. It could be the hands, it could be the feet. It could be the spittle. It could also be . . . the kirpan. (Ev. X 60–1)
121A number of facts emerged from Mr. Campbell's testimony.
The witness himself acted in a highly responsible manner, with obvious concern for the religious sensibility of the Singh family. Even in view of a directive from the Peel trustees he took it upon himself to make certain exceptions for Paramvir and, under proper supervision, had him mix with other students on certain occasions.
The family offered to make the kirpan inoperable as a potential weapon by stitching it securely, but the offer was not taken up. (Ev. X 39–40)
The incident in which Paramvir threatened his hasslers showed that, in his case anyway, the potential of a kirpan as a weapon was present in the boy's mind — even though his action did not go beyond laying his hand on the kirpan. It needs to be recalled that the boy was ten years old.
Mr. Campbell astutely interpreted the meaning of aggression: it was not merely physical, it was often verbal. Violence has many faces.
6. MS. ZUBEDA VAHED AND DR. EDWARD BLACKSTOCK, WITNESSES FOR THE RESPONDENT
122Zubeda Vahed is the only multiculturalism and race relations officer for the Peel Board. A number of exhibits were introduced to show in what way her department impacts on the school system, one being a small four-page pamphlet entitled Racial/Ethnocultural Harassment, which is published by the Peel Board and explains how complaint procedures are initiated and handled. Its preamble reads:
The Peel Board of Education is committed to a philosophy of respect for the racial, ethnic and cultural plurality of our society. It is the policy of the Board that all staff and students will be encouraged to develop a sense of self-worth and that incidents of discrimination will not be tolerated in our school system. All staff and students have a right to function in an environment free of any racial/ethnocultural harassment. (Exhibit 63)
123The task of the witness is centred around developing policy, but she is occasionally called upon to function in specific situations.
124Asked whether there were various levels of religious commitment within the Sikh community, Ms. Vahed (who is not a Sikh) said:
That is true of many faith communities . . . different levels of commitment, understanding, orthodoxy, interpretation, life experience, education. (Ev. IX 49)
125Ms. Vahed was called by Mr. Pontes when he encountered Sukhdev Hundal wearing a kirpan, supra, s. 5. It was her impression that Mr. Pontes wanted to accommodate Sukhdev if at all possible. She replied that she was not in a position to make a judgment in the matter, and therefore referred him to Dr. Banwatt, a member of the Sikh community. (Ev. IX 28) But she had no further involvement in the matter and had no share in formulating the amendments to Policy No. 48. (Ev. IX 53)
126Commission counsel then asked the witness to comment on two documents. One was Changing Perspectives, which is a resource guide for race and ethnocultural equity, created by the Ontario Ministry of Education. (Exhibit 64)12 It was published in 1989, after the Peel policy was adopted. On p. 4 it speaks of its objective to promote:
education that will enable all students to feel that their culture and identity are validated by the educational system, develop a positive self-image that includes pride in their racial, ethno-cultural identity and heritage, accept and appreciate diversity and reject prejudicial and discriminatory attitudes and behaviour.
127Ms. Vahed was asked to compare this desired goal with the text of the Peel Board's amended Policy No. 48 which is reflected in its Information Handbook for students, introduced earlier (sub II 2) as Exhibit 30. There, on p. 24, No. 14 it says:
Students will not be allowed to possess weapons of any nature, including kirpans, on school property. Baptized Sikh students will be subject to the following regulations . . .
128She stated that this language, when read by a Sikh student entering the school system, would not make him feel that his culture and identity were "validated by the educational system," as the Ministry's guidelines had requested. Furthermore, being led to believe that Sikh students were permitted to carry weapons, would likely create fear and distrust among the general school population, instead of fostering "acceptance and appreciation of diversity." (Ev. IX 60–3)
129Even though the witness had appeared for and was employed by the Peel Board, this exchange made it clear that the phrasing of the Policy and the Handbook was not compatible with the basic objectives of the Peel Board's own department on race relations.
130Edward Blackstock, Ph.D., is a specialist in developmental psychology and chief psychologist for the Peel Board of Education. There are altogether some forty-six psychologists employed by the Board, a number which the witness described as inadequate to provide proper counselling and assessment. (Ev. VII 130) The testimony can be summarized as follows:
There are no available data which allow authorities to predict which students will be violent. The witness could not think of a single violent incident that the school could have prevented on the basis of the knowledge it had at hand. (Ev. VII 140)
Teenagers are fascinated by weapons, especially knives. Most of them would see kirpans as weapons. The kirpan, especially if the sheath is decorated, might be perceived as a weapon, be of high interest, even "awesome." (Ev. VII 141, 143–4)
It is well to remember that children and teenagers think differently from the way adults do. (Ev. VII 142)
131Dr. Blackstock related the way the Peel system treats students who have a record of violence. If at all possible they are returned to school, and some hundred behavioural assistant teachers are assigned to watch and counsel them. In two cases difficult-to-control offenders are watched by two full-time assistant teachers. (Ev. VII 146–7)
132Although there have been cases in his experience when he advised the authorities not to return a child to the system because of potential violence, the child was returned and subsequently did some harm. But school administrators feel that:
you cannot exclude people from education on the suspicion that they might engage in violent or dangerous behaviour . . . (Ev. VII 151)
133He told the story of one student who was diagnosed by a psychiatrist:
Yes, this child is a psychotic, he is dangerous. However, it is more dangerous for him to remain at home alone than to come to school, so he may return to school. (Ev. VII 152–6)
134Because violence is rare in our system we cannot rely on statistical data (there being too few of them). Thus, while kirpans have not figured in violent incidents, their presence is so small that it is hard to predict whether there is a likelihood that they might be so used.
135While all prediction is difficult, the more information is available the better. Thus, if one knows of the presence of alcohol or drugs in a student's life, the risk of violence is greater than if there were no substance abuse. Similarly, the risk is lessened when there is a strong family structure to support a student. Consequently he would agree that Sikh students on the whole present a lower risk factor. (Ev. VII 168–9)
136The witness opined that we all suffer from the fear of the unknown and often make assumptions about those we do not know. He seemed to feel that Sikhs belonged to this latter category and that added knowledge and acquaintance would be helpful. (Ev. VII 183)
137I found the testimony of Dr. Blackstock particularly noteworthy in that he related how violent offenders and psychotics were treated in the Peel system. Additional staff were hired to make sure that such students could continue school, and that included students who had proven themselves to be dangerous. I shall have occasion to return to these observations in Section IV, infra.
III. Legal Analysis
138The complaints by the Commission and Mr. Pandori were based on ss. 1, 4, 8, and 10 of the Code. The relevant sections read as follows:
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 . . .
(1) Every person has a right to equal treatment with respect to employment without discrimination because of . . . creed . . .
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] . . .
(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.
139As noted, the respondent had originally argued that the Commission's complaint was without foundation because education was not one of the "services" referred to in s. 1. That argument was disallowed by the Divisional Court and the matter therefore proceeded before this Board of Inquiry, supra, 1.
1. DIRECT AND INDIRECT DISCRIMINATION
140The Commission argued the case along two different lines simultaneously. It argued that s. 1 was infringed in that there had been direct discrimination; but that, should the appeal to s. 1 fail, then s. 10 would become the basis for the complaint in that indirect discrimination (also referred to as constructive or adverse effect discrimination) had undoubtedly occurred. I will therefore initially discuss direct discrimination and its applicability to this case.
141The Supreme Court, in Ontario (Human Rights Comm.) and O'Malley v. Simpsons-Sears Ltd.(1986), 1985 CanLII 18 (SCC), 7 C.H.R.R. D/3102 (at D/3106, para. 24772), defined direct discrimination as a practice:
which on its face discriminates on a prohibited ground. For example, "No Catholics or no women or no blacks employed here."
142Commission held that s. 14 of the discipline policy of the Peel Board (reprinted in the Information Handbook) had such an impact, in that it directly excluded Khalsa Sikhs from the schools when it said:
Students will not be allowed to possess weapons of any nature, including kirpans, on school property. Baptized Sikh students who wear kirpans will be subject to the following regulations:
If the kirpan is left at home students are welcomed and encouraged to participate in all school activities.
A Sikh student may attend school wearing a symbolic representation of the kirpan, provided that symbolic representation does not involve a metal blade that could be used as a weapon.
It is a requirement of the Peel Board of Education that these regulations be communicated annually to all students and to new students upon registration.
143The Commission called this a case of direct discrimination in that Khalsa Sikhs, who according to their religion must wear a kirpan with a metal blade, are singled out and excluded from school. Commission claims the regulation fits the example quoted by the Supreme Court ("No Catholics, no women, no blacks") and says, in effect, "Khalsa Sikhs who wish to live in accordance with their obligations are not admitted to our schools."
144Further, the Commission argued that the laudable intention of the Peel Board to protect its students and staff is irrelevant when discrimination takes place. In support of this, counsel referred to the case of non-Canadian doctors in British Columbia where the judgment stated:
We have no doubt that the principal motivation of the College, in adopting the policy under review, was a wholly laudable one . . . To acknowledge, as we do, that the College has acted with a high public purpose, does not, however, affect the fact that the result of the policy is to discriminate against non-Canadian doctors on grounds quite unrelated to their qualifications for the practice of medicine. (Judgment (27 May, 1976), Leon Getz, Chairman [British Columbia (Human Rights Comm.) v. College of Physicians and Surgeons of B.C. (May 27, 1976) (B.C. Bd. Inq., Getz) [unreported]]; cited in Commission's Book of Authorities, vol. I, Tab 7, p. 8).
145Thus, the issue was not whether the Peel Board had the laudable intention to maximize safety in the schools, but rather whether its weapons policy unequivocally excluded Khalsa Sikhs from its school precincts. This would be direct discrimination within the meaning of s. 1 of the Code; and while other infringements of the section provide for a stated defence, religious discrimination does not. Counsel said:
There is no defense in the Ontario Human Rights Code to a prima facie case of direct discrimination on the basis of religion by a public School Board in the provision of goods, services and facilities. (Ev. XI 42)
146I find this line of argumentation problematic, because there is some question as to whether the Peel policy, when seen