ONTARIO COURT OF JUSTICE

CITATION: Mississauga (City) v. Bhatnagar, 2019 ONCJ 194

DATE: 2019-04-04

COURT FILE No.: Mississauga

3161-999-18-000062-1-7

BETWEEN:

CITY OF MISSISSAUGA

— AND —

RENU AND RANJEEV BHATNAGAR

Before Justice of the Peace V. FISHER-GRANT

Heard on FEBRUARY 7, 2019

Reasons for Judgment released on APRIL 4, 2019

A. Cahill............................................................................................ agent for the prosecution

E. Amendola..................................................................................... agent for the defendant

[1] Renu and Ranjeev Bhatnagar are charged with 7 counts each under the Fire Protection and Prevention Act relating to their ownership of a home located at 3355 Aquinas Avenue in Mississauga.

[2] They have filed a motion alleging that their rights under Section 2 of the Charter of Rights and Freedoms [hereinafter the “Charter”] were infringed based on the investigation that took place on November 27, 2017.

[3] Section 2 of the Charter provides that “[e]veryone has … freedom of conscience and religion.”

THE EVIDENCE ON THE MOTION

[4] Ms. Renu Bhatnagar testified that she lives at 3355 Aquinas Avenue in Mississauga and has lived there for 25 years with her husband, Ranjeev. She was born in India and practices the Hindu religion.

[5] In the home, there are two holy rooms. One is on the main floor and the other is in the basement. She testified that they do not wear shoes in those rooms. There is a note in the basement that shoes need to be taken off and head coverings worn.

[6] She testified that on November 27, 2017 she unexpectedly heard banging on her door. She was not feeling well and eight men entered the home. She testified she was alone, scared, and that she asked them to come back when her husband was there. She also testified that she was scared that her daughter was taking a shower.

[7] She told them that they are not supposed to wear their shoes. They entered both rooms which made her subsequently sleepless, have nightmares and feel violated.

[8] In cross-examination, she was asked about the inspector making several attempts to contact them. She testified she did not receive the letter that was sent. She did not recall an attendance by the inspector on July 25, 2017 where a card was left. She also did not recall giving a phone number to the fire inspector. She gave various explanations for not receiving the contact attempts. She did acknowledge that the fire inspector did show up with a warrant on a later date but testified that she was not given time to read it, that it did not have a stamp on it and she did not read it because she had a migraine.

[9] Ranjeev Bhatnagar testified that he owns the home at 3355 Aquinas with his wife. He was not home on the day of the inspection as he was working out of town. He testified that there are two holy rooms in the home where they go to meditate and say prayers. They consider shoes as filthy and not holy; therefore they need to be removed when persons are praying in the rooms.

[10] He testified that there are signs in the home indicating that shoes are not to be worn inside. He feels that their rights and religious beliefs were not respected on the day of the inspection and testified that removal of shoes is mandatory in his religion.

[11] Inspector Anthony Longo testified on behalf of the prosecution on the motion. He has been a fire inspector for nine years. He testified that a complaint was received regarding a basement apartment. He first went to the property on July 25, 2017 with another colleague. He was greeted by a woman at the home, Ms. Renu Bhatnagar. She asked him to come back when her husband was available. Inspector Longo obtained a telephone number and left his card.

[12] He continued that by August 8, 2017 he had not heard anything so he phoned Ms. Bhatnagar and spoke to her to arrange a time. Not hearing back by August 17th he then mailed a letter to try to arrange a time for the inspection. By September 8, 2017 he still had not heard anything back from them so he returned to the property. There was no answer at the door so he left his card. He again called the telephone number he had received from Ms. Bhatnagar but it was then out of service.

[13] He returned to the property on Sept 14, 2017 and knocked. There was no answer. The card he had left was gone and the glass door that had previously been kept unlocked was now locked. He again left a card with a message to call him.

[14] On November 13, 2017 he returned to the home. He knocked on the door and there was no answer. He again left a card with a message indicating that if no one contacted him by November 14, a warrant would be sought.

[15] On November 27, 2017 he attended the property with a warrant. He knocked on the door and the side window; there was no response. There was a locksmith present who began to try to unlock the outside door. While doing so, the inside door was opened by Ms. Bhatnagar. He testified that they did present the warrant and was asked to return another day. He refused: replying that they had the warrant. He did not remove his shoes, as they are part of his protective equipment. He testified that they do not remove their equipment while conducting business.

[16] He agreed that when he was walking around, Ms. Bhatnagar did ask him not to go into a particular basement room. He looked into the room initially and was satisfied. He says he spent about 10 seconds in the room later to take a photo of the electrical panel in the room. He did not initially notice the panel but he was told by a firefighter that it was there. The panel did not have a cover and there were bare electrical wires. He went back to take the photo believing there to be a hazard. He testified that he did not see anyone else in the room.

[17] In cross-examination Inspector Longo indicated that there were five persons that attended that day; himself, Acting Captain Strudwick, two police officers PCs Pawa and White, and a locksmith. He did not see anyone in the room because he was not in the vicinity. The room on the upper level was not inspected. He was asked to take his shoes off but did not do so for his safety. He doesn’t recall if he was told that it was a holy room but understands that now.

ISSUES

1. Whether the Applicant’s Charter rights under section 2 were infringed by the Fire Inspector’s entry?

2. If the Applicant’s Charter rights were infringed, whether a stay under section 24(1) is an appropriate remedy?

THE LAW

[18] …”[Freedom] of religion ensures that every individual must be free to hold and to manifest without State interference those beliefs and opinions dictated by one’s conscience. This freedom is not unlimited, however, and is restricted by the right of others to hold and to manifest beliefs and opinions of their own, and to be free from injury from the exercise of the freedom of religion of others. Freedom of religion is subject to such limitations as are necessary to protect public safety, order, health or morals and the fundamental rights and freedoms of others.” Ross v. New Brunswick School District No. 15, [1996] 1 SCR 825, 1996 237 (SCC), para. 72

[19] Further, a relevant consideration to whether “the person’s right to freedom of religion is at issue” is the sincerity of the person’s belief that the religious practice must be observed. However, an infringement of this right cannot be established without objective proof of an interference with the observance of that practice. S.L. v. Commission scolaire des Chênes, 2012 SCC 7, [2012] 1 SCR 235, para. 2.

[20] The analysis when considering whether there has been an infringement of freedom of religion is in two parts. First, a subjective analysis that is limited to establishing that there is a “sincere belief that has a nexus with religion, including the belief in an obligation to conform to a religious practice.” S.L., supra, para. 24.

[21] The second part of the analysis involves an objective analysis of “the rules, events or acts that interfere with the exercise of that freedom.” S.L., supra, para. 24. The protection of the right “must be measured in relation to other rights and with a view to the underlying context …. No right is absolute.” S.L., supra, para. 25.

[22] The Supreme Court has also analyzed the issue in the context of deciding whether a regulation made by the state violated the applicant’s section 2 Charter rights. Therein the Court indicated that an infringement of s. 2(a) will be “made out where (1) the claimant sincerely believes in a belief or practice that has a nexus with religion; and (2) the impugned measure interferes with the claimant’s ability to act in accordance with his or her religious beliefs in a manner that is more than trivial or insubstantial.” Trivial or insubstantial is interference that “does not threaten actual religious beliefs or conduct.” Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 SCR 567, para. 32.

[23] The burden of proof is on the applicant to prove that a Charter right has been infringed. The standard of proof is on a balance of probabilities. R. v. Collins (1987), 1987 84 (SCC), 33 C.C.C. (3d) 1 (S.C.C.).

ANALYSIS

[24] The respondent does not take issue with whether the Bhatnagar’s beliefs, that shoes must be removed in a room of worship, are sincerely held. This is not in dispute. What is in dispute is whether the actions of the Fire Inspector and other officials in attendance at the home constituted an infringement of their rights that was more than trivial or insubstantial if viewed from an objective basis. The prosecutor argues that not only was the action of the inspector insubstantial but that any action of the inspector on that day must be viewed in the context of the potential life safety issues of the inspector performing his duties on that day.

[25] The applicant argues that they have suffered harm as a result of the inspector’s actions on that day such that the matter warrants a stay of proceedings. Ms. Bhatnagar testified that she suffered nightmares, sleeplessness and other ill effects as a result of what occurred. The applicant asks the court to find that those actions of the officials that day amounted to a violation under s. 2.

[26] The first case that the applicant has referred me to is the matter of Multani v. Commission scolaire Marguerite-Bourgeoys, [2016] 1 SCR 256. In that matter, the Supreme Court ruled that a prohibition against wearing a kirpan infringed on the applicant’s freedom of religion. The prohibition could not be justified under section 1 as the total prohibition was not within a range of reasonable alternatives.

[27] This case is distinguishable from the facts of Multani. The choices that Mr. Multani had were to either not wear his kirpan or not attend school. The school board did not offer any reasonable lesser alternatives. The choices that Mr. Multani faced and the infringement of his religion were significant, and in my view contrast to the facts before me.

[28] In the matter of Madkour v Alabi, 2017 HRTO 436, the applicant’s allegation of a violation of their freedom of religion was made out as against their landlord before the Human Rights tribunal. The basis for the violation were issues surrounding their ability to pray at certain times of day and the landlord not removing his shoes in their home when showing their apartment. This matter is significantly different than the facts of this matter; not only were there more significant infringing behaviours alleged but the landlord’s rationale for not accommodating those concerns was unfounded. The Tribunal found that the respondent landlord’s claim of financial impact and hardship was not proven and unsupported. Madkour, para 93.

[29] The applicant also provided a copy of the matter of Bhinder v. Canadian National Railway, 1981 4 (CHRT). The complainant, Mr. Bhinder alleged that C.N. had engaged in a discriminatory practice by requiring him to wear a hard hat, instead of a turban which as a Sikh was, for religious reasons, the only thing he could wear on his head. The Tribunal found that the hard hat regulation discriminated against Mr. Bhinder by creating an unfavourable distinction between employees on the basis of religion. Supra, para. 146. Although the employee, Mr. Bhinder, may have contracted to abide by safety regulations this was unsustainable if the contract violates the Canadian Human Rights Act. The tribunal found that Mr. Bhinder was able to perform satisfactorily at his job without wearing a hard hat and the regulation did not relate to the ability of the employees to satisfy their job requirements. Ibid., para. 148. However, the Tribunal noted that:

… where it can be shown that there are safety implications for persons other than the employee himself, the burden of proof on the employer will be considerably less. If the employer can demonstrate a minimal increase in risk of harm to other persons, because of the absence of safety regulations it will have met its burden of establishing the safety regulations as a bona fide occupational requirement. … if there were safety implications for the public or other employees, C.N.’s hard hat requirement could be justified. … To meet the burden of proof in this regard, the employer need only to show that its safety requirements was supported in fact and reason based on the practical reality of the work-a-day world…. Supra, para. 149

[30] In this matter, unlike Bhinder, the respondent has shown that there are safety implications for other persons. Inspector Longo testified that his boots are part of his protective equipment and they (inspectors) do not remove them while conducting business. It is not difficult to draw conclusions why this is so – the fire inspector in this matter was attending a home with a warrant to conduct an inspection. When attending to a home, they do not know what is in the home. He observed an electrical panel with bare wires and therefore entered the room as he believed there to be a hazard. Based on this, I conclude that it is reasonable to believe that fire inspectors would need to keep their shoes on in such circumstances.

[31] Freedom of religion is subject to such limitations as are necessary to protect public safety. In my view, not only is the protection of the individual fire personnel at issue here but also the ability of those personnel to effectively do their jobs in order to protect public safety. By requiring them to remove their shoes during an inspection the deleterious effects would be two fold. First, it would jeopardize their ability to do their job as it could change their focus from the task at hand to a significant concern regarding their own safety (above what they potentially already face). Therefore, public safety may be compromised. Secondly, the inspectors would potentially face injury themselves in the execution of their duties.

[32] The interest of the state here is significant. Firefighters are performing a function to protect the community from potentially dangerous situations. In this particular matter, I have heard evidence, which I accept, that there was an electrical box with loose wires in the room. I accept that this is a hazardous situation. I also accept that when firefighters enforcing bylaws or performing other duties, enter a home that they do not know what they will find. I accept that in these circumstances they need to wear shoes to protect their safety.

[33] Lastly, in addition to the public safety issue here, I find that the actions of the inspector in this case did not amount to anything more than “trivial or insubstantial.”

[34] I find that the entry into the room was brief. The inspector testified he attended twice to the room. Once he only looked in and did not enter. The second time he was advised by another firefighter that there was an uncovered electrical panel in the room with loose wires that had previously not been visible. This necessitated a return to the room wherein he stated that he went in for 10 seconds to take a photo of the panel. I accept the reason that he went into the room was because there was something relevant to him in the room. It is unknown how long the firefighter went in for who pointed out the panel to Inspector Longo, although based on the fact that Inspector Longo did not see anyone in the room and testified that the others were putting up detectors, I do not accept that it was any lengthy period of time.

[35] I specifically reject Ms. Bhatnagar’s evidence in this regard. She testified that they were in there for a “long time” with their shoes on. Ms. Bhatnagar was an inconsistent and unreliable witnesses. Her evidence attempted to minimize her own actions and amplified the actions of the inspectors. For example, she testified that she was alone at the home when they attended; later, in contrast, she indicated that she was scared her daughter was taking a shower. Further, she testified that she did not recall getting a business card from the inspector, that she did not recall giving a phone number to him, that her mail gets sent to another address sometimes, that high winds make things fly away; while one or two of these circumstances is perhaps plausible, the combination of all of them left the court to conclude that her evidence in this regard was unreliable and an attempt to minimize her own conduct regarding her previous interaction with the inspector.

[36] I find that the minimal period of time that the firefighters were in the room did not interfere with the applicant’s ability to practice their religion in any significant or substantial way. Put another way, I do not find on a balance of probabilities that the infringement here was anything more than trivial or insubstantial based on the minimal time that the inspectors were in the room. There is no evidence that they damaged or dirtied the premises in any way, nor is there any evidence that the family was prevented from exercising their religion.

[37] Additionally, for the reasons that I have already articulated, I also do not accept Ms. Bhatnagar’s evidence that they also attended into the room upstairs. Inspector Longo testified that they only attended the basement room. This makes sense – they had been called regarding a complaint about a basement apartment. These two pieces of testimony are consistent with each other and make sense.

[38] The infringement, if any, was minimal. It did not actually impair their ability to worship or prevent them from doing so. The actions were brief and in one area of the home. When measured against the state’s interest in protecting the safety of the public and individual firefighters, I find the impugned actions caused insubstantial interference which did not threaten actual religious beliefs or conduct. I find that continuing to wear shoes while briefly attending inside a room of worship containing a potential hazard for the purpose of inspection is a necessary limitation to protect public and firefighter safety. I do not find a violation of the Bhatnagar’s rights in these circumstances.

[39] Having found no violation it is not necessary for me to address whether a stay is appropriate in the circumstances. I do note, however, that a stay is a drastic remedy and should only be granted in the clearest of cases. The Supreme Court of Canada has repeatedly held that a stay of proceedings is a last resort remedy, to be entered only when all other remedies are inappropriate. R. v. Taillefer (2003), 2003 SCC 70, 179 C.C.C. (3d) 353 (S.C.C.).

[40] Motion dismissed.

Released: April 4, 2019

Signed: Justice of the Peace V. Fisher-Grant