No hard hat, no deal: Quebec court becomes latest to slap down turban exemptions for Sikhs
Tristin Hopper | September 29, 2016 2:51 PM ET
The Port of Montreal requires hard hats for all workers on its property. Three Sikh truck drivers who perform regular pickups at the port have a religious conviction that forbids putting anything on their head except a five-to-six metre length of wrapped cotton.
And last week, in a court decision that was soon publicized throughout India, the Quebec Superior Court sided with the port. Turban-wearing Sikhs can still enter the port, but if they don’t put on a hard hat they have to stay in the cabs of their truck.
“We’re living in a world of moral panic about danger,” said Julius Grey, lawyer for the three Sikh appellants.
While the last 30 years have seen Canadian Sikhs achieve religious accommodation for the Sikh turban (dastaar) in the Canadian Armed Forces, the RCMP, on passport photos and in B.C. traffic law, the Quebec Superior Court becomes only the latest body to draw the line when it comes to protective headgear.
In 2006, an attempt by two B.C. dock workers to obtain helmet exemptions for Sikh longshoremen failed on arbitration; turban-wearing Sikhs were simply reassigned to areas where hard hats weren’t mandatory. “It is clear and obvious that workers can bump their heads, and thereby sustain head injuries,” read the decision.
There was a similar outcome in 2008, when two B.C. mill workers objecting to a mandatory hard hat policy were simply reassigned to a less dangerous part of the mill.
That same year, an Ontario court rejected the case of a turban-wearing Sikh man who claimed religious infringement for being ticketed while riding his motorcycle without a helmet.
More recently, in 2014 Ontario Premier Kathleen Wynne definitively rejected the Canadian Sikh Association’s request for a religious exemption on motorcycle helmets. “Ultimately, the safety of Ontarians is my utmost priority,” wrote Wynne.
The World Sikh Organization of Canada, in fact, now advises against trying to convince Canadian courts to permit Sikh exemptions for protective headgear.
“Largely it’s about liability, they don’t want to be on the hook for any accident that involves a turban-wearer,” said Balpreet Singh, the organization’s legal counsel.
Singh was instrumental in a 2012 decision that allowed kirpans — a small, stylized sword worn by Sikhs — to be permitted in Toronto courtrooms. But speaking to the National Post by phone, he suggested that Canadian law hits a brick wall when it comes to trading safety for religious accommodation.
No Canadian court will back a turban exemption “if there is a genuine risk of injury or death,” he said.
Currently, there are only two places in Canada where turban-wearing Sikhs can find a codified exemption from a safety requirement. In Manitoba, “bona fide members of the Sikh religion” are not required to wear helmets while motorcycling. In B.C., a similar motorcycle helmet exemption is open to any Sikh who “has unshorn hair and habitually wears a turban composed of 5 or more square meters of cloth.”
The B.C. exemption, enacted after a 1999 human rights tribunal decision, was made with the full knowledge that it would likely result in more Sikhs getting killed on B.C. highways. A detailed accounting contained in the decision surmised that exempting Sikhs from the helmet law would raise motorcycle fatalities by as much as two per year, and brain injuries by as much as 10.
“However … I am not persuaded that the increased risk associated with non-helmeted motorcycling is so substantial that it constitutes undue hardship,” wrote tribunal member Frances Gordon.
The World Sikh Organization of Canada’s Balpreet Singh said no court would again make that kind of trade-off. The reason is a precedent-setting 2009 Supreme Court decision concerning a sect of Alberta Hutterites who believe that posing for driver’s license photos violates the Second Commandment, “thou shalt not make unto thee any graven image.”
The Supreme Court denied the Hutterites an exemption for license photos, arguing that their religious rights were outweighed by the security risks of a photo-less license. “Any exemptions, including those for religious reasons, pose real risk to the integrity of the licensing system,” read the decision.
It’s why the turban-wearing Sikh community has successfully fought anti-turban policies at restaurants, soccer games or public institutions. But the accommodation stops if there’s a chance someone might get hurt.
And it’s not just turbans. In 2000, the B.C. Human Rights Tribunal cited safety concerns when it dismissed the complaint of a Sikh pulp mill worker who objected to a requirement that he shave his beard in order to accommodate a respirator.
Canada is home to roughly 500,000 Sikhs, the largest population outside India. The turban is worn as a symbol of equality, but as with dress requirement across all religions, the practice varies across levels of Sikh observance.
In India, for example, it has been estimated that roughly half of Sikh men are now foregoing the turban.
For those who wear the turban, meanwhile, it is generally not taken off unless inside the home or if it is needed to save a life (such as being used to bandage an accident victim). Turban-wearing Sikh men also do not believe in placing anything atop the dastaar.
Hard hats were a moot point at the Port of Montreal until 2004, when a blanket hard hat rule was enacted in response to a new amendment to the federal Criminal Code mandating that employers now had a “legal duty to take reasonable steps to prevent bodily harm” to their workers.
Turban-wearing Sikh truck drivers could still enter the Port of Montreal, but they had to stay inside the cab of their trucks until a hard-hatted port worker could be found to locate and load the shipping container that the driver was to pick up. The added steps had the effect of turning a 20 minute process into a marathon of up to two hours.
In a French-language decision, the court acknowledged that the rule infringed upon the religious rights of the three men, as guaranteed in the Charter of Rights and Freedoms. Nevertheless, it noted that between 1999 and 2008, 27 head injuries had been recorded as occurring around trucks at the port.
“In light of the laws and regulations that govern their activities, the choice to require hard hats on all port workers, including the appellants … is amply justified,” it read. The “stay in truck cab” rule was thus upheld.
Singh maintains that if Canada is ever going to have helmetless Sikhs on industrial sites, the reform will have to come from provincial governments, not courts. “It has to be the legislature that will make these kinds of accommodations,” he said.
In the U.K., for instance, it was a 1989 amendment to the Employment Act that allowed turban-wearing Sikhs to be exempt from head protection requirements on construction sites. “Where a turban-wearing Sikh chooses not to wear the head protection provided, the exemption includes a limitation on the liability of the duty-holder should an incident occur,” explains the official webpage of the U.K.’s Health and Safety Executive.
Grey, however, intends to take the Port of Montreal case to appeal. He says the case still has a good chance to win on the grounds of “relative safety.” Three guys don’t want to wear hard hats, and it should be their business if they want to take the slim risk of taking an errant wrench to the skull.
Said Grey, “it was the French philosopher Jacques Attali who said that in the future, all policy will be dictated by insurance companies.”