FREEDOM OF RELIGION AND RELIGIOUS SYMBOLS
IN THE PUBLIC SPHERE
Prepared by:
Laura Barnett
Law and Government Division
Revised 14 March 2006
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2. Headcoverings
Canada has dealt with the religious symbols question in a wide variety of contexts. The question of headcoverings has been raised in the schoolroom, the courtroom, the uniformed workplace, and when dealing with safety helmets.
The general trend has been for courts to allow religious headcoverings in most situations unless there is a serious safety or public order issue at stake.
In 1988, the Ontario Human Rights Commission applied a standard interpretation of section 1 of the Ontario
Human Rights Code to find a prohibition on Sikh turbans in a public school to be religious discrimination.
That same year, Human Rights Commissions in Alberta and again in Ontario used this interpretation of discrimination to overturn bans on uniformed employees from wearing turbans on the job.
In a highly publicized case in 1995, the Federal Court of Appeal also upheld a Royal Canadian Mounted Police (RCMP) policy allowing Sikh officers to wear turbans as part of their uniform.
Once issues of safety and public order are thrown into the headcovering equation, the answer is no longer as clear in Canadian law. The British Columbia Human Rights Tribunal has upheld the right of a turbaned Sikh to ride a motorcycle without a helmet, finding that the discrimination involved in mandating the helmet despite the religious obligation to wear a turban is not justified by the marginal increase in risk to the person or increase in medical costs. The unhelmeted rider alone bears the risk.
However, in
Bhinder v.
Canadian National Railway Co., the Supreme Court of Canada upheld a workplace policy that mandated hard hats at CN Rail, thus precluding Sikh turbans. The Supreme Court dismissed Bhinder’s claim, as the
Canadian Human Rights Act allows an exception to freedom of religion where there is a
bona fide occupational requirement. Because the safety concerns at play in this case did make the hard hat a
bona fide occupational requirement and CN had demonstrated no intention to discriminate, the policy was upheld.
Concerns about public order and the administration of justice were the deciding factor in another case involving an imam who refused to remove his
kufi, an Islamic headcovering, in the courtroom. The trial judge had issued a dress code protocol to the public gallery which stated that male heads must be bare except in the case of adherents of a “well established and recognizable … religious community,” and only where the headcovering was an “article of faith” demanded by such a community. Upon being ordered to leave the courtroom twice because of his kufi, Michael Taylor filed a human rights complaint. In
Taylorv.
Canada (Attorney General), the Federal Court of Appeal held that sitting judges must be immune from threat of both civil action and human rights commission investigation into judicial conduct in order to protect judicial independence and immunity. After-the-fact human rights concerns took second place to the perception of the administration of justice.
Unlike other Canadian provinces, which have primarily focussed on Sikh symbols and head coverings, Quebec has had to deal with a variety of different religions in its treatment of religious symbols in the public sphere. The legal debate over this issue takes on a character of its own in Quebec, as that province has a parallel
Charte des droits et libertés de la personne, a strong history of Catholicism, different approaches to multiculturalism, and significant control over immigration into the province. As a result, Quebec often practises a variant on the legal and political approach to minority issues that is adopted in the rest of Canada.
Mirroring similar situations occurring across Europe, Quebec first broached the issue of Islamic headscarves in the school system when, in September 1994, a Muslim girl was expelled from her school for wearing one. Soon faced with a series of similar incidents, the Commission des droits de la personne et des droits de la jeunesse du Québec (the Commission) was asked to provide an opinion on the issue. In a non-binding report published in February 1995, the Commission concluded that public schools were obliged to accept Muslim girls wearing headscarves, provided that this freedom of religious expression did not constitute a real risk to personal safety or security of property. The Commission stated that prohibiting the headscarf was contrary to the Quebec Charter as a violation of both freedom of religion and the right to education. While schools may insist on certain dress codes, they must also seek reasonable accommodations with Muslim students who are discriminated against by the application of such codes. Dealing with the feminist equality argument that a headscarf ban is necessary to protect girls from an overly oppressive religious regime, the Commission was careful to state that unless it is shown that a specific girl is forced to wear the headscarf against her will, an absolute ban on the headscarf as a religious symbol is not the role of equality laws, and would be an insult to the independence of Muslim women. Rather, the Commission stated that social institutions play a key role in social integration and must not marginalize individuals by excluding them from public education.
However, after this report, the Quebec Commission faced similar complaints from the Muslim community concerning the continued prohibition of headscarves in many private schools. In 2005, the Commission issued a new non-binding report, stating that unless a private school can show that its particular nature (religious, for example) requires it, “necessarily and objectively, to exclude or give preference to certain students, then it too must accommodate people with special needs, including religious needs.”
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http://www.parl.gc.ca/information/library/PRBpubs/prb0441-e.htm#2headcoverings
