3. Elements needed to show a bona fide and reasonable justification
a) preliminary step: identifying the goal of the standard
20. A standard has to be analysed in the appropriate context. Before it can be determined whether a standard has a bona fide and reasonable justification, the goal or objective of the standard must be defined.
Grismer, supra, at p. 883, paragraph 24.
21. In the case at hand, the goal of the CSMB is to ensure safety in schools. But what degree of safety? As stated in Grismer, the possibilities range from absolute safety to a total lack of safety.
Grismer, supra, at p. 883, paragraph 25.
22. In a given environment, absolute safety could be achieved by prohibiting all potentially dangerous objectives, installing metal detectors or conducting a discretionary search of every person who enters the premise. At the other end of the spectrum, a total lack of safety would be demonstrated by complete freedom and the absence of any discipline or rules. Between those two extremes lies the more moderate view that reasonable safety is needed.
23. In the case at hand, the standard adopted by the CSMB appears to be the standard of reasonable safety. The safety measures put in place by the CSMB are designed to protect children, a very vulnerable group, and it is therefore necessary to demand a high level of safety and a level higher than the level applied in society at large.
24. However, the standard is not the standard of absolute safety, as more intrusive measures like metal detectors and discretionary searches are not used. Moreover, as the Court of Appeal acknowledged in this matter:
This regulation from the Code of Conduct cannot go so far as to prohibit the possession of any object which can cause injury; indeed, even a pencil can be used to inflict injury. Nevertheless, a reasonable line must be drawn, and an inherently dangerous object falls beyond that line.Court of Appeal decision,
supra, at paragraph 87.
Factum of respondent CSMB, at paragraph 51.
25. This standard of safety is akin to the standard applied to driving in Grismer, where the Superintendent set a goal of reasonable safety and allowed some people to drive in spite of functional limitations. Moreover, in Central Alberta Dairy Pool v. Alberta, [1990] 2 S.C.R. 489, the policy at issue was not absolute in that it required all staff to work on Mondays but made an exception in cases of illness.
Central Alberta Dairy Pool v. Alberta (C.H.R.C.), [1990] 2 S.C.R. 489 at p. 501 ("
Central Alberta Dairy Pool").
26. Now that the standard at issue has been identified, the Meiorin and Grismer test can be applied.
b) Question 1: Did the CSMB adopt the standard with a goal or objective rationally connected to its function?
27. Without question, a reasonable standard of safety at school is rationally connected to the public function performed by the CSMB.
c) Question 2: Did the CSMB adopt the standard in good faith, believing it was necessary to attain that goal or objective?
28. The CHRC acknowledges the CSMB's good faith in adopting the standard of reasonable safety.
d) Question 3: Is the standard reasonably necessary to attain the goal in the sense that the CSMB cannot accommodate people with the same characteristics as Gurbaj Singh without incurring undue hardship?
General Principles
29. To meet this requirement, the CSMB had to show that it could not accommodate Gurbaj Singh's religion without incurring undue hardship, whether that hardship took the form of impossibility, serious risk or excessive cost.
Grismer, supra, at p. 887, paragraph 32.
30. The following principles have been used in the case law and are germane to the analysis of this question:
See
Howell v. Canadian Armed Forces, 2004 CHRT 31, at paragraph 65.
31. The use of the term "undue" infers that some hardship is acceptable; it is only "undue" hardship that satisfies this test. It may be ideal from the CSMB's perspective to choose a standard that is uncompromisingly stringent. Yet the standard, if it is to be justified, must accommodate factors relating to the unique capabilities and inherent worth and dignity of every individual, up to the point of undue hardship.
Meiorin, supra, at p. 35, paragraph 62.
Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970 at p. 984.
32. A standard that excludes members of a particular group on impressionistic assumptions is generally suspect.
Grismer, supra, at p. 886, paragraph 31.
D. Lepofsky, "The Duty to Accommodate: A Purposive Approach", (1992) 1 Can. Lab. L.J. 1 at p. 13.
Central Alberta Dairy Pool, supra, at p. 505.
33. Moreover, evidence that a particular group is being treated more harshly than others without apparent justification may indicate that the standard applied to that group is not reasonably necessary.
Grismer, supra, at p. 886, paragraph 31.
Gordy v. Oak Bay Marine Management Ltd., 2004 BCHRT 225 ("
Oak Bay Marine"), at paragraphs 162-165.
34. While it must not lower its safety standard, the CSMB cannot adopt a reasonable standard of safety for the general student population and an absolute standard of safety for students of Sikh faith without giving the rationale for that distinction.
Grismer, supra, at pp. 892-893, paragraph 42.
35. Respondents, courts and administrative tribunals have to be innovative yet practical when considering accommodation options in particular circumstances.
Meiorin, supra, at p. 36, paragraph 64.
36. If individual differences can be accommodated without imposing undue hardship on the respondent, the standard is not justified.
Meiorin, supra, at pp. 37-38, paragraph 67.
37. In a case where accommodation is flatly refused, there must be some evidence to link the outright refusal of even the possibility of accommodation with an undue safety risk.
Grismer, supra, at p. 893, paragraph 43.
38. Ultimately, the CSMB must show that it considered and reasonably rejected because of undue hardship all of the options that would make the kirpan reasonably inoffensive and maintain the necessary standard of safety in the school.