Analysis of Risk
39. This Court has confirmed that risk has a limited role in the analysis of bona fide and reasonable justification and rejected the old notion that "sufficient risk" alone could justify a discriminatory standard. Risk can still be considered under the guise of hardship, but not as an independent justification of discrimination. The critical issue is whether an outright ban on the kirpan was reasonably necessary to ensure safety in schools.
Grismer, supra, at p. 886, paragraph 30.
40. The aim is not to lower the safety standard, but rather to find options that will make it possible to meet that objective and at the same time respect human rights.
Grismer, supra, at pp. 892-893, paragraph 42.
Oak Bay Marine, supra, at paragraphs 222, 231-237.
41. In this context, the magnitude of the risk caused by the presence of kirpans and the identity of those who bear that risk are pertinent considerations.
Central Alberta Dairy Pool, supra, at p. 521.
42. In order to determine the magnitude of the risk, the likelihood that loss or injury may occur and the seriousness of the loss or injury that may result must be considered.
Nijjar v. Canada 3000 Airlines Limited, [1999] C.H.R.T. No. 3, at paragraph 55.
Woolverton v. B.C. Transit (1992), 19 C.H.R.R. D/200 aux para 124-125.
43. The CSMB had an obligation to consider the following questions:
- What is the likelihood that injury will occur if kirpans are permitted at school? The greater the likelihood of injury, the more justifiable the measure.
- How serious would the injury be if there were an injury? The more serious the consequences, the more justifiable the measure.
- Who will bear the risk? The greater the risk to third parties, the more justifiable the measure.
- What is the environment in which the risk occurs? The higher the applicable safety standard, the more justifiable the measure.
- What means are available to reduce the risk? The measure cannot be justified unless all options that would help reduce the risk were considered and reasonably rejected on the grounds of undue hardship.
Nijjar, supra.See also K.D. MacNeill,
The Duty to Accommodate in Employment, Canada Law Book Inc., 2004, at pp. 12-33 to 12-41.
44. In applying these questions to the facts before it in Pandori and Singh v. Workmen's Compensation Board Hospital (1981), 2 C.H.R.R. D/459, the Ontario Human Rights Tribunal allowed kirpans to be worn with some restrictions in Ontario schools and hospitals because of the low likelihood of risk and the absence of attempts to accommodate.
Pandori, supra.
Singh v. Workmen's Compensation Board Hospital (1981), 2 C.H.R.R. D/459 ("
Singh").
Tuli v. St. Albert Protestant Separate School (1985), 8 C.H.R.R. D/3906 (Alta Q.B.), at paragraph 30968. ("
Tuli")
Tuli v. St. Albert Protestant Separate School (1986) 8 C.H.R.R. D/3736 (Alta Bd. Inq.), at paragraph 29632.
45. Meanwhile, in Nijjar, the Canadian Human Rights Tribunal upheld the prohibition on bringing kirpans aboard aircraft. That decision was heavily influenced by the environment in question and the standard of absolute safety which that environment requires:
[W]e are satisfied that aircraft present a unique environment. Groups of strangers are brought together and are required to stay together, in confined spaces, for prolonged periods of time. Emergency medical and police assistance are not readily accessible. [...]
Unlike the school environment in issue in the Pandori case, where there is an ongoing relationship between the student and the school and with that a meaningful opportunity to assess the circumstances of the individual seeking the accommodation, air travel involves a transitory population. Significant numbers of people are processed each day, with minimal opportunity for assessment.
Nijjar, supra aux paras 123-125.
46. Similarly, in R v. Hothi et al., [1985] M.J. No. 376, the Manitoba Court of Appeal upheld the prohibition on kirpans in courtrooms after observing that the court environment is unique and cannot allow objects that could have a bearing on the process. The Court also deferred to the judge in maintaining order in the courtroom.
R. v. Hothi et al., [1985] M.J. No. 376.
47. In the case at hand, the environment is the same as in Pandori and is very different from the environment in Nijjar and Hothi. Not only are safety standards higher in aircraft and courtrooms, but flights and hearings are measured in hours or days, whereas school is measured in years. That longer period increases the injury to human rights if there is discrimination, but also provides more options for accommodation.
48. The CSMB contends that other students will be inclined to carry a weapon if they know that Gurbaj Singh is allowed to wear his kirpan, even with restrictions. That fear must be taken seriously, but it cannot preclude accommodation unless there is undue hardship. This Court has confirmed that uninformed views cannot justify refusal to accommodate to the point of undue hardship.
Meiorin, supra, at p. 43.
Renaud, supra, at p. 988.
Singh, supra, at paragraph 4213:
There is no evidence that after the explanation patients were still apprehensive, but had they been, I am of the opinion that their fears would have been unreasonable and an insufficient cause to deny Mr. Singh his religious rights. [...]
49. Considering that fear, the CSMB should have explored available means of mitigating the risk, such as information sessions about the kirpan and the Sikh religion, all the more so since the institution is a school and education can and must contribute to better understanding of others.
50. However, we cannot ignore the evidence put forward by the CSMB showing that safety is a serious problem in schools. Further, because of the vulnerability of the populations they serve, schools are entitled to demand an adequate level of safety in order to protect their students.
51. For all these reasons, the CSMB had a duty to undertake a careful and comprehensive evaluation of all these questions, particularly the question of measures that could help reduce the risk and ensure safety at school by making the kirpan reasonably inoffensive. If it turns out that those solutions cannot be applied without compromising the goal of reasonable safety at school, the prohibition is justified. However, without clear evidence that those solutions are unworkable, the measure is inconsistent with the jurisprudence of this Court.