PART III - ARGUMENTS
1. Context
9. Public education is a right that most Quebeckers take for granted. It is recognized both in Quebec law and in international law.
Education Act, R.S.Q. c. I-13.3, sections 1 and 3.
Universal Declaration of Human Rights, U.N. Doc. A/810, p. 71 (1948), article 26.
International Covenant on Economic, Social and Cultural Rights, [1976] R.T. Can. No. 46, article 13.
M. Freeman, G. van Ert, International Human Rights Law, Irwin Law, Inc., 2004, at pp. 318-322.
10. Quebeckers also have basic human rights under the Canadian Charter of Rights and Freedoms and under human rights legislation which this Court has recognized as having quasi-constitutional status.
Constitution Act, 1982 (Schedule B of the Canada Act, 1982, 1982 (U.K.), c. 11.
Quebec (C.D.P.D.J.) v. Montréal (City), [2000] 1 S.C.R. 665 at p. 683.
11. However, those rights are not absolute and can be limited if necessary to ensure public safety, particularly the safety of children at school.
12. This appeal therefore involves conflict between two fundamental rights: 1. the right of every person to attend public school and express his or her religion without discrimination; and 2. the CSMB's right and duty to establish safety policies to protect the persons for whom it is responsible.
13. This Court will have to determine whether, in adopting a policy prohibiting the wearing of a kirpan at school without considering all possible options to make the kirpan reasonably inoffensive, the CSMB met the requirements of human rights legislation in light of the jurisprudence of this Court.
14. The Canadian Human Rights Commission has been granted intervener status and will make representations regarding the test applicable, in terms of both substance and process, to justify a safety policy that discriminates on the basis of religion.
2. Applicable test
15. In British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3 ("Meiorin") and British Columbia (Superintendent of Motor Vehicles ) v. British Columbia (Human Rights Commission), [1999] 3 S.C.R. 868 ("Grismer"), this Court standardized the test applicable to discrimination and rejected the old distinction between direct and indirect discrimination.
16. Under this unified approach, once the plaintiff establishes that the standard is prima facie discriminatory, the onus shifts to the defendant to prove on a balance of probabilities that the discriminatory standard has a bona fide and reasonable justification. In order to establish this justification, the defendant must prove that:
- it adopted the standard for a purpose or goal that is rationally connected to the function being performed;
- it adopted the standard in good faith, in the belief that it is necessary for the fulfilment of the purpose or goal; and
- the standard is reasonably necessary to accomplish its purpose or goal, in the sense that the defendant cannot accommodate persons with the characteristics of the claimant without incurring undue hardship.
Grismer, supra, at p. 881, paragraph 20.
17. The CSMB policy prohibiting the wearing of a kirpan at school had the effect of forcing Gurbaj Singh and any other baptized Sikh to choose between attending public school and observing their religion. That is a substantial effect given the importance of education to a child. Gurbaj Singh has enrolled in a private school, but that option is not open to everyone and constitutes very clear marginalization in relation to Quebec society.
18. In Pandori v. Peel Board of Education (1990), 12 C.H.R.R. D/364, the Ontario Human Rights Tribunal recognized the serious impact of such a policy on students and teachers alike and ruled the policy a prima facie discriminatory practice:
If [kirpans] were proscribed, practising Sikhs, if of school age, would be denied a public school education, and if accredited as teachers, would be barred from pursuing the profession of their choice. (paragraph 4)
[...] The prohibition creates adverse effect discrimination for such Sikhs and constitutes a prima facie infringement of the Code.
Pandori v. Peel Bd. of Education (1990), 12 C.H.R.R. D/364 ("Pandori") paragraphs 4 and 158, application for judicial review denied (1991), 14 C.H.R.R. D/403.
19. The CSMB policy is therefore a prima facie discriminatory practice, and the CSMB has the burden of providing, on a balance of probabilities, that the discriminatory standard had a bona fide and reasonable justification.