[1995] 1 F.C. 158
T-499-91
John R. Grant, Kenneth E. Riley, Howard S. Davis, who together form a unincorporated association known as the “Lethbridge R.C.M.P. Veterans’ Court Challenge Committee”, each on their own behalf and on behalf of the unincorporated association, and Kirsten M. Mansbridge (Plaintiffs)
v.
The Attorney General of Canada, the Solicitor General of Canada, Normand D. Inkster, Commissioner of the Royal Canadian Mounted Police (Defendants)
and
Alberta Civil Liberties Assoc., Sikh Society of Calgary, Alberta Inter-religious Coalition, World Sikh Organization, Canadian Human Rights Commission (Intervenors)
Indexed as: Grant v. Canada (Attorney General) (T.D.)
Trial Division, Reed J.—Calgary, January 25; Ottawa, July 8, 1994.
RCMP — Action to prohibit RCMP Commissioner from allowing wearing of religious symbols as part of uniform — RCMP Regulations amended in 1990 to allow implementation of policy to encourage recruitment of visible minorities — No constitutional barrier preventing Commissioner from allowing wearing of Khalsa Sikh turban in place of stetson.
Constitutional law — Charter of Rights — Fundamental freedoms — Freedom of religion — Whether amendment to RCMP Regulations, Commissioner’s Standing Orders unconstitutional as contrary to Charter, s. 2(a) — Legislation with religious purpose not necessarily infringing s. 2(a) — No necessary religious content to interaction between member of public and police officer wearing identification of religious persuasion as part of uniform — No coercion on member of public to share officer’s religious beliefs.
Constitutional law — Charter of Rights — Life, liberty and security — Convention of neutrality applying to police forces under Charter, s. 7 — Police officers expected to operate in neutral fashion, free from political, religious allegiances — Conventions not constitutional guarantees, not legally enforceable — No evidence of deprivation of “liberty or security” by RCMP officers wearing turbans — Visible manifestation of Sikh officer’s religious faith as part of uniform not creating reasonable apprehension of bias — No evidence of state intrusion into life, liberty, security of plaintiffs.
Constitutional law — Charter of Rights — Equality rights — Plaintiffs arguing state recognition of one religious group as opposed to others discriminatory under Charter, s. 15 — Special privilege to officers wearing Sikh turban not discriminatory — Employers required to accomodate employees to alleviate adverse effect discrimination — Commissioner seeking to encourage recruitment of visible minorities into Force — No constitutional barrier.
Practice — Parties — Standing — Requirements for public interest standing met — Serious issue raised by litigation — Plaintiffs having established real, continuing interest in retaining religious neutrality of RCMP uniform — Personal interest resulting from past, present connection with Force — No reasonable, effective alternative means to bring issue before courts.
The plaintiffs sought an order prohibiting the Commissioner of the RCMP from allowing the wearing of religious symbols, such as a turban, as part of the RCMP uniform, and a declaration that the Commissioner’s actions in this regard were unconstitutional. The possibility of changing the RCMP dress code to allow for the wearing of the Khalsa Sikh turban and other symbols of that religion first became of concern to the RCMP in 1980 following enactment of the Canadian Human Rights Act. A report, prepared in 1982 by the Canadian Human Rights Unit of the RCMP, described the tenets of Sikhism, some of its history and the significance of the wearing of various religious symbols. It identified the amendments which should be made to the RCMP Regulations and the Commissioner’s Standing Orders to allow for the wearing of the turban and other items of religious significance by Khalsa Sikhs. No action was taken to implement the recommendations contained in the report. In mid-1987, the RCMP began to endorse and implement affirmative action policies directed at the recruitment of visible minorities; later that year, the issue of the wearing of turbans by Sikh members was raised again, after which the Commissioner gave instructions that the recruiting teams could tell Sikh applicants that they would be allowed to wear beards and turbans. Finally, in April of 1989, a bulletin was issued by the Commissioner to effect a change in the Administration Manual by changing the relevant Standing Orders. The proposed change raised a strong opposition and serious concerns, particularly in western Canada where the RCMP is the police force with which the public comes into daily contact. Moreover, western Canadians have always had great pride in and attachment to the traditions of the RCMP. Despite that opposition, the RCMP Regulations were amended in March of 1990, and an application form was created for Sikhs who wished to wear the turban and the other religious symbols. Two individuals were exempted from wearing the felt hat referred to in subsection 64(1) of the amended Regulations. The issues canvassed were: 1) whether the plaintiffs had standing; 2) freedom of religion and paragraph 2(a) of the Charter; 3) fundamental justice and section 7 of the Charter; 4) discrimination and section 15 of the Charter; 5) multiculturalism and Charter, section 27 and 6) whether the Commissioner’s actions, if unconstitutional, were saved by section 1.
Held, the action should be dismissed.
1) The plaintiffs met the three requirements for public interest standing. First, this litigation raised a serious issue: whether there was a constitutionally protected right that RCMP members, in exercising the powers of the state, do so without exhibiting their adherence to particular religious beliefs. Second, the plaintiffs have met the requirement of possessing sufficient interest, as citizens, in the subject-matter of the litigation. They have established a real and continuing interest in retaining the religious neutrality of the RCMP uniform. They had a personal interest as a result of past and present connection with the Force. They have spent their time, money and effort, first, to lobby Members of Parliament and then by commencing this litigation. There was no merit in the argument that granting standing herein could result in an opening of the floodgates causing the courts to be overburdened and scarce judicial resources inappropriately consumed. The third requirement was that no other reasonable and effective way of getting the issue to court existed. It was most unlikely that an existing member of the RCMP would launch such litigation, or an aggrieved member of the public make a complaint to the RCMP Public Complaints Commission. The plaintiffs did not allege that actual bias or improper action on the part of an officer has occurred; rather, they alleged that a reasonable apprehension of bias will exist. They asserted that, when a religious symbol is allowed as part of the uniform, the appearance of impartiality is undermined. In order to meet the test of a “reasonable and effective” alternative, it is necessary to demonstrate more than a possibility that litigation might occur. There were no reasonable and effective alternative means to bring the issue before the courts.
2) Not all legislation with a religious purpose infringes paragraph 2(a) of the Charter. It is necessary to demonstrate that the religious purpose is such as to either constrain an individual’s chosen religious practices or expression or to compel participation in religious practices or observances which the individual would not freely choose. The interaction of a member of the public with a police officer who carries an identification of his religious persuasion as part of his uniform does not constitute an infringement of the former’s freedom of religion. There is no necessary religious content to the interaction between the two individuals. In the case of interaction between a member of the public and a police officer wearing a turban, there is no compulsion or coercion on the member of the public to participate in, adopt or share the officer’s religious beliefs or practices. The only action demanded from the member of the public is to observe the officer’s religious affiliation. The preamble of the Charter should not be used to interpret the freedom of religion guarantee set out in paragraph 2(a) because that paragraph, being unambiguous in the present context, requires no interpretive assistance. Preambular statements are interpretive guides, not substantive provisions.
3) Many of the activities in which police officers engage fall within the purview of section 7 of the Charter. The concept of fundamental justice carries with it the requirement that decisions are to be taken by a decision-maker free of any indicia which can lead to the raising of a reasonable apprehension of bias. There is a convention of neutrality with respect to police forces in Canada which includes the expectation that their dress will not manifest political or religious allegiances. Conventions are not, however, legally enforceable; they are flexible and change over time. A convention is not a constitutional guarantee. There was no evidence that any person has been “deprived” of his “liberty or security” by either of the two RCMP officers wearing turbans, or has experienced a reasonable apprehension of bias in the context of such deprivation. The plaintiffs’ evidence was entirely theoretical and speculative. The assertion that a visible manifestation of a Sikh officer’s religious faith, as part of his uniform, will create a reasonable apprehension of bias was not based upon any concrete evidence. There was no evidence of any state intrusion into the life, liberty or security of the plaintiffs or of any person whom they represent.
4) Not only was there no concrete instance of discrimination before the Court but the agreed statement of facts stated that the RCMP would consider any request for exemption on religious grounds on a basis similar to that on which the Khalsa Sikh’s request to wear the turban was granted. In order to prove discrimination, there has to be some evidence that equal concessions had been requested and denied and that there was an equality of position with respect to the individual granted an exemption and those who were not. On the evidence, the Commissioner’s Standing Orders did not offend section 15 of the Charter. Under both the Canadian Human Rights Act and section 15 of the Charter, rules of general application which have an adverse effect on an individual because of characteristics which fall within prohibited grounds of discrimination will be held to result in “adverse effect discrimination.” When adverse effect discrimination exists, employers are required to accommodate employees so as to alleviate the effect. The crucial consideration, when the decision to accommodate the Sikh turban was made, was the desire to encourage the recruitment of visible minorities into the force. The focus of this litigation has not been whether the Commissioner was required to make the changes he did, but whether there was any constitutional obligation preventing him from doing so. There was no such constitutional barrier. The Commissioner would not, on the other hand, have been in breach of the Charter had he not acted as he did.
5) Charter section 27 (which concerns preservation of the multicultural heritage of Canadians) was an interpretive provision which did not have to be resorted to since there was no ambiguity in the relevant provisions of the Charter.
6) Nor was resort to Charter section 1 necessary, the Commissioner’s actions not having offended any constitutional provision.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
An Act respecting the Public Lands of the Dominion, S.C. 1872, c. 23.
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 1, 2(a), 7, 15, 27.
Canadian Human Rights Act, S.C. 1976-77, c. 33.
Canadian Human Rights Act, R.S.C., 1985, c. H-6.
Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5], s. 93.
Education Act, R.S.O. 1980, c. 129.
Public Service Employment Act, R.S.C., 1985, c. P-33, s. 33.
Quebec Act, 1774 (The), R.S.C., 1985, Appendix II, No. 2.
Royal Canadian Mounted Police Act, R.S.C., 1985, c. R-10, ss. 21 (as am. by R.S.C., 1985 (2nd Supp.), c. 8, s. 12), 25 (as am. idem, s. 16), Part VI (as am. idem).
Royal Canadian Mounted Police Regulations, C.R.C., c. 1391, s. 85.
Royal Canadian Mounted Police Regulations, 1988, SOR/88-361, ss. 55, 56, 64 (as am. by SOR/90-182, s. 1).
CASES JUDICIALLY CONSIDERED
APPLIED:
R. v. Big M Drug Mart Ltd. et al., [1985] 1 S.C.R. 295; (1985), 60 A.R. 161; 18 D.L.R. (4th) 321; [1985] 3 W.W.R. 481; 37 Alta. L.R. (2d) 97; 18 C.C.C. (3d) 385; 85 CLLC 14,023; 13 C.R.R. 64; 58 N.R. 81; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; (1985), 24 D.L.R. (4th) 536; [1986] 1 W.W.R. 481; 69 B.C.L.R. 145; 23 C.C.C. (3d) 289; 48 C.R. (3d) 289; 18 C.R.R. 30; 36 M.V.R. 240; 63 N.R. 266; R. v. Beare; R. v. Higgins, [1988] 2 S.C.R. 387; (1988), 55 D.L.R. (4th) 481; [1989] 1 W.W.R. 97; 71 Sask. R. 1; 45 C.C.C. (3d) 57; 66 C.R. (3d) 97; 36 C.R.R. 90; 88 N.R. 205; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; (1989), 56 D.L.R. (4th) 1; [1989] 2 W.W.R. 289; 34 B.C.L.R. (2d) 273; 25 C.C.E.L. 255; 10 C.H.R.R. D/5719; 36 C.R.R. 193; 91 N.R. 255.
CONSIDERED:
Bhinder et al. v. Canadian National Railway Co. et al., [1985] 2 S.C.R. 561; (1985), 23 D.L.R. (4th) 481; 17 Admin. L.R. 111; 9 C.C.E.L. 135; 86 CLLC 17,003; 63 N.R. 185; Canadian Council of Churches v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 236; (1992), 88 D.L.R. (4th) 193; 2 Admin. L.R. (2d) 229; 5 C.P.C. (3d) 20; 8 C.R.R. (2d) 145; 16 Imm. L.R. (2d) 161; 132 N.R. 241; Zylberberg v. Sudbury Board of Education (Director) (1988), 65 O.R. (2d) 641; 52 D.L.R. (4th) 577; 34 C.R.R. 1; 29 O.A.C. 23 (C.A.); O’Sullivan v. M.N.R., [1992] 1 F.C. 522; (1991), 84 D.L.R. (4th) 124; [1991] 2 C.T.C. 117; (1991), 91 DTC 5491 (T.D.); Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425; (1990), 65 D.L.R. (4th) 161; 54 C.C.C. 93d) 417; 29 C.P.R. (3d) 97; 76 C.R. (3d) 129; 47 C.R.R. 1; 106 N.R. 161; 39 O.A.C. 161; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; (1986), 35 D.L.R. (4th) 1; 30 C.C.C. (3d) 385; 87 CLLC 14,001; 55 C.R. (3d) 193; 28 C.R.R. 1; 71 N.R. 161; 19 O.A.C. 239; Reference Re Bill 30, An Act to amend the Education Act (Ont.), [1987] 1 S.C.R. 1148; (1987), 40 D.L.R. (4th) 18; 77 N.R. 241; 22 O.A.C. 321; Canada (Attorney-General) v. Sander (1992), 96 D.L.R. (4th) 85; [1992] 2 C.T.C. 289 (B.C.S.C.); Osborne v. Canada (Treasury Board), [1991] 2 S.C.R. 69; (1991), 82 D.L.R. (4th) 321; 37 C.C.E.L. 135; 91 CLLC 14,026; 4 C.R.R. (2d) 30; 125 N.R. 241; Fraser v. Public Service Staff Relations Board, [1985] 2 S.C.R. 455; (1985), 23 D.L.R. (4th) 122; 18 Admin. L.R. 72; 9 C.C.E.L. 233; 86 CLLC 14,003; 19 C.R.R. 152.
REFERRED TO:
Thorson v. Attorney General of Canada et al., [1975] 1 S.C.R. 138; (1974), 43 D.L.R. (3d) 1; 1 N.R. 225; Nova Scotia Board of Censors v. McNeil, [1976] 2 S.C.R. 265; (1975), 12 N.S.R. (2d) 85; 55 D.L.R. (3d) 632; 32 C.R.N.S. 376; 5 N.R. 43; Minister of Justice of Canada et al. v. Borowski, [1981] 2 S.C.R. 575; (1981), 130 D.L.R. (3d) 588; [1982] 1 W.W.R. 97; 12 Sask. R. 420; 64 C.C.C. (2d) 97; 24 C.P.C. 62; 24 C.R. (3d) 352; 39 N.R. 331; Finlay v. Canada (Minister of Finance), [1986] 2 S.C.R. 607; (1986), 33 D.L.R. (4th) 321; [1987] 1 W.W.R. 603; 23 Admin. L.R. 197; 17 C.P.C. (2d) 289; 71 N.R. 338; Operation Dismantle Inc. et al. v. The Queen et al., [1985] 1 S.C.R. 441; (1985), 18 D.L.R. (4th) 481; 12 Admin. L.R. 16; 13 C.R.R. 287; 59 N.R. 1; Re Resolution to amend the Constitution, [1981] 1 S.C.R. 753; (1981), 34 Nfld. & P.E.I.R. 1; 125 D.L.R. (3d) 1; [1981] 6 W.W.R. 1; 95 A.P.R. 1; 11 Man.R. (2d) 1; 39 N.R. 1; Re Canada (Commissioner of the Royal Canadian Mounted Police), [1994] 3 F.C. 562 (C.A.); Commission scolaire régionale de Chambly v. Bergevin, [1994] S.C.J. No. 57 (QL).
AUTHORS CITED
Hogg, Peter. Constitutional Law of Canada, 3rd ed., Scarborough: Carswell, 1992.
Kaufmann, Walter. Religions in Four Dimensions: Existential and Aesthetic, Historical and Comparative. New York: Readers’ Digest Press, 1976.
ACTION for an order to prohibit the RCMP Commissioner from allowing the wearing of religious symbols as part of the RCMP uniform and for a declaration that his actions in this regard were unconstitutional. Action dismissed.
COUNSEL:
J. J. Mark Edwards for plaintiffs.
T.C.R. Joyce, Q.C., and Linda J. Wall for defendants Attorney General of Canada and Solicitor General of Canada.
S.N. Frost for Royal Canadian Mounted Police.
F. Andrew Schroeder and Palbinder K. Shergill for intervenor World Sikh Organization.
Brian A.F. Edy and Shirish P. Chotalia for intervenors Alberta Civil Liberties Assoc., Sikh Society of Calgary and Alberta Inter-religious Coalition.
David Corry for intervenor Canadian Human Rights Commission.
SOLICITORS:
Nelligan/Power, Ottawa, for plaintiffs.
Deputy Attorney General of Canada for defendants.
Schroeder, Pidgeon & Company, Vancouver, for intervenor World Sikh Organization.
Edy, Dalton, Calgary, for intervenors Alberta Civil Liberties Assoc., Sikh Society of Calgary and Alberta Inter-religious Coalition.
Canadian Human Rights Commission, Ottawa, for intervenor Canadian Human Rights Commission.
The following are the reasons for judgment rendered in English by
Reed J.: The plaintiffs seek an order that the Commissioner of the Royal Canadian Mounted Police (RCMP) be prohibited from allowing the wearing of religious symbols as part of the RCMP uniform. They seek a declaration that the actions of the Commissioner in this regard are unconstitutional. The decision to allow the wearing of the Khalsa Sikh turban instead of the traditional wide brimmed “mountie” stetson, as part of the uniform of the RCMP, is the focus of this litigation.
The plaintiffs assert that it is inappropriate, indeed, illegal and unconstitutional for a religious symbol to be incorporated into the uniform of the national police force of Canada. The plaintiffs base their challenge on paragraph 2(a), sections 7 and 15 of the Canadian Charter of Rights and Freedoms [being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] (Charter). These provisions guarantee: (1) freedom of religion; (2) that the principles of fundamental justice apply to any deprivation of life, liberty or the security of the person; (3) that every individual is equal before and under the law. The plaintiffs did not press the argument, raised in their statement of claim, that the Commissioner exceeded his authority, under the relevant regulations, by authorizing the wearing of an RCMP issue turban as part of the significant uniform.[1] Nor did they press the argument that the Commissioner improperly delegated his authority.
The defendants assert that the change in the uniform was made to remove a barrier to the employment of Khalsa Sikhs as members of the RCMP. It is asserted that this barrier existed because Khalsa beliefs require the wearing of the turban together with other religious symbols. The defendants assert that the change was made: (1) to further the ability of those affected to exercise their religious freedom; (2) to reflect the present day multicultural nature of Canada; (3) to promote the more effective operation of the force by allowing recruitment of members of a visible minority. The defendants say that in any event the plaintiffs do not have standing to bring this action. The intervenors, in general, support the positions taken by the defendants.
I will consider the evidence under the following headings: the expert evidence concerning symbols, religion and secularism; Sikhism and some of its history; the development of the policy by the RCMP; opposition to and concerns about the proposed change; the implementation of the policy; policing and police uniforms. The legal arguments which have been raised will then be dealt with in the following order: whether the plaintiffs have standing; freedom of religion and paragraph 2(a) of the Charter; fundamental justice and section 7 of the Charter; discrimination and section 15 of the Charter; multiculturalism and section 27 of the Charter and justification under section 1 of the Charter.
Symbols, Religion and a Secular Society
Dr. Gualtieri, a professor in philosophy and religion at Carleton University, gave evidence relating to the nature and function of symbols, the nature of religion and the type of conditions which promote religious toleration. Symbols are shorthand ways of communicating messages. This can easily be seen by thinking of a stop light or a road sign which contains no writings but conveys a message by shape and colour alone. Religious symbols are also shorthand ways of communicating messages. They convey messages about the value systems and world view (Weltanschauung) of adherents to the particular religion. A religious symbol may be “decoded” differently by an adherent to the religion and by someone who is not an adherent. For example, Deputy Commissioner Moffat, who supervised the development of the turban policy, gave evidence that he did not think of the turban as a religious symbol. To him, the turban is a cultural manifestation and signifies only a person coming from India. For the Khalsa Sikh, however, the wearing of the turban is a public demonstration of his, or her, allegiance to Sikhism and to that religion’s values and goals. It is a sign of devoutness and dedication.
Dr. Gualtieri observed from his study of religions, that all religions, even those that are not expressly militant, implicitly reach for domination of others because each makes claims to the exclusive knowledge of truth concerning fundamental precepts and values. While he is saddened by the spread of what he calls present day secular modernity, which he characterizes as the modern secular religion, he observes that the adoption of such results in a social structure where divergent conventional religious traditions more easily find freedom of expression than is the case in a less secular society. Dr. Gualtieri sees secular modernity as also expressing itself through symbols-one such being the uniforms of the law enforcement officers of the state.
Thus, in Dr. Gualtieri’s opinion, religious pluralism, tolerance and mutual respect are best guaranteed when the state maintains as much neutrality as possible towards all traditional religions. Such neutrality is fostered when the symbols of the state are not mixed with those of any religion and, in his view, this is particularly important in those state institutions which exercise the coercive powers of law enforcement.
Dr. Beyer, a professor in the Department for the Study of Religion at the University of Toronto, gave evidence concerning the various types of relationships which have existed, and which exist, between religious authorities and political authorities. He referred to situations in which the two coalesce, such as medieval Christian Europe and the modern theocratic state of Iran. He referred to the doctrine of the separation of church and state which developed in the late 18th century prior to the time of the French and American revolutions. In his opinion it is always difficult for states to remain separate from all religious connections. This is so because modern states legislate in areas over which religions also claim competence. Dr. Beyer referred to several modern examples where this difficulty is evident; one being India. He describes the constitution of India as attempting to achieve religious neutrality by the equal privileging of all religions rather than the privileging of none. In his view this way of trying to achieve state neutrality has been partly responsible for the high instance of politicized religion on the Indian sub-continent since independence in 1947: the explicitly religious and separatist nationalism of the Sikhs in the Punjab and the Muslims in Kashmir, which have been met, in turn, by the growth of Hindu nationalism expressed, for example, through the Bharatiya Janata Party.
In my view, the experts, that the defendants called to rebut the evidence of Drs. Gualtieri and Beyer do not fundamentally disagree with most of that evidence. On some occasions the rebuttal experts misunderstood or mischaracterized that evidence. In general however, I took the rebuttal evidence to be more the expression of a different perspective or emphasis rather than outright disagreement.
The rebuttal evidence asserts that there is nothing inherently contradictory in a liberal democracy giving some support for one or more religious traditions. This is clearly true. No one would deny that England is a liberal democracy, yet the head of state, the Queen, is also the head of the Church of England. It is asserted that, as a practical matter, in Canada, there is simply no chance that civil strife will be created by allowing the wearing of the Khalsa Sikh turban by some of our police officers. We are a highly tolerant society and perhaps more importantly, today, at least, highly secular. I do not think many Canadians would quarrel with those assertions. The rebuttal evidence also asserts that there has not been, in Canada, a long tradition of having an expressly articulated constitutional principle which requires the drawing of a line between religious authorities and state authorities, as has been the case, for example, in the United States. Again, it is obvious that the Canadian Constitution does not contain an explicit textual requirement that there be separation of church and state as exists in the anti-establishment clause of the Constitution of the United States.[2]
With respect to Canada’s history of a lack of separation of church and state, Dr. Bercusson referred to the provisions of The Quebec Act, 1774 [R.S.C., 1985, Appendix II, No. 2] which exempted Roman Catholics from the repressive laws of England, which would otherwise have applied. He referred to the partnership between church and state which was thereby forged and which lasted in Quebec until the Quiet Revolution of the 1960s. He referred to the clergy reserves which were one of the causes of the rebellion of 1837 in Upper Canada and which resulted in the public sale of those lands with the proceeds being used for municipal purposes. He referred to the denominational schools which are constitutionally protected in some provinces and to section 93 of the Constitution Act, 1867 [30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5]]. He referred to the exemptions which have existed from compulsory military service for conscientious objectors and to certain changes which were made to the Dominion Lands Act [An Act respecting the Public Lands of the Dominion, S.C. 1872, c. 23] of 1872 to allow for homesteading by groups who might settle together in villages or hamlets rather than live in individual homes. He argues that this last was an exemption on religious grounds since the groups for whose benefit it was enacted, such as the Mennonites, practised communal living.
Dr. Bercusson sees this history as demonstrating that Canada has not adopted and does not adhere to a political ideology which insists on the actual separation of religion and the state. He states that in matters religious, in Canada, the relationship between the state and its citizens has always been one, which has not been resolved in any abstract sense or on the basis of principle, but pragmatically on a case-by-case basis. He also agreed, however, that the Canadian people would be surprised to hear his view that there were no constraints, as a matter of principle, to prevent the government from favouring one or more religions, that there was no principle of state neutrality in religious matters.
Dr. Cooper expressed the view, as I understand it, that the granting or withholding of religious privileges by the state should be determined not in recognition of the truth of any given religious position or as a matter of general right but according to whether such granting or withholding of privilege is likely to contribute to, or derogate from, civil peace. Dr. Morton took a similar view stating that it was a proper exercise of a state’s discretion to grant religious exemptions or privileges by reference to the particular circumstances of each case. He wrote that the proper exercise of the state’s discretion in granting religious exemptions or privileges “will depend as much in contingent circumstances as on principle” and that the decision whether or not to grant such is “best judged by legislatures and other relevant policy makers.”
Most, if not all of the witnesses agreed that there has been an increasing insistence that the state be neutral with respect to religious matters in Canada. Some would argue that this has become more pronounced since the adoption of the Charter in 1982 with its guarantees of religious freedom, equality and non-discrimination. A recent manifestation of this is the change to the opening prayers in the House of Commons. This increasing insistence on state neutrality has also been connected to the demographic changes which have meant that Canada is now home to many culturally diverse groups.
Sikhism and Some of its History
A description of the tenets of Sikhism, some of its history and the significance of the wearing of various religious symbols can be found in a report prepared in 1982[3] by a member of the Canadian Human Rights Unit of the Staffing and Personnel Branch of the RCMP. This report was subsequently used by the force when developing what came to be known as “the turban policy.” In addition, evidence respecting the Sikh religion was given by Dr. William McLeod and Mr. Gian Singh Sandhu.
The RCMP report underlines the monotheistic, indeed arguably monistic, nature of Sikhism. It describes the Sikh’s belief in the social virtues of compassion and social equality, as well as the emphasis which is put on co-operative service to the community.[4] The brotherhood of all individuals is emphasized.[5] Mr. Sandhu gave evidence that the equality of all people was a fundamental principle of Sikh faith and that the turban itself was a reminder of equality. The wearing of the other religious symbols is also a constant reminder to the wearer of the commitment to honesty, integrity and fairness to all which is required by the Sikh faith. The RCMP report states:
… the turban’s function has to do wholly with religious and social identity and cohesion. Its purpose is symbolic, making it possible to distinguish Sikhs from non-Sikhs.
The turban’s importance dates from the late 17th-early 18th century (1675-1708). At that time, the continued existence of Sikhism, which had been born in the early 16th century, was under threat from neighbouring peoples. The then Guru,[6] Gobind Singh, whose father had been martyred by a Mogul emperor for refusing conversion to Islam, decided to transform the Sikhs into a fighting force. He created the sacred society of soldiers-saints called the Khalsa “The Pure.” A dress code evolved which consisted of the wearing of the five Ks: kesh (uncut hair); kara (a steel band worn on the right wrist, symbolizing courage and as a reminder never to commit a moral mistake by striking out thoughtlessly); kirpan (a double-edged sword, initially a symbol of bravery and a weapon of self-defence); kachh (underpants which must not come below the knees, once worn in combat to secure clothing close to the body) and kangha (a wooden comb, carried in the kesh, to be used daily to keep the kesh clean). Since it became necessary to keep the uncut hair neat and tidy, the Sikhs adopted the turban. Dr. William McLeod, an expert in Sikhism and a professor of history from the University of Otago, New Zealand, gave evidence that the wearing of a turban eventually became mandatory for male members of the Khalsa.[7] Whether or not the wearing of the turban is in fact mandatory is not free from debate.[8]
The RCMP report describes the history which gave rise to the formation of the Khalsa:
[Guru Gobind] forged a group that felt like a single family and united some of the features of traditional asceticism (including the unshorn hair and beard) with an emphasis on soldiering and great courage. “It is also likely that, by making his followers easily recognizable by virtue of their turbans and beards, the Guru wanted to raise a body of men who would not be able to deny their faith when in danger but whose external appearance would invite persecution and in turn breed courage to resist it’’.[9]
…
This departure from the strict pacifism of the first five gurus, whose writings form the bulk of the Granth, occurred after the execution of the fifth and ninth gurus, when the last guru turned his followers into warriors, saying: “When all other means have failed, it is righteous to draw the sword”. Gradually Sikhs acquired the reputation of being the best soldiers of India.
The Sikhs earned the respect of the British for their fighting qualities. The British insisted that every soldier accepted into the Indian Army (that is, the British Army in India), had to undergo Khalsa initiation and thus had to wear the five Ks and the turban. The insistence on the wearing of the turban made the members of the army fierce fighters because it visibly connected their ethnic and religious identity to their conduct. The Indian Army, after 1857, fought for the British in places such as Hong Kong and Singapore. Sikhs also fought for the British during the First World War in the trenches of France and during the Second World War in the Middle East, in North Africa and in Italy.
Sikhs comprise five groups. The first is the Amrit-dharis, those who have been initiated into the Khalsa and must wear the five Ks. They are a comparatively small number of all Sikhs, about 15%. If one has been initiated into the Amrit-dharis but commits a grievous sin, such as cutting the hair, then, having broken one of the vows the individual becomes an apostate and is known as a Patit-dharis.
Many Sikhs however have not taken initiation but do observe the five Ks. They are known as the Kes-dharis. They are a very large group, particularly outside India. A fourth group are the Sahaj-dharis who do not recognize the code of discipline which requires the wearing of the five Ks. They are small in number. A fifth group comprises those who come from Khalsa backgrounds but who have cut their hair. There is no specific name for them. They are quite numerous in Canada and elsewhere outside India.
Mr. Sandhu gave evidence of his experiences as a Sikh immigrating to Canada and of his involvement with the World Sikh Organization. He was born in the Punjab in 1942 and came to Canada with his family in 1970. He went to Williams Lake, British Columbia, where his in-laws were located. He felt uncomfortable wearing his turban. He felt that he was not accepted. He took off his turban and cut his hair. He has now established his own business and employs 72 people. His family have grown and prospered. His four children have all been educated in Canada. One is an elementary school counsellor, one a lawyer, one a PhD student and one in business with his father. Mr. Sandhu has become re-initiated into the Amrit-dharis. His children encouraged him to do so because he had been teaching them about the Sikh religion but was not practising part of it. He explained how sad and uncomfortable he felt when he took off his turban and cut his hair and how pleased he is now to be able to wear the turban and not feel ostracized. In part, this change has come because the sight of turbaned Sikhs is becoming more common in his community and therefore more accepted. He explained that, in his view, the reaction of many Canadians to the turban was the result of unfamiliarity with it and uncomfortableness because it was strange and different to them.
The World Sikh Organization, which Mr. Sandhu represents, was formed after the storming of the Golden Temple in Amritsar by Indian forces in 1984. The purposes of the World Sikh Organization are: to promote the preservation of the Sikh religion; to strive, through peaceful means for the establishment of a Sikh nation (i.e., Khalistan in the Punjab); to promote communication amongst Sikhs around the world; to work for universal brotherhood, peace, justice, freedom of religion and speech and to promote Sikh interests world wide. The World Sikh Organization has as one of its aims the education of others about Sikhism. It strives to counteract the international public opinion which sometimes characterizes Sikhs as militant and violent. This characterization has resulted from the actions of a few of its more radical members, such as those responsible for the Air India crash. With respect to the establishment of an independent Sikh state of Khalistan, those Sikhs who support this initiative, in general, envisage a state where politics and religion coalesce. Sikhs living in India do not belong to the World Sikh Organization. The conflict between the Sikhs and Hindus in India, following the assassination of Mrs. Ghandi and the widespread massacre of many Sikhs, is well known.[10]
The World Sikh Organization is one of several Sikh organizations which lobbied for a change to the RCMP uniform. Mr. Sandhu explained how the change has helped make Sikhs in Canada feel more comfortable here and how it has encouraged the younger members of that community to seek employment with law enforcement organizations.
Development of the Turban Policy
The possibility of changing the RCMP dress code to allow for the wearing of the Khalsa Sikh turban and other symbols of that religion first became of concern to the RCMP in 1980. It was assumed that a change in the RCMP uniform was going to be necessary because of the provisions of the Canadian Human Rights Act, S.C. 1976-77, c. 33. The Canadian Human Rights Tribunal had recently decided that the Canadian National Railways was not justified in discharging a Sikh for refusing to wear a hard hat on the job (the Bhinder case). It was in this context that the report concerning Sikhism was prepared within the RCMP in 1982. That report identified the changes that it was thought would be necessary to both the Royal Canadian Mounted Police Regulations [C.R.C., c. 1391] (RCMP Regulations) and the Commissioner’s Standing Orders, to allow for the wearing of the turban and other items of religious significance by Khalsa Sikhs.
The RCMP Regulations prescribed the “significant” uniform (the dress or ceremonial uniform) of the RCMP as comprising a felt hat, scarlet tunic, blue breeches with a yellow cavalry stripe, brown Strathcona boots and jack spurs and such other items as the Minister might approve.[11] Different requirements were prescribed for women members about which more will be said later. The “working dress” or “service order” (all non-significant dress) of the RCMP is prescribed by the Commissioner’s Standing Orders, as are requirements respecting personal appearance (e.g., no unauthorized ornamentation on the uniform; face must be clean shaven; hair must be short).
The Commissioner’s Standing Orders are set out in an Administration Manual (Manual) and changes thereto, in so far as the standards of dress not governed by the RCMP Regulations are concerned, can be made by the Commissioner alone. No approval by way of order in council is required. The RCMP is constituted under the Royal Canadian Mounted Police Act,[12] and pursuant to that Act the Commissioner, who is appointed by the Governor in Council, has the control and management of the RCMP under the direction of the Solicitor General of Canada.
The RCMP report discussed aspects of the operation of the RCMP which would be affected by making the proposed changes to the uniform: tradition; uniformity of dress; ease of public identification of uniformed officers; safety considerations. The first three were not considered to weigh heavily enough to warrant refusing to change. With respect to the fourth the report noted:
The Canadian Armed Forces, Canadian National Railway and Minister of Correctional Services, have all been challenged under the Canadian Human Rights Act by Sikhs claiming that these organizations have Dress regulations that prevent them from obtaining employment, thereby, discriminating, based on religion. Judgements have been made in favour of the Sikhs in all cases, with appeals upholding the original decision. From these examples one can conclude that it would be fruitless for the Force to defend a similar challenge implemented by a Sikh.
The British Army for years have allowed Sikhs to wear turbans and beards. Recently, the Canadian Armed Forces was challenged by a Sikh, and when the Commission pointed out the discriminatory infraction, they agreed to comply with the religious demands, however, the Sikh did not follow through with his application.
The report of 1982 ended by recommending that changes be made to allow Sikhs to retain their uncut hair and beard and to wear the turban and the other symbols of their religion. It recommended that the necessary changes be made to both the RCMP Regulations and the Manual. No action was taken to implement these recommendations. It appears that senior officials in the RCMP decided to wait until there was a successful challenge in the courts to the RCMP uniform requirement before any change was made.
In October of 1984, the then Deputy Assistant Commissioner, N. D. Inkster, who was Director of Operations and Personnel, attended a symposium in Vancouver. The subject of that symposium was policing in multicultural/multiracial urban communities. When he returned to Ottawa, he wrote an internal memorandum indicating that it had been brought to his attention that the RCMP recruiting standards discriminated against Sikhs because of the requirements that officers be clean shaven and were required to wear specific types of headgear. He wrote “this will have to be changed.” He asked for recommendations as to how such changes should be accomplished. In response, the report which had been prepared in 1982 was brought forward. Internal memoranda of the time indicate that attention was again directed to the requirements placed on officers when performing certain duties, to wear specific types of headgear (e.g., helmets when on motorcycle duty or when involved in riot control; fur hats in cold weather). While Deputy Assistant Commissioner Inkster apparently recommended that an exemption[13] be adopted to allow Sikhs to wear the various symbols of their religion. This recommendation was not endorsed by the more senior members of the Force and nothing was done to effect any change.
The issue again surfaced in the summer and fall of 1985. In December of 1985 one finds an internal memorandum which notes that the Supreme Court had overruled the Canadian Human Rights Tribunal’s decision in the Bhinder case.[14] The Supreme Court held that the requirement that Bhinder wear a hard hat was a bona fide occupational requirement and that the Canadian Human Rights Act allowed such to be imposed even though the requirement might be discriminatory. It was held that there was no duty to accommodate Mr. Bhinder under the Act.
In March of 1986, in response to enquiries by N. D. Inkster, who was now Deputy Commissioner (Administration), an internal memorandum noted that the Canadian Armed Forces had reported that its decision to permit turbans was the result of a Canadian Human Rights Act complaint in 1979. The “permission,” given in response to that complaint, was that turbans could be worn and facial hair remain uncut (for religious reasons) providing this did not impede the officer in the conduct of his duties. It was also noted, however, that if a Sikh joined the Armed Forces and was placed in a position which required the wearing of special equipment, he or she had to conform to those requirements. The Armed Forces do not accommodate a Sikh by transferring that individual into a position or positions so as to allow him or her to avoid the wearing of specialized equipment. The evidence does not disclose that there are any turbaned Sikhs in the Armed Forces.
Information obtained by the RCMP from the Metro Toronto Police in April of 1986 indicated that that force allowed the wearing of turbans by Sikhs but that individuals who did so were restricted from engaging in certain duties. They were not permitted to go on industrial sites where hard hats were required. They were not permitted to do traffic duties where hard hats were required. They were not allowed to perform duties where a respirator or gas mask was required.
In June of 1986, the then Solicitor General, Perrin Beatty, responded to a letter from the Federation of Sikh Societies of Canada stating that while he appreciated the Federation’s suggestion that practising Sikhs be allowed to retain their religious emblems on joining the Force, he did not believe this was necessary. He noted that the inability to do so did not appear to be an inhibiting factor, since those Sikhs who were presently members of the Force were willing to wear the same uniform as everyone else. He indicated that he was aware that different religions have unique customs and stated that when these were not incompatible with the requirements of the Force, they did not serve as a bar to serving in the Force.
In August 1986, the then Solicitor General, James Kelleher, responded to another letter from the Federation of Sikh Societies of Canada and reiterated the position previously given by Mr. Beatty. In December of 1986, the Commanding Officer of “E” division, located in Vancouver, was advised by a subordinate of Deputy Commissioner Inkster:
… no firm policy has been developed relative to permitting Sikhs to wear a turban or other religious emblems with our uniform. The force will continue to welcome visible minorities within our ranks, however at this time it is not felt that changes to our dress code should be made to accommodate any specific religion. Religious customs which are not inconsistent with the requirements of the force will not be a bar to engagement.
In mid-1987, the RCMP began to endorse and implement affirmative action policies directed at the recruitment of visible minorities.[15] One such target group was identified as “South-Asian (Indo-Pakistani).” It is not necessary to describe the affirmative action initiative in detail except to say that it involved the establishment of an Advisory Committee, composed in part of members of the various visible minority groups, to advise the Commissioner. It involved as well the establishment of various recruitment teams who were to actively recruit from the target groups.
In September of 1987, the issue of the wearing of turbans by Sikh members was again raised. This did not originate with the Advisory Committee. Nor did it originate from the recruitment teams. It appears to have been raised by the Human Rights Section of the RCMP[16] which was aware that the Force was trying to encourage the recruitment of visible minorities. The Commissioner had asked for imaginative proposals to enhance such recruiting.
In October of 1987, a memorandum was prepared for the Deputy Director of Personnel (Planning) with respect to religious issues and recruiting criteria. That memorandum identified four types of religious requirements that might be of concern to the RCMP when recruiting applicants from visible minority groups: prohibitions against engaging in certain activities (e.g., carrying or using a firearm); prohibitions against working on specific religious holidays (e.g., the Sabbath); requirements respecting the wearing of clothing or emblems of religious significance; prohibitions against cutting body hair. It was noted by Assistant Commissioner Allen that the policy of the Force was that no accommodation could be made by the RCMP with respect to requirements of the first two types but that no applicant should be refused employment in the Force as a result of the second two.
In December of 1987, Commissioner Inkster gave instructions that the recruiting teams could tell Sikh applicants that they would be allowed to wear beards and turbans. The memorandum indicated that Sikh applicants should be told that the RCMP had a long tradition of being clean shaven and uniform in dress, of which the RCMP was proud, and it was hoped that the applicants would join that tradition. At the same time the applicants were to be told that if they chose not to do so they would not be penalized. The Commissioner’s internal directive of January 6, 1988, reads:
As discussed, I think it is time we put to bed the issue of wearing a turban and facial hair as would be a requirement for orthodox Sikh members. I would like the policy to read as an exception being made for religious purposes and applicable only to Sikhs
It then took some time for the details of the policy to be worked out. This involved consultations with various members of the Sikh community, internal negotiation and discussions with Edmonton City Police and the Toronto Metropolitan Police. The Edmonton City Police had a policy based on that used by the Canadian Armed Forces. The evidence does not disclose that any turbaned Sikhs were, at the time, members of that force. One of the issues which was of major concern was whether Sikhs would be allowed to wear turbans but restricted in the duties to which they would be assigned (i.e., not assigned to any which required the wearing of special head gear) or allowed to wear turbans except when their duties dictated the wearing of specific headgear. The Toronto Metropolitan Police seemed to follow the first, the Canadian Armed Forces and the Edmonton City Police seemed to follow the second.
With respect to this issue, Manjit Singh, who was a member of the Commissioner’s Advisory Committee, advised those in charge of developing the policy that turbans were worn primarily to keep the hair neat. He is reported as having advised that turbans were not worn at home and that in so far as training as a police officer was concerned, during sports, or physical activities:
… a Sikh member could wear a “handkerchief” [patka] over the hair … For swimming, an ordinary swimming cap can be worn. Given to that periods between classes at the Academy (15 minutes) a Sikh could be permitted to wear a PATKA which appears to be a large “handkerchief” and would be tied over the hair …
…
The various duties in the Force where helmets are required was discussed. Mr. Singh’s position was that generally speaking the wearing of a helmet for various duties was pretty well a matter of the individual member’s individual discretion and many may be prepared to wear them as required. The real restriction is appearing in public “bare-headed” and he saw no problem with a member who might be employed on Tactical Troop duties removing his turban in private and putting on the helmet.
Finally in April of 1989 a bulletin was issued by Commissioner Inkster, to effect a change in the Manual, by changing the relevant Standing Orders. That Bulletin reads:
1. General
a. Members who practice the Sikh religion may wear:
1. an RCMP-issue turban in place of the standard issue headdress provided it conceals the hair and is neat;
2. under the uniform, a small Kirpan, the symbolic Sikh sword, or replica thereof, having a maximum overall length of 3½";
3. a Kara, i.e. a symbolic Sikh iron bracelet, and a Khanga, i.e. a Sikh comb worn in the hair under the turban; and
4. facial hair and other uncut hair provided the following criteria are complied with:
1. Uncut hair will be concealed under the issue turban.
2. Facial hair will be neatly secured and tied, and if necessary, a fine netting material the same color as the hair will be used to keep it neat.
b. Apart from the exceptions outlined in 1.a., all other rules concerning dress and appearance will apply.
c. A member of the Sikh religion may obtain the turban cloth and badge, by submitting form 1216 to Headquarters, ATTN: Material Management Branch.
At the time, it was not realized by those making the decision that a change to the significant uniform of the Force could not be made through administrative directive only. When this became apparent, the above quoted Bulletin was reissued, in August of 1989, with the added caveat:
This directive will not be effected until the appropriate regulation is implemented.
Opposition and Concerns About the Proposed Change
One of the most interesting reactions to the proposed change came in August of 1989 from a Sikh who was already a member of the Force. He wrote:
1. It is apparent from the Commissioner’s reply to Mr. HUGHES’ question that he sincerely believes in the multicultural proliferation of Canada; however, I respectfully submit it is equally obvious that the issue of the turban as part of the Force’s uniform has not been presented to the Commissioner in a balanced manner…. I wore a turban while growing up in India and I have worn the uniform of the Force since 1973; this, I believe, entitles me to make a submission on the issue.
2. The biggest problem the Force faces is in defining who a “Sikh” is. Sikhs themselves cannot agree on a definition, and as a result we have placed ourselves on a continuum—with bearded and turbanned Sikhs on one end of it and clean-shaven Sikhs on the other end. Both extremes, as well as those in the middle, believe that they are Sikhs if they practice the philosophy of the religion. However, the segment that wears the turbans and the required symbols of Sikhism professes that it is purer than the rest. In the middle are Sikhs who wear the turban but trim their beards and do not wear the symbols. The clean shaven Sikhs believe that the symbols are immaterial to the philosophy of life as taught by Sikhism…. Whose definition of a Sikh does the Force accept and why? …
3. There is nothing in the Sikh religion that makes the wearing of the turban mandatory. The religion requires a Sikh to wear five symbols, and I am sure that the Commissioner is familiar with them. The wearing of the turban is merely through custom …
…
5. If the Force allows the wearing of the turban in uniform, will it also defend the actions of the member who retaliates when the turban is disgraced? Through years of custom, the Sikh turban has come to embody the self-respect, religious beliefs, and the cultural pride of its wearer. It is acceptable behaviour in India to inflict injury—even death —to one who maliciously knocks the turban off a Sikh’s head…. [W]ill the Force condone such acts of retaliation based on the member’s religious beliefs?
The plaintiff, Kirsten Mansbridge, reacted to the announced policy change. Her husband had been a member of the RCMP. Her son and son-in-law are now members. She has belonged to the ladies auxiliary of the RCMP Veterans in Calgary since 1986 and previously was a member of the ladies auxiliary in Winnipeg. In mid-1989, when the news of the proposed change became public, she and her two sisters decided to organize a petition addressed to members of Parliament. At that time, as has been noted, while the Commissioner had announced that the change was to occur, the requisite change to the RCMP Regulations had not been made and the then Solicitor General, Pierre Blais, had stated that he had not yet made up his mind. It seems clear that the initiative of Mrs. Mansbridge and her sisters was motivated by their great pride in the traditions of the RCMP and a reluctance to see changes in the uniform occur. Mrs. Mansbridge stated that when she and her sisters started the petition:
… we wanted to show, I guess our, our disappointment in what the government was doing because of the traditions of the RCMP … we felt something was … being taken away from the traditions of the RCMP and the world wide image of the RCMP, not that we ever frowned upon … the wearing of turbans.[17]
The petition they drafted reads, in part:
HUMBLY SHEWETH
WHEREAS the R.C.M.P. has a long and honourable tradition known and admired world wide and
WHEREAS the distinctive uniform is recognized and respected by the public and other police forces in Canada and other countries, we see no merit or value or reason to allow changes in the R.C.M.P. uniform or dress code. We see a distinct danger of future wholesale changes to dress and tradition by allowing turbans and ceremonial daggers to become part of the R.C.M.P. uniform. Other religious or ethnic minorities will argue for equal rights to incorporate minor or major aberations [sic] resulting in the eventual loss of a distinctive, recognizable and proud tradition.
WHEREFORE the undersigned, your Petitioners, humbly pray and call upon Parliament to preserve the distinctive heritage and tradition of the R.C.M.P. by retaining the uniformity of dress code with all the recognizable color and trappings that have such great historical value for this country. The pride and “Esprit de Corps” should not be jeopardized by any concessions to religious or ethnic minorities which result in changes to this truly great Police Force and its proud traditions and uniform.
AND as in duty bound your Petitioners will ever pray.
It is not surprising that individuals from Western Canada particularly Alberta, reacted so strongly to the announced change. The RCMP played a role in the history of the West that it did not play elsewhere in this country. The RCMP was originally formed as the North West Mounted Police. That Force was sent west to help avoid the bloody conflicts between the Indians and encroaching settlers that had occurred in the United States. The North West Mounted Police were successful in this. As Mrs. Mansbridge notes, the RCMP eventually obtained a world wide reputation and the symbol of a “mountie,” in what is known as the “significant uniform,” has become synonymous with Canada. This symbol appears, she notes, on much government tourist advertising. The main training college of the Force, to this day, is located in Regina. In the Western provinces, indeed, in all provinces except Ontario and Quebec, the RCMP are the police with whom people come in daily contact.[18] It is not hard to understand why Western Canadians have great pride in and attachment to the traditions of the RCMP.
In any event, the reaction which Mrs. Mansbridge and her sisters received to their efforts was, in her words, “astounding.” They had envisaged organizing a petition of a very local nature and of limited scope. The overwhelming support they received for their efforts encouraged them to expand their efforts and to turn what had originally been intended to be a very modest effort into a much more significant campaign. They eventually obtained over 210,000 signatures to the petition. In addition, organizations expressed their support: service clubs; seniors’ clubs and municipal organizations such as the Association of Rural Municipalities of Saskatchewan. Nineteen indian band councils passed resolutions. Mrs. Mansbridge and her sisters received between 5,000 to 8,000 letters of support. Initially they threw the letters away because they were not organized to keep or respond to them. Some of these letters were from current serving members of the RCMP who did not want to be publicly identified. Some of the communications sent to Mrs. Mansbridge and her two sisters included money to support their campaign. The three sisters spent approximately $4,000 each of their own money.
Mrs. Mansbridge and her sisters had been advised to send the petition to the relevant members of Parliament. However, since the change required was to regulations and not a statute, the approval of Parliament was, of course, not necessary. A committee of Cabinet Ministers would make the decision. When the petitions to the members of Parliament were not successful and the regulation authorizing the Commissioner to implement the changes was put in place by Cabinet,[19] Mrs. Mansbridge and her sisters were inundated with telephone calls. They then turned their efforts to raising funds to challenge the Commissioner’s action in court.
The plaintiffs, Grant, Riley and Davis are all ex-RCMP officers. They are all members of the RCMP Veterans Association in Lethbridge, Alberta. When news of the proposed change became public, Mr. Davis initiated a petition for which he obtained about 500-700 signatures. He forwarded this to his local Member of Parliament. He became aware of the petition being circulated by Mrs. Mansbridge and her sisters and of their activities. When it became clear that the petition activities were not successful, the plaintiffs Grant, Riley and Davis also turned their attention to a possible court challenge. On April 30, 1990, the Lethbridge Division of the RCMP Veterans’ Association authorized the establishment of the Court Challenge Committee to challenge the constitutionality of subsection 64(2) of the RCMP Regulations, 1988. That Committee consisted of the plaintiffs Grant, Riley and Davis. The Lethbridge Division was subsequently advised by the Dominion Executive of the Association (from Ottawa) that such a challenge would violate the regulations of the Association. In response the plaintiffs Riley, Grant and Davis formed the Lethbridge RCMP Veterans’ Court Challenge Committee, an unincorporated association, and in that capacity solicited support and funds for the present litigation.
The plaintiffs joined forces to solicit funds. They received 8,000 to 9,000 letters supporting their cause and 75 percent of these contained a financial contribution. Again, some of these came from current RCMP members who did not want to be publicly identified. The support came largely from southern Alberta because this is where the plaintiffs spent most time making their appeal. Support was received, however, from individuals residing in every province of Canada as well as in the Northwest Territories and some from Canadians residing abroad. Mr. Davis gave evidence that the direct cost to him, for example, for the purchase of postage stamps etc. for which he had kept receipts, was $1,800-$2,000. This did not include expenses he incurred for which he kept no receipts such as gasoline, the use of his car and other travel expenses.
Implementation of the Policy
As noted above, the significant uniform of the RCMP was and still is defined by the RCMP Regulations. Those regulations were amended in March of 1990 (SOR/90-182)[20] and now read:
64. (1) Subject to subsection (2), the significant uniform of the Force, the design of which is to be approved by the Minister, shall, together with such other items of uniform as the Minister approves, consist of a felt hat, scarlet tunic, blue breeches with a yellow cavalry stripe, brown Strathcona boots and jack spurs.
(2) The Commissioner shall determine the occasions on which members are required to wear the significant uniform referred to in subsection (1) and may exempt any member from wearing any item thereof on the basis of the member’s religious beliefs. [Underlining added.]
An application form was created for Sikhs who wished to wear the turban and the other religious symbols:
STATEMENT OF RELIGIOUS BELIEFS APPLICATION FOR EXEMPTION AND UNDERTAKING
Name: … … … … … … … … ….
Regimental Number: … … … … … … … …
1. I, … … … … … … … ….. hereby state that I am a member of the Sikh religion and that I am required, on the basis of my religious beliefs, to maintain uncut facial and head hair (KESH), and to wear a KARA, a KIRPAN, a KHANGA, a KACHH and a TURBAN.
2. Subject to paragraph 3, I hereby request that the Commissioner, on the basis of my religious beliefs, grant me an exemption from wearing the required headdress with the RCMP uniform, including the significant uniform of the RCMP.
3. Notwithstanding that I may be granted the exemption requested in paragraph 2, I hereby undertake to perform all duties assigned to me by the RCMP and to wear any special headdress or safety equipment that is necessary for bona fide operational reasons or is required by law.
… … … … … …. … … … … …
Signature Date
[Underlining added.]
The Commissioner, in response to an application, has exempted one individual from wearing the felt hat referred to in subsection 64(1) of the RCMP Regulations. The Commissioner thereafter delegated his authority under subsection 64(2) of the RCMP Regulations to the Deputy Commissioner (Administration) pursuant to a document signed on March 23, 1992. The Deputy Commissioner (Administration) has exempted one other person from wearing the felt hat on the basis of an application by that member. The RCMP relies on a member’s statement in the application to the effect that he or she is a member of the Sikh religion and is required on the basis of his or her religious beliefs to wear a turban.
In addition to exempting the two members from wearing the required head dress of the Force, the Commissioner has prescribed RCMP-issue turbans which are to be worn in the place of the stetson and the standard working head dress of the Force. The colour of the cloth for the turban to be worn with the significant uniform matches that of the stetsons. The colour of the cloth for the working or dress uniforms (blue) matches those uniforms. In addition three patka cloths are issued. The Manual also requires that an RCMP badge is to be affixed to the front of the blue turban.[21] The two members who have been granted an exemption from the standard head gear are also allowed to wear the kanga, the kara, a kachh and a kirpan. The kesh is also permitted (unshorn head hair and uncut, untrimmed beard).
The agreed statement of facts states that if an application for an exemption from the requirements of the significant or working uniforms of the RCMP was made by a member of any other religious group, that request would be considered in relation to the applicant’s religious affiliation, the tenets of the particular religion and the RCMP’s operational requirements. These latter would include a consideration of whether the exemption, if granted, would in any way impede the officer’s law enforcement responsibilities and whether the RCMP requirements from which exemption was sought constituted a bona fide operational requirement under the Canadian Charter of Rights and Freedoms and the Canadian Human Rights Act. It is also agreed that impartiality, bias, perceived impartiality, perceived bias and separation of Church and state were not taken into consideration by the Commissioner and the RCMP at the time the policy change was being proposed.
Policing and Police Uniforms
There have been many changes to the significant uniform of the RCMP over the years. The first uniform of the Force, in 1873, included a pill box style forage cap, a scarlet Norfolk jacket, tan breeches, white gauntlets and black boots with jack spurs. The red jackets were adopted because the British militia had worn red jackets and Canada’s aboriginal people respected that militia. The pill box hat was also borrowed from the British militia. The pill box hat proved to be totally unsuitable for life on the prairies and members of the force informally began to use the stetson. It gave more protection from wind, sun and rain. The full dress uniform was changed in 1876 to include as its main components a “pith” helmet with a spike, along with the scarlet jacket and blue breeches with a yellow stripe. The Strathcona boots were adopted after a contingent of the RCMP, which served in the Boer war, returned to Canada and promoted their use. The stetson was formally adopted by the RCMP at the turn of the century and was included in the dress code of 1904.
As well as the many changes to the uniform over the years, there are different uniforms for different functions (e.g. war time service, northern duty, riot control). Also, in 1975, when women were first allowed to join the RCMP an order in council was passed to prescribe a significant uniform for women which comprised a blue skirt (instead of breeches) and a cloth forage cap (rather than a stetson). The women wore shoes instead of Strathcona boots and jack spurs. The scarlet tunics were more like blazers than the male version. More recently, at the request of the women members of the Force, this has been changed so that women now wear the same significant uniform as the men.
Dr. Roderick MacLeod gave evidence with respect to modern day police forces and the role of the uniform. He gave evidence that there is a need for the members of a police force to be perceived as being impartial. He described some of the history and referred to occasions on which impartiality had not existed:
Uniforms are one of the defining characteristics of the modern police forces that came into existence about a century and a half ago. Together with organizational changes like payment by salary rather than fees and greater numbers, they are what sets the new police created by Peel’s Metropolitan Police Act of 1829 apart from the ancient office of constable. All historians who have examined the subject agree that uniforms were adapted from the military. They represented, in some sense, a militarization of what had always been a civilian office…. The first commissioners of the London Metropolitan Police prudently decided to make their uniforms as unmilitary as possible, with top hats and long-tailed blue coats….
…
The second and related requirement for the successful functioning of the new police was that they must be, and must be seen to be, impartial in politics and in religion, insofar as religion went beyond being a private, confessional matter. Democracy could function after a fashion with police forces that were openly partisan; but the political process in such circumstances was invariably violent, brutal and corrupt. This is nicely illustrated by the prolonged struggle to exclude the Orange Order from the Toronto Police force between 1834 and 1860. The Orange Order in Upper Canada in that period stood for Tory politics and protestant religion and it was quite prepared to fight to preserve their ascendancy. In the 27 years between 1839 and 1866, Greg Kealey counted 28 riots in Toronto, most involving sectarian violence between Orangemen and the city’s growing Roman Catholic minority.
Membership in the Orange Order became the key to employment in the Toronto police…. In the frequent sectarian riots the police openly sided with the Orangemen who participated. By the middle of the 1850s the situation in Toronto had reached such proportions that even moderate Tories like the young Attorney General, Johan A. Macdonald, had concluded something must be done. After several years of sustained pressure from the provincial government and threats to subsume the city police into a provincial force, Toronto reluctantly turned control of their force over to an independent police commission. In 1859 the commission passed a regulation prohibiting police officers from being members of secret societies. This ban remained in effect for the rest of the century but was interpreted to mean that membership in the Orange Order would be tolerated but not active involvement in the society. [Footnotes omitted.]
Dr. MacLeod noted that strict requirements of neutrality were placed upon the North West Mounted Police. In 1903, an inspector of the force asked permission to take part in an Orange parade in Regina. He was refused permission on the ground that active participation in that type of organization was not permitted. Dr. MacLeod gave opinion evidence that individuals who are subject to control by a police force worry when members of that force are identified with a particular political or religious group. They worry that individuals so identified, when carrying out their duties, will be harder on those who are not members of the group to which the officer belongs and, even more, they worry that the officer will be easier on those who are members of that group.
One of the requirements of the RCMP is that its members act impartially in the enforcement of the law. The oath which members take specifically requires that they perform their duties “without fear, favour or affection of or toward any person.”
Until 1985, the Royal Canadian Mounted Police Act, R.S.C., 1985, c. R-10, section 25, stated:
25. Every member who
…
(e) wears the emblem, marker or insignia of any political party or in any way manifests political partisanship,
is guilty of an offence, …
In 1985 the section 25 was repealed and replaced [as am. idem, s. 16] by a “Code of Conduct” which provides, in part, as follows [SOR/88-361]:
55. A member, while in uniform, shall not, unless performing a specific duty, attend a political meeting or take part in any social or other activity which could create the impression of partisanship toward any political party.
56. Subject to section 57, a member shall not wear or display the emblem mark or insignia of any political party, or publicly display political partisanship in any other matter.
The RCMP Regulations[22] specifically provided and still provide detailed directions with respect to the wearing of certain medals and insignia and authorize the Commissioner to prescribe rules respecting the subject generally. The Manual created pursuant to the Commissioner’s Standing Orders contains the following provision:
K.1.e When in uniform:
…
3. you may wear only the following jewellery:
1. a wrist watch, a medic-alert bracelet, a plain ring, an engagement or wedding ring, ornamentation, e.g. a necklace and a watch chain, a Kara and a Kirpan, not exceeding 8.75 cm in length.
NOTE: A Kirpan and ornamentation, when worn, must not be visible.
The underlined wording was added with the changes to the Manual to provide for the wearing of turbans.
Professor Manning, a sociologist who has written extensively on various aspects of the police and its role in society, gave evidence that the police uniform, in the eyes of the public, symbolizes the state and its authoritative role as a regulator of society through the enforcement of laws. He asserts that the police symbolize morality as well. The police uniform by its very uniformity helps to de-emphasize the personal characteristics of officers. A uniform symbolizes equality and equal treatment which is essential to the exercise of legitimate authority. Professor Manning’s evidence was that a citizen’s perception of unequal treatment can erode trust and police legitimacy.
Standing
The defendants and the intervenors argue that the plaintiffs do not have standing to pursue this litigation. None of the plaintiffs have personally met either of the two turbaned officers. Although some of the plaintiffs are retired RCMP officers, none are currently members of the Force.
The requirements for public interest standing have been developed in a number of cases: Thorson v. Attorney General of Canada et al., [1975] 1 S.C.R. 138; Nova Scotia Board of Censors v. McNeil, [1976] 2 S.C.R. 265; Minister of Justice of Canada et al. v. Borowski, [1981] 2 S.C.R. 575; Finlay v. Canada (Minister of Finance), [1986] 2 S.C.R. 607. The most recent decision in this regard is Canadian Council of Churches v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 236. The three requirements for public interest standing are that: (a) a serious issue be raised by the litigation; (b) the plaintiff have either a direct interest or a genuine interest as a citizen in the issue; (c) there is no other reasonable and effective manner by which the issue may be brought to court.
That there is a serious issue raised by this litigation is evident from the discussion of the issues which will follow. It would be redundant to summarize them in detail here. In general terms the issue which is raised is whether there is a constitutionally protected right, a public right, that our national police force be required when exercising the powers of the state to do so without exhibiting at the same time their allegiance to a particular religious group.
With respect to the plaintiffs’ interest in this issue, their counsel is right when he argues that the litigation is unusual in that it is the plaintiffs who are seeking to assert a public right (the value of state institutions operating free of religious identification) while the government is asserting the private right (an individual’s right to free expression). More usually the government asserts rights in the name of the public interest which individuals challenge as being an infringement of their private rights. There is a tradition of viewing government as the guardian of the public interest. Although the plaintiffs assert that the government is not acting in this fashion in this case, it should be acknowledged that the classification of what is a public interest and what is a private interest is fraught with difficulty. It is not unusual to find that a claim includes both. In this case, the defendants, while asserting the private right of individuals to freedom of expression, also assert that the policy change embodies a public interest, that of having an effective and efficient police force.
In my view, the plaintiffs have demonstrated an interest as citizens at least equal to that demonstrated by Messrs. Thorson, Borowski and McNeil in the litigation they pursued. Their interest is also at least equal to that held by the plaintiffs in Operation Dismantle Inc. et al. v. The Queen et al., [1985] 1 S.C.R. 441, although standing in that case was not discussed. I think this comparison alone is sufficient to justify the conclusion that the plaintiffs have met the requirement that they possess sufficient interest, as citizens, in the subject-matter of the litigation.
The plaintiffs have also, to the extent that it is a relevant consideration, involved themselves in the subject-matter of the litigation. In the Canadian Council of Churches case,[23] that organization was said to have demonstrated a real and continuing interest in the problems of refugees and immigrants. The plaintiffs in this case have similarly established a real and continuing interest in retaining the religious neutrality of the RCMP uniform. They have a personal interest as a result of past and present connection with the Force. They have spent their time, money and effort, first, to lobby members of Parliament concerning the change and then to bring this litigation to court. In the so doing they have received communications and funds from a cross-section of people, including present members of the RCMP. I think it is accurate to say that, in a way, they are representing this cross-section of citizens when pursuing this litigation.
I recognize the concerns, expressed in the Canadian Council of Churches decision, that granting standing to public interest groups may open the floodgates to litigation, much of it perhaps trivial, which could potentially overburden available judicial resources. I note however that there has been no evidence of this occurring since the broadening of standing by the decision in Thorson and subsequent cases. I have some difficulty with the argument that granting standing in a case such as the present could signal an opening of the floodgates so that the courts will be overburdened and scarce judicial resources inappropriately consumed. I would think that the costs of litigation alone would prevent that occurring, not to mention the psychological and emotional stress and frustration which attend involvement in litigation. For similar reasons, I find it hard to accept that a host of trivial issues will be brought before the courts by public interest groups. I note that private interest litigation is not without its fair share of triviality at times. In the absence of some evidence that the broadening of standing which the Supreme Court has effected, has led or is leading to the difficulties described, I am reluctant to place much emphasis on those factors.
I turn then to the arguments concerning whether or not another reasonable and effective way of getting the issue to the court exists. Counsel for the defendants argues that an existing member of the RCMP might bring such litigation, or that an aggrieved member of the public could take a complaint to the RCMP Public Complaints Commission.[24] I am not persuaded that either of these fits the category of a “reasonable and effective” means. It is most unlikely that a serving member of the RCMP would commence an action, for the same reason that serving members provided money to the plaintiffs on condition that they not be publicly identified, the potential repercussion for their careers which could arise as a result of challenging the Commissioner’s decision. While members of the public can pursue a complaint before the Public Complaints Commission, if an officer acts in a biased or improper manner, the issue that the plaintiffs are raising is not of that nature. They are not alleging that any actual bias or improper action has occurred. They are alleging that a reasonable apprehension of bias will exist. Mrs. Mansbridge gave oral evidence that she knew the oath an RCMP constable is required to take requires that the individual swear that he or she will execute his or her duties without fear, favour or affection. The plaintiffs’ position is not directed to the personal integrity or professionalism of the existing officers; it is of a more abstract or general nature. They assert that once a religious symbol is allowed as part of the uniform, the appearance of impartiality is undermined. Even if this kind of complaint could properly come within the jurisdiction of the Public Complaints Commission, I am not convinced that that can lead to adjudication by the courts. As I understand that legislation, the Commissioner, together with the Minister, is the ultimate arbiter of those complaints.[25]
Another suggested avenue by which a challenge might arise, it is said, is through a potential or existing member of the RCMP, who wished to obtain accommodation for his or her religious beliefs, and who was refused such accommodation. It is clear, however, that this would not raise the issue which the plaintiffs seek to have adjudicated. The would-be plaintiff in such a case would not necessarily be seeking to challenge the Commissioner’s decision but would more likely be seeking to broaden it.
The one avenue of possible future challenge which I find most plausible relates to the plaintiffs’ arguments respecting section 7 of the Charter. It is conceivable, for example, that a Hindu or Muslin might raise an objection to turbaned officers, by way of action for a declaration, in much the same way the present case is framed, particularly, if that person found himself or herself being policed by such officers in a dispute with members of the Sikh community. On reflection, I have concluded that this possibility does not undercut the plaintiffs’ right to bring the present action.
At most the defendants’ arguments are that a possibility exists that an alternative action might be brought. In the Canadian Council of Churches, the alternative litigation was not a mere possibility or a matter of speculation about actions which might arise. There was actual litigation (thousands of cases) in the courts below. In order to meet the test of a “reasonable and effective” alternative, I think it is necessary to demonstrate more than a possibility that such litigation might occur. I am of the view that in the present case, the claim which is being asserted is not one with respect to which there exists a reasonable and effective alternative means to bring that issue before the courts.
Freedom of Religion
The plaintiffs argue that the constitutional guarantee of freedom of religion is breached when members of the public are forced to interact with or confront police officers who are wearing, as part of the uniform of the state, a religious symbol which demonstrates the officer’s allegiance to a religious group different from that to which the particular member of the public belongs. Paragraph 2(a) of the Canadian Charter of Rights and Freedoms provides:
2. Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion.
In R. v. Big M Drug Mart Ltd et al., [1985] 1 S.C.R. 295, the Supreme Court held that the purpose of the legislative provision being challenged was critical in deciding whether that legislation constituted an infringement of freedom of religion:
If the legislation fails the purpose test, there is no need to consider further its effects, since it has already been demonstrated to be invalid. Thus, if a law with a valid purpose interferes by its impact, with rights or freedoms, a litigant could still argue the effects of the legislation as a means to defeat its applicability and possibly its validity. In short, the effects test will only be necessary to defeat legislation with a valid purpose; effects can never be relied upon to save legislation with an invalid purpose.[26]
Counsel for the plaintiffs argues that in the present case the religious purpose of the amendment to the RCMP Regulations[27] and the Commissioner’s Standing Orders is apparent on their face: to exempt certain members of the RCMP from the uniform requirements imposed upon all other members on the basis of the member’s religious beliefs. In addition, it is argued that that exemption is for the advantage of only one religious group, the Khalsa Sikhs. Counsel states that the apparent neutrality of the amended Regulations is belied by the history of the development of the policy which preceded the amendment: the RCMP 1982 report; the Commissioner’s directive that the exemption only relate to Sikhs; the process and form established by the RCMP to claim exemption; the changes to the RCMP uniform which were made so as to incorporate the Khalsa Sikh turban (by material, colour, headband and badge) into the RCMP uniform. It is argued that the amended regulation clearly has a religious purpose, and one specific to one particular religious group, and is therefore unconstitutional as contrary to paragraph 2(a) of the Charter.
I do not interpret the cases cited as standing for the proposition that all legislation with a religious purpose infringes paragraph 2(a) of the Charter. In my view, it is necessary to demonstrate that the religious purpose is such as to either constrain an individual’s chosen religious practices or expression or to compel or coerce participation in religious practices or observances which the individual would not freely choose.
In Big M Drug Mart, it was held that:
Freedom can primarily be characterized by the absence of coercion or constraint. If a person is compelled by the state or the will of another to a course of action or inaction which he would not otherwise have chosen, he is not acting of his own volition and he cannot be said to be truly free. One of the major purposes of the Charter is to protect, within reason, from compulsion or restraint. Coercion not only includes such blatant forms of compulsion as direct commands to act or refrain from acting on pain of sanction, coercion includes indirect forms of control which determine or limit alternative courses of conduct available to others. Freedom in a broad sense embraces both the absence of coercion and constraint, and the right to manifest beliefs and practices. Freedom means that, subject to such limitations as are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others, no one is to be forced to act in a way contrary to his beliefs or his conscience.[28] [Underlining added.]
In Zylberberg v. Sudbury Board of Education (Director) (1988), 65 O.R. (2d) 641 (C.A.), regulations requiring public schools to open or close each day with religious exercises consisting of scripture or other suitable readings and repeating the Lord’s prayer or other suitable prayers was held to violate paragraph 2(a) of the Charter. This was so despite the fact that a pupil or the pupil’s parents could obtain exemption for the pupil from these exercises. The Ontario Court of Appeal held that despite the fact that a child might be exempted:
… the reality is that it [the requirement of scripture reading and prayers] imposes on religious minorities a compulsion to conform to the religious practices of the majority …. The peer pressure and the class-room norms to which children are acutely sensitive, in our opinion, are real and pervasive and operate to compel members of religious minorities to conform with majority religious practices.
…
[The regulation] also infringes freedom of conscience and religion in a broader sense. The requirement that pupils attend religious exercises, unless exempt, compels students and parents to make a religious statement.[29]
Counsel for the plaintiffs argues that the incorporation of religious symbols into the uniform of the RCMP similarly imposes a type of pressure or compulsion, on members of the public who are compelled to deal with that officer, to acknowledge the religious tradition of the officer in question.
I have not been persuaded that the interaction of a member of the public with a police officer who carries an identification of his religious persuasion as part of his uniform, constitutes an infringement of the former’s freedom of religion. There is no necessary religious content to the interaction between the two individuals. In Big M Drug Mart the effect of the legislation was to compel participation in the religious observance of Sunday as a day of rest. In Zylberberg, again, the Court found that the effect of the legislation, despite an opportunity to exempt oneself, was to coerce participation in religious exercises. This was particularly so, given that one was dealing with young children who are sensitive to peer group pressure. In the case of interaction between a member of the public and a police officer wearing a turban, I do not see any compulsion or coercion on the member of the public to participate in, adopt or share the officer’s religious beliefs or practices. The only action demanded from the member of the public is one of observation. That person will be required to observe the officer’s religious affiliation. I cannot conclude that observation alone, even in the context of a situation in which the police officer is exercising his law enforcement powers, constitutes an infringement of the freedom of religion of the observer.
I was referred to the recent decision of Mr. Justice Muldoon in O’Sullivan v. M.N.R., [1992] 1 F.C. 522 (T.D.). In that decision Mr. Justice Muldoon discussed the significance of the preamble of the Charter in which it is said that “Canada is founded upon principles that recognize the supremacy of God and the rule of law.” The plaintiff in the O’Sullivan case was asserting a right to deduct a certain amount of money from his income tax because he did not want his tax dollars to support abortions. Mr. Justice Muldoon wrote of the preamble:
What then is meant by this preamble? Obviously it is meant to accord security to all believers in God, no matter what their particular faith and no matter in what beastly manner they behave to others. In assuring that security to believers, this recognition of the supremacy of God means that, unless or until the Constitution be amended—the best of the alternatives imaginable—Canada cannot become an officially atheistic State….[30]
…
Thus, while the secular State is bound to defend, that is to guarantee, everyone’s freedom of conscience and religion, it is not bound or even permitted, to promote every expression or manifestation of conscience and religion, just as it is not bound to promote every manifestation of freedom of opinion and expression, some of which are defamatory. Indeed, it is the constitutional entrenchment of these very disparate freedoms which demonstrates the inherent secularity of the Canadian State. The sorry story of human strife and savagery in the name of God amply shows that the resolutely secular state is the sure foundation of everyone’s security, even if it leaves something, or much, for sincere believers to desire.[31] [Underlining added.]
I do not disagree with Mr. Justice Muldoon’s comments but preambular statements are interpretive guides. They are not substantive provisions. I am not prepared to use the preamble to interpret the freedom of religion guarantee set out in paragraph 2(a) of the Charter in the way counsel suggests because I have not been persuaded that there is an ambiguity in that paragraph, in the context of this case, which requires interpretive assistance from the preamble.
Fundamental Justice
Section 7 of the Canadian Charter of Rights and Freedoms states:
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
There is no doubt that many of the activities in which police officers engage fall within the purview of section 7. For example, in Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425, compelling individuals to be interviewed (under oath) and seizing records for the purposes of investigation were reviewed in the light of section 7. In Canada (Attorney-General) v. Sander (1992), 96 D.L.R. (4th) 85 (B.C.S.C.), seizing business records pursuant to warrants for investigatory purposes was reviewed. Also, the concept of fundamental justice carries with it the requirement that decisions are to be taken by a decision-maker free of any indicia which can lead to the raising of a reasonable apprehension of bias (except of course in cases where the doctrine of necessity applies). This requirement is one of the cardinal principles of natural justice. The decisions in this regard are legion. It is also clear from the decision in Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486 that “fundamental justice” includes elements of substantive and not merely procedural fairness. It is a broader concept than “natural justice.”
Counsel for the plaintiffs argues that the police, being the arm of the state which is primarily responsible for law enforcement and which operates in a discretionary and quasi-judicial manner, is concerned on a continuing basis with matters relating to the life, liberty and security of the person. In addition, in the performance of those functions, particularly in exercising powers of investigation, arrest and prosecution, it is argued that the police must exercise their powers in accordance with the principles of fundamental justice and these include the requirement that such powers be exercised in a context free of any reasonable apprehension of bias.
Counsel links this analysis of section 7 to what he asserts is a constitutional convention that our police forces operate in a neutral fashion, free from all indications of political or religious allegiance. He alleges that a constitutional convention central to our system of government requires that police officers of the state not only act in an impartial manner but exhibit an appearance of impartiality when exercising law enforcement powers. Reference is made to the decisions in Osborne v. Canada (Treasury Board), [1991] 2 S.C.R. 69 and Fraser v. Public Service Staff Relations Board, [1985] 2 S.C.R. 455. Both those cases deal with the convention that members of the Public Service are expected to act in as politically neutral a way as possible and to exhibit the appearance of neutrality. On that basis, certain limitations are placed on their freedom of expression and their right to participate in political activities. In the Fraser case, Chief Justice Dickson referred to “the public interest in both the actual, and apparent, impartiality of the public service.”[32] And in Osborne, Mr. Justice Sopinka referred to “[t]he existence of a convention of political neutrality, central to the principle of responsible government.”[33]
I accept that the evidence in the present case establishes that a convention of neutrality exists with respect to police forces in this country and that this includes the expectation that their dress will not manifest political or religious allegiances. As Dr. McLeod testified such a principle has been honoured in practice although it has not been the subject of much written commentary or debate. I do not think however that this assists the plaintiffs’ case. Conventions are not legally enforceable.[34] Conventions by definition are flexible and change over time. The convention under discussion in the Osborne and Fraser cases obtained legal force from its embodiment in a statute,[35] not from its status as a convention. A convention is not a constitutional guarantee.
A more significant difficulty with the plaintiffs’ section 7 argument however is that the evidence which has been led to support it can only be described as being quite speculative and vague. There is no evidence that any person has been “deprived” of his or her “liberty or security” by either of the two RCMP officers wearing turbans. There is no evidence that any person has experienced a reasonable apprehension of bias in the context of such deprivation. There is no evidence, for example by a Hindu or Muslim that that individual would entertain a reasonable apprehension of bias if deprivation occurred. Mrs. Mansbridge’s evidence went no further than to say that turbaned officers “could appear” not to be neutral to herself and other Canadians who are not used to religious symbols being part of a police uniform. At the same time, I understood her evidence to be that she really would not fear bias from such officers.
There is no evidence concerning what duties are being given to the turbaned officers. It is possible that the duties are such that they are not placed in situations where the concerns which the plaintiffs describe could arise (perhaps the officers operate solely in a plain clothes capacity or perform functions where there are no direct interactions with members of the public). The plaintiffs’ evidence has all been theoretical and speculative. The assertion that a visible manifestation of a Sikh officer’s religious faith, as part of his uniform, will create a reasonable apprehension of bias is not based upon any actual concrete evidence. The plaintiffs speculate that this could occur. One can equally speculate that it will not. One can speculate that the tensions between Sikhs and others, at other times and on other continents, simply do not pertain in Canada. It may very well be that most Canadians are like Deputy Commissioner Moffat and do not interpret the turban as a religious symbol or they may see it as benign or as an indication of integrity and strength. I am not prepared to make a finding that section 7 has been or will be infringed on the basis of the evidence before me.
The analysis which is to be undertaken when applying section 7 is set out by Mr. Justice La Forest in R. v. Beare; R. v. Higgins, [1988] 2 S.C.R. 387, at page 401:
To trigger its operation there must first be a finding that there has been a deprivation of the right to “life, liberty and security of the person” and, secondly, that that deprivation is contrary to the principles of fundamental justice. Like other provisions of the Charter, s. 7 must be construed in light of the interests it was meant to protect. It should be given a generous interpretation, but it is important not to overshoot the actual purpose of the right in question…. [Underlining added.]
The first requirement has not been met. There is no evidence of any state intrusion into the life, liberty or security of the plaintiffs or of any person whom they represent.
Discrimination
I turn then to the argument that the amended regulation and the Commissioner’s Standing Orders are discriminatory. Section 15 of the Charter states:
15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
Similar difficulties exist with the plaintiffs’ arguments concerning section 15 as exist with those based on section 7. Indeed counsel for the plaintiffs did not vigorously pursue his argument under this heading.
The plaintiffs’ argument is that the Regulations and Commissioner’s Standing Orders are discriminatory because they allow Khalsa Sikhs to display their religious symbols but deny this to all other groups. Mrs. Mansbridge’s evidence was that the Regulations and Orders were discriminatory because her family members were prohibited from wearing their religious symbols. At the same time, no witness has been called who claimed an exemption on religious or other similar ground and who had been refused. Not only is there no concrete instance of discrimination before me but the agreed statement of fact states that the RCMP would consider any request for exemption on religious grounds on a basis similar to that on which the Khalsa Sikh’s request to wear the turban was granted.
Counsel seeks support for his argument under section 15 by reference to the decisions in Reference Re Bill 30, An Act to amend the Education Act (Ont.), [1987] 1 S.C.R. 1148 and R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713. In the Education Act (Ont.) case it was held that legislation which extended public funding for Roman Catholic schools from grade ten to grade twelve was constitutionally valid. This was so because there is an express constitutional provision (section 93 of the Constitution Act, 1867) which prescribed special treatment for separate or dissentient schools. The majority decision also seemed to say that section 29 of the Charter,[36] which expressly preserves denominational school rights, was not required to preserve the validity of the amendment to the Education Act [R.S.O. 1980, c. 129] (Ontario) because of the express provision in section 93. At the same time the Supreme Court held that in the absence of such an express provision the providing of funding to denominational schools would not sit well with section 15 of the Charter. The majority judgment reads in part, at pages 1197-1198:
This does not mean, however, that such rights or privileges [conferred by post-Confederation legislation under Section 93(3) of the Constitution Act, 1867] are vulnerable to attack under ss. 2(a) and 15 of the Charter. I have indicated that the rights or privileges protected by s. 93(1) are immune from Charter review under s. 29 of the Charter. I think this is clear. What is less clear is whether s. 29 of the Charter was required in order to achieve that result. In my view, it was not. I believe it was put there simply to emphasize that the special treatment guaranteed by the constitution to denominational, separate or dissentient schools even if it sits uncomfortably with the concept of equality embodied in the Charter because not available to other schools, is nevertheless not impaired by the Charter. It was never intended, in my opinion, that the Charter could be used to invalidate other provisions of the Constitution, particularly such a provision as s. 93 which represented a fundamental part of the Confederation compromise. Section 29, in my view, is present in the Charter only for greater certainty, at least in so far as the Province of Ontario is concerned. [Underlining added.]
The decision of Estey J. (Beetz J. concurring) concurred in the result stating at page 1206:
It is axiomatic (and many counsel before this Court conceded the point) that if the Charter has any application to Bill 30, this Bill would be found discriminatory and in violation of s. 2(a) and s. 15 of the Charter of Rights.
In R. v. Edwards Books, the question raised was whether a Saturday exemption to a general Sunday closing requirement might not offend section 15 of the Charter in so far as Muslims were concerned. Their weekly day of religious observance is Friday. Mr. Justice La Forest, at pages 804-805 noted:
Indeed, the more serious long-term question may be whether an exemption restricted to Saturday can meet the demands of the equality provision, s. 15, rather than whether the Act is valid without that exemption…. Section 15, however, was not in force at the time the offences charged here took place and I need not enter further into the matter.
The plaintiffs rely on the statements in these cases which indicate that, in the absence of an express constitutional provision to the contrary, state funding for the schools of one religious group would contravene section 15 of the Charter and that, had section 15 been in force at the time the Edwards case was commenced, it is possible that legislation which provided for weekly closing days on Saturday and Sunday, being focused on Jewish and Christian practices, would contravene section 15 of the Charter because it did not take account of the religious practices of other groups. The argument is that state recognition of one religious group as opposed to others is discriminatory.
I accept, of course, the comments in the two decisions cited. At the same time, I am still of the view that they were predicated on an assumption that concrete evidence would be brought forward to prove the discrimination which was alleged. It is only in such circumstance that the challenged legislation will fall for infringing section 15 rights. In my view, in order to prove discrimination, there has to be some evidence that equal concessions had been requested and denied and that there was an equality of position with respect to the individual granted an exemption and those who were not. In the case of legislation which prescribes a weekly closing day, a member of a religious group that does not set aside any particular day of the week for religious observances could hardly be said to be discriminated against because the legislation did not allow for his or her preference. Similarly, it may be that no other religious groups beside the Sikhs place religious importance on the wearing of a particular kind of apparel. In that event it would be hard to conclude that the special privilege being given to those wearing the Sikh turban was discriminatory. In conclusion, on the basis of the evidence which has been put before me I have not been convinced that I can conclude that the Commissioner’s Standing Orders offend section 15 of the Charter.
The defendants and the intervenors, particularly the able argument of Ms. Chotalia for the Alberta Civil Liberties Association, turn the plaintiffs’ argument respecting discrimination on its head. They argue that the Commissioner’s decision was designed to prevent discrimination occurring to Khalsa Sikhs. As such they argue that that decision offends none of the provisions of the Charter, indeed that it is required by section 15 of the Charter.
The law with respect to the requirements of section 15 is well known and, since counsel argued before me, the Supreme Court has dealt with this area of the law again in Commission scolaire régionale de Chambly v. Bergevin, [1994] S.C.J. No. 57 (QL).[37] In summary, under both the Canadian Human Rights Act[38] and under section 15 of the Charter, rules of general application which have an adverse effect on an individual because of characteristics which fall within prohibited grounds of discrimination will be held to result in “adverse effect discrimination.” In Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, at page 164 it was said:
The concept of equality has long been a feature of Western thought. As embodied in s. 15(1) of the Charter, it is an elusive concept and, more than any of the other rights and freedoms guaranteed in the Charter, it lacks precise definition.
…
It is a comparative concept…. It must be recognized at once, however, that every difference in treatment between individuals under the law will not necessarily result in inequality and, as well, that identical treatment may frequently produce serious inequality. This proposition has found frequent expression in the literature … but … nowhere more aptly than in the well-known words of Frankfurter J. in Dennis v. United States, 339 U.S. 162 (1950), at p. 184:
It was a wise man who said that there is no greater inequality than the equal treatment of unequals.
When adverse effect discrimination exists, employers are required to accommodate employees so as to alleviate the effect. The present case is a perfect example of what has now become a trite observation: accommodation for the purpose of ensuing the equal treatment of unequals, by its very nature, involves, in turn, the unequal treatment of individuals.
What is considered to be a reasonable accommodation required from an employer depends on a number of factors. Some examples of the kinds of factors have been identified in the jurisprudence are: the economic consequences for the employer; the size of the employer’s organization; the magnitude of any safety risks and who would bear the costs of the injury that might arise; the degree of interference with the operation of the employer’s business including problems of morale that might result from a prospective accommodation measure and the interchangeability of work force and facilities available to an employer. It is argued that the Commissioner in this case recognized that he would be required to accommodate the Sikh turban and that is what he did.
I am not entirely convinced that the Commissioner’s decision was driven by a conviction that he was required to make the accommodations he did by reasons of the Canadian Human Rights Act or the Charter. While this was his motivation at one time (e.g., in the 1984-1986 period) the crucial factor in 1987-1988, when the decision was actually made, seems to have been to encourage the recruitment of visible minorities into the force. Nevertheless, I am willing to accept that the desire to meet the Canadian Human Rights Act and Charter standards could have been one of the Commissioner’s objectives and that it was a laudable one.
In the context of this case, however, I am not prepared to make a finding that if the Commissioner had not acted as he did, he would have been in breach of the Charter. That is not the focus of this litigation and I am not convinced that the evidence which has been adduced allows me to reach that conclusion. That issue has not been the subject of an adversarial proceeding. In addition, it would be necessary to decide what accommodation would be appropriate and indeed whether such required the changes to the uniform which were made. The focus of this litigation has not been whether the Commissioner was required to make the changes he did, it is whether there is any constitutional obligation preventing him from doing so. Thus, as I have already indicated, I am not prepared to find that, had the Commissioner not acted as he did, he would have been in breach of the Charter.
Multiculturalism
Several arguments were made concerning section 27 of the Charter:
27. This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.
This is an interpretive provision and since I have not found any ambiguity in the relevant provisions of the Charter, I do not need to rely upon it. I note however that I do not find it particularly useful in this case. In my view there are equally balanced arguments on both sides. Counsel for the defendants argues that multicultural concerns underpin the Commissioner’s decision because Khalsa Sikhs are accommodated into the RCMP without having to give up elements of their faith which are important to them. Also, the image of the force as a multicultural one is enhanced and it has an increased capacity to respond to problems which might arise within the Sikh community. Counsel for the plaintiffs argues that, in so far as the police are concerned, in a multicultural society the religious and cultural values of each is best preserved when the pivotal institutions of the state remain religiously neutral. The police are included as one of the pivotal institutions which should be governed by that precept. I find both these arguments to be convincing. I would not find section 27 to be particularly helpful in this case, if I had found it necessary to resort to it.
Demonstrably Justified in a Free and Democratic Society
Since I have concluded that there is no constitutional impediment to the Commissioner acting as he did, it is not necessary for me to deal with the argument that had such existed the Commissioner’s actions would nevertheless be justified under section 1 of the Charter.
Costs
Counsel for the plaintiffs, at the end of the proceedings, asked that costs not be awarded against his clients. The litigation which they have brought is public interest litigation and they have very limited resources of their own. Funds were of course solicited and obtained from a large number of members of the public. Counsel for the plaintiffs asserts that this, however, has already been spent.
There is of course no evidence before me concerning the amount which has been used or the potential for further public funding. On reflection, I have decided that I will not make an order respecting costs until after any evidence the parties may wish to submit in this regard has been adduced and there has been full argument (in writing if the parties wish), concerning the applicable rules of law, including the relevant jurisprudence. It is only the parties who are covered by this request. No costs would be awarded to the intervenors in any event since they joined the litigation voluntarily.
It may be that the parties will be able to settle the question of costs between themselves. If so, they should seek a consent order in this regard. If settlement is not possible then counsel should notify the Registrar as to when and in what manner they wish to make representations.
Conclusion
There is much evidence which shows that there is a strong public interest in having a police uniform which is devoid of any symbolism which identifies the allegiance of the officer to a particular religious group. There is evidence that the alleged religious requirement that Sikhs wear a turban is not as categorical as some assert. Indeed the application form which a Sikh member must sign on joining the RCMP, requires that officer to wear other headgear. The Commissioner based his decision to allow the turban to be worn as part of RCMP uniform on his understanding that not to allow such would discriminate against Sikhs and, in any event, the wearing of the turban would operate as a demonstration and an acceptance of the present day multicultural nature of Canada. These are laudable objectives. The only question for the Court however is whether there is a constitutional barrier to the Commissioner acting as he has done. On the basis of the jurisprudence as it exists and the particular evidence which was put before me, I cannot find such a barrier. The plaintiffs’ claim will accordingly be dismissed.
[1] The regulations authorize the granting of exemptions from wearing items of the significant uniform, see infra p. 189.
[2] Amendment I (1791)
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
[3] Exhibit 2—Tab 2.
[4] The author of the RCMP report wrote:
Sikhs are monotheistic, believing in a personal God. The sole repository of spiritual authority is the Adi Granth. In the event of disputes, spiritual or temporal, a conclave is summoned to meet at the Akal Takht “Throne of the Timeless” a building erected by the sixth Guru, Harogobind in Amritsar. Resolutions passed have spiritual sanction. Sikhism forbids representation of God in pictures and the worship of idols. In essence the disciple is called to follow the path to spiritual salvation—Moksa—set out in divine revelation first revealed to Guru Nanak and then the subsequent nine Gurus. Sikhism calls for an integrated, balanced life of meditation and daily routine life. This consists in honest, hard work and selfless service to the community, a sharing of goods and a keen self awareness.
[5] Although marriage outside one’s caste is not met with approval.
[6] As I understand the evidence, there is only one divine guru but there are ten people who were successive embodiments thereof.
[7] Transcript, at p. 475:
… and the kesh [sic], it has to be covered, you can’t wear the hair uncovered, and for this reason the Sikhs have adopted the turban. They had always adopted the turban, but it becomes absolutely mandatory for any member of the Khalsa.
[8] See infra, at pp. 182-183.
[9] Walter Kaufmann, Religions in Four Dimensions: Existential and Aesthetic, Historical and Comparative. New York, 1976, at p. 301.
[10] The RCMP report of 1982 states:
The destiny of the Sikh community is a sensitive issue with all Sikhs. Most Sikhs have long lived in the Punjab, however, when the great partition of 1947 was made, the Punjab was divided. Roughly 2,500,000 Sikhs lived in the part given to Pakistan, and about the same number in India. When the fighting and migrations were all over, the surviving Sikhs were in India, none in Pakistan. Those who fled the new Muslim state had to leave behind their homes, their very rich agricultural lands, temples, and virtually all their possession. The Muslims who moved in the opposite direction were mostly landless tenants. This was due in part to the fact that the whole idea of Pakistan was to have a Muslim state. It also developed into a long and extremely bloody history of hatred between Sikhs and Muslims. The Muslims had executed several of the early leaders of the Sikhs, along with their children; the Sikhs, seeking revenge, have put large numbers of Muslims to the sword; the Muslims have retaliated, and all this bloodshed has not been forgotten. [Footnote omitted.]
[11] C.R.C., 1978, c. 1391, s. 85 which subsequently became Royal Canadian Mounted Police Regulations, 1988, SOR/88-361, s. 64.
[12] R.S.C., 1985, c. R-10, as amended.
[13] The exemption contemplated was one which read:
If you are unable to comply with the dress regulations on any of the proscribed grounds of discrimination listed in s. 3(1) of the Canadian Human Rights Act, submit memorandum through channels and your case will be judged on an individual basis.
[14] Bhinder et al. v. Canadian National Railway Co. et al., [1985] 2 S.C.R. 561.
[15] Non-caucasians and women.
[16] A few years ago, we examined the concept of headdress design for a baptized Sikh. The project was abandoned, to be “reconsidered should a baptized Sikh ever apply.” This, of course, is not good enough, and does not denote much of an effort when we consider that many years ago, the Metropolitan Police Commission (Toronto) amended the force’s dress regulations to accommodate the wearing of the turban.
[17] Transcript, at p. 62.
[18] The RCMP, although a national police force, operate in all provinces except Ontario and Quebec, as the provincial police force.
[19] Technically by Order in Council although in fact it is those members of Cabinet who are members of the relevant Cabinet Committee who make the decision.
[20] Pursuant to authority under s. 21(1) of the Royal Canadian Mounted Police Act, R.S.C., 1985, c. R-10, as amended [R.S.C., 1985 (2nd Supp.), c. 8, s. 12].
[21] Bulletin UDM-49, issued November 9, 1990, now in the Uniform and Dress Manual, chapter 1.
[22] SOR/88-361.
[23] At p. 254.
[24] Royal Canadian Mounted Police Act, R.S.C., 1985, c. R-10, Part VI, as amended [as am. idem].
[25] See, Re Canada (Commissioner of the Royal Canadian Mounted Police), [1994] 3 F.C. 562 (C.A.).
[26] At p. 334.
[27] SOR/90-182.
[28] At pp. 336-337.
[29] At p. 655.
[30] At p. 536.
[31] At pp. 542-543.
[32] At p. 470.
[33] At p. 86.
[34] Re Resolution to amend the Constitution, [1981] 1 S.C.R. 753; Hogg, Constitutional Law of Canada (1992), at pp. 17-18.
[35] S. 33 [Public Service Employment Act, R.S.C., 1985, c. P-33].
[36] Nothing in this Charter abrogates or derogates from any rights or privileges guaranteed by or under the Constitution of Canada in respect of denominational, separate or dissentient schools.
[37] De minimus test has been discounted.
[38] R.S.C., 1985, c. H-6.