Judge Rejects Challenge To Ontario Helmet Law
Thursday March 6, 2008
CityNews.ca Staff
Baljinder Badesha will have to head to British Columbia or Manitoba if he wants to feel the wind in his face as he rides his motorcycle.
In a decision that took more than two years to move through the courts, a judge ruled that forcing Badesha to wear a helmet does not violate his religious freedom.
Badesha is a devout Sikh, who must wear a turban - and only a turban - to cover his hair. While riding his motorcycle without a helmet in September 2005, he was ticketed and fined $110.
He took that ticket to court with the support of the Ontario Human Rights Commission. They argued that the helmet law violates his constitutional rights.
That claim was rejected by Ontario Court Justice James Blacklock, who ruled that safety trumps religious rights. Helmet-free bikers, he said, would put "undue hardship" on the province because of safety concerns.(Read his decision here.)
The Crown argued helmet laws protect against head injuries, and save the public health-care system millions of dollars.
Badesha doesn't agree. "I don't think there's any risks are there. People, they're dying with the helmet, too," he pointed out.
Outside the court, Badesha's lawyer, Melvin Sokolsky told reporters the reason behind his fight. "If his religion allowed he would wear a helmet. Simple as that. He has nothing against wearing helmets."
Sokolsky said that while he agreed that the action is dangerous, the risk is minimal. "To allow the number of religious Sikhs who would actually avail themselves of this right to ride a motorcycle without a helmet would not pose any great degree of safety risk ... the risk would be minimal and the law requires the government to prove that there would be undue hardship if they allowed an accommodation or an exemption. We feel that the Crown has not shown undue hardship."
He said the reaction is "somewhat disappointing. We were hoping that Judge Blacklock would agree with other decisions which were favorable."
That reasoning doesn't sit well with Brian Patterson of the Ontario Safety League. "You can find a lower safety standard all over the world. Ontario's setting the benchmark in Canada, and we're going to encourage my counterparts in those other provinces to raise the bar in those provinces."
Badesha has 15 days to decide if he'll appeal, and his lawyer said he might do just that.
British Columbia, Manitoba, the United Kingdom, Hong Kong and India all allow devout Sikhs to ride without a helmet.
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Judge's Decision
(94) The onus lies on the Applicant to prove that he has suffered discrimination under the Human Rights Code. It is argued here that the Applicant is denied a "service" by this legislation namely the use of a public highway to drive a motor vehicle, including a motorcycle. It is conceded by the Attorney General that this much is true. The question remains, however, am I satisfied that the accused has been discriminated against within the meaning of the Ontario Human Rights Code.
(95) There is a debate as to the relevance of the analysis laid out in the Supreme Court's decision in Law, supra, to determining if discrimination is present with the meaning of the Ontario Human Rights Code. I have come to the conclusion that I do not need to resolve that question in this case. If Law, supra, applies then, in my view, the analysis I set out earlier would lead me to conclude that the Applicant has failed in this case to discharge the burden to show "discrimination."
(96) If Law, supra, does not apply then the language of the legislation would seem to support a finding of at least "constructive discrimination" in this case as described in section 11(1) of the Code, supra. I would be prepared to assume that the Applicant has discharged his burden to establish discrimination in this case. That would still leave the question, however, of whether I was satisfied on the balance of probabilities that the accommodation of permitting Mr. Badesha and other similarly situate Sikhs to ride a motorcycle helmetless on Ontario's public thoroughfare represents an "undue" hardship on Ontario.
(97) For the reasons I have set out under my analysis of section 1, I am satisfied that it would be an "undue" hardship on Ontario as it would compel the Province to abandon a reasonable safety standard. The evidence before me shows that to ride a motorcycle helmetless, involves the imposition of significant extra risks related to safety. The proposed accommodation would require Ontario, over its objection, to abandon its interest in, and efforts to protect, the lives of all riders of motorcycles, their dependants as well as other users of the road. Given the nature of Mr. Badesha's beliefs, which foreclose him from wearing anything over his turban, and yet the unquestioned safety and related issues, this is one of those cases in which, unfortunately, no accommodation appears possible.
(98) In the result then the current application is dismissed and counsel are free to address me further with respect to the scheduling of the remaining issues in this matter namely the making of a finding of guilt and the imposition of sentence. I would like to thank all parties for the very helpful submissions and materials I received in this matter and the co-operation I was accorded in scheduling its hearing.
(99) I want to emphasize again, that the outcome of this case turned on what I determined was or was not required as a matter of constitutional law and The Ontario Human Rights Code. What the Province may choose to do in this area, as a matter of policy now, or in the future, of course remains a matter for the Legislature.
Justice W.J. Blacklock
Author
Topic: Helmet law could be changing in Ontario (Read 2909 times)