BRAMPTON, Ont. - Forcing a devout, motorcycle-riding Sikh to choose between his turban and a helmet is denying him the right to religious freedom, human rights lawyers argued Friday as Baljinder Badesha's fight against a $110 fine took on the character of a constitutional challenge.
Obliged to wear turbans outside the home, devout Sikhs who want to ride motorcycles are effectively forbidden from a "normal social activity available to all other Ontarians," Owen Rees, a lawyer with the Ontario Human Rights Commission, told the court.
"What the state is saying to Mr. Badesha is you have to choose between your religious beliefs or (abstain) in order to ride the motorbike," Rees said.
The helmet requirement under the province's Highway Traffic Act "discriminates" against Badesha because it violates his constitutional rights, Rees added.
Similar challenges have seen exemptions made for Sikh motorcyclists in British Columbia and Manitoba. The United Kingdom, Hong Kong and India also allow devout Sikhs to forego the helmet.
"My religion says we cannot put anything over our turban," Badesha said outside court. "I like to ride the motorcycles, so that's why we fight the case."
While government lawyers said they did not contest Badesha's religious beliefs, they remained unswayed by the argument that denying non-helmeted riders access to motorcycles violates the Constitution.
"There is no suggestion that riding a motorcycle is a protected religious belief," Crown lawyer Michael Dunn told the hearing.
"Riding a motorcycle, that is significantly different than the interests that have been found to be violated... in other cases."
Scott Hutchison, who also represents the commission, argued the seatbelt law makes exemptions for disabled people who cannot wear them but still need to drive.
Ontario Court Justice James Blacklock countered with the distinction that devout Sikhs "could still operate a motor vehicle on the road - it just wouldn't be a motorcycle."
The Crown also argued that helmet laws protect against devastating head injuries and save the public health-care system millions of dollars.
Non-fatal motorcycle accidents can cost the public purse up to $2.4 million, while fatal crashes can eat up almost $20 million, according to Crown documents filed with the court.
The defence pointed out that those numbers, while they may appear large, represent only a fraction of Ontario's $38-billion annual budget for health care.
Badesha, who said he hasn't ridden his motorcycle since he was ticketed in 2005, played down the risks involved in riding helmet-free.
"Risk is involved with the helmet, too," he said outside court, pointing to the 50 motorcyclists who die in crashes each year in the province while wearing one.
"Even the risk in the cars, people are dying in the cars too."
Devout Sikhs comprise 0.2 per cent of Ontario's population.
If all devout Sikhs in the province chose to ride motorcycles without wearing helmets, 99.8 per cent of all motorcyclists would still be wearing them, said Hutchison. The impact on the health-care system would be minimal, he added.
"There are lots of deaths and brain injuries among motorcyclists wearing helmets right now," he told the court.
"If Ontario was serious about (addressing the danger) they would ban motorcycles."
Outside court, defence lawyer Mel Sokosky said the judge's ruling would apply only to Badesha.
"It stands to reason that if he succeeds then all other people in the same situation should also be able to succeed," said Sokosky.
"It's not a blanket exemption unless the Ontario legislature sees fit to make it the law, an exemption for devout Sikhs."
Arguments were scheduled to resume Tuesday.
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http://www.macleans.ca/canada/wire/article.jsp?content=n021583A
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