R. v. Badesha, 2011 ONCJ 284

COURT FILE No.: Hamilton 83382604 Citation: R. v. Badesha , 2011 ONCJ 284 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — BALJINDER S. BADESHA Given by The Honourable Justice J. D. Takach Heard on December 14 and December 15, 2010 Reasons for Judgment released on May 20, 2011 Michael T. Doi .................................................Counsel for the Intervener Attorney General of Ontario Michael S. Dunn...............................................Counsel for the Intervener Attorney General of Ontario A.

Melvin Sokolsky .........................................................Counsel for the Appellant Baljinder S. Badesha Anthony D. Griffin ..............................Counsel for the Intervener Ontario Human Rights Commission Balpreet Singh Boparai ........................Counsel for the Intervener World Sikh Organization of Canada TAKACH, J.: [ 1 ] This is an appeal brought by the appellant against the decision of W. J. Blacklock J.

March 6 th , 2008, wherein the accused was found guilty of having failed to have worn an approved helmet while operating a motorcycle, contrary to s. 104(1) of the Highway Traffic Act R.S.O. 1990, c. H. 8, as amended. There was no dispute as to whether or not the appellant, a practicing Sikh, had, in fact, operated a motorcycle on a highway without a helmet. The major part of the trial involved an application challenging the constitutional validity and Human Rights Code compliance of s. 104(1) of the Highway Traffic Act . More specifically, s. 104(1) was alleged to contravene s. 2(

a) and s. 15 of the Charter of Rights and Freedoms and not be in compliance with s. 1 , 9 , 11 and 47 of the Human Rights Code , R.S.O. 1990 c. H. 19. [ 2 ] The participants at trial were the appellant, the Intervener Attorney General for Ontario, and the intervener Ontario Human Rights Commission. [ 3 ] With respect to the appeal on June 25, 2008, Wilkie J. granted leave to the World Sikh Organization and the Ontario Human Rights Commission to intervene in the appeal on certain terms. [ 4 ] This matter comes before me by virtue of an order originally made by Justice T.

Culver January 31, 2007 pursuant to the Courts of Justice Act and s. 15 of the Justices of the Peace Act , R.S.O. 1990, c. J. 4 and amendments ordering that the case be heard by a Provincial Judge as distinct from a Justice of the Peace on the basis of the case’s apparent complexity. By virtue of s. 135(1) of the Provincial Offences Act , R.S.O., c. P. 33 and amendments thereto, the appeal is to another Ontario Court Judge sitting in the Ontario Court of Justice. [ 5 ] The Provincial Offences Act provides: 136.

(1) Conduct of appeal – Upon an appeal, the court shall give the parties an opportunity to be heard for the purpose of determining the issues and may, where the circumstances warrant it, make such inquiries as are necessary to ensure that the issues are fully and effectively defined.

(2) Review – An appeal shall be conducted by means of a review.

(3) Evidence – In determining a review, the court may,

(

a) hear or rehear the recorded evidence or any part thereof and may require any party to provide a transcript of the evidence, or any part thereof, or to produce any further exhibit; (

b) receive the evidence of any witness whether or not the witness gave evidence at the trial; (

c) require the justice presiding at the trial to report in writing on any matter specified in the request; or (

d) receive and act upon statements of agreed facts or admissions. R.S.O. 1990, c. P. 33, s. 136 . 138.

(1) Powers of court on appeal – Upon an appeal, the court may affirm, reverse or vary the decision appealed from or where, in the opinion of the court, it is necessary to do so to satisfy the ends of justice, direct a new trial. R.S.O. 1990, c. P. 33, s. 138(1) .

(2) New trial – Where the court directs a new trial, it shall be held in the Ontario Court of Justice presided over by a justice other than the justice who tried the defendant in the first instance, but the appeal court may, with the consent of the parties to the appeal, direct that the new trial be held before the justice who tried the defendant in the first instance or before the judge who directs the new trial. R.S.O. 1990, c. P. 33, s. 138(2) ; 2000, c. 26 ,

Schedule A, s. 13(6). Grounds of Appeal [ 6 ] The appellant took a broad brush approach in attacking all findings of the trial judge. Some of the grounds were addressed in the factum and many were not developed in oral argument. The notice of appeal filed by the appellant Badesha specified the following grounds of appeal. 1. The trial judge erred in not allowing the appellant’s amended application dated February 12, 2007 and thereby acquitting him or finding him not guilty of the charge or staying the charge. 2. The trial judge erred in taking into account facts not in evidence. 3.

The trial judge erred in law and fact in finding that the appellant would pose a danger to other road users were his religious beliefs accommodated within Ontario’s motorcycle helmet regime. 4. The trial judge erred in law and in fact in concluding that there were no means of accommodating the appellant within Ontario’s motorcycle helmet regime, failing to take into account the various classifications of motorcycle licenses which reflected various levels of driving restrictions, including the M1 class pursuant to s. 7 of Regulation 340/94 of the Highway Traffic Act , R.S.O. 1990, c.

H. 8, which was the type of license held by the appellant. 5. The trial judge erred in fact in law in assessing various opinions on a fragmentary basis, failing to reasonably consider relevant opinions which supported hypotheses submitted by experts on behalf of the appellant, and basing his own conclusions of fact on hypotheses or preconceived notions that were unsupported by the evidence submitted by experts on behalf of the Crown. 6. The trial judge erred in fact and law in ruling that s. 104 of the Highway Traffic Act, R.S.O. 1990, c.

H. 8 was not contrary to sections 1 , 9 , 11 and 47 of the Human Rights Code , R.S.O. 1990, c. H. 19. 7. The trial judge erred in fact and law in ruling that Ontario’s discrimination on the basis of creed (by

section 104 of the Highway Traffic Act ) was reasonable and justified under s. 11 of the Human Rights Code . 8. The trial judge erred in fact and law in ruling that Ontario had met the burden on it to prove that accommodating the appellant’s religious beliefs by exempting the appellant from the application of s. 106 of the Highway Traffic Act would cause Ontario undue hardship under s. 11 of the Human Rights Code . 9. The trial judge erred in applying the incorrect analysis under s. 11 of the Human Rights Code , R.S.O. 1990, c. H. 19. 10.

The trial judge erred in fact and law in permitting Ontario to assert a sweeping and unattainable object in justification of its violation of the appellant’s rights. 11. The trial judge erred in fact and law in finding that Ontario had met the burden it carried under s. 1 of the Charter to justify its violation (through s. 104 of the Highway Traffic Act ) of the appellant’s freedom of religion under s. 2 (

a) and right to equality under s. 15(1) of the Charter . 12. The trial judge erred in fact and law in relaxing the third branch of the proportionality test of s. 1 of the Canadian Charter of Rights and Freedoms , and by exaggerating the weight given to the objective asserted by Ontario to justify its violation of the appellant’s rights. 13. The trial judge erred in fact and law by failing to weigh any alleged danger to the appellant in light of the Charter values of individual autonomy and personal dignity, thereby skewing his consideration of Ontario as asserted justification. 14. The trial judge erred in fact and law in taking into account the interests of others under s. 2(

a) and s. 1 of the Canadian Charter

of Rights and Freedoms. 15. The trial judge erred in failing to conduct a separate and distinct analysis, or in applying an incorrect analysis under s. 15(1) ofthe Charter. 16. The trial judge erred in fact and law in his assessment of the appellant’s dignity interest under s. 15(1) and in finding no breachbecause of his finding in respect of the justification of the breach of the appellant’s s. 2(

a) rights. 17. The trial judge erred in fact and law by incorrectly identifying the comparator or group, or failing to apply a comparator orgroup analysis under s. 15(1). 18. The trial judge erred in fact and law in applying the correspondence factor in the s. 15(1) analysis by focusing on the remedialpurpose of the legislation rather than the appellant’s needs and circumstances arising from his religious beliefs. 19.

The trial judge erred in fact and law in identifying a more disadvantaged group than the impugned legislation aims toameliorate under the s. 15(1) analysis by identifying that group as Sikhs who are economically dependent on others and by finding thatthe legislation was aimed at and ameliorating the situation of a more disadvantaged minority than the appellant’s religious group. 20.

The trial judge erred in fact and law in the weight he gave to the nature and scope of the interest of the appellant affected bythe impugned legislation in the s. 15 analysis by failing to appreciate the impact on the appellant’s dignity of a complete exclusion froma social activity available to all other persons in Ontario. 21. The trial judge erred in fact and law in ruling that s. 104 of the Highway Traffic Act, R.S.O. 1990, c. H. 8 did not violate theappellant’s right to equality under s. 15(1) of the Canadian Charter of Rights and Freedoms.

Position of the Interveners the World Sikh Organization and the Ontario Human Rights Commission [7] As noted, both interveners were granted status as interveners on certain conditions, namely that they would not attemptto expand the record and that they may only make unduplicated written and oral submissions in relation to s. 104(1) of the HighwayTraffic Act and any alleged violation of s. 2(

a) and s. 15 of the Canadian Charter of Rights and Freedoms and ss. 1, 9, 11 and 47 of theHuman Rights Code. Arguments advanced by the World Sikh Organization were largely repetitive of those of the appellant and alsoadded historical data concerning Sikhs on matters that were not disputed by the other parties. World Sikh Organization [8] While the factum of the intervener addressed s. 104 of the Highway Traffic Act and s. 2(

a) of the Charter as well asparts of the Human Rights Code, it was largely silent on s. 15 of the Charter. In addition, the intervener did not comply strictly with theorder of Wilkie J. allowing intervention. [9] Both written and oral presentation dealt with the history of the turban and the Sikh religion. In addition, it was pointedout that other provinces exempted observant Sikhs from mandatory motorcycle helmet requirements. The World Sikh Organization alsoreferred to exemptions for Sikh motorcycle riders in other jurisdictions outside of Canada. The intervener relied on the principles set outin R. v.

Edwards Books (SCC), [1986] 2 S.C.R. 713, R. v. Big M Drug Mart (SCC), [1985] 1 S.C.R. 295and Syndicat Northcrest v. Amselem [2004] 2 S.C.R. 557. The argument put forward coincided with a ground of appeal advanced bythe appellant that subjected the appellant and like-minded individuals to prosecution for wearing a turban in accordance with theirreligion and, accordingly, was a violation of his right to freedom of religion. Further, it was argued that the interference was not trivial orinsubstantial, relying in part on the fact that it was an important part of the appellant’s business.

Quite apart from the economic issue, itwas argued that the use of public highways to drive a motorcycle was a public service and denial of the same would nevertheless be abreach of s. 2(a). [10] Having argued that the appellant’s rights were infringed, the World Sikh Organization went on to take the position thatthe alleged violations were not justified under s. 1 of the Charter.

While the intervener accepted that the objective of improving highwaysafety for motorcycles was a pressing and substantial objective, it was argued that absolute safety was unfeasible and that reasonablesafety assumes that some degree of risk is tolerated.

It was argued that legislative action with respect to a mandatory helmet law formotorcycle riders was not proportional to the objective of reasonable highway safety. [11] It noted that such a proportionality test required a rational connection between the objective and the statutory limitation,minimal impairment and a balancing between the benefits of the requirement and its so-called deleterious effects. [12] As with the other interveners, the World Sikh Organization accepted that a mandatory helmet law when operating amotorcycle was rationally connected with the objective of improving safety for motorcycle riders, but also, as with the other intervener,challenged the law on the basis of minimal impairment.

Reference was again made to the laws in Manitoba and British Columbia andother jurisdictions around the world. [13] The intervener disagreed with the trial judge’s finding that a helmet exemption for Sikhs fails to address the risks inherentwith respect to his own safety, the interests of his family and the interest of other users of the road, arguing that a narrow exemption forSikhs does not completely abandon the safety standard.

The intervener took the position that there has been no attempt to set conditionsfor a limited exception for Sikh motorcycle riders in order to minimize the risk, relying on s. 104(3) of the Highway Traffic Actauthorizing the making of such exemptions. Again, heavy reliance was placed on legislative exemptions in Manitoba and BritishColumbia.

[14] The intervener was not of the view that the evidence produced at trial demonstrated that the exemption or exception forSikh riders would compromise the standard of reasonable highway safety. The intervener, in effect, argued that there was no actual datato show that the cost of providing an exemption for Sikh motorcyclists would work an undue hardship. [15] Any additional cost of creating a helmet exemption for Sikhs, it was argued, would be a small addition to the existingsocietal cost of motorcycling.

Said costs were argued to be insignificant when weighed against the effect of forbidding practicing Sikhsfrom riding motorcycles while following their faith. [16] With respect to the Human Rights Code, the World Sikh Organization argued a three-step test set out in British Columbia(Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), (SCC), [1999] 3 S.C.R. 868 andBritish Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union(B.C.G.S.E.U.) (Meiorin Grievance) (SCC), [1999] 3 S.C.R. 3 applied to s. 11 of the Human Rights Code.

Accordingly, it was argued again that the helmet exemption was not necessary to achieve reasonable highway safety and thataccommodating Sikh motorcyclists, in providing an exemption, would not pose an undue hardship to Ontario. The intervener on thisbranch and in other respects relied heavily on Dhillon v.

British Columbia (Ministry of Transportation and Highways, Motor VehicleBranch) (1999), 35 C.H.R.R.D./293 (B.C.H.R.T.D.), a finding of the British Columbia Human Rights Tribunal and decision, which wasnot binding on the trial judge. [17] Only subsequent to the Attorney General’s factum did the intervener address Alberta v. Hutterian Brethren 2009 SCC 37, [2009] 2 S.C.R. 567 and sought to distinguish it from the case at bar.

The Ontario Human Rights Commission [18] The Ontario Human Rights Commission argued that the prohibition under s. 104 of the Highway Traffic Act amounted todiscrimination under the Human Rights Code and that Ontario has failed to lead evidence that could permit the court to conclude that theprohibition is justified under the Human Rights Code using the “undue hardship” test. It was argued that on the evidence there wouldonly be a modest increase to health care costs if observant Sikhs were granted an exemption.

Accordingly, it was argued that theappropriate finding was that applying the Human Rights Code to s. 104 of the Highway Traffic Act should result in a finding that anobservant Sikh was not required to wear a helmet while riding a motorcycle, and that the appellant should be acquitted on the chargeagainst him. [19] While the Commission acknowledged that there was evidence at trial about the reduction of risks by the wearing ofhelmets, it argued that said evidence contained a number of assumptions and estimates upon which the experts who filed or gaveevidence have different views.

The Ontario Human Rights Commission, however, focused on the issue of undue hardship if Sikhs,holding the views of the appellant, were permitted an exemption. [20] The Commission argued primacy of the Human Rights Code pursuant to s. 47 and also that the use of public roads is a“service”. Neither of these propositions was contested at trial or on the appeal. [21] The Commission acknowledged Tranchemontagne v.

Ontario (Director, Disability Support Program), 2006 SCC 14, [2006] 1 S.C.R. 513 setting out the test for discrimination under the Human Rights Code as being the same as that under theCharter, namely whether the law creates a distinction based on an enumerated or analogous ground and whether any such distinctioncreates a disadvantage by perpetuating prejudice or stereotyping. It further argued, however, that Tranchemontagne did not address s. 11of the Human Rights Code and data.

A prima facie case under s. 11 is established if the claimant establishes that a requirement results inthe exclusion or restriction of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is amember. The Commission argued that the trial judge concluded that a prima facie case of discrimination had been established. [22] The main thrust of the Commission’s submission was that Ontario had failed to establish that a helmet exemption forSikhs would cause undue hardship.

It was argued that it was clear that the three-step test set out by the Supreme Court of Canadaapplied to s. 11 and s. 17 to the Ontario Human Rights Code. The Commission acknowledged that the first two principles set out inBritish Columbia (Public Service Employee Relations Commission) v. B.C.G.S.E.U. (SCC), [1999] 3 S.C.R. 3,(Meirion) and British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), (SCC), [1999] 3 S.C.R. 868 (Grismer), and as made applicable by Entrop v. Imperial Oil Limited (2000), (ON CA),50 O.R. (3d) 18 had been satisfied.

The Commission argued however that the government’s purpose could be established and, at thesame time, accommodate persons like the complainant without incurring undue hardship. [23] Reference was made to seatbelt exemptions and s. 103(3) of the Highway Traffic Act and reliance was placed on Dhillon,supra, and its analysis of risk arguing both that any additional risk by allowing a helmet exemption to Sikhs was insignificant and noundue hardship would result. In addition, it was submitted that the identity of those who would be subject to this additional risk was arelevant consideration.

The Commission preferred Dr. Manga’s analysis of the increase in health care costs. In addition, heavy reliancewas placed on the fact that there were exemptions in other jurisdictions both national and foreign and the lack of evidence suggesting anyof the other jurisdictions have experienced any undue hardship. Accordingly, it was argued in conclusion, that the appeal should beallowed. The Trial Court Decision Safety Issues [24] Under the heading of constitutional facts, the trial judge reviewed the safety issues in relation to riding a motorcycle.

[25] He noted that motorcycle riders were in a markedly different position than those who operate motor vehicles of othersorts. The former are not protected by things such as roofs, air bags, seatbelts and are prone to upset in a relatively minor accident. [26] He concluded that the evidence before him seemed to be incontrovertible that helmets markedly reduce deaths and headinjuries experienced by motorcycle riders. He took into account both data gathered in the past, projected future statistics and studiesdone in other jurisdictions. [27] The trial judge relied heavily on affidavit material filed by Dr.

Yoassry Elzohairy, a Senior Safety Research Advisor withthe Safety Policy and Education Branch of the Ministry of Transportation of Ontario. The trial judge concluded that his qualificationswere impeccable and noted that there was no request to cross-examine Dr. Elzohairy on any of the material he presented to the court byway of affidavit. The trial judge also heard from other experts such as Dr. Manga, Dr. Schwartz and Dr. Bayley.

As noted earlier, Dr.Elzohairy provided significant statistical data from the United States which has had an on-again, off-again experience with mandatedmotorcycle helmets. [28] The trial judge also received significant evidence on costs associated with helmeted motorcyclists surviving crashes butwho received severe head or brain injuries. [29] Of greater difficulty was the evidence with respect to the number of additional brain injuries that could be expected if aconstitutional exemption were in place. [30] At paragraph 25 of the trial judgment Blacklock J. stated: What I am satisfied of, having considered all the numbers and other materials before me, is that there is a reasonable basis to believe thatbecause of the high degree of dangers associated with helmetless motorcycle riding that there will be persons killed and that there will bepersons who suffer traumatic brain injury annually who would not suffer these consequences if either a helmet was worn or alternateform of transportation was used.

Further at paragraph 29 he stated: Both sides, in this case, also made an effort to establish an estimate for the number of additional brain injuries that could be expectedunder the constitutional exemptions sought. I found that the approach of both experts who use differing ratios of the incident of braininjury in the general population from all causes not to be particularly helpful.

It strikes me that ideally one needs something to establisha rate of severe to mild traumatic brain injury per licenced motorcycle driver under a completely helmetless regime to have anythingapproaching a general sense of the added numbers of brain injuries. It does seem probable to me, however, that the estimates of Dr.Manga are far too low given what appeared to be the actual fatality rate established in 1967 for a population of presumably partiallyhelmeted riders.

I certainly am satisfied that whatever the rate might be we are probably, again talking, about not just increasing the riskof brain injuries, we are talking about the certainty of brain injuries, some of them severe, that might be avoided through either alternateforms of transportation or a helmet. I am also satisfied on the basis of Dr. Schwartz’s and Dr. Bayley’s evidence that the public healthcare dollars involved in the care of even one severe brain injury over the life of the surviving patient can run into extremely large sums.

Blacklock J. continued at paragraph 30: The raw numbers of deaths, injury and public dollars are, however, only a part of the story in this situation. Behind these numbers reststhe devastation, experienced at individual human level, whenever the avoidable loss of life of a family member occurs. Children can bescarred long term by having a parent suddenly and prematurely taken from them. Spouses are bereaved and can be left economicallycrippled. A parent who buries a child when the death could have been avoided can be emotionally adrift for the rest of their lives. The impact of death is plain.

It is worthwhile, however, to remind ourselves of the depth of the trauma and burden placed on familymembers of those who suffer brain injury. It can, indeed, be seen as greater than that associated with an actual death. This wasgraphically illustrated by the description of the impact that such an event had on an American family as described in the materials filed.

Section 2(

a) of the Charter of Rights and Freedoms [31] The trial judge then went on to consider the nature of the religious freedom protected by s. 2(

a) of the Charter. [32] Freedom of religion includes the freedom to partake in practices and beliefs with a religious connection as long as theindividual sincerely believes that this is a function or requirement of his or her spiritual faith irrespective of whether a particular practiceor belief is required by the official religious teaching or agrees with the position of religious officials, provided that the freedomencompasses objective as well as personal subjective elements of belief: Syndicat Northcrest v. Amselem 2004 SCC 47 , 2004

S.C.C. 47 , [2004] 2 S.C.R. 551. [33] The trial judge noted that not all state interferences with religious belief for freedom will amount to even a prima faciebreach of the religious freedom guaranteed under s. 2(a). Any state imposed requirement or burden in order to be prohibited by s. 2(a)must be capable of interfering with religious belief, and legislative enactment that is insubstantial or trivial will not be successfullyassailed. No right, even freedom of religion, is absolute; R. v.

Amselem, supra. [34] Blacklock J. addressed his mind to whether or not the legislation in question interfered with the applicant’s freedom ofreligion in more than a trivial or insubstantial way. [35] The trial judge stated at paragraphs 42-45: In this case, what is the burden placed on Mr. Badesha and others like him? I accept that as he deposes in his affidavit material thelegislative scheme does place some burden on him to choose between his religious beliefs and participating in an activity open to otherOntarians. It appears he is impacted to some degree in his business life.

He has deposed that he owns a business which sells cars andmotorcycles. He has indicated that it would be in his business interest to be able to test drive motorcycles, personally. On the otherhand, it is quite unclear from the material before me exactly what degree of economic pressure or burden this places on him in thecontext of his business. There may also be some economic burden on him in the sense that it may be somewhat cheaper to operate amotorcycle than a car.

The evidence before me hardly suggests, however, that his desires and the economic pressures in his case aresuch that the legislation in question has ever caused him to seriously consider abandoning the wearing of his turban or wearing a helmetover it. It is to be observed that the legislation in issue, in this case, is not a prohibition, direct or indirect, which limits Mr. Badesha or anySikh’s ability to wear a turban when engaged in activities, generally. The area of Mr. Badesha’s activity that is impeded is strictlyconfined to his riding motorcycles on public roadways.

It is also relevant that the area of his life that is adversely impacted is not an area that itself reaches the level of a fundamental right. Clearly, we are not discussing here state action that involves forced medical treatment nor are we discussing something as fundamentalas the right to attend a public school. [36] After referring to some American authorities the trial judge continued at paragraph 50 seemingly drawing a distinctionbetween trivial and insubstantial. Even when I consider the rights of others, however, I find that I am satisfied that the impact on Mr.

Badesha’s freedom of religion canproperly be characterized as more than a “trivial” interference. The Legislature has, after all, now put him in a position where he, unlikeothers, has no realistic ability to engage in an activity open to other Ontarians. On the other hand, I am less convinced that this impactcould fairly be characterized as more than “insubstantial” when the nature of the infringement and rights of others are factored into theequation. [37] Rather than going on to analyze s. 2(

a) on its own, or standing alone, relying on Multani v. Commission scolaireMarguerite-Bourgeoys, 2006 SCC 6 , 2006 S.C.C. 6 , [2006] 1 S.C.R. 256, the trial judge assumed a s. 2(a)infringement and chose to consider the issue in the context of s.

Section 1 of the Charter [38] It was not disputed at trial by any of the parties that highway motorcycle safety was a pressing and substantial objective. Rational Connection [39] The trial judge had no difficulty concluding that a universal helmet law, on the materials before him, including theCanadian and American jurisprudence was rationally connected to the legislative objective of highway safety and preserving lives andminimizing injury. This was not disputed by the applicant and the intervener Ontario Human Rights Commission at trial nor either ofthe foregoing and the intervener World Sikh Organization on this appeal. Minimal Impairment

[ 40 ] At trial, however, it was argued that a universal helmet exemption failed the minimal impairment test. It was argued that this was so because the object of the Legislature with respect to highway safety could not ever be perfect having regard to all the contingencies of modern life. It was argued that all that could ever be achieved was a reasonable degree of safety and that creating a religious exemption for observant Sikhs would not seriously compromise the achievement of this goal.

It was argued that the Legislature would accomplish almost all of its objectives, even with a helmet exemption, by virtue of the fact that motorcycle riding Sikhs represent such a small portion of persons on the highway. [ 41 ] Quite apart from the foregoing submission, counsel for the Human Rights Commission sought to import the notion of reasonable accommodation as understood in Human Rights Code principles into a s. 1 analysis.

It was argued that it was possible to accommodate the applicant by permitting an exception for the relatively small number of Sikhs who share the applicant’s religious views and that this would not put in jeopardy the general goal of a reasonable level of highway safety. Reference was made to other provinces in Canada as well as the United Kingdom and Northern Ireland, all of which have a helmet exemption for Sikhs, which was done without any apparent undue hardship. [ 42 ] The trial judge rejected these arguments even if it were assumed that the reasonable accommodation test was applicable at a s. 1 analysis.

He observed that the Legislature had apparently decided that as of 1968, in order to reach a reasonable level of safety was that all motorcycle drivers wear helmets. He opined that this decision deserved some measure of deference from the court. Notwithstanding the vagaries of highway safety and statistical analysis on the material before him, he was satisfied that the Legislature decision in setting the standard that has been set was reasonable and objectively justifiable.

On the evidence, his view was that helmets appear to more likely than not substantially reduce the risk of head injury and death to motorcycle riders. A helmet exemption would not achieve the same level of safety for Sikhs who chose to ride without a helmet. Nor would the same level of protection be afforded the members of families of injured motorcyclists, or safety of other users of the road who happen to be around and affected by an accident.

Blacklock J. found that exemption from the seatbelt law for persons suffering from physical disability was not an analogous situation. [ 43 ] Blacklock J. also considered employment safety legislation on the issue of accommodation and the fact that in some cases accommodation is simply not possible without compromising safety standards. In citing Ontario (Human Rights Commission) the Etobicoke (Borough) 1 S.C.R. 202 , the trial judge stated: ...I am satisfied that the universal helmet law was imposed honestly and in good faith. I am also satisfied that it was not imposed for colourable reasons.

It was simply an effort to permit users of the road, be they motorcycle operators or other persons to more safely “perform their work” as vehicle operators on public thoroughfares.

The universal helmet law when properly understood is clearly a requirement that is “reasonable necessary” to assure the safety and security of the rider, other users of the road, as well as the emotional and economic interests of other members of the public namely the families of the riders themselves. [ 44 ] Assuming that the undue hardship principle from the Ontario Human Rights Code legislation and jurisprudence is imported into a s. 1 analysis, the trial judge concluded that factors such as safety and cost are equally relevant factors in assessing such a concept under s. 1.

In addition, he concluded that safety includes the safety of members of the excluded group or individual and that, on that basis alone, any exemption would pose an undue hardship on Ontario. [ 45 ] Once there is a sufficient safety risk, it is not for the court to force the legislature to water down the reasonable safety standards so as to afford an accommodation to the group said to be excluded. Further, the case at bar was not similar to R. v.

Multani , supra, nor did the applicant’s position address any of the risks inherent in the operation of a motorcycle without a helmet. [ 46 ] The trial judge recognized that other jurisdictions have permitted a helmetless exemption but that does not assist in the resolution of this case. Because the legislature or governing body of a different jurisdiction permits such activity does not lead to a conclusion that Ontario is constitutionally compelled to arrive at the same conclusion.

There is an important distinction between constitutional competence, which is for the courts to decide, and the desirability of the particular legislation which is up to a legislative body. [ 47 ] Accordingly, the trial judge was satisfied that the legislation met the minimal impairment branch of the proportionality test. In conclusion, the trial judge weighed whether or not the adverse effects on the appellant’s freedom of religion were outweighed by the benefits obtained by requiring him to wear a helmet.

The trial judge concluded that there was a relatively limited infringement on his freedom of religion and concluded that the combination of benefits to his own personal safety, his own family and other users of the road showed that the proportionality test had been met by the Crown.

Section 15 of the Charter [ 48 ] The trial judge stated at paragraphs 78-79 and quoted from Law v. Canada (Minister of Employment and Immigration) 1999 Can LII 675 (S.C.C.) , [1999] S.C.R. 497: It is settled that the purpose of the protections against discrimination as contained in section 15(1) of the Charter is to “prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice and to promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society, equally capable and equally deserving of concern and respect”. The Supreme Court of Canada has held that

Legislation which effects differential treatment between individuals or groups will violate this fundamental purpose where those who are subject to differential treatment fall within one or more enumerated or analogous grounds, and where the differential treatment reflects the stereotypical application of presumed group or personal characteristics, or otherwise has the effect of perpetuating or promoting the view that the individual is less capable, or less worthy of recognition or value as a human being or as a member of Canadian society.

Alternatively, differential treatment will not likely constitute discrimination within the purpose of s. 15(1) where it does not violate the human dignity or freedom of a person or group in this way and in particular where the differential treatment also assists in ameliorating the position of the disadvantaged within Canadian society . (Emphasis added). The approach established in Law , supra, is said to be a flexible one. Having said that, as a matter of general guideline, it has been held that when dealing with

section 15 claims at a reviewing court ought to engage in a purposive and contextual analysis, making three broad inquiries:

(1) Does the impugned law (

a) draw a formal distinction between the claimant and others on the basis of one or more personal characteristics or (

b) fail to take into account the claimants already disadvantaged position within Canadian society resulting in substantively different treatment between the claimant and others on the basis of one or more personal characteristics?

(2) Is the claimant subject to differential treatment based on one or more enumerated or analogous grounds?

(3) Does the differential treatment discriminate, by imposing a burden upon or withholding a benefit from the claimant in a manner which reflects the stereotypical application of presumed group or personal characteristics, or which otherwise has the effect of perpetuating or promoting the view that the individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society, equally deserving of concern, respect, and consideration? [ 49 ] The trial judge further addressed his attention to Law stating that unless there was a conflict between the purpose of s. 15 of the Charter and either the purpose or effect of a specific law, there would be no breach of s. 15 .

He recognized that there were certain factors that needed to be considered in determining whether a law was inconsistent with and maintaining and not affronting human dignity, namely whether or not the individual or group in issue suffered from a previous disadvantage of stereotyping, prejudice or vulnerability, the degree of correlation that exists between the grounds upon which the claim is made and the actual need, capacity or circumstances of the complainant, the ameliorative effect of the impugned law on a more disadvantaged group and the nature and scope of the interest affected by the law under attack. [ 50 ] In short, the trial judge followed the general approach suggested by the Supreme Court of Canada at paragraph 88 in Law . [ 51 ] The trial judge also recognized that in determining whether a specific piece of legislation affronted an individual’s dignity, the matter was to be looked at from both a subjective and objective point of view.

On the evidence before him, the trial judge was satisfied that the law was neutral and purpose but that it did impose a burden on those of the Sikh faith who held the appellant’s views, because a decision had to be made by them as to whether or not to ride a motorcycle or to follow their religious faith. The trial judge was of the view that the law did in fact draw a distinction on the basis of a personal characteristic, to wit his religious beliefs, even though he felt that the legislation was neutral.

On the other hand, he could not conclude that an informed person with similar characteristics would conclude that any such burden imposed undermined the individual’s human dignity by the imposition of stereotyping because of the group’s personal characteristics. [ 52 ] The trial judge concluded that informed individuals would appreciate the dangers of motorcycle riding without a helmet and that these dangers include dangers not just to the rider but other implications in relation to other members of the public and users of the road as well as for the families of those riders.

The trial judge was of the view that they would realize that anyone, whether Sikh or not, would be an equal burden to all. Accordingly, Blacklock J. was not satisfied that a rational informed person in a similar position to the applicant would feel that this law depreciated or otherwise undercut their human dignity. [ 53 ] For the purpose of argument, the trial judge was prepared to accede to the submission that members of the Sikh faith are a group of previously disadvantaged people within the Canadian context but, in any event, that the legislation did not reinforce or support any stereotypical views.

Issues with respect to riding helmetless were understood by the rational person. The trial judge also felt that the law in question had ameliorative effect on the disadvantaged group, assuming that the group was in fact properly so characterized. [ 54 ] The trial judge found nothing in the purpose or effect of the legislation which was in conflict with s. 15 of the Charter . Further, he concluded that s. 1 and his reasoning pertaining to

section 2 (

a) in that context of s. 1 would equally be applicable to s. 15 . The Human Rights Code [ 55 ] The trial judge turned to ss. 1 , 9 and 11 of the Human Rights Code on the question of whether or not the appellant had been discriminated against within the meaning of the Code. He raised the issue of whether or not R. v. Law, supra , applied to an analysis of discrimination. Without deciding that Law was applicable, the trial judge assumed that the appellant had established “constructive

discrimination” but concluded that he was satisfied on a balance of probabilities that an “accommodation” of allowing the appellant andothers to ride motorcycles without helmets on highways would operate as an undue hardship on Ontario. He applied his analysis under s.1 of the Charter and concluded that no accommodation appeared possible. [56] Accordingly, the appellant’s application at trial was dismissed on the grounds advanced by the appellant and joined in bythe Ontario Human Rights Commission. Analysis

Section 2(a) [57]

Section 2(

a) of the Charter provides: 2. Everyone has the following fundamental freedoms: (

a) Freedom of conscience and religion. [58] As noted, the trial judge considered the nature of the religious freedom protected by s. 2(

a) of the Charter. He addressedhis mind as to whether or not the legislation in question interfered with the applicant’s freedom of religion in more than a trivial orinsubstantial way. Although the trial judge was of the view that the appellant was impacted to some degree in his business life, it wasunclear from the material before him as to exactly what degree of economic pressure or burden he was in. Accordingly, he noted that anyburden or cost on him, by virtue of the legislation, was limited to his riding a motorcycle on a public highway. The trial judge drew adistinction between trivial and more than insubstantial. Rather than analyze s. 2(

a) directly, he assumed a s. 2(

a) infringement and on toan analysis under s. 1 of the Charter. [59] The question arises as to when freedom of religion is an issue, whether the alleged infringement should be analyzeddirectly under s. 2(

a) or under the justification section, s. 1 of the Charter. The trial judge preferred the latter course relying on Multani,supra, at paragraphs 26-30. Nothwithstanding the comments therein contained, Charron J. proceeded to make a determination why thecontested decision in the court below (involving a prohibition on the wearing of kirpan) clearly infringed the freedom of religion sectionof the Charter. Subsequent to this determination, she then proceeded to conduct a justification analysis. [60] Although s. 2(

a) and s. 1 may be inextricably intertwined particularly in certain cases and notwithstanding Multani, supra,the appropriate course, at this point, in my view, is to address s. 2(

a) of the Charter, particularly in light of Alberta v. Hutterian Brethrenof Wilson Colony, 2009 SCC 37 , 2009 S.C.C. 37, [2009] 2 S.C.R. 567. [61] Hutterian Brethren was an appeal by the Province of Alberta against the decisions of both a chambers judge and themajority of the Court of Appeal holding that the Province’s requirement that all persons, including religious objectors, in order to hold avalid driver’s license must have a license containing a photo of the driver. The Hutterian Brethren objected to the photographiccomponent on the basis that they honestly believed that such a requirement was contrary to the Second Commandment and, therefore,infringed s. 2(

a) of the Charter. [62] On the s. 2(

a) issue, McLachlin C.J., at paragraphs 32-34: An infringement of s. 2(

a) of the Charter will be made out where: (1) the claimant sincerely believes in a belief or practice that has anexus with religion; and (2) the impugned measure interferes with the claimant’s ability to act in accordance with his or her religiousbeliefs in a manner that is more than trivial or insubstantial: Syndicat Northcrest v. Amselem, 2004 SCC 47, [2004] 2 S.C.R. 551, andMultani. “Trivial or insubstantial” interference is interference that does not threaten actual religious beliefs or conduct. As explained inR. v. Edwards Books and Art Ltd., (SCC), [1986] 2 S.C.R. 713, at p. 759, per Dickson C.J.: The purpose of s. 2(

a) is to ensure that society does not interfere with profoundly personal beliefs that govern one’s perception of oneself,humankind, nature, and, in some cases, a higher or different order of being. These beliefs, in turn, govern one’s conduct and practices. The Constitution shelters individuals and groups only to the extent that religious beliefs or conduct might reasonably or actually bethreatened. For a state-imposed cost or burden to be proscribed by s. 2(

a) it must be capable of interfering with religious belief orpractice. In short, legislative or administrative action which increases the cost of practising or otherwise manifesting religious beliefs isnot prohibited if the burden is trivial or insubstantial: see, on this point, R. v. Jones, (SCC), [1986] 2 S.C.R. 284, perWilson J. at p. 314 [Emphasis added]. The Province concedes the first element of this s. 2(

a) test, sincere belief in a belief or practice that has a nexus with religion. Thechambers judge described the concession in the following terms: The Attorney General does not dispute that the Applicant’s hold sincere religious beliefs that conflict with the requirement that thosewho obtain or renew an Alberta operator’s licence must permit a digital photograph to be taken and that those beliefs are honestly held.[Para. 6].

The record does not disclose a concession on the second element of the test --whether that universal photo requirement interferes withColony members’ religious freedom in a manner that is more than trivial or insubstantial. In order for such a determination to be made,it would need to be shown that the claimants’ “religious beliefs or conduct might reasonably or actually be threatened” by the universalphoto requirement: see Edwards Books, at p. 759. In the present case, however, the courts below seem to have proceeded on theassumption that this requirement was met.

Given this assumption, I will proceed to consider whether the limit is a reasonable one,demonstrably justified in a free and democratic society. [63] McLachlin C.J. also seemed to contemplate a determination with respect to s. 2(

a) prior to an analysis under s. 1. [64] It is important to note that the decision in Hutterian Brethren was handed down after the trial decision in the case at bar. Accordingly, the trial judge did not have the benefit of the Supreme Court decision in that case. The intervener Attorney General forOntario does not concede that there has been a breach of s. 2(

a) of the Charter and, accordingly, it is necessary to make a determinationin that regard. The Attorney General agrees however that the first branch of the test to wit, a sincere belief that a turban must be worn atall times is held by the applicant and a number of similar believers and that this belief has a connection with religion. [65] It is settled that no Charter right, even freedom of religion, is absolute. [66] In my view, there was little or no evidence either before the trial judge or on this appeal, that the second branch orelement of the test has been met.

The appellant bears the onus of proving a Charter infringement and, in the case at bar, he is required toprove that the alleged infringement is more than trivial or insubstantial before any justification analysis is necessary. In my view, theappellant failed to do so at the trial nor has he so demonstrated on the appeal. Section 104(1) of the Highway Traffic Act may impose aburden or cost on a certain number of devout Sikhs but such burden or cost, at the most, could only be described as trivial orinsubstantial.

Indeed, it is impossible to maintain both that a believer would honestly feel that he could not wear a helmet by virtue of hisstrong held religious belief concerning the necessity of wearing a turban unencumbered by any form of helmet and, at the same time,argue that he would give up his religious practice for a recreational or club activity of being allowed to ride a motorcycle. Such aproposition, in my view, can only embrace a contradiction that defies logic.

The trial judge noted that there was no such informationbefore him to that effect and clearly there was no argument on the appeal that, given the alternative, the appellant, or any other believer,would abandon his religious belief in favour of riding a motorcycle. [67] Any limitation in the case at bar is a limitation on an individual’s ability to ride a motorcycle in the fashion that hechooses, not a limitation on his right to worship or practice any belief associated with his religion.

Driving any motor vehicle is aprivilege not a right whether the operation relates to a motorcycle or other type of vehicular transport. [68] I am not unaware that in Hutterian Brethren McLachlin C.J. described the impact of the limit on religious practiceimposed by the universal photo requirement on the members as not being trivial. The costs or burden in Hutterian Brethren were of adifferent magnitude. In that case, the photo license requirement deprived members of the Colony of all ability to operate any type ofmotor vehicle.

In addition, there was some effect on their rural communal life and economic consequences by virtue of the fact that theywould have to hire drivers or arrange transport by some other means for the purpose of obtaining necessary medical services and thelike. While the burden on the Colony members was described and analyzed under a s. 1 analysis, in my view the nature of the burdenalso impacts on the initial question of whether or not there is a s. 2(

a) violation. In short, the cost or burden in Hutterian Brethren mayhave been more than trivial, while the burden of simply not being able to operate a motorcycle is clearly trivial and insubstantial. Asnoted by the trial judge, the

section of the Highway Traffic Act that is being assailed is not in any way a prohibition limiting anyindividual’s right to wear a turban when engaged in any activity other than when he is riding a motorcycle on a public roadway. [69] Even though McLachlin C.J. described the burden on members of the Wilson Colony in Hutterian Brethren as more thantrivial, she also stated at paragraph 99; I conclude that the impact of the limit on religious practice imposed by the universal photo requirement for obtaining a driver’s licence isthat Colony members will be obliged to make alternative arrangements for highway transport.

This will impose some financial cost onthe community and depart from their tradition of being self-sufficient in terms of transport. These costs are not trivial. But on therecord, they do not rise to the level of seriously affecting the claimants’ right to pursue their religion. They do not negate the choice thatlies at the heart of freedom of religion. [70] The contrast between the burden placed on the members of Wilson Colony and any burden placed on the appellant andother Sikhs who hold his beliefs is obvious.

On the one hand, the impugned legislation in the case at bar merely prevents the accusedfrom operating a motorcycle for pleasure, recreation or transportation. There was no reliable or precise information on any economicdeprivation. On the basis of Hutterian Brethren even economic impact may not suffice. The appellant was left free to operate any othertype of motor vehicle that did not require the wearing of a helmet. His ability to transport himself to any part of the province by way ofoperating a motor vehicle was left unhindered.

In Hutterian Brethren the burden or cost was far more significant and yet did not rise tothe low level of seriously affecting the claimants’ right to pursue their religion. [71] On the hearing of the appeal the appellant only addressed Hutterian Brethren in oral argument and sought to distinguish itfrom the case at bar referring more extensively to Multani, and Amselem, supra. The intervener World Sikh Organization also attemptedto minimize the effect of Hutterian Brethren relying on R. v. Big M Drug Mart Ltd. (SCC), [1985] 1 S.C.R. 295 as beingthe governing case.

I am of the view that none of those cases are either similar to the case at bar or factually assist in establishing thatthe impugned legislation infringes the appellant’s right to freedom of religion. These cases, in fact, highlight the difference between

infringement under 2(

a) and cases where, at the most, there is some inconvenience or consequence that is insignificant. Riding amotorcycle is not a religious exercise or a right of any sort. That fact sets the case apart from both Multani, where the prohibition againstwearing a kirpan denied the appellant the right to attend school, and Amselem, where a religious practice was interfered with. Nor, asconceded, is the purpose of s. 104(1) to interfere with religious practices as in Big M Drug Mart, supra. Clearly, if the purpose of s.104(1) was to interfere with religious practice, it could not be upheld.

It was never argued or suggested that riding a motorcycle was areligious practice. [72] Two American authorities were referred to both at trial and on the appeal and at least one is worthy of note on the 2(

a) issue. In Buhl v. Hannigan 16 Cal. App. 4th the appellant motorcyclists unsuccessfully challenged an order denying an injunction againstenforcement by state officials under California’s mandatory motorcycle helmet law. One of the grounds of challenge was based onallegations of religious infringement. [73] Sonenshine J. stated at p. 16; As for freedom of religion, appellants concede Khalsa, a Sikh, is not being forced to cease practicing his religion. However, they argue,the law “penalizes” Khalsa by denying him “one of the most practical, economical and efficient methods of transportation available”.

But [HN12] an otherwise valid and neutral law is not rendered unconstitutional just because it incidentally impacts a person’s religiouspractices. (See Employment Div., Ore. Dept. of Human Res. v. Smith (1990) 494 U.S. 872,885 [108 L. Ed. 2d 876, 889-890, 110 S.Ct.1595], considering a law prohibiting the use of peyote: “The government’s ability to enforce generally applicable prohibitions of sociallyharmful conduct, like its ability to carry out other aspects of public policy, ‘cannot depend on measuring the effects of the governmentalaction on a religious objector’s spiritual development’”).

Here, of course, the law does not prohibit Khalsa from practicing his religion,i.e., wearing a Rishi knot and turban in public. Rather, it prohibits him from riding a motorcycle on public highways without a helmet. [74] There is nothing in the trial record, in my opinion, upon which to conclude that the appellant’s s. 2(

a) rights wereinfringed. In my view, from reading the totality of the trial judgment, I conclude that the trial judge was of the same opinion but chose toconsider the issue from a s. 1 analysis. In case I have erred in my conclusion that a s. 2(

a) infringement was not made out either at trialor on the appeal, I turn to s. 1 of the Charter.

Section 1 of the Charter [75] It was not suggested by either the appellant or the intervener World Sikh Organization that the trial judgemisapprehended the principles in R. v. Oakes (SCC), [1986] 1 S.C.R. 103 but that he either misapplied the facts of thiscase to those principles or placed undue reliance on the evidence called by the Attorney General for Ontario. [76] All parties conceded at trial, and appeared to concede on the appeal, that the issue of motorcycle safety on the highwaywas a pressing and substantial objective, although this concession was stated in different ways.

On the appeal, the appellant concededthat “the requirement to wear a helmet when operating a motorcycle demonstrates a rational connection with the objective of safety”. The intervener World Sikh Organization accepted that “the objective of improving safety for motorcycle riders is a pressing andsubstantial objective”.

The Ontario Human Rights Commission put it yet another way, to wit; “The Commission concedes that therequirement of wearing a helmet is rationally connected to the goal of improving the marginal physical safety of riders and operators ofmotorcycles and reducing the marginal cost of medical treatment. The Commissioner [sic] also concedes that the Legislature adoptedthe requirement in s. 104 of the Highway Traffic Act in good faith, in the belief that it is necessary to improve the marginal physicalsafety of riders and operators of motorcycles reducing the marginal cost of medical treatment”.

The intervener Attorney General forOntario spoke of the pursuit of highway safety being a sufficiently important objective to justify a limitation on a constitutionallyprotected right. At trial, the trial judge stated; It is conceded by both the Applicant and the Ontario Human Rights Commission that the object of the legislation in question namely thepursuit of highway safety and the matters associated with it are sufficiently important to over ride a constitutionally protected right.

Ihave no doubt this is true. [77] Although there is some ambiguity in the concession made from the evidence adduced at trial and the argument made onthe appeal considering the

section impugned, the only logical conclusion is that the pressing and substantial objective is not just highwaysafety in general but highway safety with respect to motorcycle riders. The impugned

section is s. 104(1) which is directed toward notjust highway safety for motorcycles but protecting motorcycle riders from head injury. No one has suggested that mandatory helmetlegislation is directed toward anything else. [78] All parties agreed that there was a rational connection between the pressing and substantial objective as they understood itand s. 104 of the Highway Traffic Act. Minimal Impairment [79] Assuming the pressing and substantial objective at its broadest, and conceding for the purpose of argument that the

mandatory helmet provisions is more than a trivial or insubstantial interference with the appellant’s freedom of religion, the trial judge considered whether the requirement minimally impaired said freedom. [ 80 ] Blacklock J. rejected the “reasonable degree of safety” argument. The argument of the parties at trial and at least, in part, on the appeal was that all that could ever be achieved was a reasonable degree of safety, and that creating a religious exemption for observant Sikhs would not seriously compromise the achievement of this goal. In my view, the trial judge was correct in rejecting this argument. This argument was based on an overly broad

interpretation of the pressing and substantial objective of the legislature. Equally untenable, in my view, is the proposition that a religious exemption for Sikhs would not compromise the legislature’s objective by virtue of the fact that motorcycle riding Sikhs represent a small portion of persons on the highway. It is unthinkable that the legislature would exclude Sikhs from the objective simply because they were smaller in total number than other motorcyclists. [ 81 ] Arguments were also made at this stage that there should be an “accommodation” for the small number of Sikhs that ride motorcycles.

The trial judge doubted that a reasonable accommodation test was applicable during a s. 1 analysis but, in any event, concluded that even if so, some deference ought to be given to the Legislature which had decided as of 1968 that in order to achieve a reasonable level of safety it was necessary that all motorcycle operators wear helmets.

In any event, he was satisfied that in addition, even assuming the undue hardship principal was made applicable to s. 1, that issues such as safety and cost in the broad sense should also be applicable. [ 82 ] Throughout the trial and the appeal the appellant, the Ontario Human Rights Commission and the World Sikh Organization constantly referred to legislation in other jurisdictions.

The trial judge rejected these arguments as having any applicability to s. 1 analysis on the evidence before him. [ 83 ] The Supreme Court of Canada in Hutterian Brethren has made it clear that Human Rights Code analyses that involve accommodation and undue hardship are inapplicable on a s. 1 justification analysis that applies to a claim that a law infringes the Charter . Accordingly, little more need be said about those arguments at this stage, except to say that I agree with the trial judge’s conclusions in this regard, in any event.

Specifically, the legislation and other provinces or other countries, while of interest, does not bear on the constitutional issue before this Court, or that was before the trial judge. A whole host of factors motivate legislatures and parliaments in different jurisdictions. Further, without detailed reliable statistics, the mere fact of the statutory exemption in another jurisdiction is of little or no value. In addition, some of the material relied on by the trial judge appeared to show an unfortunate correlation between head injuries and the lack of mandatory helmet legislation.

In my respectful opinion, it is only when valid statistical analysis accompanies relevant legislation in other jurisdictions that said legislation is of constitutional significance on a s. 1 analysis. [ 84 ] In Hutterian Brethren , McLachlin C.J. made it clear that the minimal impairment test asks the question as to whether or not there are less harmful ways to achieve the legislative goal and whether the right in question is impaired no more than necessary.

It was noted that the courts must allow some leeway or legislative deference, particularly on complex issues where the legislature may be more able to choose how to achieve its objective. The government need only choose the least drastic means of achieving its goal. [ 85 ] In the circumstances, having regard to the legislative objective of protecting the rider and ensuring highway safety in the sense that fatalities and injuries are reasonably guarded against, it is difficult to visualize how the legislature could do less than what is required in s. 104(1) and still accomplish its objective.

In my view, the trial judge was correct in concluding that any infringement of the appellant’s s. 2(

a) rights minimally impaired that right. Balancing the Salutary and Deleterious Effects [ 86 ] Having concluded that any infringement of the appellant’s s. 2(

a) rights were minimally impaired, the trial judge then briefly concluded that the adverse effects on his freedom of religion were outweighed by the benefits to his own safety interest of his own family, other users of the road and the public in general. In doing so, he referred to his earlier analysis under s. 2(

a) of the Charter where he weighed the prejudicial and beneficial effects of the impugned provision. [ 87 ] The trial judge stated in paragraphs 42-43; In this case, what is the burden placed on Mr. Badesha and others like him? I accept that as he deposes in his affidavit material the legislative scheme does play some burden on him to choose between his religious beliefs and participating in an activity open to other Ontarians. It appears he is impacted to some degree in his business life. He has deposed that he owns a business which sells cars and motorcycles.

It is indicated that it would be in his business interest to be able to test drive motorcycles, personally. On the other hand, it is quite unclear from the material before me exactly what degree of economic pressure or burden this places on him in the context of his business. There may also be some economic burden on him in the sense that it may be somewhat cheaper to operate a motorcycle than a car.

The evidence before me hardly suggests, however, that his desires and the economic pressures in his case are such that the legislation in question has ever caused him to seriously consider abandoning the wearing of his turban or wearing a helmet over it. It is to be observed that the legislation in issue, in this case, is not a prohibition, direct or indirect, which limits Mr. Badesha or any other Sikh’s ability to wear a turban when engaged in activities, generally. The area of Mr.

Badesha’s activity that is impeded is strictly confined to his riding motorcycles on public roadways. [ 88 ] Blacklock J. noted that the area of the appellant’s life that was adversely affected was not a fundamental right such as those in other cases. In addition, the trial judge noted that the legislation did not deprive the appellant’s complete access to public roads

or highways.

He also referred to American authorities noted earlier which addressed the issue as to whether or not a requirement like that of s. 104 of the Highway Traffic Act even constitutes a religious infringement, and the fact that a motorcyclist, even if the legislature permitted an exemption, could not claim that the public in general does not have an interest in his safe operation of his vehicle. [ 89 ] The trial judge referred to the safety issues analyzed under what he termed the “constitutional facts” and stated that; In addition, on the basis of the evidence set out above, there is a clear increase in the risk of devastating brain injury or death with the accompanying burdens on family members and the public, in terms of medical needs, should those risks arise.

These increased dangers would arise every time Mr. Badesha or others similarly situated to him got on a motorcycle, helmetless. It would appear that those risks are probably at a level that we can be certain that there will be members of the Sikh community who will be seriously injured or die because they rode their motorcycle without a helmet. [ 90 ] Indeed, under this

section referred to above, the trial judge did an extensive review of the evidence before him at trial. He relied heavily on the affidavit evidence filed. In my view, the evidence he relied on was compelling. The appellant complained of such reliance but I note as counsel for the intervener Attorney General for Ontario noted there was no cross-examination on the affidavit of Dr. Elzohairy. The trial judge rejected statistical projections by Dr. Manga who was, in fact, cross-examined before him. Again, the trial judge, in my view, after review of the extensive record, was entitled to do so. The affidavit by Dr.

Elzohairy was extensive and dramatic, particularly from a cost analysis perspective. [ 91 ] The trial judge assessed the cost burden imposed on society by helmetless motorcycle riders;

(19) I received evidence from a number of sources which related to the financial costs associated with motorcycle injuries and fatalities. One must be careful in the weight one attributes to certain features of this evidence in light of some of the deficiencies in it which emerged through cross-examination and the disclosure process. Nonetheless, when one steps back and looks at the material as a whole, the overall picture that emerges is clear. Helmetless riders do pose added healthcare costs to what, in Ontario, is a public healthcare system. Moreover, the evidence before me shows that these costs, with respect to even one rider, can be meaningful.

(20) Various studies in the United States have considered the extent to which crashes involving non-helmeted riders impose financial burdens on society. One study showed that the risk of head injury was twice as high for unhelmeted riders as it was for those wearing helmets. American studies indicate that helmetless riders are twice as likely to be hospitalized. Hospitalized, helmetless riders were likely to require more time in hospital generally, require more time in Intensive Care Units, and to overall incur higher hospital charges.

(21) In a Michigan study of hospitalized motorcyclists conducted over roughly a 4-year period, helmetless patients were found to cost an average of U.S. $6,000.00 per patient more than helmeted riders in hospital costs alone. Studies have also been done on the costs associated with those injured in motorcycle accidents who were not admitted to hospital. In this area, the data available from Texas shows that helmetless riders incur an average extra cost per injury of roughly U.S. $3,618.00.

(22) In the U.S. in studies conducted prior to 1991, it was estimated that a surviving patient with a critical head injury incurs an average of U.S. $171,000.00 in medical and convalescence costs in just the first year following an injury. The average long-term costs for such an injury have been estimated to be almost U.S. $300,000.00. The average cost per death in 1990 was estimated by the same study as roughly U.S. $500,000.00.

(23) The affidavit of Dr. Elzohairy, asserts that in Ontario, when an unhelmeted motorcyclist survives a crash with severe head or brain injury, the cost of resulting partial or total disability to the motorcyclist has been calculated to be as high as $1.2 million and $2.4 million, respectively, per injury . A 1994 study conducted by Ontario’s Ministry of Transportation found that the average attributable cost for each individual motor vehicle related fatality in Ontario was $5.3 million.

This cost figure includes the aggregate of such capital cost factors as human consequences (i.e. death, injury, pain and suffering and associated human capital losses) time and resources expended as a result of the crash (i.e. emergency response agencies, hospital care, administration and litigation) and property damage. More recent studies place such a figure at even higher levels. [ 92 ] The trial judge went on to consider the impact on the number of injuries without s. 104;

(24) There was a great deal of effort spent by the parties in this case attempting to estimate the raw number of the increase in fatalities and brain injuries that would arise in the Sikh community if the constitutional exemption sought in this case was granted. In my view, the approach taken by both parties’ experts was flawed in certain respects. The best one can do with this type of material is to draw some reasoned, generalized, estimates.

(25) What I am satisfied of, having considered all the numbers and other materials before me, is that there is a reasonable basis to believe that because of the high degree of dangers associated with helmetless motorcycle riding that there will be persons killed and there will be persons who suffer traumatic brain injury annually who would not suffer these consequences if either a helmet was worn or an alternate form of transportation was used. Let me for a minute just focus on the question of deaths.

(26) Both experts in this matter utilized a technique which seemed, in general terms, logically appropriate to estimating the number of male Sikhs who are licenced to drive motorcycles in Ontario. As of 2001, it was estimated by Ms. Chipman that there were approximately 4,190 male Sikhs licenced to drive a motorcycle. Ms. Chipman, the Crown’s expert, estimated this number would be approximately 7,740 by 2017. Her numbers on this point seem to me to be the most appropriate ones for me to use. It should be pointed out that both these numbers are, in a sense, over and under, inclusive of potential helmetless riders.

They do not contain any reference to women riders, some of whom it would seem wear turbans and hold the Applicant’s beliefs. Nor do they take into account Sikh passengers, be they adults or young persons. On the other hand, they do not take into account the fact that only 40% of Sikhs hold the views as to turban wear that the defendant does.

(27) Nonetheless, if we applying the 40% to Ms. Chipman’s number of male Sikhs licenced as motorcycle riders, we arrive at 1,676 Sikhs who would be eligible and motivated to utilize the exemption now being sought as of 2001 with the number being roughly 3,100 by 2017. Apart from not including Sikh women motorcyclists or passengers, this figure also does not allow to any degree for human nature. Undoubtedly, there will be some Sikhs who do hold the defendant’s beliefs who, nonetheless, may attempt to ride helmetless if the exemption sought is granted.

(28) Accepting this, if one applied the death rate that was established in 1967 (132 per 100,000 licenced drivers being the last year prior to the enactment of the prohibition now in place) merely to the figures arrived at by application of the above-mentioned 40% factor, we arrive at 2.2 deaths a year as of 2001 and roughly 4.0 deaths annually by 2017. If anything, this rate for death is probably too low as it was based on a population that was made up of voluntary helmet wearers and helmetless riders. The population we are now considering would be actually an entirely helmetless one.

It is clear to me that helmets have been found to significantly reduce the risk of death. The average percentage of change in deaths as contained in the two charts set out in Dr. Elzohairy’s affidavit in Tables 1 and 2 I make to be roughly 40%. It would thus appear that it is probable that in granting this exemption we are not just talking about increasing a remote risk of death, we may well be talking about something approaching a certainty that the proposed exemption will, now and in the future, lead to a death or deaths in this Province each year.

These are deaths that could have been avoided through the use of alternate modes of transportation or a helmet.

(29) Both sides, in this case, also made an effort to establish an estimate for the number of additional brain injuries that could be expected under the constitutional exemption sought. I found that the approach of both experts who used differing ratios of the incident of brain injury in the general population from all causes not to be particularly helpful. It strikes me that ideally one needs something to establish a rate of severe to mild traumatic brain injury per licenced motorcycle driver under a completely helmetless regime to have anything approaching a general sense of the added numbers of brain injuries.

It does seem probable to me, however, that the estimates of Dr. Manga are far too low given what appeared to be the actual fatality rate established in 1967 for a population of presumably partially helmeted riders. I certainly am satisfied that whatever the rate might be we are probably, again talking, about not just increasing the risk of brain injuries, we are talking about the certainty of brain injuries, some of them severe, that might be avoided through either alternate forms of transportation or a helmet. I am also satisfied on the basis of Dr. Schwartz’s and Dr.

Bayley’s evidence that the public health care dollars involved in the care of even one severe brain injury over the life of a surviving patient can run into extremely large sums.

(30) The raw numbers of deaths, injury and public dollars are, however, only a part of the story in this situation. Behind these numbers rests the devastation, experienced at an individual human level, whenever the avoidable loss of life of a family member occurs. Children can be scarred long term by having a parent suddenly and prematurely taken from them. Spouses are bereaved and can be left economically crippled. A parent who buries a child when the death could have been avoided can be emotionally adrift for the rest of their lives.

(31) The impact of death is plain. It is worthwhile, however, to remind ourselves of the depth of the trauma and burden placed on family members of those who suffer brain injury. It can, indeed, be seen as greater than that associated with an actual death. [ 93 ] It is clear that the trial judge carefully considered the financial impact on society occurring from motorcycle head injuries and fatalities, and measured this impact in terms of the increased number of injuries and deaths that would likely occur in the Sikh community without compulsory helmet legislation.

His conclusions were based both on past statistics and future projections as provided in evidence by the experts. He was aware of any frailties in the projections. In addition, the less visible non-financial costs to society and the families of those injured and killed weighed heavily in his assessment. He correctly carefully balanced the deleterious and salutary effects of the limitation imposed by s. 104(1) of the Highway Traffic Act .

[94] Clearly, the salutary effects outweigh the minimal interference with respect to any Sikh who would venture to ride amotorcycle helmetless. Protecting riders from death or injury, even if hard to quantify, in itself, is an overwhelming salutary effect. Protecting the family or loved ones from years of anguish, hardship and life disruption follows closely behind. One cannot ignore thepotential effects on other users of the road from more vulnerable helmetless riders.

Finally, the financial cost to society in itself wouldoutweigh the deleterious effects of inconvenience and perhaps very modest economic consequences. [95] In my view, it is no answer at this juncture, or any other part of the argument, that the risk is being completely consentedto by those who would operate or ride a motorcycle without a helmet. This is so in light of both the nature of the limitation and becauseof the law in general. As has been noted in two of the cases referred to, governments are in the legislation they enact and aretraditionally paternalistic in outlook.

Legislation is enacted for the good of the population and society in general, and the fact that certaingroups or segments of society may seek to waive the benefit of such legislation is of no avail. Seatbelt legislation readily comes to mind. [96] Accordingly, I am satisfied that any limit imposed on the appellant’s freedom of religion has been shown to be justifiedunder s. 1 of the Charter. Limiting motorcycle head injuries as a subset of highway safety is a pressing and substantial objective and theparties have conceded the rational connection of mandatory helmet legislation to that goal.

Any infringement on a s. 2(

a) is minimal,and there is no alternative in the evidence that would not completely defeat the objective. The beneficial effects, in my view, areoverwhelming while the negative effect, clearly on the evidence, does not deprive the appellant or similar adherents from following theirreligion, nor is such effect significant in any other way.

Section 15 of the Charter [97] Section 15(1) of the Charter provides; Every individual is equal before and under the law and has the right to the

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