In-Depth Coverage of Issues Concerning the Global Sikh Community Including Self-Determination, Democracy, Human Rights, Civil Liberties, Antiracism, Religion, and South Asian Geopolitics
Decision rendered on July 9, 1999
CANADIAN HUMAN RIGHTS ACT
R.S.C., 1985, c.H-6 (as amended)
CANADIAN HUMAN RIGHTS TRIBUNAL
BALBIR SINGH NIJJAR
CANADIAN HUMAN RIGHTS COMMISSION
CANADA 3000 AIRLINES LIMITED
TRIBUNAL: Anne L. Mactavish Chair
Shirish Chotalia Member
Mukhtyar Tomar Member
APPEARANCES: Rene Duval and Julie Beauchemin
Counsel for the Canadian Human Rights Commission
Balbir Singh Nijjar, on his own behalf
Gerard Chouest and Carlos Martins
Counsel for Canada 3000 Airlines Limited
DATES AND PLACE OF HEARING: Toronto, Ontario
April 19-23 and 27-29, May 10-11 and 13, 1999
TABLE OF CONTENTS
ii) Rational Connection ......................................................6
iii) Differential Impact ........................................................7
a) Role of the Kirpan in Sikhism ..............................7
b) Issue to be determined .......................................11
c) Mr. Nijjar's Beliefs ..............................................12
iv) Conclusion re Prima Facie Case .................................14
i) General Principles ..........................................................14
ii) Position of the Respondent ...........................................15
iii)Position of the Canadian Human Rights
Commission and Mr. Nijjar ................................................15
iv)Regulatory Environment ................................................15
v) Air Canada Experience ..................................................18
vi) Canada 3000 Policy .......................................................19
vii) Other Kirpan Policies ...................................................21
viii) Forensic Evidence .......................................................23
ix) Violent incidents involving Kirpan ................................25
x) Reasonable Accommodation and the Level of Risk ......27
xi) Risk Analysis .................................................................28
a) Likelihood of Injury ................................................29
b) Seriousness of Potential Injuries ..........................31
c) Who Will Bear the Risk? .......................................31
xii) Conclusion With Respect to Accommodation .............31
On April 11, 1996, Balbir Singh Nijjar was denied permission to board an aircraft operated
by Canada 3000 Airlines Limited. Permission to board was denied because Mr. Nijjar was wearing
a ceremonial dagger carried by initiated members of the Sikh faith. As a result, Mr. Nijjar filed a
complaint with the Canadian Human Rights Commission wherein he complains of discrimination
on the basis of religion in the provision of a service customarily available to the public.
I APRIL 11, 1996 INCIDENT
Mr. Nijjar lives in Brampton, Ontario. He was scheduled to deliver a lecture on Sikhism in
Surrey, British Columbia in April of 1996. Mr. Nijjar purchased a ticket to fly to Vancouver on
April 11, 1996 on Canada 3000 Airlines.
As an initiated member of the Khalsa order of the Sikh faith, Mr. Nijjar wears a ceremonial
dagger known as a kirpan. Khalsa Sikhism requires that members of the Khalsa order wear the
kirpan at all times. Mr. Nijjar ordinarily wears an 11 ½ inch kirpan. On April 11, 1996, however,
Mr. Nijjar stowed his large kirpan in his luggage, and wore a smaller kirpan, which he had purchased
specifically for air travel. (For ease of reference, this kirpan shall hereinafter be referred to as the
'travel kirpan'.) The travel kirpan is 5 3/4 inches in length, with a 3 1/8 inch curved blade. Mr.
Nijjar testified that he understood that the law permitted him to travel by air with a kirpan, as long
as the blade length of the kirpan did not exceed four inches.
Mr. Nijjar had flown on Canada 3000 on two previous occasions, each time wearing his
travel kirpan. On the earlier occasions Mr. Nijjar was able to pass through security without incident.
In cross-examination, Mr. Nijjar confirmed that security personnel had seen the travel kirpan on
these earlier occasions and had let him through with it, but that the kirpan had not been observed by
Canada 3000 personnel.
As he attempted to board the aircraft on April 11, 1996, Mr. Nijjar went through the metal
detector at security. When the travel kirpan triggered the alarm, Mr. Nijjar showed the travel kirpan
to a security officer, who allowed Mr. Nijjar to go through.
As Mr. Nijjar proceeded towards the departure gate, he was approached by a security
supervisor who asked to see the kirpan. After inspecting the kirpan, the security supervisor told Mr.
Nijjar that they would have to speak to the airline supervisor. Mr. Nijjar was taken to the Canada
3000 counter, where he met with a supervisor subsequently identified as Katarina Michulkova.
Although there are minor differences in the testimony of Mr. Nijjar and Ms. Michulkova, the
differences between them as to what transpired are not material. The security supervisor explained
the situation to Ms. Michulkova, who then looked at Mr. Nijjar's kirpan. Ms. Michulkova advised
Mr. Nijjar that Canada 3000 policy did not permit Mr. Nijjar to board the aircraft with an item such
as the travel kirpan.
According to Ms. Michulkova, Canada 3000's policy was to prohibit passengers from
carrying into the cabin any object with a greater potential for injury than the eating utensils used on
board the aircraft. In Ms. Michulkova's view, the travel kirpan had a greater potential for injury, as
it was pointed, and the blade was sharper than the Canada 3000 dinner knife.
Mr. Nijjar states that he advised Ms. Michulkova that he would not part with the kirpan, although it does not appear that he explained the religious significance of the kirpan to her. It is apparent from Ms. Michulkova's evidence that although she had seen similar items on other occasions, she was not familiar with kirpans and had no appreciation of their religious significance.
After being told that he would not be permitted to board with the kirpan, Mr. Nijjar pointed
out to Ms. Michulkova that if the aim was to hurt someone, fists could be used. Ms. Michulkova
reaffirmed her position and advised the security officer accordingly.
Ms. Michulkova later checked on the status of the situation with the security officer. The
security officer advised Ms. Michulkova that he had contacted his supervisor, and had been told that
the kirpan had been approved for boarding in accordance with the "four inch rule".(1) Ms. Michulkova
was unfamiliar with this rule and contacted her own manager, who supported her position.
Ms. Michulkova then contacted the departure gate, and asked airline personnel there to keep
Mr. Nijjar at the gate until Ms. Michulkova could get there. When she got to the departure gate, she
approached Mr. Nijjar, reaffirmed Canada 3000's policy, and offered Mr. Nijjar the option of
checking his kirpan as a security item or stowing it with his luggage. After consulting with his travel
companion, Mr. Nijjar stated that if he could not take his kirpan with him, he would not travel. Mr.
Nijjar demanded a refund for his ticket, whereupon Ms. Michulkova explained that Canada 3000's
tickets are non-refundable.
The RCMP subsequently attended at the scene, but declined to pursue the matter. Mr. Nijjar
subsequently made alternate arrangements to fly to Vancouver.
II LEGAL ISSUES
Mr. Nijjar's complaint is made pursuant to Section 5 of the Canadian Human Rights Act (the "CHRA"), which provides:
It is a discriminatory practice in the provision of goods, services, facilities or accommodation customarily available to the general public
a) to deny, or to deny access to, any such good, service, facility or accommodation to any individual, or
b) to differentiate adversely in relation to any individual,
on a prohibited ground of discrimination.
Religion is a prohibited ground of discrimination(2). Religious freedom includes the right to manifest one's beliefs and practices.(3)
The parties are in agreement that if there is discrimination here, it is indirect or adverse effect
discrimination. The burden is on the complainant and the Canadian Human Rights Commission to
establish a prima facie case of discrimination. In cases of indirect discrimination, a prima facie case
is established by demonstrating the existence of a neutral rule, honestly made for sound business
reasons, which rule is rationally connected to the business of the respondent and which rule applies
to all. It must also be established that the rule has a discriminatory effect, based upon a prohibited
ground, upon an individual or group of individuals because of a special characteristic of the
individual or group.(4)
Once a prima facie case has been established, the burden shifts to the respondent to demonstrate that it has accommodated those detrimentally affected by the rule to the point of undue hardship.(5)
The standard of proof in discrimination cases is the ordinary civil standard of the balance of
III THE PRIMA FACIE CASE
i) The Rule in Issue
It is common ground that the rule in issue in this case is the Canada 3000 policy dealing with weapons or dangerous articles. The operative portions of the policy state:
The following guidelines are furnished in making an effective determination of what
property in possession of a passenger should be considered as a weapon or dangerous
... Sabres, swords, hunting knives, knife belts and such other cutting instruments
which have a greater potential for injury than utensils provided with in-flight meals...
Any person refusing to undergo the required screening process or found to be in
possession of a weapon or other dangerous object or making threats or otherwise
believed to be a threat to the safety of the aircraft shall be denied passage beyond the
screening point unless subsequently cleared.
The final decision to board or refuse boarding rests with the air carrier.(6)
This policy is clearly a neutral rule, in that it is not targeted at a particular group protected
by the Canadian Human Rights Act.
ii) Rational Connection
There is no suggestion that the respondent acted other than honestly and in good faith in adopting the policy in issue. The question has been raised, however, as to whether there is a rational connection between the policy and the business of the respondent.
A neutral rule may be found to be rationally connected to the business of a respondent on the
basis of a common sense appreciation of what is reasonable in a particular business. Extensive
evidence on the issue will not necessarily be required.(7)
Counsel for the Commission acknowledges that airlines have a legitimate business interest
in screening passengers for dangerous items. Mr. Duval's position is that insofar as the rule relates
to kirpans, it goes too far. As we understand Mr. Nijjar's position on this issue, he is in agreement
with Commission counsel.
The 'rational connection' test in cases of alleged indirect discrimination differs from the
'reasonably necessary' test applied in cases of direct discrimination. In cases of direct discrimination,
a respondent must establish that there is no other reasonable and less burdensome alternative to the
impugned rule, whereas there is no such requirement in cases of indirect discrimination.(8)
In our view, the question of whether the respondent's rule overreaches its objectives with
respect to airline security is a matter that may properly be considered as part of the reasonable
accommodation analysis. In other words, if the respondent's rule goes farther than is necessary, it
may be that the rule can be modified in order to accommodate affected individuals or groups.
In all of the circumstances, we are satisfied that the respondent's rule restricting the type of
bladed items that may be carried on board Canada 3000 aircraft is a rule that is rationally connected
to the business of the respondent.
iii) Differential Impact
In order to establish a prima facie case of indirect discrimination, it is necessary for the
complainant and the Commission to establish that the rule in issue has a discriminatory effect upon
the complainant, on the basis of a proscribed ground. It is therefore necessary to examine the tenets
of the Sikh faith, both in general terms and as they are understood by Mr. Nijjar.
a) Role of the Kirpan in Sikhism
It should be noted at the outset that the respondent has conceded that Sikhism is a bona fide religion, and that certain members of the Sikh faith have accepted the obligation to wear the kirpan.
Considerable evidence was led in the course of the hearing with respect to the role of the kirpan
within the Sikh faith Three individuals were qualified to testify as experts on matters relating to
Sikhism - Professor Hew McLeod and T. Sher Singh on behalf of the Commission and Dr. John
Spellman on behalf of the respondent. The testimony of these individuals was consistent on many
points. For the reasons set out below, where the testimony of Professor McLeod differs from that
of either Mr. Singh or Dr. Spellman, we prefer the testimony of Professor McLeod. It is apparent
that Professor McLeod has devoted his adult life to the scholarly study of Sikhism, including Sikh
history, religion and culture. He has written major texts in the area, and was recognized by many
involved in this hearing as one of the world's leading experts in the field. Indeed, counsel for the
respondent described Professor McLeod as 'a sterling witness'. We found Professor McLeod's
testimony to be scholarly, measured and candid.
T. Sher Singh is a lawyer in private practice, and has been active within the Sikh community.
Mr. Singh has been consulted on a number of occasions by various bodies on matters relating to the
Sikh faith. Counsel for the respondent objected to Mr. Singh being qualified as an expert on the
bases that he was an advocate for the Sikh community, and that he lacked the necessary academic
qualifications. We concluded that formal academic qualifications were not an absolute pre-requisite
to being qualified as an expert witness, and determined that we were unable to assess whether or not
Mr. Singh was truly appearing as an advocate for the Sikh community without hearing his testimony.
Accordingly, we allowed Mr. Singh to testify as an expert in Sikhism and Sikh culture, reserving
our decision on the issue of the weight to be attributed to his evidence. In the course of his testimony
it became apparent that Mr. Singh was indeed acting very much as an advocate for the Sikh
community. His testimony was totally lacking in the objectivity one would expect of the true expert.
By way of example, in cross-examination, he was at times aggressive and at other times quite rude
to respondent counsel.
More troubling was Mr. Singh's explanation of an entry on his curriculum vitae, where he
stated that he had "Qualified and testified as an Expert Witness on Sikh religion, Ontario Court
(General Division)". Mr. Singh was asked for particulars during the course of his cross-examination
on his qualifications. While maintaining that he had testified as an expert on approximately 12
occasions in civil, criminal and administrative fora, he was unable to provide details from memory,
and undertook to provide further particulars later. His further written explanation was provided
some time after Mr. Singh had stood down.(9) Suffice it to say that Mr. Singh was unable to provide
much in the way of additional information, apart from recalling the name of one accused in a
criminal case in Provincial Court. Mr. Singh's explanation for his inability to provide particulars
is entirely unconvincing.
Finally, it is uncontroverted that Mr. Singh telephoned one of the respondent's witnesses, Dr.
Pashaura Singh, on the morning that Dr. Singh was to testify. According to Dr. Singh, Mr. Singh
was unhappy that Dr. Singh was going to testify "against the community". Dr. Singh stated that Mr.
Singh did not try to influence his testimony, but that it was not a pleasant conversation and made him
uneasy. This is not conduct that one would expect of a dispassionate expert. It is all the more
surprising when one considers that Mr. Singh is a member of the Bar with many years of litigation
experience, and would therefore presumably have a good understanding of his role as an expert
As a result of concerns such as these, we place no weight whatsoever on any of Mr. Singh's
testimony, except where it is corroborated by that of other witnesses.
Dr. Spellman is a Professor of Asian Studies at the University of Windsor. While his academic credentials are impressive, they are considerably more generic than those of Professor McLeod. Dr. Spellman does not have the significant publication record that Professor McLeod has. He does not speak Punjabi, and thus is unable to read source material in its original form, or to
communicate with many in the Sikh community. It appears that the evidence Dr. Spellman gave in
the course of this hearing is not entirely consistent with testimony he has provided in earlier cases
involving similar issues. This inconsistency is not entirely explained by what he described as the
evolution in his thinking. As a result, where Dr. Spellman's testimony differs from that of Professor
McLeod's, we prefer the testimony of Professor McLeod.
According to Professor McLeod, Sikhism is a monotheistic religion, whose followers believe
in one God known as Akal Purakh. Within Sikhism, there are a number of sub-groups or sects,
including the Khalsa order, which was established in 1699 by the Guru Gobind Singh. In order to
enter the Khalsa order, it is necessary to undergo an initiation ceremony known as the amrit sanskar.
Those who have 'taken amrit' are also known as 'Amrit-dhari' Sikhs.(10) There are between sixteen
and eighteen million Sikhs worldwide, 15-20% of which are Amrit-dhari Sikhs.
As part of the amrit ceremony, initiates undertake to adhere to a Code of Conduct known as the Rahit. The Rahit commands followers to observe the panj kakke, otherwise known as the 'Five Ks'. The Five Ks are the five items that each initiated Sikh must wear on his or her person at all times. To neglect to wear one or more of the Five Ks represents a serious lapse. These items include uncut hair or kes, over which a turban is worn, a comb or kanga worn in the hair, a steel bracelet called a kara, undershorts known as kachh, and the kirpan.
Professor McLeod testified that the kirpan is a sacred object for Amrit-dhari and Kes-Dhari(11)
Sikhs. The kirpan originated as a weapon but now has symbolic value for Sikhs well beyond that
of a weapon. While there is no single understanding as to the way in which the kirpan is perceived
amongst Sikhs, it is generally understood to represent the defence against injustice and oppression.
A kirpan must be made of steel. There is, however, no minimum or maximum size
prescribed for the kirpan. According to Professor McLeod, some Sikhs wear miniature kirpans a
centimetre in length fastened to the kanga or comb, whereas other Sikhs would find this
unacceptable. In India, many Sikhs accept kirpans that are 20 centimetres (or 8 inches) from the tip
of the blade to the end of the handle, although some would want them larger, and others would agree
to have them smaller. Professor McLeod stated that for many Sikhs, for the kirpan to be considered
a kirpan, it has to be something that one can hold. For these individuals, a miniature kirpan would
Professor McLeod's testimony was consistent with that of Dr. Pashaura Singh. Dr. Singh is himself an Amrit-dhari Sikh, one who has held positions of considerable responsibility within the Sikh community, and who is clearly a devout adherent to the Sikh faith. Dr. Singh was called by the respondent to testify with respect to his own practices relating to the wearing of the kirpan. Dr. Singh testified that when he flies, he will wear a miniature kirpan of approximately 1 ½ inches in length attached to his kanga or comb, as some airlines do not permit kirpans the size of Mr. Nijjar's travel kirpan to be carried on board. In Dr. Singh's view, wearing a miniature kirpan is sufficient to discharge his religious obligations, and is a practice followed by many devout Amrit-dhari Sikhs.
Dr. Singh acknowledged in cross-examination that there are different groups within the
Khalsa tradition that have different attitudes toward the kirpan. Views differ as to whether it is ever
appropriate to part with the kirpan, whether there is a minimum size for the kirpan and as to whether
the wearing of the miniature is sufficient to discharge one's religious obligation.
b) Issue to be determined
It is clear, based upon the evidence of Professor McLeod and Dr. Singh, that the respondent's
policy with respect to bladed items could have a differential impact on some Sikhs, who would be
unable to comply with the rule without compromising their religious beliefs. The rule would not
have such an impact on other Sikhs such as Dr. Singh, whose interpretation of his faith is such that
he is able to comply with the respondent's policy in a manner that does not impinge on his
observance of his religion.
Given that this is a complaint under section 5 of the CHRA, the issue for us is not whether
the respondent's rule has a potentially discriminatory effect for Sikhs in general, but rather whether
the rule had such an effect as it relates to Mr. Nijjar.(12)
In assessing whether the respondent's policy had a differential impact on Mr. Nijjar, the issue
is not whether Mr. Nijjar's beliefs accord with the teachings of Sikhism, but whether he genuinely
holds beliefs, as a matter of religious conviction, which beliefs render him unable to comply with
the respondent's policy.(13) It is therefore necessary to examine the nature of Mr. Nijjar's beliefs.
c) Mr. Nijjar's Beliefs
It was evident to the Tribunal, and indeed it was conceded by the respondent, that Mr. Nijjar
is a devout Khalsa Sikh. What remains to be determined is his beliefs with respect to the wearing
of the kirpan.
The most significant evidence, in our view, with respect to the determination of whether Mr.
Nijjar holds beliefs, as a matter of religious conviction, which beliefs render him unable to comply
with the respondent's policy, is the testimony of Mr. Nijjar himself.
It is clear that Mr. Nijjar believes that it is not acceptable to part with his kirpan so as to
enable him to fly on an airplane. He testified to an earlier experience where he did just that, and
described the spiritual consequences that he suffered as a result.
We must also consider Mr. Nijjar's beliefs with respect to the size and other characteristics
of the kirpan, and to determine whether his beliefs in this regard render him incapable of complying
with the respondent's policy without spiritual consequences.
Mr. Nijjar did not address this issue in his testimony in chief. He was, however, cross-examined and re-examined on the issue of the size of the kirpan.(14) Mr. Nijjar concurs with
Professor McLeod, Dr. Spellman, Mr. Singh and Dr. Singh in his understanding that Sikhism does
not prescribe a minimum or maximum size for the kirpan. In the context of a discussion of the Royal
Canadian Mounted Police uniform requirements pertaining to the kirpan, Mr. Nijjar did not suggest
that the wearing of a kirpan with an overall length of 3 1/2 inches would contravene his
understanding of the faith. Instead, he seemed to suggest that the wearing of such a kirpan could be
necessitated by the tight-fitting RCMP uniform.
Mr. Nijjar testified that he wears the 11 1/2 inch kirpan in his everyday life because he likes
it. He wears a smaller kirpan when he bathes. It is not clear whether the smaller kirpan he is
referring to is the travel kirpan or a different one. Clearly Mr. Nijjar felt able to wear a smaller
kirpan in order to be able to fly, as that was the reason for his acquisition of the travel kirpan. It is
apparent from his testimony that Mr. Nijjar understood that kirpans the size of his travel kirpan
complied with air travel security requirements, and that he was able to comply with the so-called four
inch rule without compromising his faith.
There appear to be differing views within the faith as to the necessary degree of sharpness
for the kirpan and whether a dulled blade is appropriate. Similarly, there appear to be conflicting
beliefs with respect to blunting the point of the kirpan. There is no evidence from Mr. Nijjar that
dulling the blade or blunting the point of his kirpan would offend his religious beliefs. Indeed, there
is no suggestion anywhere in Mr. Nijjar's testimony that to wear a kirpan with less of a potential for
injury than Canada 3000 eating utensils would contravene his religious beliefs. His inclination to
wear one kirpan over another is always expressed as a personal preference as opposed to a matter
of religious conviction.
iv) Conclusion re Prima Facie Case
While the fact that Mr. Nijjar filed and pursued his complaint for several years certainly
suggests that he has strong feelings about what transpired, ultimately we must decide the case on the
basis of the evidence before us. In this regard we cannot conclude on the basis of that evidence, and
in particular, on the basis of Mr. Nijjar's testimony, that the respondent's policy had a differential
impact on Mr. Nijjar based upon his religion. As a consequence, we find that the complainant and
the Commission have failed to establish a prima facie case of discrimination, and the complaint is
In the event that we are in error in our conclusions with respect to the establishment of a
prima facie case, we will consider the remaining issues presented in this case.
IV REASONABLE ACCOMMODATION
Where a prima facie case of discrimination has been established, the burden shifts to the
respondent to demonstrate that it has accommodated Mr. Nijjar to the point of undue hardship.
i) General Principles
In determining whether the respondent has met its burden with respect to the issue of
accommodation, we are guided by the principle that in cases of accommodation, more than a minor
inconvenience must be shown before a complainant's entitlement to be accommodated will be
defeated. Minor inconvenience is the price to be paid to enable individuals to enjoy religious
freedoms in a multi-cultural society.(15)
In assessing what constitutes undue hardship in a case where safety is in issue, both the
magnitude of the risk and the identity of those who will bear the risk are relevant considerations.(16)
The phrase 'magnitude of the risk' encompasses two notions: the likelihood that loss or injury may
occur and the seriousness of the loss or injury that may result.(17)
ii) Position of the Respondent
The respondent maintains that its policy regarding bladed items does accommodate the needs
and aspirations of some, if not all Khalsa Sikhs. The respondent further maintains that it has a
legitimate concern with respect to passenger safety and that any modification to its policy would
present an unacceptable risk to that safety, which risk would constitute an undue hardship.
iii) Position of the Canadian Human Rights Commission and Mr. Nijjar
The Canadian Human Rights Commission and Mr. Nijjar take the position that, as a neutral
rule, the Canada 3000 policy should be permitted to stand as it applies to the population at large.
However, where the policy interferes with the right of Sikh passengers to manifest their religious
faith by wearing the kirpan, the policy must be modified so as to accommodate the individuals so
affected. Specifically, Mr. Duval contends that Sikh passengers should be allowed to carry kirpans
on board Canada 3000 aircraft, as long as the blades of the kirpans do not exceed four inches in
length. In the Commission's submission, such a modification of the policy as it applies to Sikhs
would not create an unacceptable risk, given the special regard that Sikhs have for their kirpans.
iv) Regulatory Environment
Mr. Jim Marriott testified on behalf of the Canadian Human Rights Commission. Mr. Marriott is the Director of Security Policy and Legislation at Transport Canada and has been involved in issues relating to kirpans on aircraft for approximately ten years. According to Mr.
Marriott, for at least the last ten or twelve years, the practice in Canada has been to allow bladed
items on board aircraft, as long as the blade does not exceed four inches in length. Mr. Marriott
stated that it was his understanding that this practice is also followed by the Federal Aviation
Administration in the United States.
The Air Transport Association of Canada ('ATAC') is an industry group. ATAC members
include Air Canada, Canadian Airlines and Canada 3000. There is a Security Committee of ATAC,
which meets periodically to develop industry positions on various security issues. In the mid-nineteen nineties a concern arose with respect to different standards being applied across the country
regarding the bringing of bladed items onto aircraft. An uneven approach was creating difficulties
for passengers. In an effort to achieve a level of consistency within the industry, the Security
Committee developed a list of items which it recommended be allowed on board aircraft. The list
includes pocket knives with blades of less than four inches in length. Knives, including 'religious
knives' should not be allowed on board if their blades exceed the four inch limit. Mr. Marriott stated
that, in his view, a pocket knife was either a folding knife or a non-folding knife in a container that
would permit the knife to be carried inside a pocket.
As far as Mr. Marriott knows, the Security Committee did not obtain advice from qualified
medical practitioners with respect to the nature and degree of danger posed by the various items
included on the list.
Transport Canada has endorsed the use of this list, as it reflected a long-standing practice that
appeared to have worked well. In April, 1997 Transport Canada published a 'Security Notice' to the
industry. The Security Notice reflects Transport Canada's view that the use of the list would ensure
an appropriate level of security on flights. Although reference was made throughout this hearing to
a four inch rule, in fact the 'rule' is only a recommended standard for the industry, and is not binding
on airlines. Each airline is ultimately responsible for developing its own standards for safety on
board its own planes.(18) This responsibility must, however, be carried out in accordance with the Air
Carrier Security Regulations, which prohibit certain items, such as explosives and incendiary
devices, from being brought onto aircraft.
The Security Notice also contains a schedule listing items that will not be permitted on board
aircraft. The schedule lists "Knives (more than 4" or menacing)". There was almost no discussion
of this provision during Mr. Marriott's testimony. However, when the document is read in
conjunction with the Transport Canada publication used in training security personnel(19), it appears
that the term "menacing" is used to refer to particular types of knives such as switchblades and
shooting blade knives, and does not require an assessment of the offensive capacity of individual
bladed items. This interpretation is consistent with Mr. Marriott's testimony, which suggests that,
in the absence of unusual circumstances, blade length will be the determining criteria.
Transport Canada has also issued a Security Notice dealing specifically with kirpans, which
Notice was developed in consultation with the Sikh community. This Notice, which incorporates
the suggested four inch limit, was intended to sensitize security personnel to the religious
significance of kirpans. The Notice confirms that the ultimate authority to decide what will be
allowed on board rests with the air carrier, subject to the absolute prohibitions referred to in the
Mr. Marriott does not know where the four inch limit comes from, or how that
particular blade length was originally arrived at as an acceptable standard.
He suggested that a line had to be drawn somewhere, and agreed that there was
a certain arbitrariness as to where the line was drawn. Mr. Marriott conceded
that there may well be items with blades of under four inches that could cause
serious injury or death, and that would present an unacceptable security risk.
Such items could nevertheless be permitted on board aircraft under the terms
of the Transport Canada policy.
Mr. Marriott chairs a committee known as the Working Group on Prohibition Against
Interference with Crew Members. The purpose of the group is to develop a strategy for dealing with
unruly passengers. Mr. Marriott notes that there have been suggestions in the media that incidents
involving unruly passengers or 'air rage' are on the increase, and that there is an increased sensitivity
to the subject in the industry. Mr. Marriott cannot say, however, whether such an increase in such
incidents can in fact be demonstrated statistically.
v) Air Canada Experience
Denis McCulla has been the Manager of Corporate Security for Air Canada for twenty
years. According to Mr. McCulla, for at least the last twenty years Air Canada has followed the four
inch rule for knives, including kirpans. Air Canada security contractors do have discretion to refuse
to allow people to board with items that are otherwise permissible if circumstances warrant it - for
example if the individual's behaviour suggests that there may be a problem.
Air Canada flies approximately 600 flight legs each day. Mr. McCulla is not aware of any
instance where a kirpan was involved in an incident that was perceived as compromising the safety
of a flight. He did not indicate whether there had been any such incidents involving bladed items
other than kirpans.
Mr. McCulla understands that the four inch blade policy is imposed on the airline by
Transport Canada. He stated that if it were up to him, he would not allow any knives of any type
on board aircraft. A similar sentiment was expressed by a representative of Canadian Airlines
interviewed by the Canadian Human Rights Commission investigator.(20)
vi) Canada 3000 Policy
Angus Kinnear is the President and a founder of Canada 3000. Canada 3000 has over 2000
employees, operates 15 aircraft and flies to 88 destinations around the world. Mr. Kinnear
confirmed that it is the airline's responsibility to ensure passenger safety. In order to meet this
responsibility, Canada 3000 has a rigorous training program for staff, and as well has a number of
safety policies, including its policy with respect to weapons and dangerous items. This policy was
introduced in August, 1992, although it reflects a practice that goes back to the establishment of the
company in 1988.
According to Mr. Kinnear, at the time the policy was prepared, the drafters of the policy did
not consider factors such as the potential conflict of the policy with religious beliefs. Indeed he
doubts that the drafters were even aware of religious concerns that could arise. As far as he knows,
safety was the only consideration.
Mr. Kinnear is familiar with the four inch rule. He understands that the rule is followed by
some airlines, but that others, such as British Airways, do not use it. In his view, while the rule has
the advantage of being easy to apply, it is not a reasonable rule in that it is arbitrary and does not
exclude items that could be used as weapons. According to Mr. Kinnear, a four inch blade could
inflict considerable damage when wielded in a confined space. Mr. Kinnear points out that, at
35,000 feet, one cannot simply call 911 if difficulties are encountered.
The fact that Air Canada may have used the rule successfully for twenty years does not
suggest to Mr. Kinnear that his company's policy should be relaxed. According to Mr. Kinnear,
although there may not have been a fatal stabbing on board an Air Canada plane, it does not mean
that one may not occur in the future. Mr. Kinnear draws an analogy to the 'baggage match rule' now
in standard use in the industry. This rule, which requires that all luggage on a plane be matched to
passengers actually on board, was instituted after the bombing of an Air India 747 en route from
Canada, and the bombing of a Canadian aircraft at Narita airport, both apparently by means of
bombs planted in suitcases. Twenty years ago, there was no concern about matching baggage to
passengers - to that point there had been a long history without such incidents. The bombings
occurred nonetheless, with the loss of approximately 300 lives in the case of the Air India tragedy.
In order to be workable, a rule must be simple. It must be one that can be applied around the
world by many different people from many different cultures. The need for simplicity is driven by
concern for safety, and not by economics. In this regard, the Canada 3000 rule, which uses the
Canada 3000 dinner knife as a template, is simple and easy to apply.
According to Mr. Kinnear, it is not workable to attempt to make an exception for Sikh
passengers, and to allow them to board with kirpans with blades of up to four inches. It is not clear
how a person in Fiji, Stuttgart or New Zealand would be able to verify that the person was indeed
a bona fide Sikh and not an imposter. Further, he points out that the spiritual restrictions that bind
Amrit-dhari Sikhs with respect to the use of the kirpan would not assist if the kirpan was seized by
a non-Sikh passenger in the course of a dispute.
Mr. Kinnear testified that airlines have very little opportunity to scrutinize passengers before
boarding - on average, the airline interacts with each passenger for between 45 and 90 seconds at the
Mr. Kinnear states that Canada 3000 transports hundreds of Sikhs each month, and has no
desire to alienate the Sikh community. This is the only complaint that the airline has ever received
in relation to its policy. He further testified that he understands that there are kirpans, such as those
prescribed for use by Sikh members of the RCMP, that would conform to the Canada 3000 policy,
and that would be allowed on board Canada 3000 aircraft.
Notwithstanding the use of the policy, there was an incident in 1994 involving a knife on a Canada 3000 aircraft. Kelly Welch was the Purser on a flight from Vancouver to Toronto. In the course of the flight a non-Sikh passenger produced a knife and threatened Ms. Welch after being
denied anything further to drink. The knife was a folding knife with a two inch blade. Ms. Welch
described her terror, and as well, told how upset the other passengers were by the incident. She also
described her sense of helplessness at being confronted with a weapon, facing the risk of serious
injury in a situation where she could not call the police or expel the passenger.
Several Canada 3000 witnesses, including Jean Jones, the Director of Cabin Services for
Canada 3000 and Mr. Kinnear, testified with respect to the 'air rage' phenomenon. Ms. Jones is
responsible for safety and service standards for flight attendants. One of Ms. Jones' responsibilities
is to receive reports from Canada 3000 personnel with respect to incidents involving disruptive
passengers. Based upon Ms. Jones' review of these reports and her discussions with airline
personnel, it is her view that incidents of this nature are increasing, although no formal study has
been conducted in this regard. She testified that an informal survey conducted of flight attendants
disclosed that thirty four percent of Canada 3000 flight attendants have been subjected to verbal
abuse by passengers. Twenty three percent of Canada 3000 flight attendants have been involved in
attempting to defuse a fight. Twenty three percent of Canada 3000 flight attendants report having
been physically assaulted on the job. It is not clear from Ms. Jones' evidence whether these results
relate to incidents occurring during a particular time frame. Similarly, there is no suggestion from
her that the results reflect an increase in such incidents relative to earlier survey results.
vii) Other Kirpan Policies
There is no standard within the airline industry with respect to kirpans on aircraft. We have
earlier described Transport Canada's position with respect to the four inch rule and the application
of that approach by Air Canada and Canadian Airlines. It appears that Air India and Pakistani
International Airlines specifically prohibit kirpans on board their airplanes. British Airways, US Air
and American Airlines have policies prohibiting any bladed items on board, which policies are
interpreted to include kirpans.
Detective Sergeant Gordon Graffman testified on behalf of the respondent with respect to the
policy respecting courthouse security for the Toronto region. Detective Sergeant Graffman is the
Head of Research and Planning for the Toronto Police Service, Court Service Unit.
Detective Sergeant Graffman described the special nature of the courthouse environment, and
the differing levels of security that may be required, depending on the nature of the court, and the
particulars of the cases being tried at any given time. Metal detectors are routinely used. According
to Detective Sergeant Graffman, screening personnel are given varying degrees of discretion with
respect to the application of the policy, depending on the level of threat felt to exist. In normal
situations no bladed items with blades greater than two inches in length will be permitted in the
Detective Sergeant Graffman stated that the provision of security is a human endeavour. The
courthouse policy includes a discretionary element so as to permit personnel to use their judgment,
and to seize items such a X-Acto knives, which may have very short blades, but nonetheless present
a significant danger.
In situations determined to present a higher than normal degree of threat, no metal or other
implements of any size that are capable of causing injury will be permitted. Security personnel have
little discretion in such circumstances.
The court policy makes no exception for kirpans as they have the potential to inflict damage,
notwithstanding their religious nature.
Corporal Pierre McConnell of the Surrey detachment of the Royal Canadian Mounted Police
testified with respect to the courthouse security policy in use in British Columbia. According to Cpl.
McConnell, British Columbia court policy prohibits any knives being brought into courthouses. The
policy specifically notes that no exception is to be made with respect to religious knives.
Decisions filed by the parties in support of their positions discuss policies developed with
respect to the wearing of kirpans in schools and hospitals, which policies have become the subject
of litigation. In Pandori v. Peel Board of Education(21), an Ontario Board of Inquiry considered the
nature of the school environment and determined that Sikh students should be permitted to wear
kirpans to school, provided that the kirpans were of 'a reasonable size'. The Board did not make a
specific finding as to what is a reasonable size. This decision was affirmed by the Divisional Court.
Similarly, in Pritam Singh v. Workmen's Compensation Board Hospital and Rehabilitation
Centre(22), another Ontario Board of Inquiry reviewed a hospital policy prohibiting the possession of
offensive weapons on hospital premises and concluded that Sikh patients should be allowed to wear
kirpans of a reasonable length while receiving treatment. Once again the Board did not specifically
define 'a reasonable length'.
viii) Forensic Evidence
Dr. David McAuliffe was called by the respondent and was qualified, on consent, as an
expert in forensic medicine and the forensic pathology of sharp objects as weapons. Dr. McAuliffe
is a pathologist with the Forensic Pathology Unit of the Office of the Chief Coroner for Ontario.
According to Dr. McAuliffe, sharp force injuries can be divided into stab wounds and incised wounds or cuts, both of which have the potential to cause death. There are a range of variables that determine how lethal a wound may be, which include the physical characteristics of the weapon, the location and nature of the wound, the force used and the intent of the assailant.
Both stab wounds and incised wounds have the potential for being life threatening, depending
on factors such as the location and depth of the wound. Both types of wounds can require emergency
treatment and medical facilities not ordinarily available on board aircraft.
The important determinants of a weapon's potential to injure are the length of the blade, the
sharpness of the weapon, the pointedness of the weapon and the rigidity of the blade. The offensive
capacity of a bladed item can only be assessed by considering all of these factors together. A policy
that only considered one factor, such as blade length, as a means of assessing the potential for injury
would be 'a ludicrous policy'.
According to Dr. McAuliffe, Mr. Nijjar's travel kirpan has sufficient blade length, rigidity,
sharpness and pointedness to cause a fatal outcome: indeed, in the course of his practice, Dr.
McAuliffe has seen many fatalities caused by items similar to the travel kirpan, although he has
never seen wounds actually caused by a kirpan.
In contrast, Dr. McAuliffe has never seen a fatal outcome with an implement such as the
Canada 3000 dinner knife currently in use or the Canada 3000 dinner knife in use in April, 1996.
While either dinner knife could theoretically cause a fatal injury, for example, by being driven
through an eye socket and into the brain, Dr. McAuliffe described such a scenario as 'fanciful'. The
Canada 3000 dinner fork could be used to penetrate the skin, and could conceivably cause a fatal
injury if driven into the chest with sufficient force. However, Dr. McAuliffe stated that he does not
see any plausible way that could happen. He has never seen a serious injury or death caused by an
item such as the Canada 3000 dinner fork.
Dr. McAuliffe states that the Canada 3000 dinner knife would be an appropriate template for
use in assessing the offensive capability of bladed items. In Dr. McAuliffe's view, the assessment
of the offensive capabilities of a bladed item is one that can be made by a lay person.
Dr. McAuliffe was asked to address whether items such as wine bottles, which are commonly
found on aircraft, have the potential to cause fatal injuries either by bludgeoning or by breaking the
bottle, and using the broken bottle as a cutting weapon. Dr. McAuliffe stated that he has never seen
a fatality caused by a wine bottle. He points out that it is very difficult to smash a wine bottle
without injury to the person breaking the bottle.
ix) Violent incidents involving Kirpan
Dr. McLeod and other witnesses described the sacred nature of the kirpan for followers of
the Sikh faith. According to Dr. McLeod, Sikhism dictates that the kirpan should never under any
circumstances be used as an offensive weapon. The kirpan may be used for defensive action, but
only when all other methods of self-defence have failed.
According to Dr. McLeod, because of the spiritual significance of the kirpan, the attitude of
all Sikhs towards the kirpan will be distinctively different from the attitude of non-Sikhs towards
other types of knives.
Failure to follow the restrictions on the use of the kirpan would amount to a contravention
of the Rahit. The transgressor would be a tanakhahia, and would be required to confess his
shortcomings and accept a penance.
Notwithstanding these spiritual restrictions, Dr. McLeod is aware of situations where the
kirpan has been used as an offensive weapon, including situations in Canada. While such incidents
may have occurred, they would not be in accordance with the teachings of the faith.
Dr. McLeod points out that, as with any other segment of society, Sikhism encompasses a
range of mankind from paragons of untarnished moral principle to the opposite extreme. Mr. Nijjar
made the same point in his testimony.
Evidence was led by the respondent with respect to a number of incidents where it appears
that kirpans were indeed used as offensive weapons, including evidence with respect to the hijacking
of two aircraft in the mid-1980's. In addition, testimony was given by Cpl. McConnell, who was the
file co-ordinator with respect to a major disturbance at the Guru Nanak Gurdwara in Surrey, British
Columbia, on January 11, 1997. The disturbance evidently arose as a result of a disagreement
between two factions in the congregation with respect to an issue of religious doctrine. Cpl.
McConnell was present at the scene and described what occurred there. In addition, he provided two
videotapes of the disturbance.
It was apparent from both Cpl. McConnell's testimony and from the videotapes that kirpans
were indeed brandished in an offensive manner on a number of occasions in the course of the
disturbance. Cpl. McConnell testified that in the course of the incident one individual was slashed
on the side of the head and was also stabbed at least twice in the chest area, sustaining serious and
potentially life-threatening injuries. In a subsequent criminal trial, the trial judge found as a fact that
the victim's injuries were sustained as a result of the use of a kirpan. The evidence at the trial was
that the kirpan in issue was somewhere between 4 and 10 inches in length.
In the course of the hearing the concern was expressed on several occasions with respect to
this and other evidence of violence within the Sikh community. Commission counsel suggested that
the respondent was attempting to characterize Sikhs as having a general propensity for violence. The
respondent submitted that it was not attempting to suggest that Sikhs were any more dangerous than
anyone else. Rather, the position of the respondent is that, like any other group of humanity, there
are good Sikhs and bad Sikhs, those who strictly observe the teachings of the faith, and those who
do not. As a consequence, the respondent states that one cannot generalize about the manner in
which any one individual will act vis à vis his or her kirpan in a given situation.
x) Reasonable Accommodation and the Level of Risk
There is considerable authority with respect to the issue of the assessment of risk in cases
involving public safety. The majority of these decisions arise in the context of direct discrimination.
Mr. Duval and Mr. Chouest both agree that in cases of direct discrimination, the case law has
established that a 'sufficient risk' must be demonstrated before a bona fide occupational requirement
can be established. Both counsel urge the Tribunal to apply the same risk standard in assessing
whether or not Mr. Nijjar can reasonably be accommodated, notwithstanding that what is alleged is
indirect discrimination. No cases were provided to us to support this position.
A review of the jurisprudence discloses that counsel's position has not been uniformly
accepted. Cases such as Woolverton et al. v. B.C. Transit (23) and Dhillon v. Ministry of
Transportation(24) conclude that it would be inappropriate to import the test of sufficiency of risk
developed in the context of the bona fide occupational requirement analysis into the indirect
discrimination context, given the underlying differences between direct and indirect discrimination.
Utilizing the language of Madam Justice Wilson in Central Alberta Dairy Pool, these decisions
assess whether or not accommodation is possible having regard to the 'magnitude of the risk' posed
by the accommodation of the complainants. What is not clear from these decisions, however, is how
the 'magnitude of the risk' test is perceived to differ from the 'sufficiency of the risk' test, and
whether a greater or lesser tolerance of risk is required.
Although Madam Justice Wilson uses different language in Central Alberta Dairy Pool than
that which had previously been used by the Supreme Court of Canada in cases such as Ontario
Human Rights Commission v. Etobicoke(25), we do not read that decision to permit a different degree
of risk to public safety in cases of indirect discrimination.
We accept that there are fundamental differences between direct and indirect discrimination,
and that the focus of the risk analysis will differ, depending on the nature of the discrimination
alleged.(26) However, where public safety is in issue, we do not see a principled basis for demanding
more or less protection for the public depending upon whether a complainant is discriminated against
directly or indirectly. This is particularly so where, as in this case, the risk of injury will be borne
by third parties, and not just the complainant him or herself.
Further militating against the use of differing standards is the fact that in at least some cases,
the distinctions between the two types of discrimination are 'perilously close to semantic'.(27)
For these reasons, we are in agreement with the submissions of counsel, and will approach
our analysis using a standard of 'sufficient risk'.
xi) Risk Analysis
We must now consider whether the respondent has satisfied the burden on it to establish that
it has reasonably accommodated the needs of the complainant to the point of undue hardship, or that
no such accommodation is possible.
It considering this issue, it should be noted that the respondent's policy
does not prohibit all kirpans on board Canada 3000 aircraft. It only prohibits
those kirpans with a greater potential for injury than that of Canada 3000 eating
utensils. The respondent maintains that this, in itself, is a form of accommodation.
The respondent further submits that to modify the Canada 3000 policy in the
manner suggested by the Canadian Human Rights Commission would present unacceptable
risks to the public and that this would constitute an undue hardship.
In determining whether or not a modification of the respondent's policy to allow Sikhs to
bring kirpans with blades of up to four inches in length on board its aircraft would constitute an
undue hardship, we must consider the risks that such a modification would present. As noted earlier,
the assessment of risk has two components: the likelihood that injury might occur and the
seriousness of the injury. In addition, we must consider who it is that will bear the risk of injury.
Finally a determination must be made as to whether or not the effect of these factors is such as to
create a sufficient increase in the risk of injury as to establish undue hardship.
a) Likelihood of Injury
We will consider first the question of the likelihood that injury may occur if kirpans with
blades up to four inches long are allowed on board. In this regard the evidence suggests that the
likelihood of anyone being injured by a kirpan on an aircraft is low. This is demonstrated by the
experience of Air Canada. In twenty years, Air Canada has never had an incident involving the
violent use of a kirpan. This evidence must be viewed in light of Mr. McCalla's testimony that Air
Canada flies 600 flight legs each day.
We do not place any weight on the evidence before us relating to the perceived increase in
incidents of so-called 'air rage'. The evidence before us on this subject was largely anecdotal, and
in our view, was not sufficiently reliable for us to conclude that incidents of this nature are in fact
occurring with greater frequency, and are not simply receiving more attention from the media and
Consideration must also be given to the evidence of Professor McLeod and others as to the
special regard that Sikhs have for their kirpans. It is clear that the teachings of Sikhism do not permit
the use of the kirpan as an offensive weapon. There is, however, considerable evidence before this
Tribunal that establishes that, notwithstanding the teachings of the faith, the kirpan has been used
by some Sikhs as an offensive weapon in a variety of circumstances, including in airplane hijackings,
and that the consequences of the actions of these individuals have in some cases been disastrous.
In finding that the kirpan has been used as an offensive weapon by some Sikhs, we note that
the actions of these individuals are contrary to the teachings of the faith. We are not suggesting that
Sikhs have any greater propensity for violence than the rest of the population. Rather, this finding
is one consistent with the evidence of Professor McLeod and Mr. Nijjar, both of whom noted that
Sikhs are human, and as with all humans, there are good Sikhs and those that are not so good - those
that follow the teaching of the faith to the letter, and those that do not.
We also note that the special regard that Sikhs have for their kirpans would not come in to
play if the kirpan were seized by another passenger during an altercation. It was also pointed out in
argument that spiritual considerations would not bind a non-Sikh posing as a Sikh, although in our
view, the likelihood of this latter scenario occurring is remote.
Spiritual strictures may have limited effect on Sikhs who may be mentally ill. This appears
to be the case in one of the examples cited to the Tribunal, where a mentally ill Sikh used a kirpan
to kill a child. Similarly, spiritual considerations may not assist where an individual is intoxicated.(28)
In making these observations, we are not suggesting that Mr. Nijjar would ever use his kirpan
in an offensive fashion. It is clear to us that Mr. Nijjar is a devout individual, who takes the teaching
of his faith both literally and seriously, and one who endeavours at all times to conduct his life in a
manner consistent with the tenets of his religion.
b) Seriousness of Potential Injuries
The most helpful evidence on this issue was that of Dr. McAuliffe, who we found to be a
most impressive witness. It is apparent from Dr. McAuliffe's testimony that used by itself, the blade
length of an item is not an appropriate criteria for determining the offensive capacity of a bladed
item. A bladed item such as a kirpan, an X-acto knife or a surgeon's scalpel may have a short blade,
and yet be pointy, sharp and rigid enough to inflict considerable harm. Similarly, a kirpan or other
bladed item may have a blade longer than four inches, yet have a limited potential for harm because
of its blunted point, the dullness of its blade or the lack of rigidity of the item. We accept Dr.
McAuliffe's evidence that it is ludicrous, to use his term, to only consider blade length when
attempting to assess how dangerous a particular bladed item may be.
It is also clear from Dr. McAuliffe's testimony that a kirpan with a blade of less than four
inches could inflict life-threatening injuries, depending on its pointedness, sharpness and rigidity.
c) Who Will Bear the Risk?
While there is at least a possibility that the bearer would be injured by his or her own kirpan
in the course of an altercation, in our view it is at least equally possible if not more likely that other
passengers could be injured if a kirpan was drawn in the course of a fight.
xii) Conclusion With Respect to Accommodation
In assessing whether or not the respondent's weapons policy can be modified so as to
accommodate Sikhs detrimentally affected, consideration must be given to the environment in which
the rule must be applied. In this regard, we are satisfied that aircraft present a unique environment.
Groups of strangers are brought together and are required to stay together, in confined spaces, for
prolonged periods of time. Emergency medical and police assistance are not readily accessible.
The Commission points out that airplanes contain all manner of items such as wine bottles,
crutches and walking sticks, all of which have the potential to be used as weapons but are allowed
on board. While it is true that these types of items could theoretically be used as weapons, in light
of Dr. McAuliffe's evidence with respect to the offensive capacity of wine bottles, and having regard
to the confined space inside an aircraft in which crutches or walking sticks could be wielded, we do
not think that the risk posed by items of this nature can be equated to that posed by kirpans.
Unlike the school environment in issue in the Pandori case, where there is an ongoing
relationship between the student and the school and with that a meaningful opportunity to assess the
circumstances of the individual seeking the accommodation, air travel involves a transitory
population. Significant numbers of people are processed each day, with minimal opportunity for
assessment. It will be recalled that Mr. Kinnear testified that Canada 3000 check-in personnel have
between 45 and 90 seconds of contact with each passenger.
We accept Mr. Kinnear's evidence that, in order to be workable, an airline policy with respect
to dangerous items must be simple and easy to apply. The policy must be suitable for use by many
different individuals around the world. We also accept Dr. McAuliffe's evidence that the Canada
3000 dinner knife would be an appropriate template for assessing the offensive capabilities of a
We cannot accept the Commission's suggestion that permitting kirpans with blades of up to
four inches in length would be a reasonable way to accommodate Sikhs. In measuring the risks
associated with such an accommodative change against the benefits to be derived by those affected
by the rule, we note that there is no guarantee that such a policy would in fact accommodate all
Sikhs. The evidence before us with respect to the differing views within the Sikh faith regarding the
acceptable length for the kirpan leads us to conclude that there will likely be Sikhs for whom a four
inch blade on a kirpan is not sufficient to discharge their spiritual obligations.
In addition, there is no principled basis for permitting kirpans with blades of three and a half
inches on board aircraft, and not those of four and a half inches or five inches or six inches. The
Commission's suggestion that a four inch blade rule be used for kirpans is based on the use of a
similar rule by some segments of the airline industry, and its recommendation for use by Transport
Canada. Mr. Marriott's evidence, however, suggests that the choice of four inches as an appropriate
cut-off point was an arbitrary one, and one not based on any evidence with respect to the offensive
capacity of blades of one size over another.
In our view, reasonable accommodation must indeed be reasonable. On the evidence before
us, and for the reasons identified above, we cannot conclude that modifying the respondent's policy
with respect to weapons and dangerous items so as to permit kirpans with blades of under four inches
on board Canada 3000 aircraft is a reasonable way to accommodate the spiritual needs and
aspirations of members of the Sikh community.
We find that incidents involving the offensive use of the kirpan by members of the Sikh faith
are not common, are contrary to the teachings of the faith, are viewed with disapproval by the Sikh
community, but do nevertheless occur. The relatively low likelihood that such incidents could occur
on board an aircraft must, however, be considered in light of the potentially life-threatening
consequences of such events, and the fact that it may well be parties other than members of the group
requiring accommodation that will suffer the consequences.
There is a certain degree of risk associated with all of life's endeavours, including airplane travel, and some increase in the level of risk to public safety may be required in order to enable all of us to enjoy life in a multicultural society. In our view, however, the respondent has established that the presence of kirpans with a greater offensive capacity than Canada 3000 dinner knives on its aircraft would present a sufficient risk to the safety of the public so as to constitute an undue hardship.
V NEED FOR A UNIFORM RULE
It is clear from both Mr. Nijjar's complaint form and from his evidence that much of his
frustration stems from the fact that he made a good faith effort to comply with law as he understood
it by purchasing a kirpan with a blade under four inches long, only to be prevented from flying. His
frustration is entirely understandable, and simply serves to underscore the need for a uniform
standard regarding kirpans within the airline industry. This need is of course precisely what
Transport Canada's recommendation with respect to the four inch rule was intended to address. In
our view, it would be very helpful if Transport Canada were to consult further with the airline
industry, the Sikh community and experts, including forensic pathologists, in an effort to develop
a uniform standard that best addresses the needs of the Sikh community, without presenting an
unacceptable risk to public safety.
For the foregoing reasons, this complaint is dismissed.
Dated this day of June, 1999.
Anne L. Mactavish
1. The 'four inch rule' for bladed items is contained in a non-binding guideline developed by the Security Committee of the Air Transport Association of Canada and recommended for use by Transport Canada. The four inch rule, which is used by a number of air carriers in Canada, will be discussed in greater detail further on in this decision.
2. Sub-section 3(1) of the CHRA
3. R.v Big M Drug Mart Ltd.,  1 S.C.R. 295 at 337
4. Ontario Human Rights Commission and O'Malley v. Simpson-Sears Ltd.,  2 S.C.R. 536 at p. 551.
5. Alberta Human Rights Commission v. Central Alberta Dairy Pool et al.,  2 S.C.R. 489, at p. 515
6. Exhibit R-10
7. Toronto Dominion Bank v. Canadian Human Rights Commission and Canadian Civil Liberties Association,  4 F.C. 205 at p. 274, per. Robertson, J.A.
8. Toronto Dominion Bank, supra, note 5, at p. 276, per Robertson, J.A. and at p. 290, per McDonald J.A.
9. Exhibit R-18
10. There is some debate as to whether the terms 'Amrit-dhari Sikh' and 'Khalsa Sikh' are truly synonymous. It is not necessary to resolve this dispute for the purposes of this decision, and the terms will be used interchangeably.
11. Kes-Dhari Sikhs do not cut their hair, and may observe other of the Five Ks including the wearing of the kirpan. They have not, however, undergone the amrit ceremony.
12. In this regard, the wording of section 5 of the Act may be contrasted with that of section 10, which prohibits the establishment of policies, in the employment context, that deprive or tend to deprive individuals or classes of individuals of employment opportunities on the basis of a prohibited ground of discrimination.
13. Re Funk and Manitoba Labour Board (1976) 66 D.L.R. (3d) 35 at 37 (Man C.A.).
14. Transcript, pp. 215-222.
15. Central Okanagan School District No. 23 v. Renaud (1992), 16 C.H.R.R. D/425 at 432.
16. Central Alberta Dairy Pool, supra, Note 3 at p. 521.
17. Woolverton v. B.C. Transit (1992), 19 C.H.R.R. D/200 at D/214.
18. The Carriage by Air Act imposes liability on air carriers liable for damage sustained by passengers while on board aircraft.
19. Exhibit R-1.
20. Exhibit R-28, Tab 2 and Exhibit R-38, para. 52.
21. (1990), 12 C.H.R.R. D/364, aff'd (1991), 14 C.H.R.R. D/403.
22. (1981), 2 C.H.R.R. D/459.
23. (1992), 19 C.H.R.R. D/200
24. Unreported, B.C. Human Rights Tribunal, May 11, 1999.
25.  1 S.C.R. 202
26. In cases of direct discrimination, the focus will be on the population governed by the rule at large, whereas in cases of indirect discrimination, the focus will be solely on those detrimentally affected by the rule on the basis of a proscribed ground, the rule being allowed to stand in its general application.
27. Tarnopolsky and Pentney, Discrimination and the Law, at p. 7-50.19. See also Thwaites v. Canada (Canadian Armed Forces) (1993), 19 C.H.R.R. D/259, aff'd (1994), 21 C.H.R.R. D/224.
28. According to Dr. McLeod, the issue of the consumption of alcohol by Sikhs is a matter of vigorous debate. He notes that strictly observant Sikhs interpret the faith so as to prohibit the consumption of alcohol. As with many other aspects of religious doctrine, however, there are varying interpretations. Dr. McLeod writes: "Sikhs (particularly those from villages) are renowned as drinkers of hard liquor and will make no effort to conceal the fact that it is for them an important means of relaxation. Here also scripture can be cited on either side, the actual meaning of each passage depending upon the nature of its hermeneutic interpretation. But there is relatively little textual analysis as far as alcohol is concerned, except on the part of a few of its opponents. A large majority of all Sikhs prefer simply to enjoy their alcohol and not be bothered by any attempt to defend it." Exhibit HR-9, Sikhism, at p. 215.