What is the purpose of the Ontario Human Rights Code? (The Preamble)
The Ontario Human Rights Code was proclaimed in order to provide comprehensive human rights legislation to protect the rights of individuals.
The intent (or "spirit") of the Code is defined in a section at the beginning of the document entitled the "Preamble." This is a statement which describes what is meant to be achieved by the legislation. It helps define the meaning of the term "equality." When we are unsure how to interpret a section of the Code, the Preamble is often referred to for guidance. It sets out the basic assumptions underlying this important legislation. If appropriate for the needs of your class, photocopy "Preamble to the Ontario Human Rights Code," and distribute it to your students or post it in a visible place in the classroom.
The Preamble states that we recognize that all people:
i. have human rights that cannot be infringed upon or dismissed;
ii. have individual dignity and worth;
iii. are entitled to equal rights and opportunities without discrimination; and,
iv. need a climate of understanding and mutual respect, so that everyone feels a part of society and can contribute fully to it.
The purpose of human rights legislation is to remedy the situation for the person or group discriminated against and to prevent further discrimination. It is not meant to punish the individual or company that has discriminated.
Case : Pandori vs. Peel Board of Education
Would the Code take precedence over the Education Act? Yes. The Board of Inquiry has ruled that education is a service under the Code, referring to section 47 of the Code which provides primacy over the Education Act. A board of education can exercise its rights under the Education Act as long as those rights do not violate the Code or the Canadian Charter of Rights and Freedoms.
Does the weapons policy discriminate against Khalsa Sikhs? Yes. On its face, the weapons policy violates their rights. Although they can attend school, they will not be able to fulfil one of the important requirements of their religion. However, to demand that a person choose between school or a job and his/her religion, constitutes discrimination. Sikh organizations in Canada and high Sikh authorities from India verified the complainant's argument that the kirpan must be made of iron or steel and worn at all times.
Was the policy discriminatory? Can the Board of Education prove that providing Sikhs with the right to practise their religion (that is, to wear the kirpan) would cause the school undue hardship? Would it pose a substantial risk to student safety?
The main issues on which the Board of Inquiry based its decision were as follows:
i. There was no evidence that Khalsa Sikhs had ever misused a kirpan in any Canadian school.
ii. The kirpan's similarity to a weapon (particularly when secured and worn under clothing) was irrelevant. While others might well steal a kirpan to use as a weapon, a person bent on aggression could easily obtain other weapon-like objects on school premises, such as screwdrivers, knives, forks and baseball bats.
In its decision, the Board of Inquiry ruled that sacrificing the rights of Sikhs in order to control non-Sikhs, who might be violent, was unacceptable, given the other measures available to curtail violence in schools.
It found that the respondent had not proven undue hardship and ordered the Board of Education to withdraw the amendment regarding the wearing of the kirpan. Khalsa Sikhs would be entitled to wear real kirpans to school.
To meet the concerns of both parties, the Board of Inquiry stated that kirpans would have to be of reasonable size, worn under clothing and secured so that removing the kirpan would be difficult. Principals would also have the right to suspend the wearing of a kirpan if it were to be misused by its wearer.
