CLAS heads to the Court of Appeal to defend access to justice at the BC Human Rights Tribunal

CLAS will be heading to the BC Court of Appeal seeking to uphold a decision of the BC Human Rights Tribunal that engages freedom of religion and access to justice rights.

By way of background, our client had been charged with criminal offences and taken into custody by the Corrections Branch of BC, after which his turban was confiscated. This prevented our client from fulfilling a very important requirement of his Sikh religion. The Corrections Branch has never explained why they considered this action necessary.

Although our client was permitted to wear a makeshift headscarf during what turned out to be his lengthy stay in custody, this arrangement was wholly unsatisfactory in meeting the requirements of his Sikh faith. In addition, the Sheriffs Services of BC confiscated even this makeshift headscarf whenever our client needed to make appearances before the court for his trial.

After a year and a half in custody, and without any charges against our client having been ultimately proven, the Crown decided not to proceed any further with the criminal case, and our client was released.  At this point, our client filed a human rights complaint against both the Corrections Branch and Sheriffs Services, claiming that his treatment in regards to the confiscation of his turban was discrimination under the BC Human Rights Code.  He did not have a lawyer, and English is not his first language, but he completed the complaint form as best he could.

The Province of BC then applied to the BC Human Rights Tribunal to have the complaint dismissed on a preliminary basis without the need for a hearing. They argued that the complaint form submitted by Mr. Sanghera, even when supplemented with follow-up clarification amendments, was too vague to amount to a human rights complaint. With the help of the BC Human Rights Coalition, our client argued that the allegations in his complaint contained enough information to permit the Province to respond meaningfully.

Accordingly, the Province’s application was denied almost in its entirety by the decision of the Tribunal. The crux of the case – that our client was forbidden from wearing his turban and forbidden even from wearing his makeshift headscarf when appearing in court – was thus set to proceed to a hearing.

However, the Province challenged this Tribunal decision by applying for a “judicial review” in BC Supreme Court. CLAS successfully represented our client in that matter, and the Province’s case was dismissed. Now, the Province is appealing to the BC Court of Appeal. We are hopeful that we can help our client to a third successful result.

To date, no court or Tribunal has addressed the heart of the human rights case, whether the Province’s treatment of our client in respect of his turban was discriminatory, as his case awaits yet another ruling on whether he filled out the complaint form and provided follow up details adequately.

At CLAS, we believe that the justice system, and in particular the human rights system, must be able to address legal issues in spite of the imperfect presentation of information provided on complaint forms, especially in light of the high number of self-represented complainants. Our client’s first language is not English and he did not have the services of a lawyer or any other advocate to prepare his written complaint to the BC Human Rights Tribunal. There are any number of other barriers which others might face in order to even attempt a claim of discrimination, such as illiteracy and disability.  

In our view, the standard to meet for a complaint of discrimination to warrant processing by the Tribunal should be a low one. Otherwise, access to justice will be stifled for those who must overcome communication barriers caused by language, disability, lack of legal knowledge, or otherwise. Indeed, these are the very same people who are far more likely to have faced discrimination in the first place. 

You can read the legal argument we have submitted to the BC Court of Appeal here