BC man loses court fight to wear pirate hat in driver's license photo

Pastafarian loses court fight

A B.C. Supreme Court judge has upheld the BC Human Rights Tribunal's decision to refuse to hear a complaint from a Kootenay man who claimed he was discriminated against when ICBC refused to let him wear a pirate hat in his driver’s license photo.

Gary Smith identifies as a Pastafarian and member of the Church of the Flying Spaghetti Monster, who wear either a pasta colander or a three-cornered pirate’s tricorn hat on their heads. The movement is a satirical jab at religion as a whole that originated in opposition to the teaching of divine creation in schools.

According to a recent BC Supreme Court decision, Smith walked into the Service BC Centre in Trail on Aug. 30, 2019 to renew his driver’s licence while wearing his pirate hat. His photo was taken and he was issued a temporary license.

ICBC, unsurprisingly, wrote to Smith later to inform him he would not be issued a license because of the hat. On Oct. 29, 2019, Smith visited the Grand Forks driver services branch to obtain an extension on his temporary license pending the outcome of a complaint to the Human Rights Tribunal.

“There is no test of faith that any government agency, including ICBC, can apply to judge whether or not a person earnestly believes what they profess when they ask to be photographed with a religious head covering,” Smith said in the complaint submitted on Dec. 17, 2019.

The Tribunal declined to hear the complaint on the basis that the BC Human Rights Code “does not require accommodation of a practice satirizing religious practice in providing a service customarily available to the public.”

Smith wrote to the Tribunal requesting a reconsideration, but was rejected, and eventually filed a petition in B.C. Supreme Court asking for the decision to be overturned.

"When one considers the millions of gentiles, heathens and infidels who met with a gruesome end for not believing in the 'right' religion, it may be considered high time that a religion that values humour, self-deprecation and silliness is the vessel sailing to calmer seas," Smith wrote to the Tribunal.

Justice Gordon Weatherill sided with the Tribunal, noting that Smith’s submissions to the court conceded that “there may be some elements of satire” in his practices as a Pastafarian. Other Canadian courts have also already declared Pastafarian practices as satirical in nature.

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