ICBC is not budging in its stance that a member of the Church of the Flying Spaghetti Monster of B.C. has no religious right to wear pirate hats or colanders on his head for a driver's licence photo.
It’s a battle B.C. church leader Dread Pyrate Higgs (a.k.a. Gary Smith of Grand Forks) has been waging for several years now.
Smith argues his pirate hat is part of his church’s religious headwear.
Smith identifies himself as a Pastafarian and a member of the Church of the Flying Spaghetti Monster. Members are known to religiously wear either a pasta colander or a three-cornered hat known as a pirate’s tricorn.
“Ultimately, religion is a choice,” said Smith, the Canadian representative with the International Pastafarians’ Captains Conclave. “But not so much for members of a certain sect.”
ICBC doesn’t see it that way.
“We have advised Mr. Smith on numerous occasions that we do not recognize him as a member of a religious group that requires accommodation in the context of a service customarily available to the public under the British Columbia Human Rights Code,” ICBC said in a Jan. 24 statement to Glacier Media.
Smith’s been going to a driver's licensing branch regularly to get his photo retaken, pays the $17 fee and gets a temporary paper licence issued while he waits for his new card.
He then gets a letter saying the picture isn’t allowed.
While he’s managed to have pirate hats included on his firearms acquisition certificate and marriage commissioner licence, the driver's licence photo remains as elusive as buried treasure.
The latest skirmish between Smith and Mario Bourdages, ICBC’s manager of driver licensing integrity and oversight, came after Smith tried once more to have a licence photo taken Aug. 9.
On Aug. 31, he received a letter from Bourdages that said his head covering was again not acceptable for a B.C. driver's licence, B.C. identification (BCID) or BC Services Card.
Bourdages noted ICBC does endeavour to accommodate people’s faiths.
“We do not recognize you as a member of a religious group that requires accommodation in the context of a service customarily available to the public under the British Columbia Human Rights Code,” the ICBC employee said.
He said ICBC would be happy to provide Smith with driver’s licence services — without a Pastafarian head covering.
“Should you insist on wearing a Pastafarian head covering, no driver’s licence and no further temporary licences will be granted,” Bourdages wrote.
That response didn't sit well with Smith.
“The last letter, of course, is a direct existential threat to my being able to earn a living,” Smith said on Sept. 30 to the Justice Centre for Constitutional Freedoms. In that, he sought allies in the battle.
He told the centre ICBC’s mandate is to provide government-issued identification (GIID) that meets international standards, and that it has facial recognition technology to assist in that.
“ICBC makes the false claim that accommodation is provided only where religious belief prohibits the removal of headgear for the purposes of being photographed for GIID: no such prohibition exists,” Smith said. “ICBC is not mandated to investigate customers who claim accommodation based on religiosity.”
“ICBC is not mandated to decide matters of religiosity,” he added.
“I am hoping the justice centre can convince ICBC that they ought not to address matters that are outside of their mandate,” he concluded.
In an Oct. 31 response, Bourdages confirmed Smith had gone for a licence photo and had removed his Pastafarian head covering.
At that point, the seas got rough with Smith, in a Jan. 1 letter accusing Bourdages of being smug.
“I did not remove my head covering ‘as requested’ — but as demanded and under duress,” Smith wrote.
With his frustration spilling out, Smith continued: “ICBC’s own research revealed occasions where a person’s stated religious affiliation is taken at face value by other government agencies, such as was the case in obtaining my Canadian firearms licence.
“Why should ICBC be any different when there is nothing to gain by it?” he asked.
“That is what is so frustrating: why do you care so much that you use your power and authority in this abusive way to thwart my right to free expression? Really, what do you care?”
He vowed to step up his efforts.
As far as ICBC is concerned, Smith now has a proper driver’s licence — without a pirate hat.
The corporation said it recognizes that freedom of religious expression is a fundamental right and must be respected. It said it strives to ensure its policies and procedures strike a balance between respecting religious faiths and beliefs, and preserving the integrity of its system.
“If a customer’s head covering is not worn for religious purposes or due to medical treatment, we ask that they remove their head covering for their driver’s licence or BCID photo,” ICBC said.
ICBC also noted Smith sought judicial review of a B.C. Human Rights Tribunal decision to not accept his complaint against ICBC regarding the headwear matter in 2021.
B.C. Supreme Court Justice Gordon Wetherill dismissed the review petition, noting that “Canadian courts have previously observed that the practices followed by Pastafarians are satirical in purpose.”
Meanwhile, Smith’s also been trying to get his pirate tricorn on his private investigator’s licence.
After completing course work, Smith applied for the licence. He sent two photos: one with a pirate hat and one without.
“I only submitted the photo without the tricorn under duress,” he said. “Then, it was a fight.”
He was told the church isn’t listed on the Canada Revenue Agency site so he isn’t part of a religion.
Soon, he needed to upgrade his licence and submitted another picture with a tricorn.
“Guess what? They sent me a picture with me and my tricorn,” he said.
Soon, though, he was asked to return the licence.
Both cases continue to unfold.