Barring Kirpan Violates Freedom of Religion

Multani v. Marguerite-Bourgeoys, Comm. scolaire (2006), 55 C.H.R.R. D/463, 2006 SCC 6

Balvir Singh Multani and his son, Gurbaj Singh Multani, are orthodox Sikhs. They believe that their religion requires them to wear a kirpan at all times. A kirpan is a metal dagger, which symbolizes virtue and honour.

Gurbaj was born in 1989 and attended École Sainte-Catherine-Labouré. One day in the schoolyard in November 2001, Gurbaj accidentally dropped the kirpan that he was wearing underneath his clothes. In this way, the school authorities became aware that he wore the kirpan daily. In December 2001, the school board, the Commission scolaire Marguerite-Bourgeoys ("Commission scolaire"), initially advised that Gurbaj could wear his kirpan to school provided that it was sealed inside his clothing. Gurbaj and his parents agreed to this.

The school board's decision was reversed in March 2002. After review, the Commission scolaire decided that Gurbaj could not wear the kirpan to school, no matter how it was secured. The Commission scolaire viewed the kirpan as a weapon and felt that it could not allow any weapon or knife to be carried on school property. It was their responsibility to protect the safety of the children and the school environment.

Mr. Multani filed a motion in the Superior Court seeking a declaratory judgment. He asked the Court to declare that Gurbaj Singh had a right to wear his kirpan to school if it was sealed and secured inside his clothing. He claimed that this would represent a reasonable accommodation of his son's freedom of religion and right to equality guaranteed in ss. 3 and 10 of the Quebec Charter of Human Rights and ss. 2 and 15 of the Canadian Charter of Rights and Freedoms.

The Superior Court issued the requested declaration, specifying carefully the terms on which Gurbaj Singh should be allowed to wear his kirpan. This ruling was appealed and overturned by the Quebec Court of Appeal.

The Court of Appeal found that allowing Gurbaj Singh to wear his kirpan, even under proscribed conditions, would undermine the school's safety standards. The Court found that the Commission scolaire's decision was reasonable and that it should stand.

In the Supreme Court of Canada, the issues were the same. Did the Commission scolaire's decision to prohibit Gurbaj Singh from wearing a kirpan to school, even in a carefully controlled manner, violate his rights to freedom of religion and equality under the Quebec and Canadian Charters?

Charron J., writing for the majority, found that the case was best suited to a s. 1 analysis. Rather than importing limitations into the right to freedom of religion itself, the claim should be dealt with at the s. 1 stage. That is, the Commission scolaire should be put to the test of showing that overriding Gurbaj Singh's right to freedom of religion, by barring him from wearing the kirpan, was justified. The Court rejected the Commission scolaire's claim that respect for public safety should be read into the right itself as a limit.

The majority found that there was no question about whether the Commission scolaire's decision violated Gurbaj Singh's freedom of religion. It was uncontested that Gurbaj had a serious belief that wearing the kirpan at all time was a requirement of his faith. Indeed, when the Commission scolaire prohibited him from wearing his kirpan, he left the public school and went to a private school where he was allowed to wear it.

Under s. 1, the majority of the Court found that protecting the safety of the students was a pressing and substantial objective for the Commission scolaire, and that the prohibition on carrying weapons was rationally connected to meeting this objective. However, the majority did not agree that the Commission scolaire had minimally impaired the right to freedom of religion. It found instead that there were ways, as proposed, of permitting Gurbaj to wear his kirpan without threatening the safety of others. The Court found that there was no evidence to show that Gurbaj Singh was likely to use his kirpan for violent purposes, or that kirpan-wearing had been shown to be a problem in schools elsewhere. Concealed and secured as proposed, the majority considered that the kirpan posed little danger in the school context.

The Court declared the Commission scolaire's decision null and void and ordered costs to be paid to Mr. Multani.

Deschamps and Abella JJ. agreed with the majority decision's result but would have approached the analysis differently. In their view, the Commission scolaire's decision should have been treated as an administrative law decision, which then could have been reviewed for reasonableness, rather than being subjected to constitutional analysis. Laws, not the application of laws, should be subjected to constitutional scrutiny. In this case, what was at issue was a decision by the Commission scolaire scolaire under the authority of s. 76 of the Quebec Education Act. The issue was not whether the law was unconstitutional, but whether the Commission scolaire had exercised its authority in a manner that was unreasonable. While administrative bodies like the Commission scolaire have the duty to take constitutional values into account, it does not follow that their decisions must be subjected to the justification process under s. 1 of the Charter. An administrative body's alleged breach of its constitutional obligations can be assessed under an administrative law standard of review. Deschamps and Abella JJ. would have found that the Commission scolaire made a decision that was unreasonable in the circumstances.

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