Case Summary: Multani v. Commission Scolaire Marguerite-Bourgeoys

Gurbaj Multani was the first Sikh to have his name on a 2006 Supreme Court ruling that broke new ground for religious freedom throughout the country. The 13-year-old Sikh attended the public school, École Sainte‑Catherine‑Labouré in Quebec. In November 2001, Gurbaj Multani’s kirpan accidentally fell out while at school, raising questions among the school community about school safety and whether or not he should be permitted to continue to bring the kirpan to school. A kirpan is a miniature sword, worn in a sheath on a tie or belt, underneath clothing. It is completely covered by clothing at all times. It is an article of faith that orthodox Sikhs should wear consistently. The word kirpan originates from two words which interpret as mercy and bless. The kirpan only holds symbolism of defence. This incident sparked a huge controversy and societal issue between the school board and community. At first, the school board wrote a letter to Multani’s parents stating reasonable accommodations that the kirpan be sealed inside his clothing at all times, the family agreed to these conditions as long as their son was authorized to be able to wear the religious symbol to school.

This board stated that the kirpan was considered a weapon, and could potentially cause harm to the school members and community, and that it promoted violence. As an attempt to protect Gurbaj’s religious beliefs, the board suggested that as replacement, a non-metal symbolic kirpan was allowed to be worn at school. This was unacceptable to the Multani family as they are Orthodox Sikhs and this kirpan held a great deal of religious significance for them. They felt discriminated and violated, as Canadians, they had the right to voice their concerns. His father, Balvir Multani filed a suit in disagreement of this decision made by the school board’s council of commissioners, and so the family’s legal journey began.

There are several facts in this case that should be well-analysed. The first requires a distinction to be made between administrative law and the use of the Charter. Administrative law requires simple reasonableness. It deals with the details and emphasizes on public need. The primary decision was based on administrative law, which the court declared as incorrect. Administrative law was not applicable in this case, it was a case about religious freedom, hence, requiring the Charter to aid in decision-making. The second fact that needs to be considered is that the family was ready to comply with the original suggestions made by the school which consisted of ensuring that the kirpan was sewn into the boy’s clothing and invisible at all times. However, the CSMB (school’s higher board) declined the idea to endorse the agreement on the basis that wearing a kirpan at the school was against art. 5 of the school’s Code de vie (code of conduct), which prohibited the carrying of any sort of weapons and dangerous objects. The board analyzed the situation through administrative law, not considering the significance of religious freedom. Another fact that needs to be considered is the question of whether freedom of religion was an “absolute right” or had “internal limits” aside from the limits under section 1 in terms of this particular case.

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The issue in the case was whether the council of commissioners prohibiting Gurbaj from wearing his kirpan to school infringed his religious freedom under section 2(a) of the Charter(freedom of conscience and religion) and his right to equality under section 15 of the Charter(equality before and under law and equal protection and benefit of law). If this prohibition truly violated his rights and freedom, could this be justified under section 1 of the Charter or no?

In the case, we learned the Attorney General of Quebec believed that the prohibition against the appellant’s son wearing his kirpan to school definitely violated the son’s freedom of religion to an extent, but despite the conditions given by the Supreme Court, it was believed that these prohibitions placed on the kirpan are fair because they are ensuring the rights and freedoms of others at the same time, keeping in mind that freedom of religion is not an absolute right.

The French public school board believed that freedom of religion has not been infringed, because it has internal limits.  This board suggests that the freedom of religion guaranteed by s. 2 (a) must be limited by the obligations of public order, safety, and health. The school board also believe that if your religious freedom is violating the rights and freedoms of others, it must be limited. This Court has unmistakably perceived that freedom of religion can be restricted when an individual’s opportunity to act as per his or her beliefs may cause harm or meddle with the rights and privileges of others. The rule regarding weapons under administrative law was not the main idea of this case. The genuine subject and focus was how in practise the law prohibited the kirpan. The Court proceeded to observe that the council of commissioners, which had restricted the kirpan, was bound by the Charter. This was on the grounds that the council was made by a statute and subsequently had received its forces from a legislature.

It is important to remember that this Court has stressed on the significance of religious freedoms and equality countless times, like for example, in  Big M Drug Mart when the Lord’s Day Act was nulled. For the situation at bar, Gurbaj Singh demonstrates that he truly accepts that his faith requires him consistently to wear a kirpan made of metal. Nobody challenges the fact that the conventional Sikh religion requires its disciples to wear a kirpan consistently. The testimonies of chaplain Manjit Singh and of Gurbaj Singh clarify that standard Sikhs must agree to a strict clothing regulation expecting them to wear religious symbols usually known as the Five Ks. These 5 Ks are: (1) the kesh (uncut hair); (2) the kangha (a wooden comb); (3) the kara (a steel bracelet worn on the wrist); (4) the kaccha (a symbolic and specific undergarment); and (5) the kirpan (a metal dagger or sword).

The CSMB’s main argument is that the kirpan is shaped like a dagger, and can potentially be used as a harmful weapon. Manjit Singh further explains that the word kirpan itself simply means ‘mercy’ ‘kindness’ and ‘honour.’ It is nothing but a symbol of defence. So basically, in order to prove the violation of his religious freedom, Gurbaj Singh did not need to prove in Court that the kirpan was a weapon, all he needed to do was prove his sincerity towards his faith which would be enough to display the religious significance of this sword.

The Supreme Court concluded this case by noting that there was a definite violation of Gurbaj Singh’s religious freedom under section 2(a) and section 15 of the Charter. The Court stated that the highest degree of safety in schools would be called “excessive” and would require the ban of necessary school supplies such as scissors as well. This is why the limit of safety in schools was required to be “reasonable.” The council had pitched the idea that the kirpan could potentially get stolen. The Supreme Court suggested that that would be highly unlikely as the thief would have to seize the person and look underneath their clothing during an attempt at theft of the kirpan. In addition, there is little to non-existent proof that kirpans had ever been used as weapons in school. The Court disagreed that the kirpan in any way represented violence, it had religious symbolism instead. The Court suggested that if other students felt encouraged to bring weapons to school because of the kirpan, it is necessary to teach them about multiculturalism, diversity, and the importance of religious freedom, so we can all live in peace and unity.

Judges Marie Deschamps and Rosalie Abella composed a concurring opinion. While they agreed with Charron’s choice to topple the restriction on the kirpan, they found that the correct method to do this was through the guidelines of administrative law. Constitutional law should be utilized principally for resolutions and guidelines, and the tests utilized in constitutional law, for example, the Oakes test, work best on these laws. Section 1 of the Charter demonstrates the Oakes test best applies to choices ‘prescribed by law.’

Administrative law simply requires reasonableness, the Quebec Court of Appeal believed that kirpans could prove to be harmful but Abella and DesChamps disagreed because there was no evidence or previous history proving this. They suggested that this way, we have to consider that other objects used in school such as scissors could be characterized as harmful too. Furthermore, Gurbaj Singh had agreed to wear the kirpan in accordance to the new limits that the school had issued, which is why the decision made by the Quebec Court of Appeal was deemed unfair.

To conclude, the Supreme Court nulled the council of commissioners’ particular rule regarding the kirpan, it was deemed of no force or effect and Gurbaj Singh won the kirpan case. Today, he openly talks about his love for the country and how he is proud to belong to a country that is known for human rights.

Bibliography:

•   Sikh student who won kirpan case now considers leaving Quebec. (2018, May 11). Retrieved from https://www.theglobeandmail.com/news/national/sikh-student-who-won-kirpan-case-now-considers-leaving-quebec/article15014254/

•   (n.d.). Retrieved from https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/15/index.do

•   Constitutional Law of Canada: 2018 Student Edition by Peter W. Hogg

•   Legislative Services Branch. (2019, June 26). Consolidated federal laws of canada, Access to Information Act. Retrieved from https://laws-lois.justice.gc.ca/eng/const/page-15.html

•   Barring Kirpan Violates Freedom of Religion. (n.d.). Retrieved from https://www.cdn-hr-reporter.ca/hr_topics/religion-and-creed/barring-kirpan-violates-freedom-religion