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Friday, March 3, 2006

The Supreme Court of Canada and the Righteous Kirpan - Multani v. Commission Scolaire Marguerite-Bourgeoys


The Supreme Court's unanimous decision in Multani v. Commission scolaire Marguerite-Bourgeoys that Sikh boys have a Charter right to wear kirpans, carefully wrapped, to school comes as no surprise. The kirpan has already won in school boards, courts and human rights commissions across the country. It was accepted that Multani's orthodox Sikhism required him to wear a kirpan at all times. The Quebec school board that forbad twelve year old Gurbaj Multani to wear his kirpan to school had no evidence that the wearing of kirpans had led to any injury in schools. The case was practically moot. Multani has been wearing his kirpan to a private school for years. The Supreme Court could have disposed of the case in a few pages. But the court has given us almost twenty thousand words and has said some curious things.

The judges engaged in a heated scholastic debate over whether the case should be decided on the basis of constitutional or administrative law. The majority struck down the decision of the school board as they would have struck down an act of parliament. Having decided that Multani's right to freedom of religion had been infringed the judges considered whether the infringement was a reasonable limit under Section 1 of the Charter using the language of "pressing and substantial", "proportionality" "rational connection" and "minimal impairment" under which they cloak their preferences. Justices Deschamps and Abella were obscurely adamant that the case should have been treated as the review of an administrative decision in which no law was challenged while admitting that no administrative decision could be allowed to infringe Charter rights. Legal scholars who have written millions of words on the largely meaningless "pressing and substantial", "proportionality" "rational connection" and "minimal impairment" analysis will want to write at length on the Deschamps and Abella reasons but it is impossible to see that it could make a blind bit of difference to how any case might be decided or what a lawyer should advise a client to do.

Justice Lebel chipped in two thousand words to say he did not know what to make of the issue raised by Justices Deschamps and Abella and commend flexible reasoning. In doing so he wrote "Case law developed over 20 years or more [since Charter cases reached the courts] can no doubt be used to support any opinion or position." You bet it can. So much for all the ink spilled in an effort to explain what it all means.

The school board tried plausibly to argue that the wearing of kirpans would poison the school environment as a symbol of violence sending a message that using force is the way to assert rights. The court accepted the evidence of a Sikh chaplain that a kirpan is not a weapon and indeed that "kirpan" means mercy, kindness and honour. But it went farther and held that the school board's argument was "disrespectful to believers in the Sikh religion and does not take into account Canadian values based on multiculturalism." Political correctness rules in the Supreme Court. Counsel have been warned. The court will hear no argument a religion might find disrespectful.

The court held that the infringement of Multani's freedom of religion was not trivial or insignificant because it deprived him of the right to attend public school. But no one was arguing that the right to attend public school was trivial or insignificant. The question was how important the wearing of a kirpan is to an orthodox Sikh. The case was maintained all the way to the Supreme Court and obviously a large body of Sikhs think the wearing of a kirpan is very important but must the court simply take their say so? Is everything a religion promotes of such importance as to trump any secular considerations? To answer that question the court would have to attempt a critical understanding of religion. The court was not prepared, probably not able, to do so. Perhaps it is afraid of seeming disrespectful.

The court was very rough with the school board's argument that students would feel it unfair that Sikhs got to wear kirpans while they could not bring knives to school and some students resent Muslim women being allowed to wear the chador when they are not allowed to wear caps or scarves. "To equate a religious obligation such as wearing the chador with the desire of certain students to wear caps is indicative of a simplistic view of freedom of religion that is incompatible with the Canadian Charter." The court accused the school board of thinking teaching geometry (requiring the use of possibly dangerous compasses) and playing baseball (caps) were more important than accommodating Multani's religious beliefs.

The court sternly enjoined schools to indoctrinate students in respect for all religions, multiculturalism and diversity. Are these "values" not a kind of religion? And what of the good old-fashioned atheists who think all religions are vicious tosh? Must they be indoctrinated in respect for religion by teachers whose own beliefs may not run much farther than Oprah's angels.

Religious freedom is come to this. We are not free to believe in any, or no, religion but must believe in them all.

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