In this issue:
Accommodation, freedom of religion, distinction between belief and conduct, minimal impairment of religion.
Gurbaj Multani was an orthodox Sikh student attending a public school in Quebec. One day his kirpan, a ceremonial dagger that orthodox Sikhs are required to wear, fell out on the playground. As an accommodation, the school board initially authorized Gurbaj to wear his kirpan to school provided that it was sealed inside his clothing. The governing board of the school refused to ratify the agreement on the basis that wearing the kirpan, even sealed inside his clothing, and violated an article of the Code of Conduct of the school that prohibited the carrying of weapons. The school board's council of commissioners upheld the decision of the governing board of the school to prohibit Gurbaj from wearing the kirpan.
The Supreme Court of Canada held that a governmental body, in order to comply with the Canadian Charter of Rights and Freedoms, has a duty to make reasonable accommodation for the religious practices of individuals. The Court held that an orthodox Sikh elementary school student was entitled to carry a ceremonial dagger known as a kirpan in school provided that it was sealed inside his clothing.
Court of Appeal
Gurbaj obtained an injunction from the Quebec Superior Court based on the originally agreed conditions of wearing the kirpan sealed in his clothing. The Court of Appeal, however, reversed that decision.
The Court of Appeal accepted that preventing wearing of the kirpan would infringe on the student's freedom of religion, and then held:
72. However, without placing the rights of some over those of others, it remains that the exercise of freedoms, even fundamental ones, does not enjoy absolute protection. The Charter must be interpreted as a whole. As Iacobucci and Major JJ. pointed out in B. (R.) v. Children's Aid Society of Metropolitan Toronto, "although the freedom of belief may be broad, the freedom to act upon those beliefs is considerably narrower, and it is the latter freedom at issue in this case". A public organization cannot accept requests or actions that go against public order or the security and well-being of the community. There is a greater likelihood that the enjoyment of a freedom that contains within it an actual threat to the security of others will rightly be restrained because it may represent an impingement on the fundamental liberties of others.
The Court of Appeal rejected earlier decisions of other courts permitting kirpans.
84. With respect, I cannot agree with this approach. Clearly, the evidence presented in the case at bar does not point toward the same conclusion. Can the passage of time in a rapidly-changing society explain the difference in perception of the school environment and its dynamics? The undisputed evidence describes an increase in violent incidents involving the use of dangerous objects. The various interveners from the school milieu are faced with significant challenges as they meet their obligation of providing the environment necessary for learning, all the while working to counteract this violence. I am unable to convince myself that the safety imperatives should be less stringent at school than in courts of justice or in airplanes.
The Court concluded that there was no possible accommodation, as "the conditions imposed by the trial judge do not offset all the risks. As I mentioned earlier, they simply delay access to the object." (Para. 95)
Decision of the Supreme Court of Canada
The Supreme Court of Canada allowed the appeal and held that the decision prohibiting Gurbaj from wearing the kirpan was a nullity. The Court held that there must be a reasonable accommodation and that an absolute prohibition did not fall within the range of reasonable alternatives. The safety concerns that motivated the governing board of the school and the school board's council of commissioners could be adequately met by the obligation to seal the kirpan into Gurbaj's clothing.
In reaching the decision, the Court made a number of observations of general importance to freedom of religion under s. 2(a) of the Canadian Charter of Rights and Freedoms, and to ways that limits can be placed on such rights under s. 1 of the Charter.
Section 2(a) of the Charter provides that:
2. Everyone has the following fundamental freedoms:
a) Freedom of conscience and religion; . . .
Section 1 of the Charter provides:
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
Freedom of Religion
The school board argued that freedom of religion guaranteed by s. 2(a) of the Charter must be limited by imperatives of public order, safety, and health, as well as by the rights and freedoms of others. The Supreme Court ruled that freedom of religion should not have internal limits placed in it, concluding that the balancing of competing interests is best done in applying the test under s. 1 of the Charter. This is especially so where, as here, there are no competing Charter rights.
The Court held that freedom of religion is not absolute. Its recent jurisprudence sets straightforward and simple rules. In order to establish that his or her freedom of religion has been infringed, the claimant must demonstrate (1) that he or she sincerely believes in a practice or belief that has a nexus with religion, and (2) that the impugned conduct of a third party interferes, in a manner that is non-trivial or not insubstantial, with his or her ability to act in accordance with that practice or belief. The individual need not show that the obligation is imposed by religious authority or that it is always followed by adherents.
An individual must show that he or she sincerely believes that a certain belief or practice is required by his or her religion. The religious belief must be asserted in good faith and must not be fictitious, capricious or an artifice. Gurbaj "need only show that his personal and subjective belief in the religious significance of the kirpan is sincere".
The Court decided that there was an infringement on freedom of religion that was neither trivial nor insignificant because Gurbaj was forced to choose between leaving his kirpan at home and leaving the public school system. He ultimately attended a private school.
Limitations under s. 1 of the Charter
There is a multi-stage test under s. 1 to determine whether the infringement is "demonstrably justified." The critical component in this case was whether the infringement minimally impaired the right of freedom of religion. The Court held that there is a duty to make reasonable accommodation for individuals who are adversely affected by a policy or rule.
In balancing the goals of safety in the schools on the one side and freedom of religion on the other side, the Court relied heavily on evidence that there had not been any incidents of violence involving kirpans in schools anywhere in Canada or the United States over the 100 years since Sikhs have been attending schools. The historical record allowed the Court to reject the idea that there would be a ripple effect if kirpans were allowed because other students might feel compelled to arm themselves.
The idea that the school environment might be poisoned because the kirpan was a "symbol of violence" was also rejected. Although it is a dagger, it is not a symbol of violence in the Sikh religion. Labelling it in this way would be disrespectful of the religion and of the multicultural nature of Canada.
The Court also rejected the notion that other students might perceive there to be an unfair treatment. Reference was made specifically to the right of Muslim women to wear the chador, which was considered to be unfair by some students because they could not wear caps or scarves. The Court repudiated such reasoning as based on a simplistic view of freedom of religion that is incompatible with the Charter.
The Supreme Court concluded by noting its expectation that public schools take seriously their duty to foster respect in their students for the constitutional rights of all members of society.
The result in this case is not surprising. The concept of reasonable accommodation for religious groups is deeply entrenched in human rights law in Canada, although regrettably too often honoured in the breach.
There are a few general observations that can be drawn from the case. First, it is now relatively easy to establish religious belief for purposes of protection under s. 2(a) of the Charter. The real issue comes in the balancing exercise under s. 1 of the Charter.
Second, it is safe to say that any provincial efforts to prevent wearing of religious garb in public schools in order to create a homogeneous student body (as has occurred, for example, in France) would not be acceptable to the Supreme Court of Canada. It would be hard to think of a justification that could pass scrutiny under s. 1 of the Charter for preventing a student from wearing a chador, or a cross or a Star of David for religious reasons in a public school context. The case is a precedent favouring meaningful pluralism. It resists continuing cultural pressure for uniformity. The decision, without spelling it out as such, accepts yet again the notion of a religiously inclusive "secular" or public realm rather than a conception that excludes religion (as in France or in early decisions criticized in other issues of LexView,: see, e.g. Brillinger v. Brockie LexView 51.0 (religious beliefs of a printer in the public sphere respected on appeal); Rosenberg v. Outremont (City) LexView 47.0 (Jewish community religious practice touching on public property respected on appeal).
Third, the case gives some comfort to groups looking for moral arguments in favour of public funding for religious schools. In Adler the Court of Appeal of Ontario found that a secular public school system could not be used as a basis for establishing discrimination against individuals and families whose beliefs required some form of religious instruction. The Supreme Court of Canada did not decide Adler on that basis, instead holding that the extension of funding was a political and not legal matter and that the Charter neither required nor precluded public funding.
In the kirpan case, however, the Court held that: "the interference with Gurbaj Singh's freedom of religion is neither trivial nor insignificant. Forced to choose between leaving his kirpan at home and leaving the public school system, Gurbaj Singh decided to follow his religious convictions and is now attending a private school. The prohibition against wearing his kirpan to school has therefore deprived him of his right to attend a public school."
The Court sympathetically recognized that the rule of the school board forced Gurbaj out, contrary to his freedom of religion. It will be interesting to see whether groups make use of this language to mount another legal case for public funding of religious schools. The Supreme Court of Canada may not ultimately depart from the Adler decision, but this language may be useful to groups in making the moral claim for some measure of public funding.
Fourth, in Trinity Western University v. College of Teachers (British Columbia), the Court used the "line drawing" metaphor and said that there was a difference between freedom of belief and freedom of conduct, observing: "the freedom to hold beliefs is broader than the ability to act on them". The former was absolutely protected but the latter was not. The Trinity Western case seems to uphold the concept of authentic pluralism. In effect, the Court held that Trinity Western could enforce its mores within its own voluntary community, even though it could not impose its views on those outside of the community in a discriminatory manner.
In the case of the kirpan, it is not possible to draw a line between belief and conduct, since the belief requires the conduct. But it is also worth noting that the words: "the freedom to hold beliefs is broader than the ability to act on them", may serve in the future as a lever and an explanation for the erosion of the rights of groups to insist that group members be permitted to adhere to the group's common standards in the public square.
The law will be developed in cases where rights conflict.
The Court has clearly recognized in Multani, as it did in Syndicat Northcrest v. Amselem, that a proper understanding of freedom of religion may require belief and conduct to be congruent. This implies that the public dimension of the free exercise of religious rights might well have an impact on others, sometimes including their rights. The Court may be returning to a more robust appreciation for freedom of religion that lay at the heart of its decision in the Big M Drug Mart case. There the Court held:
The essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination. But the concept means more than that. . .Freedom in a broad sense embraces both the absence of coercion and constraint, and the right to manifest beliefs and practices. Freedom means that, subject to such limitations as are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others, no one is to be forced to act in a way contrary to his beliefs or his conscience.
The public or external dimension of religious beliefs: "teach", "manifest", and "disseminate", were all considered an important part of the nature of religious freedom in Big M Drug Mart; such aspects would seem to argue against a strong distinction between permissible belief and impermissible conduct.
By leaving the distinction between conduct and belief unaddressed in Multani, however, the Court lost an opportunity to develop its thinking further in the area of the reasonable accommodation of religious pluralism.
The Supreme Court of Canada's decision in Multani can be usefully contrasted with the decision of the House of Lords in Begum v. Headteacher and Governors of Denby High School. The student was refused permission to wear a long and ostentatious garment known as a "jilbab" instead of the simpler and less obtrusive "shalwar kameeze" required by the uniform policy of the school, both of which had been approved by Muslim clerics. The House of Lords emphasized the existence of school choice and struck down the student's complaint; she could have gone to a school that permitted the jilbab. Accordingly, she had no right to impose her choice of clothing on the school.
In Canadian terms, the idea of accommodation has two sides. There is the right itself, and the idea of reasonable limits on the right in view of the interests of others. In considering the issue of choice, which is a cardinal concern for the Supreme Court, the approach of the House of Lords in Begum may point the way for the Supreme Court of Canada in future cases on accommodation.
This issue of LexView was researched and written by:
Peter Lauwers, Partner, Miller Thompson, LLP; University of Toronto (LL.B., Ontario Bar, 1978); York University (LL.M., 1983); with further research, editing and writing from Iain T. Benson, B.A. (Hons.), M.A. (Cantab.), LL.B. of the British Columbia Bar.
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