Canada: Determining The Balance: Religious Freedom And Access To The Courts

Last Updated: March 6 2013
Article by Malinda Yuen

The balance between religious freedom and access to justice is often a difficult one.  In an attempt to balance these rights, Alberta Justice has a controversial new policy that permits kirpans to be worn in Alberta Courts. 

Kirpans are a ceremonial dagger worn by baptized Sikhs; wearing the kirpan at all times is mandatory according to that faith.  According to Alberta Justice's new policy, the kirpan may be worn under the individual's clothing, must be sheathed, less than 10cm long, and must be disclosed upon going through security.  

Interestingly, less reported details of the policy also require the individual to self-identify as a Khalsa Sikh (which I understand to be essentially a baptized Sikh) and the individual must have all five "articles of faith". This includes kes (uncut hair), kanga (wooden comb), kara (steel bracelet), kacha (short breeches), and the kirpan.  This safeguard demonstrates that the individual is in fact a devout Sikh whose faith requires wearing the kirpan - he or she hasn't simply woken up one day deciding to bring a ceremonial dagger into the Courthouse.

The policy is a reaction to an incident in which a Calgary man was denied entry to the Courthouse.  He had been subpoenaed as a witness in a fatal car accident case.  Because his faith required him to wear the kirpan at all times, and he was not permitted to bring the kirpan into the Courthouse, he was unable to testify. 

The man then filed a human rights complaint in 2008.

It is interesting to note that the kirpan, amongst other things, is symbol of truth - it represents the power of truth to cut through untruth. How ironic that a witness under oath was unable to wear such a symbol.

The Supreme Court of Canada's Analysis of the Kirpan and Charter Rights - Multani v. Commission scolaire Marguerite-Bourgeoys

The Supreme Court of Canada dealt with the difficult issue of the kirpan in Multani v. Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6 (CanLII).  The issue in that case was a child who was denied the right to wear a kirpan in school in Quebec.  As a result, he was unable to attend public school. 

The Court's description of the kirpan helps illuminate the problem:

 With respect, while the kirpan undeniably has characteristics of a bladed weapon capable of wounding or killing a person, this submission disregards the fact that, for orthodox Sikhs, the kirpan is above all a religious symbol. Chaplain Manjit Singh mentions in his affidavit that the word "kirpan" comes from "kirpa", meaning "mercy" and "kindness", and "aan", meaning "honour".

It is also helpful to understand that the kirpan is a symbol of non-violence.

The Court held that banning the kirpan infringed the child's religious freedom under section 15 of the Charter, and that infringement was not demonstrably justified in a free and democratic society under section 15 of the Charter.

The reasoning is summarized as follows in the case headnote:

The council of commissioners' decision prohibiting [Gurbaj Singh Multani] from wearing his kirpan to school infringes his freedom of religion. [Multani] genuinely believes that he would not be complying with the requirements of his religion were he to wear a plastic or wooden kirpan, and none of the parties have contested the sincerity of his belief. The interference with [Multani]'s freedom of religion is neither trivial nor insignificant, as it has deprived him of his right to attend a public school. The infringement of [Multani]'s freedom of religion cannot be justified under s. 1 of the Canadian Charter. Although the council's decision to prohibit the wearing of a kirpan was motivated by a pressing and substantial objective, namely to ensure a reasonable level of safety at the school, and although the decision had a rational connection with the objective, it has not been shown that such a prohibition minimally impairs [Multani]'s rights.

In both the case of the Courthouse and public schools, an all-out ban of "weapons" results, in effect, in banning individuals who hold the belief that they must wear a kirpan at all times.  

It isn't difficult to imagine other horrible injustices as a result of a full ban: a complainant unable to testify about a crime committed against her; a matrimonial proceeding where one of the parties is both unable to afford a lawyer and unable to attend court to argue their case in person.  Forcing an individual to choose between violating their faith and giving up their access to the Courts is extremely problematic.

I suggest that Alberta Justice's policy reaches a balance of religious rights, the right to access the Courts, and the safety of the public.  A kirpan is not worn as a weapon but rather worn as a symbol of faith; before being permitted to wear the kirpan in the Courthouse, an individual wearing the kirpan is required to demonstrate their genuinely-held faith by wearing all five religious articles.  It's worn under clothing and in a sheath.   The presence of the kirpan is disclosed to security, who can take whatever security precautions they deem necessary and I suggest are quite capable of handling any situation that might arise, unlikely as that might be.

A similar policy is in effect in Toronto, and Ontario is developing a province-wide policy.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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