Kirpans in school

[Dr_Evil_Mouse]

Yeah, that's too funny . I wonder if "Jedi mind trick" would also count as a weapon.

[M.O.B.E]

Yeah, that's too funny . I wonder if "Jedi mind trick" would also count as a weapon.

only in america

[Birdy]

well..

maybe canada too.

[StoneMtn]

So, here's a summary of the three judgments that came down. (All nine judges sat, but not every judge chooses to write a judgment, in every case. They can just adopt the judgment written by a fellow Justice. In this case, only three Justices wrote judgments. Five, including the Chief Justice, wrote a single judgment. Two others wrote another judgment, one more also did, while the final Justice abstained.)

Per McLachlin C.J. and Bastarache, Binnie, Fish and Charron JJ.: In the case at bar, it is the compliance of the commissioners’ decision with the requirements of the Canadian Charter that is central to the dispute, not the decision’s validity from the point of view of administrative law. There is no suggestion that the council of commissioners did not have jurisdiction, from an administrative law standpoint, to approve the Code de vie. Nor is the administrative and constitutional validity of the rule against carrying weapons in issue. Since the complaint is based entirely on freedom of religion, the Court of Appeal erred in applying the reasonableness standard to its constitutional analysis. The administrative law standard of review was not relevant. [18‑20]

The Canadian Charter applies to the decision of the council of commissioners, despite the decision’s individual nature. Any infringement of a guaranteed right that results from the actions of a decision maker acting pursuant to its enabling statute is also a limit “prescribed by law†within the meaning of s. 1. Where the legislation pursuant to which an administrative body has made a contested decision confers a discretion and does not confer, either expressly or by implication, the power to limit the rights and freedoms guaranteed by the Canadian Charter, the decision should, if there is an infringement, be subjected to the test set out in s. 1 to ascertain whether it constitutes a reasonable limit.

In the instant case, the Court does not at the outset have to reconcile two constitutional rights, as only freedom of religion is in issue here. However, that freedom is not absolute and can conflict with other constitutional rights. Since the test governing limits on rights was developed in Oakes, the Court has never called into question the principle that rights are reconciled through the constitutional justification required by s. 1 of the Canadian Charter. Since the decision genuinely affects both parties and was made by an administrative body exercising statutory powers, a contextual analysis under s. 1 will make it possible to balance the relevant competing values in a more comprehensive manner.

The council of commissioners’ decision prohibiting G from wearing his kirpan to school infringes his freedom of religion. G 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 G’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 G’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 G’s rights.

The analogy with the duty of reasonable accommodation is helpful to explain the burden resulting from the minimal impairment test with respect to an individual. In the circumstances of the instant case, the decision to establish an absolute prohibition against wearing a kirpan does not fall within a range of reasonable alternatives. The arguments in support of such a prohibition must fail. The risk of G using his kirpan for violent purposes or of another student taking it away from him is very low, especially if the kirpan is worn under conditions such as were imposed by the Superior Court. It should be added that G has never claimed a right to wear his kirpan to school without restrictions. Furthermore, there are many objects in schools that could be used to commit violent acts and that are much more easily obtained by students, such as scissors, pencils and baseball bats. The evidence also reveals that not a single violent incident related to the presence of kirpans in schools has been reported. Although it is not necessary to wait for harm to be done before acting, the existence of concerns relating to safety must be unequivocally established for the infringement of a constitutional right to be justified. Nor does the evidence support the argument that allowing G to wear his kirpan to school could have a ripple effect. Lastly, the argument that the wearing of kirpans should be prohibited because the kirpan is a symbol of violence and because it sends the message that using force is necessary to assert rights and resolve conflict is not only contradicted by the evidence regarding the symbolic nature of the kirpan, but is also disrespectful to believers in the Sikh religion and does not take into account Canadian values based on multiculturalism. Religious tolerance is a very important value of Canadian society. If some students consider it unfair that G may wear his kirpan to school while they are not allowed to have knives in their possession, it is incumbent on the schools to discharge their obligation to instil in their students this value that is at the very foundation of our democracy. A total prohibition against wearing a kirpan to school undermines the value of this religious symbol and sends students the message that some religious practices do not merit the same protection as others. Accommodating G and allowing him to wear his kirpan under certain conditions demonstrates the importance that our society attaches to protecting freedom of religion and to showing respect for its minorities. The deleterious effects of a total prohibition thus outweigh its salutary effects.

Given that G no longer attends his school, the appropriate and just remedy is to declare the decision prohibiting him from wearing his kirpan to be null.

Per Deschamps and Abella JJ.: Recourse to a constitutional law justification is not appropriate where, as in this case, what must be assessed is the propriety of an administrative body’s decision relating to human rights. Whereas a constitutional justification analysis must be carried out when reviewing the validity or enforceability of a norm such as a law, regulation or other similar rule of general application, the administrative law approach must be retained for reviewing decisions and orders made by administrative bodies. Basing the analysis on the principles of administrative law not only averts the problems that result from blurring the distinction between the principles of constitutional justification and the principles of administrative law, but also prevents the impairment of the analytical tools developed specifically for each of these fields. In addition, this approach allows parties and administrative bodies to know in advance which rules govern disputes involving human rights issues.

Simply alleging that a s. 1 analysis is required does not make administrative law inapplicable. If an administrative body makes a decision or order that is said to conflict with fundamental values, the mechanisms of administrative law — including the standard of review — are readily available. It is difficult to conceive of an administrative decision being permitted to stand if it violates the Canadian Charter.

A decision or order made by an administrative body cannot be equated with a “law†within the meaning of s. 1 of the Canadian Charter. The expression “law†used in s. 1 naturally refers to a norm or rule of general application. The Oakes test, which was developed to assess legislative policies, is based on the duty of the executive and legislative branches of government to account to the courts for any rules they establish that infringe protected rights. That test, which is based on an analysis of societal interests, is better suited, conceptually and literally, to the concept of “prescribed by lawâ€. The duty to account imposed — conceptually and in practice — on the legislative and executive branches is not easily applied to administrative tribunals.

Lastly, even if the concepts of reasonable accommodation and minimal impairment have a number of similarities, they belong to two different analytical categories. On the one hand, the process required by the duty of reasonable accommodation takes into account the specific details of the circumstances of the parties. The justification of minimal impairment, on the other hand, is based on societal interests. An administrative law analysis is microcosmic, whereas a constitutional law analysis is generally macrocosmic. These separate streams — public versus individual — should be kept distinct.

In the instant case, it is the standard of reasonableness that applies to the decision of the school board’s council of commissioners. The council did not sufficiently consider either the right to freedom of religion or the proposed accommodation measure. It merely applied literally the code of conduct in effect at the school. By disregarding the right to freedom of religion without considering the possibility of a solution that posed little or no risk to the safety of the school community, the council made an unreasonable decision.

Per LeBel J.: It is not always necessary to resort to the Canadian Charter or, in the case of Quebec, the Quebec Charter when a decision can be reached by applying general administrative law principles or the specific rules governing the exercise of a delegated power. However, the dispute as presented makes a constitutional analysis unavoidable. Where a decision is contested on the basis that the administrative body’s exercise of the delegated power is vitiated by the violation of a fundamental right, the only way to determine whether the infringement of the constitutional standard is justified is to consider the fundamental rights in issue and how they have been applied. Where the exercise of such a power has an impact on the relationship between competing constitutional rights, those rights can be reconciled in two ways. The first approach involves defining the rights and how they relate to each other, and the second consists of justification under s. 1 of the Canadian Charter. In the case at bar, the first approach can be dispensed with, as the evidence does not show a prima facie infringement of the right to security of the person. It is therefore necessary to turn to justification under s. 1. In the case of an individualized decision made pursuant to statutory authority, it may be possible to dispense with certain steps of the analysis. The existence of a statutory authority that is not itself challenged makes it pointless to review the objectives of the act. The issue becomes one of proportionality or, more specifically, minimal limitation of the guaranteed right, having regard to the context in which the right has been infringed. Reasonable accommodation that would meet the requirements of the constitutional standard must be considered at this stage and in this context. In the case at bar, the school board has not shown that its prohibition was justified and met the constitutional standard.

The above is just a summary, but you can read the whole judgment by clicking here.

Based on what I'm reading, I agree with this judgment. They applied the Oakes test to S. 1 of the Canadian Charter and the Quebec Charter, and for good reasons found that the prohibition of the kirpan was an unreasonable infringement on civil liberties. It does more than infringe civil liberties within the de minimis range. As well, they found that kids at school have access to various other weapons more easily, so the purpose of the rule is not reasonably served in any event. They also considered Canada's respect for multiculturalism and freedom of religion, which are values Canadians are reluctant to abandon.

I don't see this as a "slippery slope" or "opening the floodgates" to allow anyone to bring any weapon to school. They applied a rigorous Charter analysis to this, and came to a reasonable judgment that respects civil liberties, multicultrualism, and religion.

I dig it.

[Dr_Evil_Mouse]

Thanks very much for this, StoneMtn. I'll be mulling over the details of all this for a while.

I do like the points made by McLachlin et al., esp.,

Lastly, the argument that the wearing of kirpans should be prohibited because the kirpan is a symbol of violence and because it sends the message that using force is necessary to assert rights and resolve conflict is not only contradicted by the evidence regarding the symbolic nature of the kirpan, but is also disrespectful to believers in the Sikh religion and does not take into account Canadian values based on multiculturalism.

I mean, by the same logic criticised here, do Christians who wear crosses run around asking to be crucified?

Well, ok, maybe some do, but my sense is that most of that has been sublimated into the BDSM movement .

[StoneMtn]

Good point. I mean, do Jews wear Stars of David, because we're "spacey"?

[meggo]

thanks for the well-delineated arguments, people. i teach in a high school and i have been thinking about this too. at first i was rather wary, only because of the possibility of a spur of the moment escalation of a confrontation... but as has been pointed out, they have access to lots of other things which could become weapons.

not exactly comforting, but helps me form my opinion!

[i spoke with one teacher who said sarcastically "so does this mean i can bring my hunting rifle to school with me? it's part of the french-canadian/first nation culture." :crazy: ]

[Dr_Evil_Mouse]

The difference there is that you cannot be a Khalsa Sikh (fully inducted member of the religious community) without observing this core, formal, requirement (along with keeping long hair, a comb, and a certain kind of metal bangle and underwear). It would be like asking a Muslim to be a Muslim without confessing the shahaddah or praying five times daily, or a Roman Catholic to skip that whole baptism thing. I don't know what sorts of actual ritual requirements would need to be met for, say, an Anishnawbe to continue to be recognised as one by him/herself and that community (good question, really).

[StoneMtn]

Well, the comment by that teacher displays a complete misunderstanding of this judgment. (I'm willing to bet this person didn't even bother to read it.) This judgment specifically addressed freedom of religion. I don't think that being French Canadian or First Nation is a religion.

If, however, as a French Canadian / First Nations person, you do have a religion (which may or may not have to do with being French Canadian/First Nation, as you can choose any religion you want) and that religion requires you to do certain things in order to be part of that religion, then you would need to take the matter to Court, apply the Oakes test, and see whether or not the Charter analysis worked out in your own favour.

It's silly comments like the one about the rifle that give the wrong idea that this judgment opens "floodgates". As I said, it's my view that it does not.

[M.O.B.E]

Well, the comment by that teacher displays a complete misunderstanding of this judgment. (I'm willing to bet this person didn't even bother to read it.) This judgment specifically addressed freedom of religion. I don't think that being French Canadian or First Nation is a religion.

If, however, as a French Canadian / First Nations person, you do have a religion (which may or may not have to do with being French Canadian/First Nation, as you can choose any religion you want) and that religion requires you to do certain things in order to be part of that religion, then you would need to take the matter to Court, apply the Oakes test, and see whether or not the Charter analysis worked out in your own favour.

It's silly comments like the one about the rifle that give the wrong idea that this judgment opens "floodgates". As I said, it's my view that it does not.

Thank you Stn Mt. Thats exactley the premise for my previous comments about sending my kids to school in Highland dress. The idea that this nonsense even had to go to court is disturbing. Someone should really lobby the gov't to add Common Sense to the school curiculum starting from jr.kindergarten on.

[d_rawk]

This judgment specifically addressed freedom of religion

Exactly. I've heard a whole lot of insanity (not on this thread. How cool are skanks? Pretty fucking cool!) about this ruling, and it is bothersome. I think that we forget sometimes how hard fought freedom of religion - including the freedom of *practice* and *expression* of the same - was, and how much horror was endured to secure it.

Going the other direction with this would be far more dangerous than whatever minimal danger might be presented by allowing kirpans in schools, IMO.