Multani is an orthodox Sikh whose kirpan fell out at school. School board agreed with parents to accommodate as long as kirpan was safely stored. Governing board refused because it violated Code de vie (code of conduct). Superior court judge issues an order to allow him to wear the kirpan according to the accommodation arrangement. QCCA used standard of reasonableness and restored the commissioners’ decision.
A duty to reasonably accommodate (to the point of undue hardship) is a natural corollary of the minimal impairment s.1 test, and will apply to individuals adversely affected by a policy or rule that is neutral on its face.
*Applies to the Commission scolaire: if it is going to limit freedom of religion, it must be prescribed by law, be a reasonable limit and minimally impairing. S. 32 established
*Refusing the child the right to wear his kirpan infringes on s. 2 and it has deprived him of his right to attend a public school. This is unjustifiable under s.1 even though limiting the wearing of a kirpan was motivated by a pressing and substantial objective (safety) and was rationally connected to the objective, it is not minimally impairing.
*Absolute prohibition on wearing a kirpan is not among a range of reasonable alternatives. The arguments against him wearing a kirpan are unlikely to happen: risk reduction, student armament, “acceptability of using force to defend beliefs.”
*There are non-religious objects in schools used to hurt others: scissors, baseball bats
*There has been no single incident of violence associated with kirpans in schools.
*Seeing the kirpan is a symbol of violence overlooks its symbolism in Sikh culture and Canada’s approach to multiculturalism: “disrespectful”
*Burden results from minimal impairment test
*There are other reasonable alternatives, such as the conditions suggested by the School Board. Court rejects the idea that the kirpan is “only a weapon”
*Refusing to accommodate sends a message that some minorities do not merit protection
*Reasonable accommodation demonstrates our society’s importance to protecting freedom of religion and respecting minorities.
*Deleterious effects of Commission’s decision outweigh the salutary effects.
*Airplanes: strangers in a confined space
*Courts: adversarial setting striving to obtain justice in a non-violent setting “external influences” to thwart the process, such as weapons. ? this undermines her school argument for reasonable accommodation: it’s unlikely a fight would break out in a courtroom.
*Schools are living communities, engaged in a common project over time.
*Legislature: is not subject to the Charter in its regulation of its own process (NB based on division of powers, prerogative)
5:4 majority: SCC would allow Multani to wear the kirpan and nullify the Commission’s ruling.
*Children: SCC rejects the argument for absolute safety. Multani is the high water mark for protection. The test is “reasonable safety”.
*Children: self-profession & capacity to profess values: Multani is 15 or 16, so maybe he has capacity. Parents making views, etc.
**Quebec legislature has tried to ban kirpans since “the model minority”: evidence-based judgment could be overturned by an incident of violence in the future the school setting galled the court; the heavy handed action of the school board and its strongly worded arguments did not persuade the court.