On January 18th of this year, Quebec’s National Assembly refused entry to four Sikh men, ironically coming to appear at a conference on reasonable accommodations, when they refused to remove their Kirpans (A Kirpan is a religious object shaped as a knife). Keeping the Kirpan is to many devout Sikhs a religious obligation in the same way that wearing a yarmulke is for many Jewish people. To quote Dr. Sukhdev Kooner, president of the Sikh Cultural Society of Metropolitan Windsor, “We are supposed to wear this all the time, even when we are sleeping, taking showers, cutting the grass…” While the Supreme Court has held that the position of religious authorities on the matter is not determinative (see Amselem, infra) this example goes to show the extent to which some Sikhs might feel compelled to keep the Kirpan on their person.
Bearing this in mind, we are once again required to delve into the question about how to properly balance religious rights as protected by article 2a) of the Canadian Charter of Rights and Freedoms with alleged fears for safety and security. In their 2006 decision Multani v. Commission scolaire Marguerite‑Bourgeoys, the Supreme Court found that sweeping prohibitions against Kirpans in schools are an unconstitutional infringement of the Charter right, though the Court did say that certain conditions can be imposed. Although this decision appears not to extend beyond schools, its principles are instructive. After all, if Kirpans can be allowed in schools where there are children running round, can they not be accepted in other places too, including a provincial legislature where there are security officials present? Indeed, Parliament (where Nadveep Singh MP has been wearing one for 6 years) and the Supreme Court allow Kirpans so it naturally begs the question as to why prohibitions are felt to be needed in other such places.
The decision to prohibit the Kirpan was, as is usual, justified on the basis of a fear for security. And while strictly speaking the National Assembly does not have to follow the lead of other provincial legislatures such as Queen’s Park which permit Kirpans, we must ask whether such prohibitions are necessary or even rational. In my view, they are not. This is not the case of a Sikh man flying on an airplane where security concerns could justify banning Kirpans. On all Canadian flights, for example, scissors in a purse are not allowed, yet no one would question a woman bringing them to the National Assembly. Flying in airplanes is truly a unique exception. Here on the other hand, we are in a situation where these men were personally invited to come. They have no criminal background and are not considered dangerous by anyone. Any perceived danger by virtue of the Kirpan is at most minimal. Indeed, as is suggested by blogger Marco Fortier, the Kirpan is no more dangerous a weapon than the table knives in the Assembly’s restaurant. There has never been one instance of a politician being hurt in a legislature by a Kirpan attack. Any threat to security is largely illusionary.
The Supreme Court in Syndicat Northcrest v. Amselem found that freedom of religion:
…consists of the freedom to undertake practices and harbour beliefs, having a nexus with religion, in which an individual demonstrates he or she sincerely believes or is sincerely undertaking in order to connect with the divine or as a function of his or her spiritual faith, irrespective of whether a particular practice or belief is required by official religious dogma or is in conformity with the position of religious officials.
Taking for granted that these Sikh men had the voluntary and sincere belief that wearing the Kirpan was an important religious practice, any intrusions thereof must be fully justified. As in Multani, I think it’s fair to say that sweeping prohibitions would violate the “minimal impairment” part of the Oakes test. The security officers could have, for example, ensured that the Kirpans would be sealed inside the men’s clothing, as was the recommendation of the Court in Multani. There are many other possibilities. It is reported that last year, a Sikh man carrying a Kirpan was allowed in the National Assembly with escorts. Certainly, this kind of accommodation should have/could have been made available here especially since it was well known that religious Sikhs were coming to the legislature. If in Amselem the Court can require a condo to permit a Sukkah notwithstanding concerns for fire safety by-laws, certainly requiring security accommodations for Sikh men does not seem outlandish. Unfortunately, what this prohibition does is place religious Sikhs in a situation whereby they either can enter the legislature or comply with their religious obligations but not both. In my view, they should not be forced into such a choice. Certainly, any regulations concerning Kirpans can be, to use the American phrase, narrowly tailored to meet the objective of ensuring security. In my view, unless there is a significant threat or reasonable belief that there is a danger present, legislatures throughout the country should allow Sikh men to keep their Kirpans.