The Kirpan Debate: Québec, Parliamentary Privilege, and the Charter


Note: Find a french-language Rights Watch blog post about the Québec Court of Appeal ruling regarding the National Assembly’s kirpan ban here.

In February 2011, Québec’s National Assembly unanimously adopted a motion stating that the Assembly’s security personnel can refuse entry to anyone who would not remove a kirpan. In January of this year, two members of the World Sikh Organization of Canada, Balpreet Sing and Harminder Kaur, travelled to Québec City in order to present at the National Assembly on the subject of Bill 94, the proposed law on the reasonable accommodation of the religious and cultural practices of minorities in civil service and society. They were denied entry when they refused to remove the kirpans from their persons.

Readers will recall the Supreme Court of Canada case from 2006, Multani v Commission scolaire Marguerite‑Bourgeoys, in which the court struck down an order from a Québec school authority that prohibited a Sikh child from wearing a kirpan to school as an unjustified infringement of the child’s freedom of religion.

In November of 2017, Transport Canada announced that it would updated its “Prohibited Items List” to allow for the carrying of kirpans, with blades measuring 6cm or less, on domestic and international flights (with an exception for travel to the United States). Days after Transport Canada’s announcement regarding kirpan’s on flights, Québec’s legislature passed a motion asking the federal government to review Transport Canada’s decision.

Kirpans are currently allowed in Canada in most places that do not allow weapons, such as Parliament. However, as mentioned, they are banned in Québec’s National Assembly. On February 19th, 2018, the Québec Court of Appeal upheld the National Assembly’s right to deny entry to those refusing to remove kirpans, relying on parliamentary privilege over the exclusion of strangers.

“The Supreme Court confirmed that these general principles formed part of Canadian constitutional law and held specifically that the privilege to exclude strangers is entrenched in the Canadian Constitution,” wrote Justice Healy of the Court of Appeal.

The leading cases on parliamentary privilege are New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly) (1993) and more recently, Canada (House of Commons) v Vaid, (2005). The principle of parliamentary privilege has its origins in the preamble of the Constitution, which likens Canada’s constitution to that of the United Kingdom.

In New Brunswick Broadcasting the Court affirmed the authority of provincial legislatures to invoke parliamentary privilege to prevent the media from broadcasting debates. Despite freedom of the press guaranteed the Charter, the Speaker has the privilege to exclude “strangers” from the legislative assembly.

Similarly, according to McGill Faculty of Law Professor Evan Fox-Decent in this article, in Vaid, Justice Binnie “interprets the relevant passage from the preamble…to imply a ‘fundamental constitutional separation of powers’ in which ‘each of the branches of the State is vouchsafed a measure of autonomy from the others.’ He finds that parliamentary privilege is part of the Constitution, as a necessary incident of the separation of powers, and therefore the Charter cannot prevail over privilege because ‘parliamentary privilege enjoys the same weight and status as the Charter itself.’”.

That being said, the party relying on privilege has the onus of establishing that 1) “the existence and scope of the claimed privilege have been authoritatively established in relation to our own Parliament or to the House of Commons at Westminster” and 2) “the sphere of activity for which privilege is claimed is so closely and directly connected with the fulfilment by the assembly or its members of their functions as a legislative and deliberative body, including the assembly’s work in holding the government to account, that outside interference would undermine the level of autonomy required to enable the assembly and its members to do their work with dignity and efficiency” (Vaid).

According to World Sikh Organization of Canada President Mukhbir Singh, the organization is reviewing the Quebec Court of Appeal’s decision and is considering an appeal to the Supreme Court.

This blog post was written by a CCLA-PBSC RightsWatch student. Views expressed do not necessarily reflect the views of the CCLA or PBSC.

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