Supreme Court Refuses to Hear Appeal of Quebec National Assembly Kirpan Ban: A Missed Opportunity to Reconsider the Scope of Parliamentary Privilege?

Photo by: Avramescu MariusPhoto by: Avramescu Marius

On October 25, 2018, the Supreme Court of Canada denied hearing the appeal of a practicing Sikh man and woman who were prohibited from entering Quebec’s legislature while wearing kirpans.

On January 18, 2011, Balpreet Singh and Harminder Kaur arrived at the National Assembly, where they had been invited to make submissions before a legislative committee on a pending bill. As practicing Sikhs, they arrived at the National Assembly wearing their kirpans. A kirpan is a religious object that resembles a dagger and is made of metal.  In observance of their faith, it is held that the Sikh religion requires them to wear a kirpan at all times.

Upon arriving at the Assembly, security personal asked them to surrender their kirpans to security officers during the duration of their visit. Refusing such request, they were denied entry to the National Assembly on the basis of Instruction 652-01, which is a directive concerned with matters of security relating to National Assembly visitors pursuant to section 116 of the Act respecting the National Assembly. The directive excludes from the National Assembly knives, scissors and any other dangerous objects.

Following this incident, on February 9, 2011, the Members of the National Assembly unanimously passed a motion regarding security in the National Assembly, which read:

THAT the National Assembly support without reservation the decision taken by the Direction de la sécurité to forbid the wearing of the kirpan during the consultations on Bill 94, An Act to establish guidelines governing accommodation requests within the Administration and certain institutions.

The plaintiffs, Singh and Kaur, first asked the Superior Court of Quebec to declare the motion carried by the National Assembly on February 9, 2011, prohibiting the wearing of the kirpan in the Quebec National Assembly to be constitutionally invalid and of no force or effect. The plaintiffs later changed their position, instead asserting that the National Assembly was entitled to express its collective opinion concerning the exclusion of kirpans but that that the motion was not legally binding.

As members of the legal community with certain landmark constitutional cases imprinted in our brains, the case at hand no doubt invokes parallels with the Multani case. In that case, the Supreme Court ruled that a Quebec school’s regulation preventing a student from wearing his kirpan violated section 2(a) of the Charter, and could not be saved by section 1. At first glance, then, the case of Singh and Kaur appears obvious: would a legislature’s regulation preventing one from wearing a kirpan not also violate section 2(a) of the Charter?

This question was not addressed, however, since both the Superior Court of Quebec decision and the Quebec Court of Appeal decision rejected the case of Singh and Kaur on the grounds of parliamentary privilege. While both courts provided extensive definitions of parliamentary privilege in rendering their decision, parliamentary privilege can most easily be understood contemporarily as a branch of the common law that exempts actions of legislative assemblies from the Canadian Charter of Rights and Freedoms.

Parliamentary privilege is the collective set of powers and privileges possessed by the federal Houses of Parliament and the provincial legislative assemblies that are necessary to their capacity to function as legislative bodies. As a brief overview, the history of parliamentary privilege can be understood as follows:

“Original purposes of parliamentary privilege were related to protecting parliamentarians from incursions by the reigning monarch or his or her courts. The protections served to insulate members against detention and disruption of Parliament’s work by the Crown. Modern interpretations of privilege and necessity have shifted the focus to the modern purposes of privilege. Some have described this new approach as the “purposive connection” or “necessary connection” test. In other words, the valid exercise of a privilege must be necessary for the contemporary conduct of parliamentary functions. Such a connection must be more than reasonably incidental and must relate to the core, or essential, functions of Parliament.” [1]

Citing heavily the Supreme Court’s discussion of parliamentary privilege in the case of Vaid and N.B. Broadcasting, the Quebec courts reviewed the role of courts in reviewing parliamentary privileges.  Writing for the Quebec Court of Appeal, Justice Healy articulated that when dealing with the issue of parliamentary privilege, a court must first determine whether a parliamentary privilege has been positively and authoritatively established and recognized in the past. He labels this the rule of recognition. If it has, then there is little to no scope for further review by the courts. Only if it has not previously been recognized may a court consider whether the impugned parliamentary privilege is necessary for the effective administration of the legislature.

Because N.B. Broadcasting confirmed that there is a parliamentary privilege to exclude people from the legislature, and that this privilege is not modified by provisions of the Charter, the Court found that the exclusion of the kirpan by the National Assembly was an assertion of the privilege to exclude strangers and thus, met the rule of recognition. Given that it met the first threshold, the Court was not permitted to consider whether the exercise of this privilege was necessary. “As such, while the appellants invite the Court to review the Assembly’s exercise of the privilege to exclude strangers in the exclusion of the kirpan. For the reasons I have explained I would not accede to this invitation,” stated Justice Healy.

Should the Supreme Court, however, have accepted the invitation to review this privilege? The Senate Standing Committee on Rules, Procedures, and the Rights of Parliament discussed the matter of parliamentary privilege in a June 2015 report. They found that the “power of the Charter as a document enjoying the same constitutional status as parliamentary privilege has begged the question of how best to reconcile parliamentary rights and immunities with the rights of Canadians. While the the Supreme Court of Canada has explored the interplay between the Charter and parliamentary privilege a comprehensive review of parliamentary privilege in the era of the Charter is lacking.”

The case of Singh and Kaur may have proven an apt opportunity for the Supreme Court to continue the discussion on the matter. While there is a recognized parliamentary privilege to exclude strangers from legislative bodies, does the case of the kirpan indeed fall within the scope of this privilege? By excluding individuals wearing the kirpan, are we excluding people from the legislature, or rather religious symbols? If it is the latter, is the exclusion of religious symbols closely and directly connected, and thus necessary to the fulfilment of parliamentarians to discharge their parliamentary functions? In an era of discussions on bans of religious symbols, the Charter’s protections of freedom of religion, and the importance of parliamentary privilege as a key part of our constitutional fabric, the interplay between these constitutional facets will surely require further, broader, discussion.