Administrative law – Human rights – Charter of Rights and Freedoms – Freedom of Religion – Decisions of administrative tribunals – School boards – Powers and duties
Multani v. Commission scolaire Marguerite-Bourgeoys,  S.C.J. No. 6, Supreme Court of Canada, March 2, 2006, McLachlin C.J. and Major*, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ. (* Major J. took no part in the judgment.)
Gurbaj Multani is an orthodox Sikh who believes that his religion requires him to wear a kirpan at all times. The Kirpan is a religious object that resembles a dagger. In 2001, the School Board for the school that Gurbaj attended entered into an agreement with his parents authorizing Gurbaj to wear his kirpan to school provided that he complied with certain conditions to ensure that it was sealed inside his clothing. The governing Board of the school refused to ratify the agreement on the basis that wearing a kirpan at school violated the Code of Conduct which prohibited the carrying of weapons. The Board’s Council of Commissioners upheld that decision and notified Gurbaj and his parents that he would not be able to wear a real kirpan. Gurbaj’s father, Balvir Multani, then filed a motion seeking a Declaration that the Council of Commissioner’s decision was of no force and effect. The motion was granted by the Superior Court and the Commission appealed. The Court of Appeal, after deciding that the applicable standard of review was reasonableness simpliciter, restored the Council of Commissioner’s decision. This decision was appealed to the Supreme Court of Canada.
The majority of the Supreme Court of Canada found that the deciding issue in the case was the compliance of the Commissioner’s decision with the requirements of the Charter, not the decision’s validity from the point of administrative law. The complaint was based entirely on freedom of religion and, therefore, the Court of Appeal erred in applying the reasonableness standard to its constitutional analysis. The administrative law standard of review was not relevant.
The majority held that the Charter applied to the decision of the Council of Commissioners, despite the decision’s individual nature as any infringement of a guaranteed right that results from the actions of a decision maker acting pursuant to its enabling statue was also a limit “prescribed by law” within the meaning of section 1 of the Charter.
In this case, the majority held that the Commissioner’s decision prohibiting Gurbaj from wearing his kirpan to school infringed his freedom of religion. Gurbaj genuinely believed that he would not be complying with the requirements of his religion were he to wear a plastic or wooden kirpan. The interference with Gurbaj’s freedom of religion was neither trivial nor insignificant and could not be justified under section 1 of the Charter. The Court agreed that the Council’s decision to prohibit the wearing of the kirpan was motivated by a pressing and substantial objective, namely to ensure a reasonable level of safety at the school. Although this decision had a rational connection with the objective, it was not shown that such a prohibition minimally impaired Gurbaj’s rights. The majority noted that the risk of Gurbaj using his kirpan for violent purposes or of another student taking it away from him was very low. Many other objects at school could be used to commit violent acts which were much more easily obtained by other students, such as scissors, pencils, and baseball bats. The Court also received evidence that not a single violent incident related to the presence of kirpans in schools has been reported.
Justices Deschamps and Abella concurred in the result but held that recourse to a constitutional law and justification was not appropriate where, as in this case, what was being assessed was the propriety of an administrative body’s decision relating to human rights. Whereas a constitutional justification and 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 should be retained for reviewing decisions and orders made by administrative bodies. In the case at bar, Justices Deschamps and Abella would have decided the appeal on the basis that the decision of the Council of Commissioners was unreasonable, as the Council did not sufficiently consider either the right to freedom of religion or the proposed accommodation measure.
In the result, the decision prohibiting Gurbaj from wearing his kirpan was declared to be of no force and effect.
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