Multani V Commission Scolaire Marguerite Bourgeoys

** Preliminary Version **

Case Name:
Multani v. Commission scolaire Marguerite-Bourgeoys

Balvir Singh Multani and Balvir Singh Multani, in his
capacity as tutor to his minor son Gurbaj Singh Multani,
appellants;
v.
Commission scolaire Marguerite-Bourgeoys and Attorney
General of Quebec, respondents, and
World Sikh Organization of Canada, Canadian Civil
Liberties Association, Canadian Human Rights Commission
and Ontario Human Rights Commission, interveners.

[2006] S.C.J. No. 6
2006 SCC 6
File No.: 30322.

Supreme Court of Canada

Heard: April 12, 2005;
Judgment: March 2, 2006.

Present: McLachlin C.J. and Major*, Bastarache, Binnie,
LeBel, Deschamps, Fish, Abella and Charron JJ.
(155 paras.)

Appeal From:

ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC

Subsequent History:

* Major J. took no part in the judgment.

NOTE: This document is subject to editorial revision before its reproduction in final form
in the Canada Supreme Court Reports.

Catchwords:

Constitutional law — Charter of Rights — Freedom of religion — Wearing of kirpan
at school — Council of commissioners of school board prohibiting Sikh student from

wearing kirpan to school — Whether decision infringing freedom of religion guaranteed
by s. 2(a) of Canadian Charter of Rights and Freedoms — If so, whether infringement
justifiable under s. 1 of Charter.

Constitutional law — Charter of Rights — Reasonable limit — Law —
Administrative decision — Infringement of guaranteed right resulting from decision of
administrative body acting pursuant to its enabling statute — Whether infringement limit
prescribed by "law" within meaning of s. 1 of Canadian Charter of Rights and Freedoms.

Administrative law — Judicial review — Compliance of administrative decision with
requirements of Canadian Charter of Rights and Freedoms — Council of commissioners
of school board prohibiting Sikh student from wearing kirpan to school — Whether
decision infringing student's freedom of religion — Appropriate approach for reviewing
decision — Relationship between administrative law and constitutional law.

Summary:

G and his father B are orthodox Sikhs. G believes that his religion requires him to
wear a kirpan at all times; a kirpan is a religious object that resembles a dagger and must
be made of metal. In 2001, G accidentally dropped the kirpan he was wearing under his
clothes in the yard of the school he was attending. The school board sent G's parents a
letter in which, as a reasonable accommodation, it authorized their son to wear his kirpan
to school provided that he complied with certain conditions to ensure that it was sealed
inside his clothing. G and his parents agreed to this arrangement. The governing board of
the school refused to ratify the agreement on the basis that wearing a kirpan at the school
violated art. 5 of the school's Code de vie (code of conduct), which prohibited the
carrying of weapons. The school board's council of commissioners upheld that decision
and notified G and his parents that a symbolic kirpan in the form of a pendant or one in
another form made of a material rendering it harmless would be acceptable in the place of
a real kirpan. B then filed in the Superior Court a motion for a declaratory judgment to
the effect that the council of commissioners' decision was of no force or effect. The
Superior Court granted the motion, declared the decision to be null, and authorized G to
wear his kirpan under certain conditions. The Court of Appeal set aside the Superior
Court's judgment. After deciding that the applicable standard of view was reasonableness
simpliciter, the Court of Appeal restored the council of commissioners' decision. It
concluded that the decision in question infringed G's freedom of religion under s. 2(a) of
the Canadian Charter of Rights and Freedoms ("Canadian Charter") and s. 3 of
Quebec's Charter of human rights and freedoms ("Quebec Charter"), but that the
infringement was justified for the purposes of s. 1 of the Canadian Charter and s. 9.1 of
the Quebec Charter.

Held: The appeal should be allowed. The decision of the Court of Appeal should be
set aside and the decision of the council of commissioners should be declared to be null.

Per McLachlin C.J. and Bastarache, Binnie, Fish and Charron JJ.: In the case at bar,
it is the compliance of the commissioners' decision with the requirements of the

Canadian Charter that is central to the dispute, not the decision's validity from the point
of view of administrative law. There is no suggestion that the council of commissioners
did not have jurisdiction, from an administrative law standpoint, to approve the Code de
vie. Nor is the administrative and constitutional validity of the rule against carrying
weapons in issue. Since the complaint is based entirely on freedom of religion, the Court
of Appeal erred in applying the reasonableness standard to its constitutional analysis. The
administrative law standard of review was not relevant. [paras. 18-20]

The Canadian Charter applies to the decision of the council of commissioners,
despite the decision's individual nature. Any infringement of a guaranteed right that
results from the actions of a decision maker acting pursuant to its enabling statute is also
a limit "prescribed by law" within the meaning of s. 1. Where the legislation pursuant to
which an administrative body has made a contested decision confers a discretion and
does not confer, either expressly or by implication, the power to limit the rights and
freedoms guaranteed by the Canadian Charter, the decision should, if there is an
infringement, be subjected to the test set out in s. 1 to ascertain whether it constitutes a
reasonable limit. [paras. 22-23]

In the instant case, the Court does not at the outset have to reconcile two
constitutional rights, as only freedom of religion is in issue here. However, that freedom
is not absolute and can conflict with other constitutional rights. Since the test governing
limits on rights was developed in Oakes, the Court has never called into question the
principle that rights are reconciled through the constitutional justification required by s. 1
of the Canadian Charter. Since the decision genuinely affects both parties and was made
by an administrative body exercising statutory powers, a contextual analysis under s. 1
will make it possible to balance the relevant competing values in a more comprehensive
manner. [paras. 29-30]

The council of commissioners' decision prohibiting G from wearing his kirpan to
school infringes his freedom of religion. G genuinely believes that he would not be
complying with the requirements of his religion were he to wear a plastic or wooden
kirpan, and none of the parties have contested the sincerity of his belief. The interference
with G's freedom of religion is neither trivial nor insignificant, as it has deprived him of
his right to attend a public school. The infringement of G's freedom of religion cannot be
justified under s. 1 of the Canadian Charter. Although the council's decision to prohibit
the wearing of a kirpan was motivated by a pressing and substantial objective, namely to
ensure a reasonable level of safety at the school, and although the decision had a rational
connection with the objective, it has not been shown that such a prohibition minimally
impairs G's rights. [para. 2] [paras. 38-41] [para. 44] [para. 48] [para. 77]

The analogy with the duty of reasonable accommodation is helpful to explain the
burden resulting from the minimal impairment test with respect to an individual. In the
circumstances of the instant case, the decision to establish an absolute prohibition against
wearing a kirpan does not fall within a range of reasonable alternatives. The arguments in
support of such a prohibition must fail. The risk of G using his kirpan for violent
purposes or of another student taking it away from him is very low, especially if the

kirpan is worn under conditions such as were imposed by the Superior Court. It should be
added that G has never claimed a right to wear his kirpan to school without restrictions.
Furthermore, there are many objects in schools that could be used to commit violent acts
and that are much more easily obtained by students, such as scissors, pencils and baseball
bats. The evidence also reveals that not a single violent incident related to the presence of
kirpans in schools has been reported. Although it is not necessary to wait for harm to be
done before acting, the existence of concerns relating to safety must be unequivocally
established for the infringement of a constitutional right to be justified. Nor does the
evidence support the argument that allowing G to wear his kirpan to school could have a
ripple effect. Lastly, the argument that the wearing of kirpans should be prohibited
because the kirpan is a symbol of violence and because it sends the message that using
force is necessary to assert rights and resolve conflict is not only contradicted by the
evidence regarding the symbolic nature of the kirpan, but is also disrespectful to believers
in the Sikh religion and does not take into account Canadian values based on
multiculturalism. Religious tolerance is a very important value of Canadian society. If
some students consider it unfair that G may wear his kirpan to school while they are not
allowed to have knives in their possession, it is incumbent on the schools to discharge
their obligation to instil in their students this value that is at the very foundation of our
democracy. A total prohibition against wearing a kirpan to school undermines the value
of this religious symbol and sends students the message that some religious practices do
not merit the same protection as others. Accommodating G and allowing him to wear his
kirpan under certain conditions demonstrates the importance that our society attaches to
protecting freedom of religion and to showing respect for its minorities. The deleterious
effects of a total prohibition thus outweigh its salutary effects. [paras. 51-54] [paras.
57-59] [paras. 67-71] [para. 76] [para. 79]

Given that G no longer attends his school, the appropriate and just remedy is to
declare the decision prohibiting him from wearing his kirpan to be null. [para. 82]

Per Deschamps and Abella JJ.:

Recourse to a constitutional law justification is not appropriate where, as in this case,
what must be assessed is the propriety of an administrative body's decision relating to
human rights. Whereas a constitutional justification 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 must be retained for
reviewing decisions and orders made by administrative bodies. Basing the analysis on the
principles of administrative law not only averts the problems that result from blurring the
distinction between the principles of constitutional justification and the principles of
administrative law, but also prevents the impairment of the analytical tools developed
specifically for each of these fields. In addition, this approach allows parties and
administrative bodies to know in advance which rules govern disputes involving human
rights issues. [para. 85] [para. 103] [para. 125] [para. 139]

Simply alleging that a s. 1 analysis is required does not make administrative law
inapplicable. If an administrative body makes a decision or order that is said to conflict

with fundamental values, the mechanisms of administrative law - including the standard
of review - are readily available. It is difficult to conceive of an administrative decision
being permitted to stand if it violates the Canadian Charter. [para. 86] [para. 93] [para.
128]

A decision or order made by an administrative body cannot be equated with a "law"
within the meaning of s. 1 of the Canadian Charter. The expression "law" used in s. 1
naturally refers to a norm or rule of general application. The Oakes test, which was
developed to assess legislative policies, is based on the duty of the executive and
legislative branches of government to account to the courts for any rules they establish
that infringe protected rights. That test, which is based on an analysis of societal interests,
is better suited, conceptually and literally, to the concept of "prescribed by law". The duty
to account imposed - conceptually and in practice - on the legislative and executive
branches is not easily applied to administrative tribunals. [paras. 112-113] [paras.
119-121]

Lastly, even if the concepts of reasonable accommodation and minimal impairment
have a number of similarities, they belong to two different analytical categories. On the
one hand, the process required by the duty of reasonable accommodation takes into
account the specific details of the circumstances of the parties. The justification of
minimal impairment, on the other hand, is based on societal interests. An administrative
law analysis is microcosmic, whereas a constitutional law analysis is generally
macrocosmic. These separate streams - public versus individual - should be kept distinct.
[paras. 129-134]

In the instant case, it is the standard of reasonableness that applies to the decision of
the school board's council of commissioners. The council did not sufficiently consider
either the right to freedom of religion or the proposed accommodation measure. It merely
applied literally the code of conduct in effect at the school. By disregarding the right to
freedom of religion without considering the possibility of a solution that posed little or no
risk to the safety of the school community, the council made an unreasonable decision.
[para. 99]

Per LeBel J.: It is not always necessary to resort to the Canadian Charter or, in the
case of Quebec, the Quebec Charter when a decision can be reached by applying general
administrative law principles or the specific rules governing the exercise of a delegated
power. However, the dispute as presented makes a constitutional analysis unavoidable.
Where a decision is contested on the basis that the administrative body's exercise of the
delegated power is vitiated by the violation of a fundamental right, the only way to
determine whether the infringement of the constitutional standard is justified is to
consider the fundamental rights in issue and how they have been applied. Where the
exercise of such a power has an impact on the relationship between competing
constitutional rights, those rights can be reconciled in two ways. The first approach
involves defining the rights and how they relate to each other, and the second consists of
justification under s. 1 of the Canadian Charter. In the case at bar, the first approach can
be dispensed with, as the evidence does not show a prima facie infringement of the right

to security of the person. It is therefore necessary to turn to justification under s. 1. In the
case of an individualized decision made pursuant to statutory authority, it may be
possible to dispense with certain steps of the analysis. The existence of a statutory
authority that is not itself challenged makes it pointless to review the objectives of the
act. The issue becomes one of proportionality or, more specifically, minimal limitation of
the guaranteed right, having regard to the context in which the right has been infringed.
Reasonable accommodation that would meet the requirements of the constitutional
standard must be considered at this stage and in this context. In the case at bar, the school
board has not shown that its prohibition was justified and met the constitutional standard.
[paras. 141-144] [paras. 153-155]

Cases Cited

By Charron J.

Applied: R. v. Oakes, [1986] 1 S.C.R. 103; distinguished: Trinity Western University
v. British Columbia College of Teachers, [2001] 1 S.C.R. 772, 2001 SCC 31; Syndicat
Northcrest v. Amselem, [2004] 2 S.C.R. 551, 2004 SCC 47; considered: Slaight
Communications Inc. v. Davidson, [1989] 1 S.C.R. 1308; Ross v. New Brunswick School
District No. 15, [1996] 1 S.C.R. 825; referred to: Chamberlain v. Surrey School District
No. 36, [2002] 4 S.C.R. 710, 2002 SCC 86; Dr. Q v. College of Physicians and Surgeons
of British Columbia, [2003] 1 S.C.R. 226, 2003 SCC 19; Nova Scotia (Workers'
Compensation Board) v. Martin, [2003] 2 S.C.R. 504, 2003 SCC 54; Eldridge v. British
Columbia (Attorney General), [1997] 3 S.C.R. 624; Little Sisters Book and Art
Emporium v. Canada (Minister of Justice), [2000] 2 S.C.R. 1120, 2000 SCC 69; R. v. Big
M Drug Mart Ltd., [1985] 1 S.C.R. 295; B. (R.) v. Children's Aid Society of Metropolitan
Toronto, [1995] 1 S.C.R. 315; R. v. Keegstra, [1990] 3 S.C.R. 697; Dagenais v. Canadian
Broadcasting Corp., [1994] 3 S.C.R. 835; R. v. Edwards Books and Art Ltd., [1986] 2
S.C.R. 713; British Columbia (Superintendent of Motor Vehicles) v. British Columbia
(Council of Human Rights), [1999] 3 S.C.R. 868; RJR-MacDonald Inc. v. Canada
(Attorney General), [1995] 3 S.C.R. 199; Multani v. Commission scolaire Marguerite-
Bourgeois, [2002] Q.J. No. 619 (QL); Pandori v. Peel Bd. of Education (1990), 12
C.H.R.R. D/364, aff'd (1991), 3 O.R. (3d) 531 (sub nom. Peel Board of Education v.
Ontario Human Rights Commission); R. v. Hothi, [1985] 3 W.W.R. 256, aff'd [1986] 3
W.W.R. 671; Nijjar v. Canada 3000 Airlines Ltd., [1999] C.H.R.D. No. 3 (QL); R. v. M.
(M.R.), [1998] 3 S.C.R. 393.

By Deschamps and Abella JJ.

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817;
Nova Scotia (Workers' Compensation Board) v. Martin, [2003] 2 S.C.R. 504, 2003 SCC
54; Trinity Western University v. British Columbia College of Teachers, [2001] 1 S.C.R.
772, 2001 SCC 31; Chamberlain v. Surrey School District No. 36, [2002] 4 S.C.R. 710,
2002 SCC 86; Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570;
Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324,
[2003] 2 S.C.R. 157, 2003 SCC 42; Canadian Union of Public Employees, Local 963 v.

New Brunswick Liquor Corp., [1979] 2 S.C.R. 227; Syndicat des employés de production
du Québec et de l'Acadie v. Canada Labour Relations Board, [1984] 2 S.C.R. 412;
Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1308; Dr. Q v. College of
Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, 2003 SCC 19; Ross
v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825; Eldridge v. British
Columbia (Attorney General), [1997] 3 S.C.R. 624; R. v. Therens, [1985] 1 S.C.R. 613;
R. v. Oakes, [1986] 1 S.C.R. 103; RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R.
573; Ontario Human Rights Commission v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536;
Bhinder v. Canadian National Railway Co., [1985] 2 S.C.R. 561; British Columbia
(Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3;
British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of
Human Rights), [1999] 3 S.C.R. 868.

By LeBel J.

R. v. Oakes, [1986] 1 S.C.R. 103; Blencoe v. British Columbia (Human Rights
Commission), [2000] 2 S.C.R. 307, 2000 SCC 44; Young v. Young, [1993] 4 S.C.R. 3;
Montréal (City) v. 2952-1366 Québec Inc., [2005] 3 S.C.R. 141, 2005 SCC 62; Dagenais
v. Canadian Broadcasting Corp., [1994] 3 S.C.R 835.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, ss. 1, 2, 7, 15, 24(1).

Charter of human rights and freedoms, R.S.Q., c. C-12, ss. 3, 9.1, 10.

Civil Code of Québec, S.Q. 1991, c. 64, art. 1460.

Code of Civil Procedure , R.S.Q., c. C-25, art. 453.

Constitution Act, 1982, s. 52.

Criminal Code, R.S.C. 1985, c. C-46, s. 245.

Education Act, R.S.Q., c. I-13.3, ss. 12, 76.

Human Rights Act, R.S.N.B. 1973, c. H-11, s. 5(1).

Authors Cited

Brun, Henri, et Guy Tremblay. Droit constitutionnel, 4e éd. Cowansville, Qué.: Yvon
Blais, 2002.

Garant, Patrice. Droit administratif, vol. 3, Les chartes, 3e éd. Cowansville, Qué.: Yvon
Blais, 1992.

Garant, Patrice. Droit scolaire, 2e éd. Cowansville, Qué.: Yvon Blais, 1992.

Mendes, Errol. "The Crucible of the Charter: Judicial Principles v. Judicial Deference in
the Context of Section 1", in Gérald-A. Beaudoin and Errol Mendex, eds., Canadian
Charter of Rights and Freedoms, 4th ed. Markham, Ont.: LexisNexis Butterworths, 2005.

Perrault, Gabrielle. Le contrôle judiciaire des décisions de l'administration: De l'erreur
juridictionnelle à la norme de contrôle. Montréal: Wilson & Lafleur, 2002.

Pinard, Danielle. "Les seules règles de droit qui peuvent poser des limites aux droits et
libertés constitutionnellement protégés et l'arrêt Slaight Communications" (1991-1992), 1
N.J.C.L. 79.

Reid, Hubert. Dictionnaire de droit québécois et canadien avec table des abréviations et
lexique anglais-français, 2e éd. Montréal: Wilson & Lafleur, 2001, "loi", "règle".

Woehrling, José. "L'obligation d'accommodement raisonnable et l'adaptation de la société
à la diversité religieuse" (1998), 43 McGill L.J. 325.

History and Disposition:

APPEAL from a judgment of the Quebec Court of Appeal (Pelletier and Rochon JJ.A.
and Lemelin J. (ad hoc)), [2004] R.J.Q. 824, 241 D.L.R. (4th) 336, 12 Admin. L.R. (4th)
233, [2004] Q.J. No. 1904 (QL), reversing a judgment of Grenier J., [2002] Q.J. No. 1131
(QL). Appeal allowed.

Counsel:

Julius H. Grey, Lynne-Marie Casgrain, Elisabeth Goodwin and Jean Philippe Desmarais,
for the appellants.

François Aquin and Carla Chamass, for the respondent Commission scolaire Marguerite-
Bourgeoys.

René Bourassa and Hugo Jean, for the respondent the Attorney General of Quebec.

Palbinder K. Shergill, for the intervener the World Sikh Organization of Canada.

Mahmud Jamal and Patricia McMahon, for the intervener the Canadian Civil Liberties
Association.

Philippe Dufresne, for the intervener the Canadian Human Rights Commission.

Raj Dhir and Anthony D. Griffin, for the intervener the Ontario Human Rights
Commission.

[Editor's note: A corrigendum was published by the Court March 3, 2006. The
corrections have been incorporated in this document and the text of the corrigendum is
appended to the end of the judgment.]

English version of the judgment of McLachlin C.J. and Bastarache, Binnie, Fish and
Charron JJ. delivered by

CHARRON J.:—

1. Introduction

¶1 This appeal requires us to determine whether the decision of a school board's
council of commissioners prohibiting one of the students under its jurisdiction from
wearing a kirpan to school as required by his religion infringes the student's freedom of
religion. If we find that it does, we must determine whether that infringement is a
reasonable limit that can be justified by the need to maintain a safe environment at the
school.

¶2 As I will explain below, I am of the view that an absolute prohibition against
wearing a kirpan infringes the freedom of religion of the student in question under s. 2(a)
of the Canadian Charter of Rights and Freedoms ("Canadian Charter"). The
infringement cannot be justified under s. 1 of the Canadian Charter, since it has not been
shown that such a prohibition minimally impairs the student's rights. The decision of the
council of commissioners must therefore be declared a nullity.

2. Facts

¶3 The appellant Balvir Singh Multani and his son Gurbaj Singh Multani are
orthodox Sikhs. Gurbaj Singh, born in 1989, has been baptized and believes that his
religion requires him to wear a kirpan at all times; a kirpan is a religious object that
resembles a dagger and must be made of metal. On November 19, 2001, Gurbaj Singh
accidentally dropped the kirpan he was wearing under his clothes in the yard of the
school he was attending, École Sainte-Catherine-Labouré. On December 21, 2001, the
school board, the Commission scolaire Marguerite-Bourgeoys ("CSMB"), through its
legal counsel, sent Gurbaj Singh's parents a letter in which, as a [TRANSLATION]
"reasonable accommodation", it authorized their son to wear his kirpan to school
provided that he complied with certain conditions to ensure that it was sealed inside his
clothing. Gurbaj Singh and his parents agreed to this arrangement.

¶4 In a resolution passed on February 12, 2002, the school's governing board refused
to ratify the agreement on the basis that wearing a kirpan at the school violated art. 5 of
the school's Code de vie (code of conduct), which prohibited the carrying of weapons and
dangerous objects. For the purposes of this case, it is not in dispute that the governing
board had, pursuant to the authority granted to it under s. 76 of the Education Act, R.S.Q.,
c. I-13.3 ("EA"), approved the Code de vie, which imposed certain rules of conduct.

¶5 On March 19, 2002, based on a unanimous recommendation by a review
committee to which a request by the Multanis to reconsider the governing board's
decision had been referred, the CSMB's council of commissioners upheld that decision.
The council of commissioners also notified the Multanis that a symbolic kirpan in the
form of a pendant or one in another form made of a material rendering it harmless would
be acceptable in the place of a real kirpan.

¶6 On March 25, 2002, Balvir Singh Multani, personally and in his capacity as tutor
of his son Gurbaj Singh, filed in the Superior Court, under art. 453 of the Code of Civil
Procedure, R.S.Q., c. C-25 and s. 24(1) of the Canadian Charter, a motion for a
declaratory judgment together with an application for an interlocutory injunction. In his
motion, Mr. Multani asked the court to declare that the council of commissioners'
decision was of no force or effect and that Gurbaj Singh had a right to wear his kirpan to
school if it was sealed and sewn up inside his clothing. He submitted that this would
represent a reasonable accommodation to the freedom of religion and right to equality
guaranteed in ss. 3 and 10 of the Charter of human rights and freedoms, R.S.Q., c. C-12
("Quebec Charter"), and ss. 2 and 15 of the Canadian Charter.

¶7 On April 16, 2002, Tellier J. ordered an interlocutory injunction and authorized
Gurbaj Singh to wear his kirpan, provided that he complied with the conditions initially
proposed by the CSMB, until a final decision was rendered in the case. On May 17, 2002,
Grenier J. of the Superior Court granted Mr. Multani's motion for a declaratory judgment,
declared the council of commissioners' decision to be null and of no force or effect, and
authorized Gurbaj Singh to wear his kirpan under certain conditions. The Quebec Court
of Appeal allowed the appeal and dismissed the motion for a declaratory judgment on
March 4, 2004. Balvir Singh Multani then appealed to this Court on behalf of himself and
his son.

3. Decisions of the Courts Below

3.1 Superior Court ([2002] Q.J. No. 1131 (QL))

¶8 Grenier J. began by discussing the agreement between the CSMB and the Multanis
respecting the proposed accommodation measure. Noting that the need to wear a kirpan
was based on a sincere religious belief held by Gurbaj Singh and that there was no
evidence of any violent incidents involving kirpans in Quebec schools, she granted the
motion for a declaratory judgment and authorized Gurbaj Singh to wear his kirpan at
Sainte-Catherine-Labouré school on the following conditions (at para. 7):

[TRANSLATION]

- that the kirpan be worn under his clothes;
- that the kirpan be carried in a sheath made of wood, not metal, to
prevent it from causing injury;
- that the kirpan be placed in its sheath and wrapped and sewn
securely in a sturdy cloth envelope, and that this envelope be sewn to

the guthra;
- that school personnel be authorized to verify, in a reasonable
fashion, that these conditions were being complied with;
- that the petitioner be required to keep the kirpan in his possession at
all times, and that its disappearance be reported to school authorities
immediately; and
- that in the event of a failure to comply with the terms of the
judgment, the petitioner would definitively lose the right to wear his
kirpan at school.

3.2 Court of Appeal ([2004] R.J.Q. 824, Pelletier and Rochon JJ.A. and Lemelin J. (ad
hoc))

¶9 Writing on behalf of a unanimous Quebec Court of Appeal, Lemelin J. (ad hoc)
began by pointing out that the parties had not agreed on an accommodation measure,
since the CSMB had consistently opposed the Multanis' motion and argued in favour of a
measure similar to the offer made in the council of commissioners' resolution, that is,
permission to wear a symbolic kirpan or one made of a material rendering it harmless.

¶ 10 Regarding the applicable standard of review, Lemelin J. conducted a pragmatic
and functional analysis and concluded that the applicable standard was reasonableness
simpliciter.

¶ 11 Lemelin J. found that the appellant had proven that his son's need to wear a
kirpan was a sincerely held religious belief and was not capricious. She concluded that
the council of commissioners' decision infringed Gurbaj Singh's freedom of religion and
conscience because it had [TRANSLATION] "the effect of impeding conduct integral to
the practice of [his] religion" (at para. 71).

¶ 12 Lemelin J. first noted that Gurbaj Singh's freedom of religion could be limited for
the purposes of s. 1 of the Canadian Charter - in accordance with the test set out in R. v.
Oakes, [1986] 1 S.C.R. 103 - and of s. 9.1 of the Quebec Charter. She stated that she
could not conceive of a sufficient justification where there is a reasonable
accommodation measure. Lemelin J. considered that the council of commissioners'
decision was motivated by a pressing and substantial objective, namely to ensure the
safety of the school's students and staff. She stated that there was a direct and rational
connection between the prohibition against wearing a kirpan to school and the objective
of maintaining a safe environment. Lemelin J. explained that the duty to accommodate is
a corollary of the minimal impairment criterion. Given that the kirpan is a dangerous
object, that the conditions imposed by Grenier J. did not eliminate every risk, but merely
delayed access to the object, and that the concerns expressed by the school board were
not merely hypothetical, Lemelin J. concluded that allowing the kirpan to be worn, even
under certain conditions, would oblige the school board to reduce its safety standards and
would result in undue hardship. In her opinion, the school's students and staff would be
exposed to the risks associated with the kirpan. She stated that she was unable to
convince herself that safety concerns are less serious in schools than in courts of law or in

airplanes. She concluded that the council of commissioners' decision was not
unreasonable and did not warrant intervention. Given this conclusion, she did not
consider it necessary to conduct a separate analysis with regard to a violation of the right
to equality, since the same arguments concerning justification would apply. She allowed
the appeal and dismissed Mr. Multani's motion for a declaratory judgment.

4. Issues

¶ 13 Does the decision of the council of commissioners prohibiting Gurbaj Singh
Multani from wearing his kirpan at Sainte-Catherine-Labouré school infringe his freedom
of religion under s. 2(a) of the Canadian Charter or s. 3 of the Quebec Charter? Does the
decision infringe his right to equality under s. 15 of the Canadian Charter or s. 10 of the
Quebec Charter? If so, can the infringement be justified pursuant to s. 1 of the Canadian
Charter or s. 9.1 of the Quebec Charter?

¶ 14 I will begin by discussing the freedom of religion guaranteed by s. 2(a) of the
Canadian Charter. Before proceeding with the analysis, there are a few preliminary
issues to address.

5. Preliminary Issues

5.1 The Administrative Law Standard of Review Is Not Applicable

¶ 15 Although the appropriate standard of review in the case at bar was not argued at
trial, it was in the Court of Appeal. Based on the decisions in Chamberlain v. Surrey
School District No. 36, [2002] 4 S.C.R. 710, 2002 SCC 86, and Dr. Q v. College of
Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, 2003 SCC 19, the
Court of Appeal concluded that the standard for reviewing the council of commissioners'
decision should be reasonableness simpliciter. Having found that the decision infringed
Gurbaj Singh's freedom of religion and conscience, the Court of Appeal then
incorporated that administrative law standard of review into its analysis of constitutional
justification under s. 1 of the Canadian Charter. My colleagues Deschamps and Abella
JJ. see no reason to depart from the administrative law approach adopted by the Court of
Appeal (at para. 95). They also believe that it is both sufficient and more appropriate, in
the case at bar, to rely solely on the principles of administrative law to decide the
substantive issue rather than applying the principles of constitutional justification.

¶ 16 With respect for the opinion of Deschamps and Abella JJ., I am of the view that
this approach could well reduce the fundamental rights and freedoms guaranteed by the
Canadian Charter to mere administrative law principles or, at the very least, cause
confusion between the two. It is not surprising that the values underlying the rights and
freedoms guaranteed by the Canadian Charter form part - and sometimes even an
integral part - of the laws to which we are subject. However, the fact that an issue relating
to constitutional rights is raised in an administrative context does not mean that the
constitutional law standards must be dissolved into the administrative law standards. The
rights and freedoms guaranteed by the Canadian Charter establish a minimum

constitutional protection that must be taken into account by the legislature and by every
person or body subject to the Canadian Charter. The role of constitutional law is
therefore to define the scope of the protection of these rights and freedoms. An
infringement of a protected right will be found to be constitutional only if it meets the
requirements of s. 1 of the Canadian Charter. Moreover, as Dickson C.J. noted in Slaight
Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, the more sophisticated and
structured analysis of s. 1 is the proper framework within which to review the values
protected by the Canadian Charter (see also Ross v. New Brunswick School District No.
15, [1996] 1 S.C.R. 825, at para. 32). Since, as I will explain below, it is the compliance
of the commissioners' decision with the requirements of the Canadian Charter that is
central to this appeal, it is my opinion that the Court of Appeal's analysis of the standard
of review was inadequate and that it leads to an erroneous conclusion.

¶ 17 As this Court recognized in Ross, judicial review may involve a constitutional
law component and an administrative law component (at para. 22). In that case, for
example, the appeal raised two broad issues. From the point of view of administrative
law, the Court first had to determine whether, based on the appropriate administrative law
standard of review, namely reasonableness, the human rights board of inquiry had erred
in making a finding of discrimination under s. 5(1) of the Human Rights Act, R.S.N.B.
1973, c. H-11, and whether that Act gave it jurisdiction to make the order in issue. (It
should be noted here that the Court did not confuse the protection against discrimination
provided for in s. 5(1) of the Act with the right guaranteed in s. 15 of the Canadian
Charter.) However, the conclusion that there was discrimination and that the Act granted
the board of inquiry a very broad power to make orders did not end the analysis. Since
the respondent had also argued that the decision infringed his freedom of expression and
religion under the Canadian Charter, the Court also had to determine whether the board
of inquiry's order that the school board remove the respondent from his teaching position
was valid from the point of view of constitutional law. As the Court recognized, "an
administrative tribunal acting pursuant to its delegated powers exceeds its jurisdiction if it
makes an order that infringes the Charter" (at para. 31; see also Slaight
Communications). The Court therefore conducted an analysis under ss. 2(a) and (b) and 1
of the Canadian Charter to decide the constitutional issue. The administrative law
standard of review is not applicable to the constitutional component of judicial review.

¶ 18 As stated above, it is the compliance of the commissioners' decision with the
requirements of the Canadian Charter that is central to this appeal, not the decision's
validity from the point of view of administrative law. Section 76 EA grants the governing
board the power to approve any safety measure proposed by a school principal:

The governing board is responsible for approving the rules of conduct and
the safety measures proposed by the principal.
The rules and measures may include disciplinary sanctions other than
expulsion from school or corporal punishment; the rules and measures
shall be transmitted to all students at the school and their parents.

The governing board exercised this power to approve, inter alia, art. 5 of the Code de vie,
which prohibits the carrying of weapons and dangerous objects at Sainte-Catherine-
Labouré school. The council of commissioners, in turn, upheld the governing board's
decision pursuant to the power implicitly conferred on it in s. 12 EA, which reads as
follows:

The council of commissioners may, if it considers that the request is
founded, overturn, entirely or in part, the decision contemplated by the
request and make the decision which, in its opinion, ought to have been
made in the first instance.

¶ 19 There is no suggestion that the council of commissioners did not have
jurisdiction, from an administrative law standpoint, to approve the Code de vie. Nor, it
should be noted, is the administrative and constitutional validity of the rule against
carrying weapons and dangerous objects in issue. It would appear that the Code de vie
was never even introduced into evidence by the parties. Rather, the appellant argues that
it was in applying the rule, that is, in categorically denying Gurbaj Singh the right to wear
his kirpan, that the governing board, and subsequently the council of commissioners
when it upheld the original decision, infringed Gurbaj Singh's freedom of religion under
the Canadian Charter.

¶ 20 The complaint is based entirely on this constitutional freedom. The Court of
Appeal therefore erred in applying the reasonableness standard to its constitutional
analysis. The administrative law standard of review was not relevant. Moreover, if this
appeal had instead concerned the review of an administrative decision based on the
application and interpretation of the Canadian Charter, it would, according to the case
law of this Court, have been necessary to apply the correctness standard (Nova Scotia
(Workers' Compensation Board) v. Martin, [2003] 2 S.C.R. 504, 2003 SCC 54, at para.
31).

¶ 21 Thus, it is the constitutionality of the decision that is in issue in this appeal,
which means that a constitutional analysis must be conducted. The reasons of Deschamps
and Abella JJ. raise another issue relating to the application of s. 1 of the Canadian
Charter. My colleagues believe that the Court should address the issue of justification
under s. 1 only where a complainant is attempting to overturn a normative rule as
opposed to a decision applying that rule. With respect, it is of little importance to Gurbaj
Singh - who wants to exercise his freedom of religion - whether the absolute prohibition
against wearing a kirpan in his school derives from the actual wording of a normative
rule or merely from the application of such a rule. In either case, any limit on his freedom
of religion must meet the same requirements if it is to be found to be constitutional. In my
opinion, consistency in the law can be maintained only by addressing the issue of
justification under s. 1 regardless of whether what is in issue is the wording of the statute
itself or its application. I will explain this.

¶ 22 There is no question that the Canadian Charter applies to the decision of the
council of commissioners, despite the decision's individual nature. The council is a

creature of statute and derives all its powers from statute. Since the legislature cannot
pass a statute that infringes the Canadian Charter, it cannot, through enabling legislation,
do the same thing by delegating a power to act to an administrative decision maker: see
Slaight Communications, at pp. 1077-78. As was explained in Eldridge v. British
Columbia (Attorney General), [1997] 3 S.C.R. 624, at para. 20, the Canadian Charter
can apply in two ways:

First, legislation may be found to be unconstitutional on its face because it
violates a Charter right and is not saved by s. 1. In such cases, the
legislation will be invalid and the Court compelled to declare it of no force
or effect pursuant to s. 52(1) of the Constitution Act, 1982. Secondly, the
Charter may be infringed, not by the legislation itself, but by the actions of
a delegated decision-maker in applying it. In such cases, the legislation
remains valid, but a remedy for the unconstitutional action may be sought
pursuant to s. 24(1) of the Charter.

Deschamps and Abella JJ. take the view that the Court must apply s. 1 of the Canadian
Charter only in the first case. I myself believe that the same analysis is necessary in the
second case, where the decision maker has acted pursuant to an enabling statute, since
any infringement of a guaranteed right that results from the decision maker's actions is
also a limit "prescribed by law" within the meaning of s. 1. On the other hand, as
illustrated by Little Sisters Book and Art Emporium v. Canada (Minister of Justice),
[2000] 2 S.C.R. 1120, 2000 SCC 69, at para. 141, when the delegated power is not
exercised in accordance with the enabling legislation, a decision not authorized by statute
is not a limit "prescribed by law" and therefore cannot be justified under s. 1.

¶ 23 In the case at bar, no one is suggesting that the council of commissioners failed
to act in accordance with its enabling legislation. It is thus necessary to determine, as the
Court did in Slaight Communications, whether the council of commissioners' decision
infringes, as alleged, Gurbaj Singh's freedom of religion. As Lamer J. explained (at pp.
1079-80), where the legislation pursuant to which an administrative body has made a
contested decision confers a discretion (in the instant case, the choice of means to keep
schools safe) and does not confer, either expressly or by implication, the power to limit
the rights and freedoms guaranteed by the Canadian Charter, the decision should, if there
is an infringement, be subjected to the test set out in s. 1 of the Canadian Charter to
ascertain whether it constitutes a reasonable limit that can be demonstrably justified in a
free and democratic society. If it is not justified, the administrative body has exceeded its
authority in making the contested decision.

5.2 Internal Limits of Freedom of Religion, or Justification Within the
Meaning of Section One?

¶ 24 The parties have been unable to agree on the most appropriate analytical
approach. The appellant considers it clear that the council of commissioners' decision
infringes his son's freedom of religion protected by s. 2(a) of the Canadian Charter. In
response to the respondents' submissions, he maintains that only a limit that meets the test

for the application of s. 1 of the Canadian Charter can be justified. The Attorney General
of Quebec concedes that the prohibition against the appellant's son wearing his kirpan to
school infringes the son's freedom of religion, but submits that, regardless of the
conditions ordered by the Superior Court, the prohibition is a fair limit on freedom of
religion, which is not an absolute right.

¶ 25 According to the CSMB, freedom of religion has not been infringed, because it
has internal limits. The CSMB considers that, in the instant case, the freedom of religion
guaranteed by s. 2(a) must be limited by imperatives of public order, safety, and health,
as well as by the rights and freedoms of others. In support of this contention, it relies
primarily on Trinity Western University v. British Columbia College of Teachers, [2001]
1 S.C.R. 772, 2001 SCC 31, in which the Court defined the scope of the rights in issue
(freedom of religion and the right to equality) in order to resolve any potential conflict.
The CSMB is of the view that, in the case at bar, delineating the rights in issue in this
way would preserve Gurbaj Singh's freedom of religion while, as in Trinity Western
University, circumscribing his freedom to act in accordance with his beliefs. According to
this line of reasoning, the outcome of this appeal would be decided at the stage of
determining whether freedom of religion has been infringed rather than at the stage of
reconciling the rights of the parties under s. 1 of the Canadian Charter.

¶ 26 This Court has clearly recognized that freedom of religion can be limited when a
person's freedom to act in accordance with his or her beliefs may cause harm to or
interfere with the rights of others (see R. v. Big M Drug Mart, [1985] 1 S.C.R. 295, at p.
337, and Syndicat Northcrest v. Amselem, [2004] 2 S.C.R. 551, 2004 SCC 47, at para.
62). However, the Court has on numerous occasions stressed the advantages of
reconciling competing rights by means of a s. 1 analysis. For example, in B. (R.) v.
Children's Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315, the claimants, who
were Jehovah's Witnesses, contested an order that authorized the administration of a
blood transfusion to their daughter. While acknowledging that freedom of religion could
be limited in the best interests of the child, La Forest J., writing for the majority of the
Court, stated the following, at paras. 109-10:

This Court has consistently refrained from formulating internal limits
to the scope of freedom of religion in cases where the constitutionality of a
legislative scheme was raised; it rather opted to balance the competing
rights under s. 1 of the Charter... .
In my view, it appears sounder to leave to the state the burden of
justifying the restrictions it has chosen. Any ambiguity or hesitation should
be resolved in favour of individual rights. Not only is this consistent with
the broad and liberal interpretation of rights favoured by this Court, but s. 1
is a much more flexible tool with which to balance competing rights than s.
2(a).

¶ 27 Ross provides another example of this. In that case, the Court recognized a
teacher's right to act on the basis of antisemitic views that compromised the right of

students to a school environment free of discrimination, but opted to limit the teacher's
freedom of religion pursuant to s. 1 of the Canadian Charter (at paras. 74-75):

This mode of approach is analytically preferable because it gives the
broadest possible scope to judicial review under the Charter and provides a
more comprehensive method of assessing the relevant conflicting values... .
... That approach seems to me compelling in the present case where the
respondent's claim is to a serious infringement of his rights of expression
and of religion in a context requiring a detailed contextual analysis. In
these circumstances, there can be no doubt that the detailed s. 1 analytical
approach developed by this Court provides a more practical and
comprehensive mechanism, involving review of a whole range of factors
for the assessment of competing interests and the imposition of restrictions
upon individual rights and freedoms.

¶ 28 It is important to distinguish these decisions from the ones in which the Court did
not conduct a s. 1 analysis because there was no conflict of fundamental rights. For
example, in Trinity Western University, the Court, asked to resolve a potential conflict
between religious freedoms and equality rights, concluded that a proper delineation of the
rights involved would make it possible to avoid any conflict in that case. Likewise, in
Amselem, a case concerning the Quebec Charter, the Court refused to pit freedom of
religion against the right to peaceful enjoyment and free disposition of property, because
the impact on the latter was considered "at best, minimal" (at para. 64). Logically, where
there is not an apparent infringement of more than one fundamental right, no
reconciliation is necessary at the initial stage.

¶ 29 In the case at bar, the Court does not at the outset have to reconcile two
constitutional rights, as only freedom of religion is in issue here. Furthermore, since the
decision genuinely affects both parties and was made by an administrative body
exercising statutory powers, a contextual analysis under s. 1 will enable us to balance the
relevant competing values in a more comprehensive manner.

¶ 30 This Court has frequently stated, and rightly so, that freedom of religion is not
absolute and that it can conflict with other constitutional rights. However, since the test
governing limits on rights was developed in Oakes, the Court has never called into
question the principle that rights are reconciled through the constitutional justification
required by s. 1 of the Canadian Charter. In this regard, the significance of Big M Drug
Mart, which predated Oakes, was considered in B. (R.), at paras. 110-11; see also R. v.
Keegstra, [1990] 3 S.C.R. 697, at pp. 733-34. In Dagenais v. Canadian Broadcasting
Corp., [1994] 3 S.C.R. 835, the Court, in formulating the common law test applicable to
publication bans, was concerned with the need to "develop the principles of the common
law in a manner consistent with the fundamental values enshrined in the Constitution" (at
p. 878). For this purpose, since the media's freedom of expression had to be reconciled
with the accused's right to a fair trial, the Court held that a common law standard that
"clearly reflects the substance of the Oakes test" was the most appropriate one (at p. 878).

¶ 31 Thus, the central issue in the instant case is best suited to a s. 1 analysis. But
before proceeding with this analysis, I will explain why the contested decision clearly
infringes freedom of religion.

6. Infringement of Freedom of Religion

¶ 32 This Court has on numerous occasions stressed the importance of freedom of
religion. For the purposes of this case, it is sufficient to reproduce the following statement
from Big M Drug Mart, at pp. 336-37 and 351:

The essence of the concept of freedom of religion is the right to entertain
such religious beliefs as a person chooses, the right to declare religious
beliefs openly and without fear of hindrance or reprisal, and the right to
manifest religious belief by worship and practice or by teaching and
dissemination. But the concept means more than that.
... Freedom means that, subject to such limitations as are necessary to
protect public safety, order, health, or morals or the fundamental rights and
freedoms of others, no one is to be forced to act in a way contrary to his
beliefs or his conscience.

...

... With the Charter, it has become the right of every Canadian to work out
for himself or herself what his or her religious obligations, if any, should
be and it is not for the state to dictate otherwise.

¶ 33 It was explained in Amselem, at para. 46, 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.[Emphasis added.]

¶ 34 In Amselem, the Court ruled that, in order to establish that his or her freedom of
religion has been infringed, the claimant must demonstrate (1) that he or she sincerely
believes in a practice or belief that has a nexus with religion, and (2) that the impugned
conduct of a third party interferes, in a manner that is non-trivial or not insubstantial, with
his or her ability to act in accordance with that practice or belief.

¶ 35 The fact that different people practise the same religion in different ways does
not affect the validity of the case of a person alleging that his or her freedom of religion
has been infringed. What an individual must do is show that he or she sincerely believes
that a certain belief or practice is required by his or her religion. The religious belief must
be asserted in good faith and must not be fictitious, capricious or an artifice (Amselem, at

para. 52). In assessing the sincerity of the belief, a court must take into account, inter
alia, the credibility of the testimony of the person asserting the particular belief and the
consistency of the belief with his or her other current religious practices (Amselem, at
para. 53).

¶ 36 In the case at bar, Gurbaj Singh must therefore show that he sincerely believes
that his faith requires him at all times to wear a kirpan made of metal. Evidence to this
effect was introduced and was not contradicted. No one contests the fact that the
orthodox Sikh religion requires its adherents to wear a kirpan at all times. The affidavits
of chaplain Manjit Singh and of Gurbaj Singh explain that orthodox Sikhs must comply
with a strict dress code requiring them to wear religious symbols commonly known as the
Five Ks: (1) the kesh (uncut hair); (2) the kangha (a wooden comb); (3) the kara (a steel
bracelet worn on the wrist); (4) the kaccha (a special undergarment); and (5) the kirpan (a
metal dagger or sword). Furthermore, Manjit Singh explains in his affidavit that the Sikh
religion teaches pacifism and encourages respect for other religions, that the kirpan must
be worn at all times, even in bed, that it must not be used as a weapon to hurt anyone, and
that Gurbaj Singh's refusal to wear a symbolic kirpan made of a material other than metal
is based on a reasonable religiously motivated interpretation.

¶ 37 Much of the CSMB's argument is based on its submission that
[TRANSLATION] "the kirpan is essentially a dagger, a weapon designed to kill,
intimidate or threaten others". With respect, while the kirpan undeniably has
characteristics of a bladed weapon capable of wounding or killing a person, this
submission disregards the fact that, for orthodox Sikhs, the kirpan is above all a religious
symbol. Chaplain Manjit Singh mentions in his affidavit that the word "kirpan" comes
from "kirpa", meaning "mercy" and "kindness", and "aan", meaning "honour". There is
no denying that this religious object could be used wrongly to wound or even kill
someone, but the question at this stage of the analysis cannot be answered definitively by
considering only the physical characteristics of the kirpan. Since the question of the
physical makeup of the kirpan and the risks the kirpan could pose to the school board's
students involves the reconciliation of conflicting values, I will return to it when I address
justification under s. 1 of the Canadian Charter. In order to demonstrate an infringement
of his freedom of religion, Gurbaj Singh does not have to establish that the kirpan is not a
weapon. He need only show that his personal and subjective belief in the religious
significance of the kirpan is sincere.

¶ 38 Gurbaj Singh says that he sincerely believes he must adhere to this practice in
order to comply with the requirements of his religion. Grenier J. of the Superior Court
declared (at para. 6) - and the Court of Appeal reached the same conclusion (at para. 70) -
that Gurbaj Singh's belief was sincere. Gurbaj Singh's affidavit supports this conclusion,
and none of the parties have contested the sincerity of his belief.

¶ 39 Furthermore, Gurbaj Singh's refusal to wear a replica made of a material other
than metal is not capricious. He genuinely believes that he would not be complying with
the requirements of his religion were he to wear a plastic or wooden kirpan. The fact that
other Sikhs accept such a compromise is not relevant, since as Lemelin J. mentioned at

para. 68 of her decision, [TRANSLATION] "[w]e must recognize that people who
profess the same religion may adhere to the dogma and practices of that religion to
varying degrees of rigour".

¶ 40 Finally, the interference with Gurbaj Singh's freedom of religion is neither trivial
nor insignificant. Forced to choose between leaving his kirpan at home and leaving the
public school system, Gurbaj Singh decided to follow his religious convictions and is
now attending a private school. The prohibition against wearing his kirpan to school has
therefore deprived him of his right to attend a public school.

¶ 41 Thus, there can be no doubt that the council of commissioners' decision
prohibiting Gurbaj Singh from wearing his kirpan to Sainte-Catherine-Labouré school
infringes his freedom of religion. This limit must therefore be justified under s. 1 of the
Canadian Charter.

7. Section 1 of the Canadian Charter

¶ 42 As I mentioned above, the council of commissioners made its decision pursuant
to its discretion under s. 12 EA. The decision prohibiting the wearing of a kirpan at the
school thus constitutes a limit prescribed by a rule of law within the meaning of s. 1 of
the Canadian Charter and must accordingly be justified in accordance with that section:

The Canadian Charter of Rights and Freedoms guarantees the rights and
freedoms set out in it subject only to such reasonable limits prescribed by
law as can be demonstrably justified in a free and democratic society.

¶ 43 The onus is on the respondents to prove that, on a balance of probabilities, the
infringement is reasonable and can be demonstrably justified in a free and democratic
society. To this end, two requirements must be met. First, the legislative objective being
pursued must be sufficiently important to warrant limiting a constitutional right. Next, the
means chosen by the state authority must be proportional to the objective in question:
Oakes; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713.

7.1 Importance of the Objective

¶ 44 As stated by the Court of Appeal, the council of commissioners' decision
[TRANSLATION] "was motivated by [a pressing and substantial] objective, namely, to
ensure an environment conducive to the development and learning of the students. This
requires [the CSMB] to ensure the safety of the students and the staff. This duty is at the
core of the mandate entrusted to educational institutions" (at para. 77). The appellant
concedes that this objective is laudable and that it passes the first stage of the test. The
respondents also submitted fairly detailed evidence consisting of affidavits from various
stakeholders in the educational community explaining the importance of safety in schools
and the upsurge in problems relating to weapons and violence in schools.

¶ 45 Clearly, the objective of ensuring safety in schools is sufficiently important to
warrant overriding a constitutionally protected right or freedom. It remains to be
determined what level of safety the governing board was seeking to achieve by
prohibiting the carrying of weapons and dangerous objects, and what degree of risk
would accordingly be tolerated. As in British Columbia (Superintendent of Motor
Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868 at para.
25, the possibilities range from a desire to ensure absolute safety to a total lack of
concern for safety. Between these two extremes lies a concern to ensure a reasonable
level of safety.

¶ 46 Although the parties did not present argument on the level of safety sought by the
governing board, the issue was addressed by the intervener Canadian Human Rights
Commission, which correctly stated that the standard that seems to be applied in schools
is reasonable safety, not absolute safety. The application of a standard of absolute safety
could result in the installation of metal detectors in schools, the prohibition of all
potentially dangerous objects (such as scissors, compasses, baseball bats and table knives
in the cafeteria) and permanent expulsion from the public school system of any student
exhibiting violent behaviour. Apart from the fact that such a standard would be
impossible to attain, it would compromise the objective of providing universal access to
the public school system.

¶ 47 On the other hand, when the governing board approved the article in question of
the Code de vie, it was not seeking to establish a minimum standard of safety. As can be
seen from the affidavits of certain stakeholders from the educational community, violence
and weapons are not tolerated in schools, and students exhibiting violent or dangerous
behaviour are punished. Such measures show that the objective is to attain a certain level
of safety beyond a minimum threshold.

¶ 48 I therefore conclude that the level of safety chosen by the governing council and
confirmed by the council of commissioners was reasonable safety. The objective of
ensuring a reasonable level of safety in schools is without question a pressing and
substantial one.

7.2 Proportionality

7.2.1 Rational Connection

¶ 49 The first stage of the proportionality analysis consists in determining whether the
council of commissioners' decision was rendered in furtherance of the objective. The
decision must have a rational connection with the objective. In the instant case,
prohibiting Gurbaj Singh from wearing his kirpan to school was intended to further this
objective. Despite the profound religious significance of the kirpan for Gurbaj Singh, it
also has the characteristics of a bladed weapon and could therefore cause injury. The
council of commissioners' decision therefore has a rational connection with the objective
of ensuring a reasonable level of safety in schools. Moreover, it is relevant that the

appellant has never contested the rationality of the Code de vie's rule prohibiting weapons
in school.

7.2.2 Minimal Impairment

¶ 50 The second stage of the proportionality analysis is often central to the debate as
to whether the infringement of a right protected by the Canadian Charter can be justified.
The limit, which must minimally impair the right or freedom that has been infringed,
need not necessarily be the least intrusive solution. In RJR-MacDonald Inc. v. Canada
(Attorney General), [1995] 3 S.C.R. 199, at para. 160, this Court defined the test as
follows:

The impairment must be "minimal", that is, the law must be carefully
tailored so that rights are impaired no more than necessary. The tailoring
process seldom admits of perfection and the courts must accord some
leeway to the legislator. If the law falls within a range of reasonable
alternatives, the courts will not find it overbroad merely because they can
conceive of an alternative which might better tailor objective to
infringement.

¶ 51 The approach to the question must be the same where what is in issue is not
legislation, but a decision rendered pursuant to a statutory discretion. Thus, it must be
determined whether the decision to establish an absolute prohibition against wearing a
kirpan "falls within a range of reasonable alternatives".

¶ 52 In considering this aspect of the proportionality analysis, Lemelin J. expressed
the view that [TRANSLATION] "[t]he duty to accommodate this student is a corollary of
the minimal impairment [test]" (at para. 92). In other words, she could not conceive of
the possibility of a justification being sufficient for the purposes of s. 1 if reasonable
accommodation is possible (at para. 75). This correspondence of the concept of
reasonable accommodation with the proportionality analysis is not without precedent. In
Eldridge, at para. 79, this Court stated that, in cases concerning s. 15(1) of the Canadian
Charter, "reasonable accommodation" was equivalent to the concept of "reasonable
limits" provided for in s. 1 of the Canadian Charter.

¶ 53 In my view, this correspondence between the legal principles is logical. In
relation to discrimination, the courts have held that there is a duty to make reasonable
accommodation for individuals who are adversely affected by a policy or rule that is
neutral on its face, and that this duty extends only to the point at which it causes undue
hardship to the party who must perform it. Although it is not necessary to review all the
cases on the subject, the analogy with the duty of reasonable accommodation seems to
me to be helpful to explain the burden resulting from the minimal impairment test with
respect to a particular individual, as in the case at bar. In my view, Professor José
Woehrling correctly explained the relationship between the duty to accommodate or
adapt and the Oakes analysis in the following passage:

[TRANSLATION] Anyone seeking to disregard the duty to
accommodate must show that it is necessary, in order to achieve a
legitimate and important legislative objective, to apply the standard in its
entirety, without the exceptions sought by the claimant. More specifically,
in the context of s. 1 of the Canadian Charter, it is necessary, in applying
the test from R. v. Oakes, to show, in succession, that applying the standard
in its entirety constitutes a rational means of achieving the legislative
objective, that no other means are available that would be less intrusive in
relation to the rights in question (minimal impairment test), and that there
is proportionality between the measure's salutary and limiting effects. At a
conceptual level, the minimal impairment test, which is central to the
section 1 analysis, corresponds in large part with the undue hardship
defence against the duty of reasonable accommodation in the context of
human rights legislation. This is clear from the Supreme Court's judgment
in Edwards Books, in which the application of the minimal impairment test
led the Court to ask whether the Ontario legislature, in prohibiting stores
from opening on Sundays and allowing certain exceptions for stores that
were closed on Saturdays, had done enough to accommodate merchants
who, for religious reasons, had to observe a day of rest on a day other than
Sunday.
(J. Woehrling, "L'obligation d'accommodement raisonnable et l'adaptation
de la société à la diversité religieuse" (1998), 43 McGill L.J. 325, at p. 360)

¶ 54 The council of commissioners' decision establishes an absolute prohibition
against Gurbaj Singh wearing his kirpan to school. The respondents contend that this
prohibition is necessary, because the presence of the kirpan at the school poses numerous
risks for the school's pupils and staff. It is important to note that Gurbaj Singh has never
claimed a right to wear his kirpan to school without restrictions. Rather, he says that he is
prepared to wear his kirpan under the above-mentioned conditions imposed by Grenier J.
of the Superior Court. Thus, the issue is whether the respondents have succeeded in
demonstrating that an absolute prohibition is justified.

¶ 55 According to the CSMB, to allow the kirpan to be worn to school entails the risks
that it could be used for violent purposes by the person wearing it or by another student
who takes it away from him, that it could lead to a proliferation of weapons at the school,
and that its presence could have a negative impact on the school environment. In support
of this last point, the CSMB submits that the kirpan is a symbol of violence and that it
sends the message that the use of force is the way to assert rights and resolve conflicts, in
addition to undermining the perception of safety and compromising the spirit of fairness
that should prevail in schools, in that its presence suggests the existence of a double
standard. Let us look at those arguments.

7.2.2.1 Safety in Schools

¶ 56 According to the respondents, the presence of kirpans in schools, even under
certain conditions, creates a risk that they will be used for violent purposes, either by
those who wear them or by other students who might take hold of them by force.

¶ 57 The evidence shows that Gurbaj Singh does not have behavioural problems and
has never resorted to violence at school. The risk that this particular student would use his
kirpan for violent purposes seems highly unlikely to me. In fact, the CSMB has never
argued that there was a risk of his doing so.

¶ 58 As for the risk of another student taking his kirpan away from him, it also seems
to me to be quite low, especially if the kirpan is worn under conditions such as were
imposed by Grenier J. of the Superior Court. In the instant case, if the kirpan were worn
in accordance with those conditions, any student wanting to take it away from Gurbaj
Singh would first have to physically restrain him, then search through his clothes, remove
the sheath from his guthra, and try to unstitch or tear open the cloth enclosing the sheath
in order to get to the kirpan. There is no question that a student who wanted to commit an
act of violence could find another way to obtain a weapon, such as bringing one in from
outside the school. Furthermore, there are many objects in schools that could be used to
commit violent acts and that are much more easily obtained by students, such as scissors,
pencils and baseball bats.

¶ 59 In her brief reasons, Grenier J. explained that her decision was based in part on
the fact that [TRANSLATION] "the evidence revealed no instances of violent incidents
involving kirpans in schools in Quebec" and on "the state of Canadian and American law
on this matter" (at para. 6). In fact, the evidence in the record suggests that, over the 100
years since Sikhs have been attending schools in Canada, not a single violent incident
related to the presence of kirpans in schools has been reported. In the reasons for his
interim order, Tellier J. stated the following:

[TRANSLATION] [T]he Court is of the view that the school board would
not suffer any major inconvenience if an order were made under conditions
required to ensure a safe environment. The Court does not believe that the
safety of the environment would be compromised. In argument, it was
stated that in the last 100 years, not a single case of kirpan-related violence
has been reported. Moreover, in a school setting, there are usually all sorts
of instruments that could be used as weapons during a violent incident,
including compasses, drawing implements and sports equipment, such as
baseball bats.
(Multani (Tuteur de) v. Commission scolaire Marguerite-Bourgeois,
[2002] Q.J. No. 619 (QL) (Sup. Ct.), at para. 28)

¶ 60 The lack of evidence of risks related to the wearing of kirpans was also noted in
1990 by a board of inquiry of the Ontario Human Rights Commission, which considered
the presence of kirpans in schools in great depth in Pandori v. Peel Bd. of Education
(1990), 12 C.H.R.R. D/364; its decision was affirmed by the Ontario Divisional Court in
Peel Board of Education v. Ontario Human Rights Commission (1991), 3 O.R. (3d) 531,

and leave to appeal was refused by the Ontario Court of Appeal. The board of inquiry
allowed kirpans to be worn in Ontario schools under conditions similar to the ones
imposed by Grenier J. of the Quebec Superior Court. The board noted that there had been
no incidents involving kirpans in Canadian schools (at para. 176):

Respondent has underscored that a kirpan could have the function of a
weapon, but did not establish that a student had in fact so used it. In fact,
there is not a single incident to which the respondent could point when the
kirpan was used on school property or its environs - either in Peel or
anywhere in Ontario or even all of Canada. Since Sikhs, and Khalsa among
others, have been in this country for nearly a hundred years, this is a record
worth considering.

The decision was affirmed by the Ontario Divisional Court, which stated the following
(at p. 535):

We can see no error in principle in the way it applied its judgment to the
facts of this case, particularly in light of the lack of any incident of kirpan-
related violence in any school system.

While noting the lack of kirpan-related incidents in schools, the Divisional Court
summarized the evidence submitted to it regarding the violent use of kirpans in locations
other than schools as follows (at pp. 532-33):

There have been, in the Metropolitan Toronto area, three reported
incidents of violent kirpan use. One involved a plea of guilty to attempted
murder after a stabbing with a kirpan. In one street fight, a man was
stabbed in the back with a kirpan. In one case, a kirpan was drawn for
defensive purposes.
None of these incidents was associated with any school. The only
incident associated with a school was when a 10-year-old Sikh boy,
walking home from school, was assaulted by two older boys. He put his
hand on the handle of his kirpan before stepping back and running away,
without drawing the kirpan from its sheath.
There is no evidence that a kirpan has ever been drawn or used as a
weapon in any school under the board's jurisdiction.

...

Sikhs may wear kirpans in schools in Surrey, British Columbia.
Although no other Ontario school board has expressly addressed the issue
with the same depth as the Peel board, students may wear kirpans in the
North York Board of Education and the Etobicoke Board of Education
(which has a limit of six inches in size). No school boards in the
Metropolitan Toronto area have a policy prohibiting or restricting kirpans.
There is no evidence that kirpans have sparked a violent incident in any

school, no evidence that any other school board in Canada bans kirpans,
and no evidence of a student anywhere in Canada using a kirpan as a
weapon.

¶ 61 The parties introduced into evidence several newspaper articles confirming the
lack of incidents involving kirpans. An article published in the March 23, 2002 edition of
The Globe and Mail refers to the 1990 Ontario decision and mentions that there is no
evidence of a growing danger since that time. In an article appearing in The Gazette on
May 16, 2002, Surrey School District spokeswoman Muriel Wilson is quoted as saying,
"We have a strict zero-tolerance policy on weapons or something that could be used as a
weapon or taken to be a weapon, like a fake gun... ." But according to her, the kirpan is
considered to be a religious symbol, not a weapon: "The key is how things are used. A
pen could be used as a weapon, but we're not saying, 'No pens in schools'". The same
article mentions that the Peel District School Board now says that the wearing of kirpans
"[is] truly not an issue" and that there "has never been an issue or incident, never a
complaint or problem" related to wearing kirpans in school since the ban was lifted: "It
can work and work really well". An article published in the May 13, 2002 edition of La
Presse notes that there have been no problems related to the wearing of kirpans in the
schools of the Vancouver and Surrey school boards, which have large numbers of Sikh
students. Finally, according to an article published in The Gazette on February 21, 2002,
"Whether a Sikh pupil should be allowed to wear a kirpan to school might be a new issue
in Quebec, but it is not in the rest of the country".

¶ 62 The respondents maintain that freedom of religion can be limited even in the
absence of evidence of a real risk of significant harm, since it is not necessary to wait for
the harm to occur before correcting the situation. They submit that the same line of
reasoning that was followed in R. v. Hothi, [1985] 3 W.W.R. 256 (Man. Q.B.) (affirmed
on appeal, [1986] 3 W.W.R. 671 (Man. C.A.)), and Nijjar v. Canada 3000 Airlines Ltd.,
[1999] C.H.R.D. No. 3 (QL), in which the wearing of kirpans was prohibited in courts
and on airplanes, should apply in this case. As was mentioned above, Lemelin J. of the
Court of Appeal pointed out that safety concerns are no less serious in schools.

¶ 63 There can be no doubt that safety is just as important in schools as it is on
airplanes and in courts. However, it is important to remember that the specific context
must always be borne in mind in resolving the issue. In Nijjar, Mr. Nijjar's complaint that
he had been denied the right to wear his kirpan aboard a Canada 3000 Airlines aircraft
was dismissed because, inter alia, he had failed to demonstrate that wearing a kirpan in a
manner consistent with Canada 3000's policies would be contrary to his religious beliefs.
It was apparent from Mr. Nijjar's testimony that wearing one particular type of kirpan
rather than another was a matter of personal preference, not of religious belief. While it
concluded that Mr. Nijjar had not been discriminated against on the basis of his religion,
the Canadian Human Rights Tribunal did nevertheless consider the issue of reasonable
accommodation. It made the following comment at para. 121 of its decision:

In assessing whether or not the respondent's weapons policy can be
modified so as to accommodate Sikhs detrimentally affected, consideration

must be given to the environment in which the rule must be applied. In this
regard, we are satisfied that aircraft present a unique environment. Groups
of strangers are brought together and are required to stay together, in
confined spaces, for prolonged periods of time. Emergency medical and
police assistance are not readily accessible.

Then, at para. 123, the Tribunal distinguished the case before it from Pandori:

Unlike the school environment in issue in the Pandori case, where
there is an ongoing relationship between the student and the school and
with that a meaningful opportunity to assess the circumstances of the
individual seeking the accommodation, air travel involves a transitory
population. Significant numbers of people are processed each day, with
minimal opportunity for assessment. It will be recalled that Mr. Kinnear
testified that Canada 3000 check-in personnel have between 45 and 90
seconds of contact with each passenger.

¶ 64 Hothi also involved special circumstances. The judge who prohibited the wearing
of a kirpan in the courtroom was hearing the case of an accused charged with assault
under s. 245 of the Criminal Code, R.S.C. 1985, c. C-46. Dewar C.J.Q.B. of the
Manitoba Court of Queen's Bench considered (at p. 259) the special nature of courts and
stated the following about the prohibition against wearing kirpans in courtrooms:

[It] serves a transcending public interest that justice be administered in an
environment free from any influence which may tend to thwart the process.
Possession in the courtroom of weapons, or articles capable of use as such,
by parties or others is one such influence.

¶ 65 The facts in the case at bar are more similar to the facts in Pandori than to those
in Nijjar and Hothi. The school environment is a unique one that permits relationships to
develop among students and staff. These relationships make it possible to better control
the different types of situations that arise in schools. The Ontario board of inquiry
commented on the special nature of the school environment in Pandori, at para. 197:

Courts and schools are not comparable institutions. One is a tightly
circumscribed environment in which contending elements, adversarially
aligned, strive to obtain justice as they see it, with judge and/or jury
determining the final outcome. Schools on the other hand are living
communities which, while subject to some controls, engage in the
enterprise of education in which both teachers and students are partners.
Also, a court appearance is temporary (a Khalka Sikh could conceivably
deal with the prohibition of the kirpan as he/she would on an airplane ride)
and is therefore not comparable to the years a student spends in the school
system.

¶ 66 Although there is no need in the instant case for this Court to compare the
desirable level of safety in a given environment with the desirable level in a school
environment, these decisions show that each environment is a special case with its own
unique characteristics that justify a different level of safety, depending on the
circumstances.

¶ 67 Returning to the respondents' argument, I agree that it is not necessary to wait for
harm to be done before acting, but the existence of concerns relating to safety must be
unequivocally established for the infringement of a constitutional right to be justified.
Given the evidence in the record, it is my opinion that the respondents' argument in
support of an absolute prohibition - namely that kirpans are inherently dangerous - must
fail.

7.2.2.2 Proliferation of Weapons in Schools

¶ 68 The respondents also contend that allowing Gurbaj Singh to wear his kirpan to
school could have a ripple effect. They submit that other students who learn that orthodox
Sikhs may wear their kirpans will feel the need to arm themselves so that they can defend
themselves if attacked by a student wearing a kirpan.

¶ 69 This argument is essentially based on the one discussed above, namely that
kirpans in school pose a safety risk to other students, forcing them to arm themselves in
turn in order to defend themselves. For the reasons given above, I am of the view that the
evidence does not support this argument. It is purely speculative and cannot be accepted
in the instant case: see Eldridge, at para. 89. Moreover, this argument merges with the
next one, which relates more specifically to the risk of poisoning the school environment.
I will therefore continue with the analysis.

7.2.2.3 Negative Impact on the School Environment

¶ 70 The respondents submit that the presence of kirpans in schools will contribute to
a poisoning of the school environment. They maintain that the kirpan is a symbol of
violence and that it sends the message that using force is the way to assert rights and
resolve conflict, compromises the perception of safety in schools and establishes a double
standard.

¶ 71 The argument that the wearing of kirpans should be prohibited because the
kirpan is a symbol of violence and because it sends the message that using force is
necessary to assert rights and resolve conflict must fail. Not only is this assertion
contradicted by the evidence regarding the symbolic nature of the kirpan, it is also
disrespectful to believers in the Sikh religion and does not take into account Canadian
values based on multiculturalism.

¶ 72 As for the submissions based on the other students' perception regarding safety
and on feelings of unfairness that they might experience, these appear to stem from the
affidavit of psychoeducator Denis Leclerc, who gave his opinion concerning a study in

which he took part that involved, inter alia, questioning students and staff from 14 high
schools belonging to the CSMB about the socio-educational environment in schools. The
results of the study seem to show that there is a mixed or negative perception regarding
safety in schools. It should be noted that this study did not directly address kirpans, but
was instead a general examination of the situation in schools in terms of safety. Mr.
Leclerc is of the opinion that the presence of kirpans in schools would heighten this
impression that the schools are unsafe. He also believes that allowing Gurbaj Singh to
wear a kirpan would engender a feeling of unfairness among the students, who would
perceive this permission as special treatment. He mentions, for example, that some
students still consider the right of Muslim women to wear the chador to be unfair,
because they themselves are not allowed to wear caps or scarves.

¶ 73 It should be noted that, in a letter submitted to counsel for the appellants,
psychologist Mathieu Gattuso indicated that, in light of the generally accepted principles
concerning expert evidence, Denis Leclerc's affidavit does not constitute an expert
opinion. It is clear from the examination of Mr. Leclerc that he did not study the situation
in schools that authorize the wearing of kirpans and that, in his affidavit, he was merely
giving a personal opinion.

¶ 74 With respect for the view of the Court of Appeal, I cannot accept Denis Leclerc's
position. Among other concerns, the example he presents concerning the chador is
particularly revealing. To equate a religious obligation such as wearing the chador with
the desire of certain students to wear caps is indicative of a simplistic view of freedom of
religion that is incompatible with the Canadian Charter. Moreover, his opinion seems to
be based on the firm belief that the kirpan is, by its true nature, a weapon. The CSMB
itself vigorously defends this same position. For example, it states the following in its
factum (at paras. 37-38):

[TRANSLATION] Although kirpans were presented to the trial judge
at the hearing, she failed to rule on the true nature of the kirpan. On the
contrary, she seemed, in light of her comments, to accept the appellants'
argument that in today's world, the kirpan has only symbolic value for
Sikhs.
Yet whatever it may symbolize, the kirpan is still essentially a dagger,
a weapon designed to kill, intimidate or threaten others. [Emphasis added.]

These assertions strip the kirpan of any religious significance and leave no room for
accommodation. The CSMB also makes the following statement (at para. 51):

[TRANSLATION] It is thus a paralogism ... to liken a weapon to all
objects whose purpose is not to kill or wound but that could potentially be
used as weapons, such as compasses, paper cutters, baseball bats, sporting
equipment, or cars. Does this mean that we should stop studying geometry
or playing baseball?

¶ 75 The appellants are perhaps right to state that the only possible explanation for the
acceptance of these other potentially dangerous objects in schools is that the respondents
consider the activities in which those objects are used to be important, while
accommodating the religious beliefs of the appellant's son is not.

¶ 76 Religious tolerance is a very important value of Canadian society. If some
students consider it unfair that Gurbaj Singh may wear his kirpan to school while they are
not allowed to have knives in their possession, it is incumbent on the schools to discharge
their obligation to instil in their students this value that is, as I will explain in the next
section, at the very foundation of our democracy.

¶ 77 In my opinion, the respondents have failed to demonstrate that it would be
reasonable to conclude that an absolute prohibition against wearing a kirpan minimally
impairs Gurbaj Singh's rights.

7.2.3 Effects of the Measure

¶ 78 Since we have found that the council of commissioners' decision is not a
reasonable limit on religious freedom, it is not strictly necessary to weigh the deleterious
effects of this measure against its salutary effects. I do believe, however, like the
intervener Canadian Civil Liberties Association, that it is important to consider some
effects that could result from an absolute prohibition. An absolute prohibition would
stifle the promotion of values such as multiculturalism, diversity, and the development of
an educational culture respectful of the rights of others. This Court has on numerous
occasions reiterated the importance of these values. For example, in Ross, the Court
stated the following, at para. 42:

A school is a communication centre for a whole range of values and
aspirations of a society. In large part, it defines the values that transcend
society through the educational medium. The school is an arena for the
exchange of ideas and must, therefore, be premised upon principles of
tolerance and impartiality so that all persons within the school environment
feel equally free to participate.

In R. v. M. (M.R.), [1998] 3 S.C.R. 393, at para. 3, the Court made the following
observation:

[S]chools ... have a duty to foster the respect of their students for the
constitutional rights of all members of society. Learning respect for those
rights is essential to our democratic society and should be part of the
education of all students. These values are best taught by example and may
be undermined if the students' rights are ignored by those in authority.

Then, in Trinity Western University, the Court stated the following, at para. 13:

Our Court [has] accepted ... that teachers are a medium for the

transmission of values... . Schools are meant to develop civic virtue and
responsible citizenship, to educate in an environment free of bias, prejudice
and intolerance.

¶ 79 A total prohibition against wearing a kirpan to school undermines the value of
this religious symbol and sends students the message that some religious practices do not
merit the same protection as others. On the other hand, accommodating Gurbaj Singh and
allowing him to wear his kirpan under certain conditions demonstrates the importance
that our society attaches to protecting freedom of religion and to showing respect for its
minorities. The deleterious effects of a total prohibition thus outweigh its salutary effects.

8. Section 15(1) of the Canadian Charter and the Quebec Charter

¶ 80 Having found that the commissioners' decision infringes Gurbaj Singh's freedom
of religion and that this infringement cannot be justified in a free and democratic society,
I believe it is unnecessary to consider the alleged violation of s. 15 of the Canadian
Charter. I am also of the view that a separate analysis with respect to the Quebec Charter
is not necessary in the circumstances of the case.

9. Remedy

¶ 81 Section 24(1) of the Canadian Charter reads as follows:

Anyone whose rights or freedoms, as guaranteed by this Charter, have
been infringed or denied may apply to a court of competent jurisdiction to
obtain such remedy as the court considers appropriate and just in the
circumstances.

¶ 82 Given that Gurbaj Singh no longer attends Sainte-Catherine-Labouré school, it
would not be appropriate to restore the judgment of the Superior Court, as requested by
the appellants. The Court accordingly considers that the appropriate and just remedy is to
declare the decision prohibiting Gurbaj Singh from wearing his kirpan to be null.

10. Disposition

¶ 83 I would allow the appeal, set aside the decision of the Court of Appeal, and
declare the decision of the council of commissioners to be null, with costs throughout.

English version of the reasons delivered by

¶ 84 DESCHAMPS and ABELLA JJ.:-- This case raises two issues. The first relates
to the right of a Sikh student to wear his kirpan to school; the second concerns the
relationship between administrative law and constitutional law in the context of human
rights litigation.

¶ 85 We have come to the same conclusion as Charron J. but do not agree with her
approach. In our view, the case is more appropriately decided by recourse to an
administrative law review than to a constitutional law justification. Two main reasons
dictate that an administrative law review be conducted. First, the purpose of
constitutional justification is to assess a norm of general application, such as a statute or
regulation. The analytical approach developed uniquely for that purpose is not easily
transportable where what must be assessed is the validity of an administrative body's
decision, even on a human rights question. In such a case, an administrative law analysis
is called for. Second, basing the analysis on the principles of administrative law averts the
problems that result from blurring the distinction between the principles of constitutional
justification and the principles of administrative law, and prevents the impairment of the
analytical tools developed specifically for each of these fields.

¶ 86 In Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R.
817, at para. 56, the Court recognized that an administrative law analysis does not
exclude, but incorporates, arguments relating to the Canadian Charter of Rights and
Freedoms ("Canadian Charter"):

The pragmatic and functional approach can take into account the fact that
the more discretion that is left to a decision-maker, the more reluctant
courts should be to interfere with the manner in which decision-makers
have made choices among various options. However, though discretionary
decisions will generally be given considerable respect, that discretion must
be exercised in accordance with the boundaries imposed in the statute, the
principles of the rule of law, the principles of administrative law, the
fundamental values of Canadian society, and the principles of the Charter.

Simply put, it is difficult to conceive of an administrative decision being permitted to
stand if it violates the Canadian Charter. The administrative body's decisions can, indeed
must, be judicially reviewed in accordance with the principles of administrative law
where they do not have the normative import usually associated with a law. For the
reasons that follow, we accordingly believe that it is preferable to adhere to an
administrative law analysis where resorting to constitutional justification is neither
necessary nor appropriate.

1. Administrative Law Analysis

1.1 Facts and Judgments Below

¶ 87 A brief review of the facts provides the necessary background. The Code de vie
(code of conduct) of the school attended by the appellant's son prohibits the carrying of
weapons and dangerous objects. The validity of this code is not in issue. Relying on it,
the school board - the Commission scolaire Marguerite-Bourgeois - prohibited the
appellant's son, a Sikh student, from wearing his kirpan - a 20-cm knife with a metal
blade - to school. At the time the school board first became involved in this matter, the
student claimed the right to wear his kirpan under his clothes. The father and the student

offered to wrap the kirpan in cloth. The school board accepted this as a reasonable
accommodation. When the father and the student met with school officials, these officials
expressed concerns about safety at the school. The governing board of the school refused
to ratify the proposed accommodation measure and instead proposed that the student
wear a harmless symbolic kirpan. On review, the council of commissioners of the school
board endorsed the governing board's position.

¶ 88 The father contested the decision on behalf of himself and his son, filing a
motion for a declaratory judgment. He initially asked the Superior Court to declare, based
on ss. 3 and 10 of the Charter of human rights and freedoms, R.S.Q., c. C-12 ("Quebec
Charter"), and ss. 2 and 15 of the Canadian Charter, that his son had the right to wear his
kirpan. He also asked the court -- in what was in fact an offer of accommodation -- to
declare that the kirpan had to be worn under the student's clothes. Finally, he asked for a
declaration that the school board was not entitled to prohibit the kirpan and that its
decision was of no force or effect. In the Superior Court, the debate involved further
conditions that would permit the concerns about safety at the school to be more
effectively taken into account, while preserving the right to freedom of religion. The
Superior Court judge stated that, in her view, wearing a symbolic kirpan was not
acceptable, and the father and the student agreed to secure the kirpan in a wooden sheath
and wrap it in cloth sewn to a shoulder strap. The Superior Court included in an order the
following accommodation measures ([2002] Q.J. No. 1131 (QL)):

- the kirpan was to be worn under the student's clothes;
- the kirpan was to be placed in a wooden sheath and wrapped and
sewn securely in a sturdy cloth envelope, which was to be sewn to a
shoulder strap (guthra);
- the student was required to keep the kirpan in his possession at all
times, and its disappearance was to be reported to school authorities
immediately;
- school personnel were authorized to verify, in a reasonable fashion,
that the conditions for wearing the kirpan were being complied with;
and
- if these conditions were not complied with, the student would
definitively lose the right to wear a kirpan.

The Superior Court declared the school board's decision prohibiting the wearing of a
kirpan to be null.

¶ 89 The school board and the Attorney General of Quebec appealed to the Court of
Appeal. While the father and the student were still willing to accept the conditions set by
the Superior Court, the Attorney General of Quebec and the school board again submitted
that the kirpan was a weapon that could legitimately be prohibited in a school setting, that
the decision did not infringe freedom of religion, and that the offer to allow the student to
wear a symbolic kirpan represented a reasonable accommodation. They added that if the
decision did infringe freedom of religion, it was nonetheless justified under s. 9.1 of the
Quebec Charter and s. 1 of the Canadian Charter.

¶ 90 The Court of Appeal first addressed the issue of the applicable standard of review
([2004] R.J.Q. 824). Taking into consideration the four factors of the pragmatic and
functional approach, it concluded that the standard of reasonableness should apply. The
court then turned to the substantive issue, concluding that the kirpan is a weapon and that
although the decision to prohibit a weapon did impair the full exercise of freedom of
religion, it was not unreasonable given the school board's obligation to preserve the
physical safety of the school community.

¶ 91 In this Court, the parties are relying on the same arguments as in the Court of
Appeal.

1.2 Analysis

1.2.1 Standard of Review

¶ 92 In his motion for a declaratory judgment, the student's father contested the
validity of the school board's decision. In this Court, the father and the student say that
they are still prepared to accept the conditions imposed by the Superior Court. What must
be examined in this case, therefore, is the validity of the school board's decision in light
of the offer of accommodation made by the father and the student, not the validity of the
school's Code de vie.

¶ 93 Our colleague Charron J. (at para. 20), relying on Nova Scotia (Workers'
Compensation Board) v. Martin, [2003] 2 S.C.R. 504, 2003 SCC 54, at para. 31, finds
that since the dispute concerns the compliance of the school board's decision with the
requirements of the Canadian Charter, an analysis of the standard of review is
unnecessary and that this analysis led the Court of Appeal to an erroneous decision. With
respect, we do not believe that Martin established a rule that simply raising an argument
based on human rights makes administrative law inapplicable, or that all decisions
contested under the Canadian Charter or provincial human rights legislation are subject
to the correctness standard. In Martin, the correctness standard applied because the
decision concerned the Workers' Compensation Board's authority to determine the
validity of a provision of its enabling statute under the Canadian Charter.

¶ 94 Moreover, it should be noted that an administrative law approach was adopted in
reviewing decisions made by, respectively, university and school authorities in Trinity
Western University v. British Columbia College of Teachers, [2001] 1 S.C.R. 772, 2001
SCC 31 ("T.W.U."), and Chamberlain v. Surrey School District No. 36, [2002] 4 S.C.R.
710, 2002 SCC 86. In those cases, the Court had to determine what standard applied to
decisions on issues that unquestionably concerned values protected by the Canadian
Charter.

¶ 95 In the case at bar, the Court must determine the standard of deference to be
applied to the school board's decision, which had an impact on freedom of religion, the
right to equality and the right to physical inviolability. We see no reason to depart from
the approach taken in T.W.U. and Chamberlain.

¶ 96 The Education Act, R.S.Q., c. I-13.3 ("E.A."), contains no privative clause
limiting intervention by the courts. However, the authority to establish rules of conduct in
educational institutions is clearly conferred on the governing board by s. 76 E.A., while s.
12 E.A. authorizes the council of commissioners to reconsider a decision of the
governing board. The establishment of an internal appeal mechanism suggests that the
legislature intended to leave the power to make decisions to local stakeholders.
Furthermore, the issue in the case at bar is not limited to interpreting the scope of the
protection of the student's right to freedom of religion under ss. 2(a) and 15 of the
Canadian Charter and ss. 3 and 10 of the Quebec Charter. The school board also had to
consider the right of all students to physical inviolability, and the specific circumstances
of its schools. The situation in one school board's schools can be very different from that
in another board's schools. The assessment of the facts is therefore of considerable
importance. Where safety in the schools under its responsibility is concerned, the
respondent school board unquestionably has greater expertise than does a court of law
reviewing its decision. If the reasonableness standard applied in Chamberlain, there is
even more reason to conclude that it applies in the instant case because of the factual
element associated with determinations of safety requirements.

1.2.2 Reasonableness of the Decision

¶ 97 The Court of Appeal focused on the kirpan's inherent dangerousness. This
approach fails to take account of the other facts that were presented. It is true that the
kirpan, considered objectively and without the protective measures imposed by the
Superior Court, is an object that fits the definition of a weapon. According to the
evidence of psychoeducator Denis Leclerc, the kirpan would contribute to a perception
that schools are unsafe because a student might [TRANSLATION] "think it necessary to
have a knife at school ... [in case of] an altercation with another student, since he or she
knows that certain students have the right to carry knives and that other students have as a
result also assumed the right to carry one without telling anyone about it". Such a
categorical approach to the kirpan and to safety in the schools disregards the risks
inherent in the use of other objects that are part of the everyday school environment, such
as compasses. Risks can - and should - be limited in the school environment, but they
cannot realistically ever be completely eliminated.

¶ 98 The Court of Appeal's approach also disregards the strict conditions imposed by
the Superior Court. No student is allowed to carry a "knife". The young Sikh is
authorized to wear his kirpan, which, while a kind of "knife", is above all a religious
object whose dangerous nature is neutralized by the many coverings required by the
Superior Court. The kirpan must be enclosed in a wooden sheath and the sheath must be
sewn inside a cloth envelope, which must itself be attached to a shoulder strap worn
under the student's clothing. Secured in this way, the kirpan is almost totally stripped of
its objectively dangerous characteristics. Access to the kirpan is not merely delayed, as
was the case with the first offer made by the father and the student, it is now fully
impeded by the cloth envelope sewn around the wooden sheath. In these circumstances,
the argument relating to safety can no longer reasonably succeed.

¶ 99 In making its determinations, the school board must take all fundamental values
into consideration, including not only security, but also freedom of religion and the right
to equality. The prohibition on the wearing of a kirpan cannot be imposed without
considering conditions that would interfere less with freedom of religion. In the case at
bar, the school board did not sufficiently consider either the right to freedom of religion
or the accommodation measure proposed by the father and the student. It merely applied
the Code de vie literally. By disregarding the right to freedom of religion, and by
invoking the safety of the school community without considering the possibility of a
solution that posed little or no risk, the school board made an unreasonable decision.

2. Inappropriateness of Constitutional Law Justification

2.1 The Court's Prior Decisions

¶ 100 The courts, and particularly this Court, have devoted a great deal of energy to
determining the jurisdiction conferred on administrative bodies and developing the
standard of review.

¶ 101 From Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R.
570, through to Parry Sound (District) Social Services Administration Board v.
O.P.S.E.U., Local 324, [2003] 2 S.C.R. 157, 2003 SCC 42, the Court has made it clear
that administrative tribunals and arbitrators can decide claims or grievances based on
provisions that are implicitly or explicitly incorporated into their mandates. The
jurisdiction of decision makers expanded at the same time as the scrutiny of their
decisions, through the standards of review, was evolving. These changes in the standards
of review were meant to acknowledge the expertise and the specific nature of the work of
administrative boards and should not be disregarded simply because a party argues that a
constitutional justification analysis is instead appropriate. The fact that a party chooses to
characterize an issue as one requiring a s. 1 analysis does not make it so. The changes in
the standard of review cannot be disregarded just because the decision maker also has to
deal with an argument based on human rights

¶ 102 Decisions by administrative bodies were originally reviewed using two
standards, jurisdictional error and patent unreasonableness (Canadian Union of Public
Employees Local 963 v. New Brunswick Liquor Corporation, [1979] 2 S.C.R. 227;
Syndicat des employés de production du Québec et de l'Acadie v. Canada Labour
Relations Board, [1984] 2 S.C.R. 412; and G. Perrault, Le contrôle judiciaire des
décisions de l'administration: De l'erreur juridictionnelle à la norme de contrôle (2002),
at p. 51). The Court was still confined in that straitjacket when it decided Slaight
Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038. The emphasis is now on the
deference owed to administrative bodies. Over the past few years, the Court has even
insisted that a single analytical approach be used for all administrative decision makers:
Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226,
2003 SCC 19. Once again, this change would have little impact if administrative
decisions had in addition to be assessed under s. 1 of the Canadian Charter. We doubt

that this is what the Court had in mind in Slaight, Ross v. New Brunswick School District
No. 15, [1996] 1 S.C.R. 825, and, later, Dr. Q.

¶ 103 Charron J. considers that the analysis must be based on the rules of
constitutional justification because of comments made by Lamer J. in Slaight and by La
Forest J. in Ross, at para. 32. In Slaight, Lamer J. expressed the view that an order can be
analysed using the same rules as are used to analyse a law in the context of a
constitutional challenge, and can thus be justified under s. 1 of the Canadian Charter. We
do not think that the analytical approach proposed by Lamer J. is the most appropriate
one, nor do we believe that this question has been settled. In our opinion, the
administrative law approach must be retained for reviewing decisions and orders made
by administrative bodies. A constitutional justification analysis must, on the other hand,
be carried out when reviewing the validity or enforceability of a norm such as a law,
regulation, or other similar rule of general application. We also note the words of
Dickson C.J. who, writing for the majority in Slaight, refused to accept the approach
proposed by Lamer J. as the definitive one, stating (at p. 1049):

The precise relationship between the traditional standard of
administrative law review of patent unreasonableness and the new
constitutional standard of review will be worked out in future cases.

¶ 104 We take this comment to mean that Dickson C.J. did not consider that case to be
an appropriate occasion to distinguish cases in which a constitutional analysis is
necessary from those in which an analysis based on the principles of administrative law
should be preferred. However, in anticipation of the confusion we are now facing, he
stressed that the chosen approach should not impose a more onerous burden on the
government (at p. 1049):

A few comments nonetheless may be in order. A minimal proposition
would seem to be that administrative law unreasonableness, as a
preliminary standard of review, should not impose a more onerous
standard upon government than would Charter review.

¶ 105 In Ross, La Forest J. briefly addressed the question, and in his view this
comment meant that Dickson C.J. favoured a constitutional analysis whenever
constitutional values are in issue, even where a decision of an administrative body is
being reviewed. However, such an approach is not imperative, as is clearly illustrated by
T.W.U. and Chamberlain, both of which were decided after Ross.

¶ 106 Moreover, in Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R.
624, at para. 84, La Forest J. expressly declined to decide whether the Medical Services
Commission's decision not to fund medical interpreter services was a law within the
meaning of s. 1: he assumed this to be the case but did not rule on the issue. Such reserve
would have been unnecessary had the required approach been clear.

¶ 107 While administrative bodies do have the power and the duty to take the values
protected by the Canadian Charter into account, it does not follow that their decisions
must be subjected to the justification process under s. 1 of the Canadian Charter.

¶ 108 More than 15 years have passed since Dickson C.J. stated that the relationship
between the administrative law standard of review and the constitutional law standard
would be worked out in future cases. The contrast between the approach taken by the
Court in T.W.U. and Chamberlain and the one adopted by the majority in the instant case,
as well as the ambiguity of the parties' arguments in the case at bar, are clear signs of the
uncertainty resulting from the unified analytical approach proposed by Lamer J. We
therefore consider it necessary to review Lamer J.'s approach to determine whether it is
useful and appropriate.

¶ 109 The idea that norms of general application should be dealt with in the same way
as decisions or orders of administrative bodies, as suggested by Lamer J. in Slaight, may
be attractive from a theoretical standpoint. However, apart from the aesthetic appeal of
this unified approach, we are not convinced that there is any advantage to adopting it.
The question is not whether an administrative body can disregard constitutional values.
The answer to that question is clear: it cannot do so absent an express indication that the
legislature intended to allow it to do so. The question is rather how to assess an
administrative body's alleged breach - in a decision - of its constitutional obligations: by
means of the analytical approach under s. 1 of the Canadian Charter or under an
administrative law standard of review? As the instant case shows, and as we stated
previously, it is difficult to imagine a decision that would be considered reasonable or
correct even though it conflicted with constitutional values. Given the demanding nature
of the standard of judicial review to be met where an administrative body fails to consider
constitutional values, the result can be no different, as Dickson C.J. noted in Slaight, at p.
1049; see also Ross, at para. 32.

¶ 110 In short, not only do we think that this Court's past decisions do not rule out the
applicability of an administrative law approach where an infringement of the Canadian
Charter is argued, we also disagree with an approach that involves starting with a
constitutional review in such a case.

¶ 111 In addition to the fact that we believe the question was not settled definitively
by Slaight and Ross, there are several incongruities that prompt us to reflect upon the
approach proposed in those cases. First, there is the bifurcated obligation imposed on an
administrative body to justify certain aspects of its decision pursuant to an administrative
law analysis while other aspects are subject to s. 1 of the Canadian Charter. There are
also problems related to the attribution of the burden of proof and to the nature of the
evidence that an administrative body with quasi-judicial functions would have to adduce
to justify its decision under s. 1 in light of the fact that it is supposed to be independent of
the government. However, these practical problems obscure more important legal
problems, which we will now discuss. The first is the equating of a decision with a law
within the meaning of s. 1 of the Canadian Charter, and the second is the undermining of

the integrity of the tools of administrative law and the resulting further confusion in the
principles of judicial review.

2.2 Meaning of the Expression "Law" in Section 1 of the Canadian Charter

¶ 112 An administrative body determines an individual's rights in relation to a
particular issue. A decision or order made by such a body is not a law or regulation, but is
instead the result of a process provided for by statute and by the principles of
administrative law in a given case. A law or regulation, on the other hand, is enacted or
made by the legislature or by a body to which powers are delegated. The norm so
established is not limited to a specific case. It is general in scope. Establishing a norm and
resolving a dispute are not usually considered equivalent processes. At first glance,
therefore, equating a decision or order with a law, as Lamer J. does in Slaight, seems
anomalous.

¶ 113 A law (loi), in the broad sense, is [TRANSLATION] "any legal or moral norm
or set of norms" (H. Reid, Dictionnaire de droit québécois et canadien (2nd ed. 2001), at
p. 344). A rule (règle) is a [TRANSLATION] "principle of a general and impersonal
nature that determines a line of conduct" (Reid, at p. 475). Thus, the expression "law"
(règle de droit) used in s. 1 of the Canadian Charter naturally refers to a norm or rule of
general application:

1. The Canadian Charter of Rights and Freedoms guarantees the
rights and freedoms set out in it subject only to such reasonable limits
prescribed by law as can be demonstrably justified in a free and democratic
society. [Emphasis added.]

¶ 114 The general nature of the expression "law" seems to emerge from the earliest
judicial definitions of the expression. In R. v. Therens, [1985] 1 S.C.R. 613, at p.
645, LeDain J. wrote the following:

The limit will be prescribed by law within the meaning of s. 1 if it is
expressly provided for by statute or regulation, or results by necessary
implication from the terms of a statute or regulation or from its operating
requirements. [Emphasis added.]

¶ 115 This definition is also consistent with the meaning conveyed by the equivalent
expression (règle de droit) used in the French version of s. 1 of the Canadian Charter,
and by the same expression as used in both versions of s. 52(1) of the Constitution Act,
1982:

52. (1) The Constitution of Canada is the supreme law of Canada, and
any law that is inconsistent with the provisions of the Constitution is, to the
extent of the inconsistency, of no force or effect.

***

52. (1) La Constitution du Canada est la loi suprême du Canada; elle
rend inopérantes les dispositions incompatibles de toute autre règle de
droit.

Professors Brun and Tremblay define "law" as follows (H. Brun and G. Tremblay, Droit
constitutionnel (4th ed. 2002), at p. 944):

[TRANSLATION] A law, within the meaning of s. 1, is an
"intelligible legal standard". The notion of a legal standard relates to the
unilaterally coercive and legally enforceable character of the act in
question.

These authors express surprise at the unified approach suggested in Slaight (at p. 945):

[TRANSLATION] It would appear that an order of a court or tribunal
is also a law within the meaning of s. 1. The Supreme Court has applied
the reasonableness test under s. 1 to such orders on several occasions. This
means that limits on rights can arise out of individualized legal standards,
which is surprising. Such orders are of course law, but to have s. 1 apply to
them without reservation means that litigants may often be unable to
determine the status of their fundamental rights in advance, as in the case
of limits resulting from general norms, such as statutes and regulations. We
would have thought that limits on rights could not result from
individualized orders unless the legislation conferring authority for those
orders envisaged such a possibility. [Citations omitted.]

¶ 116 Professor D. Pinard also criticizes the inconsistency of the approach proposed in
Slaight, noting that equating a decision with a law does violence to the traditional and
usual meaning of this concept: D. Pinard, "Les seules règles de droit qui peuvent poser
des limites aux droits et libertés constitutionnellement protégés et l'arrêt Slaight
Communications" (1991-92), 1 N.J.C.L. 79, at p. 119 (see also P. Garant, Droit
administratif (3rd ed. 1992), vol. 3, Les Chartes, at p. XXXV).

¶ 117 E. Mendes, "The Crucible of the Charter: Judicial Principles v. Judicial
Deference in the Context of Section 1", in G.-A. Beaudoin and E. Mendes, eds.,
Canadian Charter of Rights and Freedoms (4th ed. 2005), attempts to reconcile the
various approaches the Court has taken in dealing with the expression "law" (at pp.
172-73):

An analysis that could reconcile the various cases in this area is one
which argues that the courts have distinguished between arbitrary action
that is exercised without legal authority and discretion that is constrained
by intelligible legal standards and they have held that the latter will meet
the "prescribed by law" requirement. However, in Irwin Toy, the Supreme
Court held that it would not find that a law provided an intelligible

standard if it was vague. The "void for vagueness" doctrine comes from the
rule of law principle that a law must provide sufficient guidance for others
to determine its meaning... .
Put another way, the phrase "prescribed by law" requires that "the
legislature [provide] an intelligible standard according to which the
judiciary must do its work."

¶ 118 To include administrative decisions in the concept of "law" therefore implies
that it is necessary in every case to begin by assessing the validity of the statutory or
regulatory provision on which the decision is based. This indicates that the expression
"law" is used first and foremost in its normative sense. Professor Mendes does not seem
totally convinced that it is helpful to apply s. 1 of the Canadian Charter to assess a
decision (at p. 173):

One could argue that this is a form of double deference: first, to the
legislature to allow them to enact provisions which, although vague, are
not beyond the ability of the judiciary to interpret. Second, there is a form
of self-deference that the judiciary can turn such legislated vagueness into
sufficient precision and certainty to satisfy the requirements of section 1.
Depending how consistent the courts are in interpreting the vastly open-
textured terms of section 1, this form of self-deference may or may not be
justified.

¶ 119 The fact that justification is based on the collective interest also suggests that
the expression "law" should be limited to rules of general application. In R. v. Oakes,
[1986] 1 S.C.R. 103, Dickson C.J. wrote the following (at p. 136):

The rights and freedoms guaranteed by the Charter are not, however,
absolute. It may become necessary to limit rights and freedoms in
circumstances where their exercise would be inimical to the realization of
collective goals of fundamental importance. [Emphasis added.]

¶ 120 To suggest that the decisions of administrative bodies must be justifiable under
the Oakes test implies that the decision makers in question must incorporate this analysis
into their decision-making process. This requirement makes the decision making process
formalistic and distracts the reviewing court from the objective of the analysis, which
relates instead to the substance of the decision and consists of determining whether it is
correct (T.W.U.) or reasonable (Chamberlain).

¶ 121 An administrative decision maker should not have to justify its decision under
the Oakes test, which is based on an analysis of societal interests and is better suited,
conceptually and literally, to the concept of "prescribed by law". That test is based on the
duty of the executive and legislative branches of government to account to the courts for
any rules they establish that infringe protected rights. The Oakes test was developed to
assess legislative policies. The duty to account imposed - conceptually and in practice -
on the legislative and executive branches is not easily applied to administrative tribunals.

¶ 122 In commenting on the application of the Canadian Charter to the common law,
McIntyre J., writing for the majority in RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R.
573, at p. 600, wrote the following:

The courts are, of course, bound by the Charter as they are bound by all
law. It is their duty to apply the law, but in doing so they act as neutral
arbiters, not as contending parties involved in a dispute.

¶ 123 The same reasoning applies in the context of administrative law. Like the
courts, administrative tribunals are bound by the Canadian Charter, their enabling
legislation and the statutes they are specifically responsible for applying. Like the courts,
they cannot be treated as parties with an interest in a dispute. A tribunal's decision should
not be subject to a justification process as if it were a party to a dispute.

¶ 124 Although our colleague LeBel J. does not agree with the norm-decision
dichotomy (at para. 151), his reformulation of the s. 1 test as stated in Oakes reveals the
inherent shortcomings of that test when it is applied to administrative decisions (at para.
155).

¶ 125 We accordingly believe that the expression "law" should not include the
decisions of administrative bodies. Such decisions should be reviewed in accordance with
the principles of administrative law, which will both allow claimants and administrative
bodies to know in advance which rules govern disputes and help prevent any blurring of
roles.

2.3 Analytical Consistency

¶ 126 The mechanisms of administrative law are flexible enough to make it
unnecessary to resort to the justification process under s. 1 of the Canadian Charter when
a complainant is not attempting to strike down a rule or law of general application. The
use of two different processes can even be a source of confusion for the parties.

¶ 127 To illustrate this risk of confusion, it is enough to mention that the parties in the
case at bar have raised all possible arguments, that is, both those relating to constitutional
justification and those based on administrative law. Given the state of the case law, no
one can blame them for doing so. In Quebec, an application for judicial review of an
administrative body's decision must be made to the Superior Court, as can an application
based on the Canadian Charter or the Quebec Charter. However, this is not the case in
all provinces. If, as in Ross, the decision were bifurcated with the administrative law
review on the discrimination issue being conducted separately from the analysis of the
validity of the order, litigants - and reviewing courts - would very likely lose their way. It
is therefore in this Court's interest to suggest consistent approaches.

¶ 128 Our comments do not mean that we believe the Court must always exclude the
s. 1 approach. That approach remains the only one available to demonstrate that an
infringement of a right resulting from a law, in the normative sense of that expression, is

consistent with the values of a free and democratic society. However, where the issue
concerns the validity or merits of an administrative body's decision, resorting to this
justification process is unnecessary because of the specific tools that have been developed
in administrative law. The standard of review is one of those tools. If an administrative
body makes a decision or order that is said to conflict with fundamental values, the
mechanisms of administrative law are readily available to meet the needs of individuals
whose rights have been violated. Such individuals can have the decision quashed by
obtaining a declaration that it is unreasonable or incorrect.

2.3.1 Reasonable Accommodation

¶ 129 The apparent overlap between the concepts of minimal impairment and
reasonable accommodation is another striking example of the need to preserve the
distinctiveness of the administrative law approach. Charron J. is of the opinion that there
is a correspondence between the concepts of accommodation and minimal impairment (at
para. 53). We agree that these concepts have a number of similarities, but in our view
they belong to two different analytical categories.

¶ 130 The case law on reasonable accommodation developed mainly in the context of
the application of human rights legislation to private disputes: Ontario Human Rights
Commission v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536, and Bhinder v. Canadian
National Railway Company, [1985] 2 S.C.R. 561. In British Columbia (Public Service
Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3 ("Meiorin"), and
British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of
Human Rights), [1999] 3 S.C.R. 868 ("Grismer"), the Court developed a mechanism that
permits a balance to be struck between the requirements of the enforcement of a right or
freedom and the constraints imposed by a given environment. This duty, which is more
than a mere bona fide occupational requirement, was extended in Meiorin to all cases of
direct or indirect discrimination, and in Grismer (at para. 19), to all persons governed by
human rights legislation.

¶ 131 The process required by the duty of reasonable accommodation takes into
account the specific details of the circumstances of the parties and allows for dialogue
between them. This dialogue enables them to reconcile their positions and find common
ground tailored to their own needs.

¶ 132 The approach is different, however, in the case of minimal impairment when it
is considered in the context of the broad impact of the result of the constitutional
justification analysis. The justification of the infringement is based on societal interests,
not on the needs of the individual parties. An administrative law analysis is microcosmic,
whereas a constitutional law analysis is generally macrocosmic. The values involved may
be different. We believe that there is an advantage to keeping these approaches separate.

¶ 133 Furthermore, although the minimal impairment test under s. 1 of the Canadian
Charter is similar to the undue hardship test in human rights law, the perspectives in the
two cases are different, as is the evidence that can support the analysis. Assessing the

scope of a law sometimes requires that social facts or the potential consequences of
applying the law be taken into account, whereas determining whether there is undue
hardship requires evidence of hardship in a particular case.

¶ 134 These separate streams - public versus individual - should be kept distinct. A
lack of coherence in the analysis can only be detrimental to the exercise of human rights.
Reasonable accommodation and undue hardship belong to the sphere of administrative
law and human rights legislation, whereas the assessment of minimal impairment is part
of a constitutional analysis with wider societal implications.

¶ 135 The scope of the Canadian Charter is broad. Section 52 guarantees the
supremacy of the Constitution of Canada. This incomparable tool can be used to
invalidate laws that infringe fundamental rights and are not justified by societal goals of
fundamental importance. However, where the concepts specific to administrative law are
sufficient to resolve a dispute, it is unnecessary to resort to the Canadian Charter.

¶ 136 Constitutional values have breathed new life into the Civil Code of Québec,
S.Q. 1991, c. 64, the common law and legislation in general. Courts and administrative
tribunals must uphold them, as must Parliament and the legislatures. However, the same
rules should not apply to the review of legislative action as to the review of the exercise
of adjudicative authority.

3. Conclusion

¶ 137 Administrative law review has been designed to scrutinize administrative
boards' decisions. Administrative law review has become a full-fledged branch of the
law. Its integrity should be preserved.

¶ 138 If the Code de vie itself or one of its provisions had been challenged on the
ground that it did not meet the minimal impairment standard, a s. 1 analysis would have
been appropriate. But the appellant did not challenge it. When the validity of a rule of
general application is not in question, the mechanisms of administrative law are called
for. This approach makes it possible to avoid the blurring of concepts or roles and
enhances the proper application of both administrative and human rights law.

¶ 139 For these reasons, we would allow the appeal and set aside the decision of the
Court of Appeal.

English version of the reasons delivered by

LeBEL J. :--

I. Introduction

¶ 140 As can be seen from the reasons of my colleagues Deschamps, Abella and
Charron JJ., the approach to applying s. 1 of the Canadian Charter of Rights and

Freedoms ("Canadian Charter") continues to be problematic and to raise new questions
even after it has been followed for more than 20 years. The analytical framework
established in R. v. Oakes, [1986] 1 S.C.R. 103, for applying the Canadian Charter has
not settled every question or averted every problem. Thus, the case at bar once again
raises the issue of how the constitutional law of civil liberties relates to quasi-
constitutional legislation on fundamental rights, such as the Charter of human rights and
freedoms, R.S.Q., c. C-12 ("Quebec Charter"), and, in an even more subtle way, to
administrative law in general. The need to find an appropriate solution therefore makes it
necessary to consider how the operation of the Canadian Charter itself is structured, that
is, what relationship exists between the guaranteed rights and the approach to limiting
those rights under s. 1.

¶ 141 Although I agree with the disposition proposed by my colleagues, I remain
concerned about some aspects of the problems of legal methodology raised by this case.
As can be seen, the case involves diverse legal concepts that, although belonging to fields
of law that are in principle separate, are still part of a single legal system the coherence of
which must be adequately ensured.

A. Nature of the Legal Issue

¶ 142 The fact that education legislation obliges the school board to ensure the safety
of its students is not in issue in this appeal. Nor is it disputed, as regards the performance
of this obligation, that the code of conduct prohibiting the carrying or use of any type of
weapon is a valid exercise of the administrative powers delegated to the board for the
purpose of ensuring safety. The board's specific decision to prohibit the appellant's son
from wearing a kirpan on the basis that the kirpan is a weapon is not being contested on
administrative law grounds, such as abuse or excess of power.

¶ 143 Rather, the appellant contests the decision by arguing that the respondent school
board's exercise of the delegated power is vitiated by the violation of one of his son's
fundamental rights. He submits that the school board's refusal to agree to a reasonable
accommodation measure violates his son's freedom of religion. Although the board's
decision was formally authorized by a delegation of powers under the Education Act,
R.S.Q., c. I-13.3, it was null because it was an unjustified infringement of the
constitutional guarantee of freedom of religion set out in s. 2(a) of the Canadian Charter
as well as of similar rights protected by the Quebec Charter.

¶ 144 The case as it stands before this Court therefore appears to involve an issue of
constitutional law. I readily acknowledge that it is better, where problems arise in such
circumstances, to begin by attempting to solve them by means of administrative law
principles. I do not think that it is always necessary to resort to the Canadian Charter or,
in the case of Quebec, the Quebec Charter when a decision can be reached by applying
general administrative law principles or the specific rules governing the exercise of a
delegated power. I had occasion to point this out in my reasons in Blencoe v. British
Columbia (Human Rights Commission), [2000] 2 S.C.R. 307, 2000 SCC 44, at para. 138.
However, the context of a dispute sometimes makes a constitutional analysis

unavoidable. If the reasoning proposed by my colleagues Deschamps and Abella JJ. were
accepted, an administrative decision would, of course, be quashed. In this sense, the case
can be said to come under administrative law. However, if the decision is quashed
because of the violation of a constitutional standard, it then becomes necessary to
consider the fundamental rights in issue and how they have been applied. Only in this
way can it be determined whether the infringement of the constitutional standard is
unjustified. In such a case, the outcome of the case depends on how the constitutional
issue is resolved.

¶ 145 The proceedings before this Court bring into play, at least in theory, the
constitutional guarantee of freedom of religion and the right of children and other persons
at educational institutions to security, which is protected by s. 7 of the Canadian Charter.
What relationship can be found between these sometimes competing rights when it is
alleged that freedom of religion has been violated because of the failure to make
reasonable accommodation? How can these rights be analysed?

¶ 146 In such circumstances, it becomes very tempting to go directly to the stage of s.
1 justification, which provides courts, tribunals and litigants with the advantage of a
familiar, well-established framework. However, in applying the Canadian Charter, not
everything can be resolved under s. 1. To begin with, it is still necessary to analyse the
right in issue, define its content and, where relevant, consider the scope of competing
rights. The definition of the content of a right does not correspond systematically to a
limit that must be justified by means of the approach developed in the cases on s. 1.

B. Delimitation and Reconciliation of Guaranteed Rights

¶ 147 A question that arises in the initial stages of the review of an alleged violation
of a constitutional right is that of the nature and scope of the right. What the right is must
be determined, and its boundaries must be established. Establishing these boundaries
requires consideration of the guaranteed right's relationship with competing rights and
sometimes leads to the necessary finding that rights come with corresponding obligations.
We not only have rights, we also have obligations. How the Canadian Charter is applied,
and the flexibility with which it is applied, are an acknowledgment of this reality. The
application of the Canadian Charter does not always involve solely the relationship
between the guaranteed rights of individuals and government action limiting those rights.
The relationship is often more complex, as it could have been in the instant case. The
school board's decision could have affected the competing right of all the students to
security of the person under s. 7. It is therefore necessary to find approaches to applying
the Canadian Charter that reflect the need to harmonize values and reconcile rights and
obligations.

¶ 148 With respect for those who disagree, while this Court has indeed favoured
resorting to the s. 1 justification process with respect to freedom of religion, its decisions
have never definitively established that this approach is the only way to reconcile
competing or conflicting fundamental rights. This is not what emerges from the Court's
decisions. Nor would it be desirable. The complexity of the situations to which the

Canadian Charter applies is unsuited to simplistic formulas, as it is to rigid
classifications.

¶ 149 Case law developed over 20 years or more can no doubt be used to support any
opinion or position. A variety of quotations can be taken from this Court's successive
decisions. Attempts can be made to distinguish those decisions or to reconcile them.
Doing this would probably not lead to the conclusion that the Court intended to create a
straitjacket in which it would be confined when trying to resolve issues relating to the
application of the Canadian Charter fairly and efficiently. The Court has not ruled out
the possibility of reconciling or delimiting rights before applying s. 1. This is shown by
two cases decided more than 10 years apart, Young v. Young, [1993] 4 S.C.R. 3, and a
very recent decision, Montréal (City) v. 2952-1366 Québec Inc., [2005] 3 S.C.R. 141,
2005 SCC 62, at paras. 56-57 and 60-61, the first of which deals with freedom of religion
and the second with freedom of expression.

¶ 150 Moreover, this Court has never definitively concluded that the s. 1 justification
analysis must be carried out mechanically or that all its steps are relevant to every
situation. Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, is one case
that recognizes the flexibility of the Oakes analysis and the usefulness of that flexibility.
In Dagenais, the Court reviewed common law rules that affected two protected rights, the
right to a fair trial and freedom of expression, and used a simplified approach that was
based on the balancing of rights and dispensed with certain steps of the now classical
approach.

¶ 151 This flexibility also makes it possible to apply the Canadian Charter and its
values to a wide range of administrative acts without necessarily being confined by the
norm-decision duality. Although appealing from the standpoint of legal theory, this
dualism underestimates the problems that arise in applying the classifications it invites. It
also entails a risk of narrowing the scope of constitutional review of compliance with the
Canadian Charter and its underlying values. In this regard, I share the concerns
expressed by my colleague Charron J. in her reasons.

¶ 152 The approaches followed to apply the Canadian Charter must be especially
flexible when it comes to working out the relationship between administrative law and
constitutional law. In verifying whether an administrative act is consistent with the
fundamental normative order, recourse to administrative law principles remains initially
appropriate for the purpose of determining whether the adopted measure is in conformity
with the powers delegated by legislation to school authorities. If it is authorized by that
delegation, the exercise of the discretion to adopt safety measures to protect the public
and students must then be assessed in light of constitutional guarantees and the values
they reflect.

¶ 153 Where the exercise of such a discretion has an impact on the relationship
between competing constitutional rights, those rights can be reconciled in two ways. The
first approach involves defining the rights and how they relate to each other, and the
second consists of the justification process developed in the cases on s. 1. In the case at

bar, the first approach can be dispensed with. The evidence does not show a prima facie
infringement of the right to security of the person. Wrapped as it would be, the kirpan
does not seem to be a threat to anyone. It is therefore necessary to turn to the second
approach.

¶ 154 In attempting to justify the infringement under s. 1 of the Canadian Charter, as
we know, the school board bears the burden of proving that prohibiting the kirpan is a
reasonable limit on the constitutional right of the appellant's son to protection of his
freedom of religion. In such an analysis, it is certainly necessary to bear in mind the
importance of the obligations of safety and protection that school authorities have, under
the law of civil liability and education legislation, to their students and also to third
persons in respect of acts committed by students (P. Garant, Droit scolaire (2nd ed.
1992), at pp. 319-45; Civil Code of Québec, S.Q. 1991, c. 64, art. 1460). It is possible that
a justification could be found in the need to fulfil such obligations.

¶ 155 Moving on now to the application of s. 1, it must be asked whether the
analytical approach established in Oakes need be followed in its entirety. In the case of an
individualized decision made pursuant to statutory authority, it may be possible to
dispense with certain steps of the analysis. The existence of a statutory authority that is
not itself challenged makes it pointless to review the objectives of the act. The issue
becomes one of proportionality or, more specifically, minimal limitation of the
guaranteed right, having regard to the context in which the right has been infringed.
Reasonable accommodation that would meet the requirements of the constitutional
standard must be considered at this stage and in this context. In the case at bar, I must
conclude that the respondent school board has not shown that its prohibition was justified
and met the constitutional standard. I therefore agree with the conclusion proposed by my
colleagues.

Solicitors:

Solicitors for the appellants: Grey, Casgrain, Montreal.

Solicitor for the respondent Commission scolaire Marguerite-Bourgeoys: François Aquin,
Montreal.

Solicitors for the respondent the Attorney General of Quebec: Bernard, Roy & Associés,
Montreal.

Solicitors for the intervener the World Sikh Organization of Canada: Peterson, Stark,
Scott, Surrey, British Columbia.

Solicitors for the intervener the Canadian Civil Liberties Association: Osler, Hoskin &
Harcourt, Toronto.

Solicitor for the intervener the Canadian Human Rights Commission: Canadian Human
Rights Commission, Ottawa.

Solicitor for the intervener the Ontario Human Rights Commission: Ontario Human
Rights Commission, Toronto.

*****

Corrigendum, released March 3, 2006

Please note the following change in the English version of Multani v. Commission
scolaire Marguerite-Bourgeoys, 2006 SCC 6, released March 2, 2006. In para. 3, the first
sentence should read: "The appellant Balvir Singh Multani and his son Gurbaj Singh
Multani are orthodox Sikhs."

QL UPDATE: 20060302
cp/e/qw/qlscl/qlhbb

Multani V Commission Scolaire Marguerite Bourgeoys

More Related Content

Similar to Multani V Commission Scolaire Marguerite Bourgeoys (20)

More from Darryl Hunter (20)

Recently uploaded (20)

Multani V Commission Scolaire Marguerite Bourgeoys