By Terrance S. Carter, B.A., LL.B. and Anne-Marie Langan,
B.A., B.S.W., LL.B.
Assisted by Nancy E. Claridge, B.A., M.A., LL.B.
The Supreme Court of Canada has sent a strong message that
Canada's public education institutions must embrace diversity
and develop an educational culture respectful of the right
to freedom of religion. In its decision in Multani v.
Commission scolaire Marguerite-Bourgeoys ("Multani"),1
the Court confirmed the right of an orthodox Sikh student
to wear his ceremonial dagger at school. The Court concluded
that the Charter of Rights and Freedoms (the "Charter")
establishes a minimum constitutional protection for freedom
of religion that must be taken into account by the legislature
and by administrative tribunals. Safety concerns must be
unequivocally established for the infringement of a constitutional
right to be justified. As such, the Court gave new guidance
to administrative bodies dealing with Charter issues,
declaring that administrative bodies must apply the principles
of constitutional justification when a Charter right
has been infringed. This Church Law Bulletin will
review the decision and discuss its implications for future
challenges before both administrative tribunals and the
courts, particularly as it relates to freedom of religion.
In 2001, a thirteen-year-old orthodox Sikh accidentally
dropped his kirpan2 while
in his schoolyard.3 The school
board sent a letter to the child's parents authorizing the
child to wear his kirpan to school, provided that he complied
with certain conditions to ensure that it was sealed inside
his clothing. The child and his parents agreed to this arrangement.
However, the governing board of the school refused to ratify
the agreement citing the school's Code de vie (code
of conduct), which prohibited the carrying of weapons on
school grounds. This decision was upheld by the school board's
Council of Commissioners. In place of a real kirpan, the
Council of Commissioners was willing to accept the child
wearing a symbolic kirpan in the form of a pendant or one
in another form made of a material rendering it harmless.
The Quebec Superior Court4
declared the Council of Commissioners' decision to be of
no force and effect and authorized the child to wear his
kirpan at school, provided he complied with the following
- the kirpan be worn under his clothes;
- the kirpan be carried in a sheath
made of wood, not metal, to prevent it from causing
- 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;
- school personnel be authorized to
verify, in a reasonable fashion, that these conditions
were being complied with;
- the petitioner be required to keep
the kirpan in his possession at all times, and that
its disappearance be reported to school authorities
- 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
The Court of Appeal set aside the Superior Court's judgment
and restored the Council of Commissioners' decision,5
saying that the applicable standard of review was reasonableness
simpliciter, which requires the tribunal's decision
to be "clearly wrong." Such a standard requires
the reviewing court to accept the tribunal's decision even
if the court would have come to a different conclusion.
Although finding that the child's father had proven that
his son's need to wear the kirpan was a sincerely held religious
belief and was not capricious, the court held that the child's
freedom of religion could be limited in instances where
the safety of others was at issue. The "pressing and
substantial objective" to ensure the safety of the
school's students and staff was directly and rationally
connected to the prohibition against wearing a kirpan on
school premises and the objective of maintaining a safe
school environment. The court reasoned that the conditions
imposed at the Superior Court level did not eliminate every
risk and only "delayed access" to the kirpan,
which could be used as a weapon. Allowing a student to wear
a kirpan would require the school board to reduce its safety
standards, which would be an undue hardship. As a result,
the Court of Appeal held that the Council of Commissioners'
decision was not "clearly wrong" and should not
be overturned by the courts.
C. THE SUPREME COURT'S DECISION
The Supreme Court of Canada disagreed with the Court of
Appeal's decision on the grounds that administrative law
principles should not be used to avoid a thorough constitutional
analysis, particularly where Charter rights are involved.
More specifically, the Court stated that such an 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.
fact that an issue relating to constitutional rights
is raised in an administrative context does not mean
that the constitutional 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.6
Since this complaint was based entirely on the issue of
freedom of religion, the Court determined that the administrative
law standard of review was not relevant. In other words,
the child's father was not challenging the Council of Commissioners'
jurisdiction to approve the code of conduct, or the administrative
or constitutional validity of the rule against carrying
weapons and dangerous objects. Rather, the concern was that
the refusal to agree to a reasonable accommodation violated
his son's freedom of religion. The Court concluded that
"it is the constitutionality of the decision
that is in issue in this appeal, which means that a constitutional
analysis must be conducted."7
Following precedent, this required that the decision be
subjected to the test set out in section 1 of the Charter.8
1. Was there a Charter infringement
The Court found that the Council of Commissioners' decision
clearly infringed the student's freedom of religion. In
this respect, the Court reviewed previous decisions on the
issue, approving the key principles, such as:
- the essence of the concept of freedom of religion
o the right to entertain such religious beliefs as a
o the right to declare religious beliefs openly and
without fear of hindrance or reprisal; and
o the right to manifest religious belief by worship
and practice or by teaching and dissemination;9
- no one is to be forced to act in a way contrary to
his or her beliefs or conscience, subject to such limitations
as are necessary to protect public safety, order, health,
or morals or the fundamental rights and freedoms of
- it is not for the state to dictate what are the religious
obligations of the individual, it is for the individual
- freedom of religion consists of:
o 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
o this is irrespective of whether a particular practice
or belief is required by official religious dogma or
is in conformity with the position of religious officials;12
- in order to establish that a claimant's freedom of
religion has been infringed, it must be shown that the
claimant sincerely believes in a practice or belief
that has a nexus with religion, and that the impugned
conduct of a third party interferes with the claimant's
ability to act in accordance with that practice or belief;13
- this interference must be more than trivial or insubstantial.14
In Multani, the Supreme Court of Canada noted that the
requirement for orthodox Sikhs to wear a kirpan at all times
was not contested by any party, and accepted that the child's
refusal to wear a symbolic kirpan made of a material other
than metal, as suggested by the Council of Commissioners,
was "based on a reasonable religiously motivated interpretation,"15
and a sincere belief that he must "adhere to this practice
in order to comply with the requirements of his religion."16
Following the Court's lead in the Amselem decision, the
Court in Multani affirmed that "the fact that other
Sikhs accept such a compromise [wearing a plastic or wooden
kirpan] is not relevant."17
As the child was being forced to choose between leaving
his kirpan at home and leaving the public school system,
the Court accepted that the infringement was not a trivial
or insignificant interference with the child's right to
freedom of religion.18 Thus,
the Court concluded that the Council of Commissioners' decision
to prohibit the wearing of a kirpan on school premises constituted
an infringement of the claimant's freedom of religion.
2. Section 1 analysis
The principles of constitutional justification have been
refined through a long line of decisions since the inception
of the Charter, and are variously described in a
number of multi-pronged tests.19
In order to justify an infringement of a constitutionally
protected right, the government or body acting under governmental
authority needs to prove a number of elements:
- the Charter infringement must be reasonable;
- the infringement is prescribed by law;
- the infringement is demonstrably justified in a free
and democratic society, which requires that:
o there was a pressing and substantial objective;
o the means are proportional to the objective:
- the means are rationally connected
to the objective;
- there is a minimal impairment of
- there is proportionality between
the salutary and deleterious effects of the requirement.
Applying this test to the Multani case, the Court held
that a total prohibition from wearing a kirpan to school
"undermines this religious symbol and sends students
the message that some religious practices do not merit the
same protection as others."20
While accepting that the objective of ensuring safety in
schools "is sufficiently important to warrant overriding
a constitutionally protected right or freedom," the
Court determined that instead of pursuing an "absolute"
level of safety in schools, the Council of Commissioners
had chosen to pursue a "reasonable" level, which
was still recognized as a pressing and substantial objective.
The ban on kirpans was found to be rationally connected
to this objective. However, on the issue of minimal impairment,
the Court emphasized the importance of religious tolerance
in Canadian society and suggested that the arguments respecting
the kirpan being a symbol of violence and its likelihood
to make schools unsafe was not supported by the evidence
and was "disrespectful to believers in the Sikh religion
and [did] not take into account Canadian values based on
Fears of harm have to be justified before an infringement
of a constitutional right can be justified. The Court rejected
"expert" evidence presented by the Council of
Commissioners that suggested that allowing a student to
wear a kirpan would engender a feeling of unfairness among
the students in a situation similar to the right of Muslim
women to wear the chador, because "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
The Court concluded that deleterious (harmful) effects of
a total ban outweighed the salutary (beneficial) effects,
and supported the Superior Court's decision to allow the
student to wear the kirpan under certain conditions. Such
an approach "demonstrates the importance that our society
attaches to protecting freedom of religion and to showing
respect for its minorities."23
D. CONCURRING REASONS
Although concurring with Justice Charron's reasons, Justice
LeBel stated that he remained "concerned about some
aspects of the problems of legal methodology raised by this
case."24 In his opinion,
it is not always necessary to resort to the Charter
when a decision can be reached by applying general administrative
law principles or the specific rules governing the exercise
of a delegated power, but admitted that "the context
of a dispute sometimes makes a constitutional analysis unavoidable."25
Still, Justice LeBel contends that not all issues can be
resolved through a section 1 analysis, and in some cases
the scope and content of a right does not lend itself to
the necessity of justifying an infringement under section
1. As such, Justice LeBel maintained the importance of establishing
the boundaries of the nature and scope of a right, saying
"we not only have rights, we also have obligations."26
A simplistic formulaic or mechanical approach to reconciling
conflicting fundamental rights was soundly rejected. Instead,
it was suggested that the "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
it was suggested that "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."28
Turning to the facts in Multani, Justice LeBel concluded
in the case of an individualized
decision made pursuant to statutory authority, it may
be possible to dispense with certain steps of the [Oakes]
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.29
As such, Justice LeBel concluded the Council of Commissioners
had not shown that the kirpan ban was justified and met
the constitutional standard.
Justices Deschamps and Abella, while concurring in the
conclusion, took a different approach to resolving the issue.
It was their view that the case was more appropriately decided
through an administrative law analysis, thereby reviewing
the reasonableness of the decision. The justices suggested
that "the prohibition on the wearing of a kirpan cannot
be imposed without considering conditions that would interfere
less with freedom of religion."30
By applying the code of conduct literally rather than sufficiently
considering the right to freedom of religion and the accommodation
measure proposed which posed little or no risk, the justices
concluded that the school board made an unreasonable decision.31
The Supreme Court of Canada's decision is first and foremost
an important victory for freedom of religion. In this regard,
there is confirmation from the Supreme Court that the principles
that have been developed in such cases as Big M Drug and
Amselem are not to be relegated to constitutional history.
The Charter protects the rights of Canadians to entertain
their religious beliefs and to openly declare those beliefs
without fear of hindrance or reprisal. Canadians also have
the right to manifest their religious beliefs through worship
and practice as well as by teaching and dissemination, and
to be free from discrimination because of their religious
beliefs. Religious observances should be accommodated to
the point of undue hardship.
The decision is also important for its dictum that there
is a role for educators to play in engendering tolerance
for others' culture and religion in Canadian society.
As Canada continues to develop as an increasingly multicultural
society, there will be further debates about the boundary
between the "public" and "private" domain,
and particularly where the two converge. Canadian society
is also facing political and social changes. Religious organizations
and their members are being forced to respond to these changes.
Turning to its impact on courts and administrative tribunals,
the decision provides some important guidance on the interplay
between freedom of religion and other socially important
values. As was conceded by the claimant, the Court confirmed
that the freedom of religion can be limited when the individual's
freedom may cause harm to or interfere with the rights of
others. However, any limitation has to be done through a
reconciliation of the competing rights which must be achieved
through a constitutional justification. The Court's decision
makes the important declaration that safety and other concerns
must be unequivocally established before an infringement
of freedom of religion is justified.
Administrative tribunals and bodies that govern many important
areas of our daily lives regularly encounter decisions involving
competing rights. The Multani decision provides important
guidance for them and for the courts as to the proper relationship
between administrative decisions and the protection of fundamental
rights and freedoms in Canada. Given the Charter's
mere two decades of existence, both courts and administrative
tribunals have not yet clearly defined the exact boundaries
between various rights and freedoms contained therein. As
the scope of one's rights and freedoms can be affected through
the decisions of administrative tribunals in a variety of
situations, it is very important for there to be a clear
standard of review in order to ensure that Charter
rights are minimally infringed.
As noted above, the majority of the Supreme Court of Canada
determined that the administrative law standard of review
was insufficient when determining whether a Charter
right infringement has occurred and whether such an infringement
is justified. The Court determined that a constitutional
analysis was required in these situations because "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."32
It is generally recognized that in reviewing an administrative
tribunal's decision, courts will pay "curial deference"
within the tribunal's areas of specialized expertise regardless
of whether there is a "privative clause" protecting
the decision from judicial review. A "privative clause"
may be found in the enabling legislation for an administrative
tribunal, insulating the tribunal's decisions from judicial
review. "Curial deference" means that the courts
ought not to intervene in a tribunal's decision where the
tribunal's knowledge, experience, and expertise with the
subject matter, places it in a better position than the
reviewing court to make the proper determination of the
Notwithstanding the legislature's attempt to shield the
decisions of administrative tribunals from the preying eyes
of the courts through the use of privative clauses, reviewing
courts have tended to regard privative clauses as just one
factor to look at in determining the appropriate standard
of review. The other factors include: statutory rights of
appeal; expertise of the tribunal; the purpose of the enabling
legislation as a whole, and the impugned provision in particular;
and the nature of the problem.34
Based on the review of these factors, the reviewing court
will determine where upon the spectrum of standards the
decision should be reviewed. Although the list is not closed,
there are presently three standards recognized on the spectrum:
- Patently unreasonable: a patently
unreasonable decision is one that involves a breach
of the rules of natural decision and for which there
is no evidence to provide support. In such situations,
the reviewing court will pay the highest level of
deference and the decision must be found to be patently
unreasonable for the court to substitute its own decision;
- Correctness: under the correctness
standard of review, the reviewing court will pay the
lowest level of deference. The decision must be appropriate
and proper in the circumstances or the court will
substitute its own opinion;
- Reasonableness simpliciter:
falling somewhere in between the two extremes, if
the decision is defective, it will survive if it can
stand up to a somewhat probing examination.
Applying these standards of review in a case involving
a possible Charter violation may result in a diminution
of an individual's rights and freedoms in any given area
governed by administrative law. Through the application
of the stricter constitutional justification analysis, reviewing
courts across the country now have a mandated method for
reviewing administrative decisions dealing with constitutional
issues. Administrative bodies, on the other hand, have a
single, common direction for appropriately and justly dealing
with their cases. In the end, individual Canadians are the
winners, as they can ensure that their constitutionally
protected rights and freedoms will not receive a lesser
form of protection through administrative tribunals than
through the courts.
Despite the Court's proclamations concerning the importance
our society attaches to protecting freedom of religion and
to showing respect for its minorities, reaction from the
general public to the Multani decision ranged from support
to strong opposition.35 Still,
the Multani decision is an important victory for freedom
of religion that can be applied to all rights and freedoms
that may be affected by any one of the thousands of administrative
tribunals rendering decisions affecting the rights and freedoms
of Canadians every day. The Court's conclusion that the
administrative law standard of review was inappropriate
for dealing with the infringement of a constitutionally
protected right means that the minimum constitutional protection
as set out by the Charter must be taken into account
by the legislature and by every person or body subject to
Looking at the Multani decision with respect to its impact
on the exercise of freedom of religion, it is an important
confirmation that in these challenging times for many of
the world's religions, the Courts are still willing to recognize
the importance of protecting religious freedom from unjustifiable
interference from state authorities. In the increasingly
multicultural society that is Canada, we are bound to continue
to run into conflicts between religious freedom and other
important social values. As such, it is increasingly important
for courts and administrative tribunals to ensure that an
appropriate balance is found between competing rights and
obligations. In the Multani decision, the court has firmly
established the principles that religious observances must
be accommodated to the point of undue hardship and that
infringement of freedom of religion will not be justified
unless there is substantial evidence that the infringement
is necessary to protect the safety of the public and that
the right is being infringed as minimally as possible.
1Multani v. Commission scolaire Marguerite-Bourgeoys,
2006 SCC 6.  S.C.J. No. 6. Justice Major took no part
in the judgment. Justice Charron wrote the majority decision,
Chief Justice McLachlin and Justices Bastarache, Binnie
and Fish concurring. Justices Deschamps and Abella wrote
joint concurring reasons, and Justice LeBel wrote concurring
A religious object resembling a dagger that orthodox Sikhs
are required wear.
Orthodox Sikhs must comply with a strict dress code requiring
them to wear religious symbols commonly referred to 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).
See  Q.J. No. 1131.
See  R.J.Q. 284.
Multani, supra note 1 at para. 16 [emphasis in original].
7 Ibid. at para. 21 [emphasis in original].
8 Slaight Communications Inc. v. Davidson,
 1 S.C.R. 1308.
9 R. v. Big M Drug Mart Ltd.,  1
S.C.R. 295 ("Big M. Drug").
12 Syndicat Northcrest v. Amselem, 
2 S.C.R. 551 ("Amselem"). For more discussion
of the Amselem decision, see e.g. Terrance S. Carter, "Supreme
Court of Canada Adopts Broad View of Religious Freedom"
in Church Law Bulletin No. 5 (23 August 2004), available
15 Multani, supra note 1 at para. 36.
16 Ibid. at para. 38.
17 Ibid. at para. 39.
18 Ibid. at para. 40.
19 See e.g. R. v. Oakes,  1 S.C.R.
103; R. v. Edwards Books and Art Ltd.,  2 S.C.R.
713; Big M Drug, supra note 9.
20 Multani, supra note 1 at para. 79.
21 Ibid. at para. 70-71.
22 Ibid. at para. 74.
23 Ibid. at para. 79.
24 Ibid. at para. 141.
25 Ibid. at para. 144.
26 Ibid. at para. 147.
27 Ibid. at para. 150.
28 Ibid. at para. 152.
29 Ibid. at para. 155.
30 Ibid. at para. 99.
32 Ibid. at para. 16.
Melanie Aitken, Russell Cohen and Mariana Silva, "Curial
Deference to Administrative Tribunals" (Paper presented
to the The Law Society of Upper Canada Special Lectures
2001 Constitutional and Administrative Law).
34 Guy Pratte and Michelle Flaherty, "Appeals,
Judicial Review and Standard of Review" in Public
Law Reference Materials, Law Society of Upper Canada,
48th Bar Admission Course, 2005 at 127ff.
35 Aside from anti-religious postings on the
Globe and Mail website comments section, the decision
met with resistance from parents of school children and
educators. As reported in the National Post, a teacher
at the school at the centre of this decision said the court
had gone too far and asked if someone could "bring
a Kalashnikov to school in the name of whatever religion
and fire on anyone?" Janice Tibbetts, "Dagger
Ban Struck Down: Supreme Court says schools must allow kirpans"
National Post (3 March 2006) A1.