Friday, January 21, 2011

The kirpan kerfuffle and the elephant in the room...

The decision by the Quebec National Assembly’s crack security team to deny entry to a group of Sikhs wearing the kirpan – a ceremonial dagger – has unsurprisingly caused yet another set of waves in the reasonable accommodation debate. The PQ and Bloc were quick to jump on the issue (anything to remind Canadians that Quebec doesn’t buy into “Canadian values” like multiculturalism). 

Pundits and advocates were quick to jump into their respective corners, defending security concerns, religious freedom, multiculturalism, etc. Amid the accusations of racism countered by accusations of reverse-racism or political correctness, everyone claimed ownership of the “common sense” view. It was all sooo predictable (and occasionally embarrassing, like the CBC debate between Tarek Fatah of the Muslim Canadian Congress, who seemed to be as concerned about the kirpan being “offensive” as he was about security issues, and Michael Coren, who came off as though he believes respect for religion overrides anything else).

While not entirely lost in all of this, the fact that the Supreme Court has already ruled on the kirpan-as-security-threat issue seems to have been acknowledged and quickly ignored. Although the 2006 ruling considered a student’s right to wear a kirpan to school, the case quite clearly applies (indeed, schools and legislatures are much more comparable than say, airplanes, which have more direct and pressing security concerns. For that reason I’d say any attempt to argue the 2006 decision doesn’t apply here is tenuous at best). In effect, the Quebec legislature acted unconstitutionally when it denied entry to its Sikh visitors. 

Without wading into whether the Court reached the “correct” result, it is important to point out that there are only a couple of options open to the Quebec government if it indeed wishes to ban the kirpan from public spaces like legislatures and schools. The government might choose to pass legislation that specifies when a potentially dangerous but religiously-important object cannot be carried, and wait to see if such a law survives the inevitable Charter challenge. Another option would be to simply pass such legislation while invoking the notwithstanding clause, effectively removing the issue from the purview of the courts. 

Either of these, in my view would be legitimate. What governments cannot do is simply ignore the Court’s prior ruling. I’d hardly go so far as to say this is some type of constitutional crisis, but rightly or wrongly we’ve instituted judicial review of rights in Canada. I can’t help but wonder if people are hesitant to make a big deal out of the flouting of the Supreme Court because we’re talking about Quebec…