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Where's the Danger in a Student's Kirpan?
The Globe and Mail, Mar. 9, 2004
In saying that public safety takes precedence over religious freedom, Quebec's highest court stated the obvious last week. But in barring a 14-year-old Sikh student from wearing his kirpan, a ceremonial dagger, to his public school, the Court of Appeal made a grievous error. It accepted the most speculative of dangers as a reason for undermining religious freedom, a freedom explicitly protected in both the Quebec and Canadian charters of rights.
When rights collide in Canada, as they often do, the courts are not free simply to choose the right they prefer. They need to examine the evidence to determine whether the two rights can live together. This was the case in 1994 when the right to a fair trial came up against the right to free speech, in a case involving a fictional C.B.C. movie about child abuse and some accused abusers. Until then, the right to a fair trial had come first. Who could argue that anyone should have an unfair trial? But wait, said the Supreme Court of Canada. Was the threat to the trial's fairness real? How many people watch C.B.C. movies anyway? Aren't juries sophisticated enough to disregard what they hear outside court? From that day forward, there has been no hierarchy of rights.
A similar analysis applies in the case of Gurbaj Singh and the Marguerite-Bourgeoys School Board in Montreal. In theory, the wearing of kirpans violates well-intentioned school policies against the carrying of knives or weapons. In practice, however, when an Ontario human-rights inquiry headed by Gunther Plaut examined this issue in 1990, it found not a single incident of kirpan-related violence in a Canadian school in 100 years. In Surrey, B.C., more than 200 Sikh students wear kirpans without incident, Mr. Plaut found.
When the Quebec Superior Court, a lower court, affirmed Gurbaj's right to wear his kirpan, it accepted a compromise between the school board and the Singh family in which the 10-centimetre kirpan, which has a blunt end, would be triply secured: concealed under clothing, carried in a wooden sheath, with the sheath to be encased in cloth sewn shut and stitched to a carrying strap. Gurbaj was forbidden to remove it.
One sad result of the appeal court's ruling is that those who share Gurbaj's beliefs may feel obliged to attend a private school. (In Gurbaj's case, even when he won at the Superior Court, he was forced at age 12 to walk a public gauntlet of jeering parents, an ordeal that persuaded him that private school was a better option.) The ruling will undoubtedly cheer those like Aline Carbonneau, the mother of three students at Gurbaj's old school, École Sainte-Catherine-Labouré, who have a narrow view of religious freedom. 'Quebec has been too tolerant, and now enough is enough - is that clear? The immigrants who come to Quebec will have to integrate.'
Canada's particular genius, hard won, still evolving, has been to understand that optimal integration occurs when people are allowed to be what they are.
French Lawmakers Overwhelmingly Back Ban on Religious Symbols, By STAFF, Reuters, Feb. 10, 2004
French Secularism, By JAMES TARANTO, The Wall Street Journal, Jan. 21, 2004
Sikhs in France?, By ELAINE SCIOLINO, The New York Times, Jan. 12, 2004
Against Militant Secularism: Let French Muslims Wear Scarves, EDITORIAL, The Daily Telegraph, Dec. 12, 2003
France Considers Banning Turbans and Other Religious Symbols in Schools, By STAFF, Turks.US, Nov. 6, 2003