Determining The Balance: Religious Freedom And Access To The Courts

The balance between religious freedom and access to justice is often a difficult one. In an attempt to balance these rights, Alberta Justice has a controversial new policy that permits kirpans to be worn in Alberta Courts.

Kirpans are a ceremonial dagger worn by baptized Sikhs; wearing the kirpan at all times is mandatory according to that faith. According to Alberta Justice's new policy, the kirpan may be worn under the individual's clothing, must be sheathed, less than 10cm long, and must be disclosed upon going through security.

Interestingly, less reported details of the policy also require the individual to self-identify as a Khalsa Sikh (which I understand to be essentially a baptized Sikh) and the individual must have all five "articles of faith". This includes kes (uncut hair), kanga (wooden comb), kara (steel bracelet), kacha (short breeches), and the kirpan. This safeguard demonstrates that the individual is in fact a devout Sikh whose faith requires wearing the kirpan - he or she hasn't simply woken up one day deciding to bring a ceremonial dagger into the Courthouse.

The policy is a reaction to an incident in which a Calgary man was denied entry to the Courthouse. He had been subpoenaed as a witness in a fatal car accident case. Because his faith required him to wear the kirpan at all times, and he was not permitted to bring the kirpan into the Courthouse, he was unable to testify.

The man then filed a human rights complaint in 2008.

It is interesting to note that the kirpan, amongst other things, is symbol of truth - it represents the power of truth to cut through untruth. How ironic that a witness under oath was unable to wear such a symbol.

The Supreme Court of Canada's Analysis of the Kirpan and Charter Rights - Multani v. Commission scolaire Marguerite-Bourgeoys

The Supreme Court of Canada dealt with the difficult issue of the kirpan in Multani v. Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6 (CanLII). The issue in that case was a child who was denied the right to wear a kirpan in school in Quebec. As a result, he was unable to attend public school.

The Court's description of the kirpan helps illuminate the problem:

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"...