Nunatsiaq Online
COMMENTARY: Nunavut December 05, 2017 - 1:10 pm

Legal Ease, Dec. 5

Freedom of religion

JAMES MORTON

The Canadian Constitution protects freedom of religion. This means, broadly, you can espouse any religious belief and try to evangelize as you see best.

The state may not interfere with that freedom; what’s more the state may not even make inquiry as to the legitimacy of the belief so long as it is sincerely held.

Recently, however, the Supreme Court of Canada considered a claim for religious freedom that sought to block land development on the basis that the area to be developed was a place of spiritual significance.

The case, Ktunaxa Nation v. British Columbia, dealt with a ski resort development in southeastern British Columbia.

The British Columbia government approved the development, following consultations with the Ktunaxa people, whose traditional territories can be found throughout this general area.

The Ktunaxa opposed the development, saying the land involved was a place of spiritual significance due to a population of grizzly bears and the Grizzly Bear Spirit.

The Supreme Court said the Ktunaxa’s rights were not violated because their freedom to hold their beliefs or manifest them was not infringed by the development. The court said:

“[71] …The state’s duty under s. 2(a) is not to protect the object of beliefs, such as Grizzly Bear Spirit. Rather, the state’s duty is to protect everyone’s freedom to hold such beliefs and to manifest them in worship and practice or by teaching and dissemination.

“In short, the Charter protects the freedom to worship, but does not protect the spiritual focal point of worship. We have been directed to no authority that supports the proposition that s. 2 (a) protects the latter, rather than individuals’ liberty to hold a belief and to manifest that belief.

“Section 2 (a) protects the freedom to pursue practices, like the wearing of a kirpan in Multani or refusing to be photographed in Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567.

“And s. 2 (a) protects the right to freely hold the religious beliefs that motivate such practices. In this case, however, the appellants are not seeking protection for the freedom to believe in Grizzly Bear Spirit or to pursue practices related to it.

“Rather, they seek to protect Grizzly Bear Spirit itself and the subjective spiritual meaning they derive from it. That claim is beyond the scope of s. 2 (a).”

Some might argue that the right to worship is worth little unless there is a protection of the spiritual focus of worship.

Western religions tend to be immaterial (God is everywhere but nowhere in particular) and so protecting the freedom to worship is sufficient for, say, Christianity. Other faiths, based on location, are then less protected. That said, for the moment the Supreme Court has spoken.

James Morton is a lawyer practising in Nunavut with offices in Iqaluit. The comments here are intended as general legal information and not as specific legal advice.

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(4) Comments:

#1. Posted by Anguta on December 05, 2017

Behold! Since time immemorial Inuit have known that the Trickster took the guise of the Raven when creating the world. Waters burst forth from the deep and pushed the ground up from the abyss. Raven pierced it with his beak and it was thus transfixed. This new land was only large enough for a single dwelling for a man, woman and their son, Raven who had just created the world. Raven was fixated on a bladder above his father’s bed, imploring his father to play with it. Raven got his wish, piercing the bladder allowing light to materialize. Father did not want light all the time, and took back the bladder. This struggle is the origin of day and night. Taima.

#2. Posted by High Arctic Athiest on December 05, 2017

Let us not forget that freedom of religion also means freedom from religion for those who choose that path.

#3. Posted by Paul Murphy on December 07, 2017

Something I have wanted to do for many months. I look forward to the commentary “Legal Ease” every week. It is always informative and easy to understand. Sometimes our laws are very misunderstood and this weekly column brings it into laymen’s terms. Thank you for this Mr Morton and I look forward to the continuance or your column.

#4. Posted by Fake Plastic Jesus on December 11, 2017

I think that teaching / brainwashing children to believe that god will put them into eternal hellfire if they are bad and don’t “believe” is essentially child abuse.

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