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.