Last week, the Supreme Court issued its decision in Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54, which held among other things that the guarantee of religious freedom under the Canadian Charter of Rights and Freedoms does not prevent the state from interfering with the object of one’s worship. Beliefs, says the majority in an opinion by Chief Justice McLachlin and Justice Rowe, are protected ― but not the things that these beliefs attach to. Justice Moldaver, while concurring in the result, vigorously disagrees with this approach. So does much enlightened opinion. And the critics have a point. But so does the majority. This is a much harder case than some of those who have criticized the decision have allowed.
For my purposes here, the facts are simple. The people of the Ktunaxa Nation have come to believe that allowing the building of any permanent constructions on a large tract of public land “would drive Grizzly Bear Spirit from [that land] and irrevocably impair their religious beliefs and practices” [6] to which the Spirit is central. Meanwhile, a developer wants to build a resort on that land and, after a protracted consultation process, has been granted permission to do so by the provincial government. The question is whether this decision infringes the Ktunaxa’s religious freedom and, if so, whether the infringement is justified under section 1 of the Charter. (There are other important issues in Ktunaxa too, but this post only deals with the religious freedom one.)
The majority concludes that there is no infringement of the freedom of religion. The constitution protects “the freedom to hold religious beliefs and the freedom to manifest those beliefs”. [63] An interference with a person’s or community’s beliefs and manifestation of these beliefs is a prima facie infringement of this guarantee. But there is no such interference here. The Ktunaxa can still believe in the Grizzly Bear Spirit, undertake rituals that manifest this belief, and transmit it to others. However, crucially, “[t]he state’s duty … is not to protect the object of beliefs, such as Grizzly Bear Spirit”. [71] Were it otherwise, “[a]djudicating how exactly a spirit is to be protected would require the state and its courts to assess the content and merits of religious beliefs”. [72]
Justice Moldaver argues that this is too narrow a view of religious practice and, therefore, religious freedom. Religious practice must be, well, religious ― otherwise there is no point to engaging in it. The state must not take away its essential character: “where the spiritual significance of beliefs or practices has been taken away by state action, this interferes with an individual’s ability to act in accordance with his or her religious beliefs or practices”. [126] When religious belief involves a “connection to the physical world”, [127] as is the case for many aboriginal religions, a severing of this connection will infringe religious liberty. This, according to Justice Moldaver, is what happened in this case.
That said, Justice Moldaver ultimately upholds the government’s decision, because in his view it represents a proportionate balancing between the statutory objectives of administering and, when expedient, disposing of public lands, and the Ktunaxa’s religious freedom. Since the Ktunaxa themselves insisted that their claim could not be accommodated ― it had to be accepted or rejected ― to give effect to it would have meant giving them a veto over development on, and thus effectively a form of property rights in, a large parcel of public land. The government was “in a difficult, if not impossible, position”, [154] and its decision to allow development notwithstanding the Ktunaxa’s claim was reasonable.
Critics of the majority opinion agree with Justice Moldaver that the majority does not understand religious experience or the variety of religious practice. Avnish Nanda, in a thoughtful Twitter thread, blamed this failure on the lack of diversity on the Supreme Court. He pointed out that “[t]wo of the five pillars of Islam are intrinsically tied to” the Kaaba, and that, therefore, “[i]f the Kaaba were deprived of its spiritual significance, these religious practices core to Islam would be deprived of value”. But I’m not sure that diversity is the key issue here. After all, some forms Christian theology also accords great significance to sacred places and objects ― and one need not even be particularly familiar with this theology to be aware of its traces in the English (or French) language ― in words like “crusade” or “iconoclast”.
Whatever the reason for the majority’s narrow approach to religion, as I said at the outset, I think that its critics raise an important concern. Courts are prone to taking what is arguably too narrow a view of religious concerns, whether with respect to common or more exotic forms of faith. In a somewhat different but related context, Douglas Laycock once cautioned against “assum[ing] that religions lay down certain binding rules, and that the exercise of religion consists only of obeying the rules … as though all of religious experience were reduced to the Book of Leviticus”. (“The Remnants of Free Exercise”, 1990 Sup Ct Rev 1 at 24) Beliefs, obligations, and rituals are not all there is to freedom of religion. Community (the specific focus of Prof. Laycock’s concern) is important too, and so is attachment ― properly religious attachment ― to some aspects of the physical world.
However, as I also said in the beginning, we should not be too quick to condemn the majority opinion. To begin with, its concern about entangling the courts, and thus the ― secular and religiously neutral ― state in determinations of just what the protection of “objects of beliefs” requires is justified. David Laidlaw’s post over at ABlawg underscores this point, albeit unintentionally. Mr. Laidlaw insists that “the result in this case was a failure of imagination to consider the interests of the … Grizzly Bear Spirit”, which should have been recognized through the expedient of the courts granting the Spirit a legal personality and appointing counsel to represent it. For my part, I really don’t think that the Charter allows a court to embrace the interests of a spiritual entity ― thereby recognizing its reality. It is one thing for courts to acknowledge the interests and concerns of believers; in doing so, they do not validate the beliefs themselves ― only the rights of those who hold them. It is quite another to endorse the view that the belief itself is justified. And then, of course, the court would still need to determine whether any submissions made on behalf of the Spirit were well-founded. But even without going to such lengths, it is true that to give effect to the Ktunaxa’s claim, the Supreme Court would have had to hold not only that the Ktunaxa sincerely believed in the existence of and their connection to the Grizzly Bear Spirit, but also that this connection would in fact be ruptured by development on the land at issue. To do so would have meant validating the asserted belief.
There is a related point to make here, which, though it is unstated in the majority opinion, just might have weighed on its authors’ minds. Insisting that the connection between a person’s religious belief and the object of this belief deserves constitutional protection might have far-reaching and troubling consequences. The movement to insist that “defamation of religion” must be forbidden and punished is based on the same idea: things people hold sacred deserve protection, and so the state ought to step in to prevent their being desecrated ― say, by banning cartoons of a Prophet or jailing people for “insulting religious feelings”.
Now, perhaps this does not matter. To the extent that the protection of the objects of beliefs is purely “negative”, in the sense that the state itself must not engage in desecration but not need not take action to prevent desecration by others, it need not translate into oppressive restrictions on the freedom of expression (and perhaps of religion) of those whose behaviour some believers would deem to compromise their own faith. But I am not sure that this distinction will always be tenable. If, for instance, a regulatory authority subject to the Charter grants a permit for an activity that a religious group believes to trample on the object of its faith ― say, a demonstration in support of people’s rights to draw cartoons, where such cartoons are going to be displayed ― does it thereby become complicit in the purported blasphemy, and so infringe the Charter? (This argument is not frivolous: it parallels one of those made by those who think that law societies should be free to deny accreditation to Trinity Western’s proposed law school lest they become complicity in its homophobia.)
There is an additional reason why Ktunaxa strikes me as a difficult case ― though perhaps also a less important one than it might seem. Suppose Justice Moldaver’s view of the scope of religious freedom under the Charter is correct, and the state has a prima facie duty not to take away the sacred character of (at least) physical spaces and objects involved in religious belief. As Justice Moldaver himself says, this seems to be tantamount to giving religious believers a form of property interest in the spaces or objects at issue. That might not be a problem if the believers already own these things in a more conventional sense ― though even in such cases a constitutional quasi-proprietary right would be unusual given the Charter‘s lack of protection for ordinary property rights. But, as Ktunaxa shows, in the absence of more conventional interests (whether fee simple ownership or aboriginal title or right), the recognition of such interests can get very problematic, because they amount to giving religious believers control over things that are not actually theirs. And what if the sacred place or object is owned not by the state but by another person? What if more than one religious group lays claim to it? In short, I’m not sure that there will be many, if any, cases where competing considerations would not prevail in a section 1 analysis (whether under the Oakes or, especially, the Doré framework), just as they did in Ktunaxa.
These thoughts, in case that wasn’t clear, are all quite tentative. I’m certainly open to the possibility of being proven wrong. If I am right, however, Ktunaxa really was a very difficult case, and it is not obvious that the majority got it wrong ― though nor is it clear that it got it right. Hard cases, it is often said, make bad law. I’m not sure that this is what happened here ― or that it even matters if it did.
Double Aspect 
2 thoughts on “A Hard Case”