The Supreme Court of Canada reaffirmed November 2 that government actors have a duty to specifically consider religious freedom concerns when raised by claimants in its Ktunaxa Nation v. British Columbia decision.
This historic case – the first Indigenous religious freedom claim to be heard by the Supreme Court – raised questions about the scope of religious freedom, and the means by which religious communities can practice and manifest their faith.
The litigation arose from a proposed ski resort on land that is sacred to the Ktunaxa people. The Ktunaxa Nation [in the Kootenay region of southeastern BC] opposed the development on the basis that it would desecrate the sacred site and would interfere with a variety of their spiritual practices.
The British Columbia Minister of Forests, Lands and Natural Resources approved the development but did not specifically address how the decision would impact the Ktunaxa Nation’s section 2(a) Charter right to freedom of religion.
The Supreme Court upheld the Minister’s ultimate decision; however, the Court was divided 7-2 on some of their underlying reasons.
A significant precedent
CLF executive director and general counsel Derek Ross explains the significance of the Ktunaxa decision:
We anticipate that both sets of reasons in the Ktunaxa decision will illuminate future religious freedom cases. The majority’s reasons reaffirm that the Charter protects both the public and communal aspects of religion – not just the individual and private – and that courts must not entangle themselves in religious matters by assessing the content and merits of personal beliefs. The decision also clarifies that the Charter protects both ‘old’ and ‘new’ religious beliefs and practices – this allows for the possibility that one’s sincere religious beliefs may develop and mature over time.
The minority’s reasons provide a salient reminder that it is not just the act of religious exercise that attracts Charter protection, but the religious or spiritual essence of that act. The Charter ought to be interpreted in a way that reflects the unique aspects of diverse religious traditions, beliefs and practices – particularly those of minority communities or those not widely understood. Justice Moldaver and Justice Côté’s section 2(a) analysis provide a helpful example of such an approach.
EFC president Bruce Clemenger explains that the decision provides important clarification:
The Ktuxana decision provides an important clarification of the scope of the Charter’s guarantee of religious freedom and confirms that government must carefully consider claims that their actions may violate the religious freedoms of individuals and communities. While the Court was clear the protection does not extend to the object of one’s faith, the court is divided on whether this guaranteed freedom includes things that are essential to religious expression, such as land in this case.
Supreme Court split on the scope of religious freedom
The majority confirmed that the Minister should have addressed the section 2(a) claim [para 60]. However, they found that the Minister’s failure to do so was immaterial in this case, because the claim made by the Ktunaxa fell outside of the scope of section 2(a) of the Charter [para 60]. The majority confirmed that section 2(a) protects the freedom – of individuals and communities – to hold religious beliefs and to manifest or express them in worship and practice, or by teaching and dissemination [para 71].
However, the majority clarified that section 2(a) does not protect the object of religious belief or the spiritual focal point of worship [para 71], in this case, the Grizzly Bear Spirit. It reasoned that to extend such protection, courts would be forced to inappropriately venture into questions of religious doctrine and assess the content and merits of personal beliefs [para 72].
The minority opinion (Justices Moldaver and Côté) framed the issue differently: rather than seeking protection of their “spiritual focal point of worship,” the Ktunaxa were seeking protection of their ability to act in accordance with their religious beliefs and practices [para. 133].
The minority emphasized the significance of land to the Ktunaxa nation’s spiritual practices, and recognized that development of the ski resort would sever the Ktunaxa’s connection to the land, and to the Grizzly Bear Spirit [para 117]. They concluded that the government’s decision rendered the Ktunaxa’s beliefs and practice devoid of all spiritual significance; it therefore fell squarely within the scope of, and infringed, section 2(a) [para 118].
However, the minority concluded that this infringement was justified; in their view, the Minister’s decision not to grant a right to one group to exclude others from the property was reasonable in the circumstances and in light of his statutory mandate [paras 154-155].
CLF-EFC’s joint intervention
As interveners, the Christian Legal Fellowship and the Evangelical Fellowship of Canada’s submission to the Supreme Court focused on two main arguments.
First, they emphasized why freedom of religion must not be automatically overridden because it may impact third-party interests – especially when those interests are not themselves Charter rights. There was concern that the lower courts’ decisions might be interpreted as suggesting that religious freedom exists only to the extent it has no impact on others. However, the Supreme Court did not adopt this reasoning.
Second, the joint CLF-EFC submission explained how state interference with the means, instruments or “vehicles” through which religious individuals or religious communities practise and manifest their faith can be equivalent to direct interference with religious practice itself. This notion was reflected in the minority’s observation that “where state conduct renders a person’s sincerely held religious beliefs devoid of all religious significance, this infringes a person’s right to religious freedom” [para. 118].
The CLF-EFC factum is available here.
The Supreme Court of Canada’s decision is available here.
The Ktunaxa Nation Council’s media release responding to the decision is available here.
An interview with Christian Legal Fellowship executive director Derek Ross is available here.
This comment first appeared on the EFC site November 3 and is re-posted by permission.