Defining Religion Under the Charter―Church of the Universe Case

There is an interesting case being heard right now in the Ontario Superior Court (reported in the Financial Post on April 7), which claims that the province’s marijuana prohibition violates the freedom of religion protections in the Canadian Charter of Rights and Freedoms. When I first read the article I immediately turned around in my workstation and shared the story with my colleagues. Laughing, we all had an opinion of where this could go. Some cheered the initiative and saw the greater possibilities. It piqued my interest enough to delve further. What is important in this case is that the judge must decide not on the legality of general marijuana use, but whether the marijuana-based group’s practices are religious in nature.

The Church of the Universe is claiming that marijuana is the “Tree of Life”, and “if consumed and shared is an important part of the road to greater understanding of God and the universe. If everybody consumed cannabis the world would be a more peaceful, respectful, joyous and spiritually curious place.”

Marijuana—also referred to as Cannabis—is a naturally occurring herb that has an active ingredient, Tetrahydracannibinol, which is best known for the “high” it gives its users. This high is commonly defined as euphoria, with increased sensory appreciation and awareness. Marijuana is the most widely used illegal psychoactive drug in the world.

Cannabis is currently illegal across Canada, with exceptions only for medical use.

The present case stems from the 2006 raid and arrest of over 20 members of the Church, whom all originally faced charges that were eventually dropped.

Lawyer George Filipovic, defending the Church of the Universe, has stated that they are also challenging the law on a broader basis: that it violates all religions that are based on beliefs in the inherent goodness of the marijuana plant, such as the Rastafarians, another known but accepted religion whose members use marijuana as a central practice of their faith. Rastafarians typically use marijuana, their sacrament, during religious services to become closer to God.

So the debate is not new in Canada, nor is it around the world. And this is the third challenge on the issue in Canada by the Church of the Universe.

So what does the Charter say?

Section Two of the Canadian Charter of Rights and Freedoms guarantees the following fundamental freedoms:

(a) Freedom of conscience and religion
(b) Freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication
(c) Freedom of peaceful assembly
(d) Freedom of association

And Section One only imposes such reasonable limits as can be demonstrably justified in a free and democratic society. However, this means that, although guaranteed, the freedoms do face limits; the notwithstanding clause can also temporarily invalidate them. In other words, the government can legally limit an individual’s Charter rights.

Putting it simply, freedom of religion allows believers to assemble and worship without limitation or interference by the government. It also encompasses the right to religious practices if the individual has a sincere belief that the practice is connected to her or his religion. It would not matter whether a religious authority required the practice. If courts can believe an individual is telling the truth in saying a practice is connected to her or his religion, the courts must then ask whether an infringement of freedom of religion is severe enough to trigger Section Two.

In the context of this case, the right to freedom of religion should be triggered when the claimants demonstrate that they sincerely believe in their practice or belief that has a nexus with religion. Once religious freedom is triggered, the Court must then ascertain whether the government has interfered with the claimants’ exercise of the implicated right in a non-trivial or substantial way, so as to constitute an infringement of their Charter right.

The Crown argues that the applicants’ sale of marijuana and the beliefs underlying the church don’t possess the essential characteristics of religion. The Church of the Universe “offers no insight or answers into the existential questions (of) ‘ultimate concern’ which are the chief domain of religion; offers no comprehensive system of belief by which to live and offers no moral or ethical code,” federal Crown attorneys Nicholas Devlin and Donna Polgar say in written submissions. “It offers only marijuana—however and wherever individuals want it.”

“The Church of the Universe is about using marijuana in whatever way the user chooses. This hardly conforms to the basic purpose of religious movements,” the federal government’s lawyers said in their submissions. “Simply put, the mere fact that one profoundly enjoys using marijuana does not beget a constitutional right to traffic it commercially.”

The court should “weed out” frivolous claims, they added. Love the play on words.

The Crown added that even if the court finds that the church’s activities are protected as religious practices, the law’s prohibitions on trafficking are “reasonable and demonstrably justifiable limits” to the freedom of religion. Thus, this is an indication that Section One of the Charter will likely be put to the test again.

Both sides will present several experts on marijuana and religion throughout the trial, which is expected to take a month.

Will the Church of the Universe be able to justify marijuana as a central practice of its religion? Is this the case that will turn this debate around?

Comments

  1. It would be helpful to have some high-level judicial guidance on what constitutes a religion. Some jurisdictions have found a requirement for a belief in a supreme being, though usually Buddhism gets a pass for its long recognition as a religion without such a being. But some intellectual discipline or wider thought about the meaning of life should surely be required, without a full-blown eschatology.

    The question comes up in civil legal matters too. Who can reasonably request provincial authorities for the power to perform marriages, for example? And most of the debates in the law reports so far have probably been about charitable status – many courts have wrestled with whether Scientology is a religion, with different results in different places.

    Good luck! Of course the truth of any of them is not demonstrable, which is why some other test must be devised, describing the attempt not the result.

  2. if the church of the universe wins i may have found religion

  3. David Cheifetz

    John – No doubt you were being careful when wrote high level judicial guidance.

    Me? As long as we’re seeking guidance from on high, I’d have left out the “judicial”. Slaw is widely read, right? It might be more widely read that we dream.

    Still, since the issue is what constitutes a religion for legal purposes, maybe that opinion, were it offered, wouldn’t be entitled to any more weight than any other opinion. We’re dealing with that which is Caesar’s, right?

    David

  4. In a jurisdiction that guarantees freedom of (and from) religion, I would think that an opinion from the Supreme Court of Canada would be more binding on the population at large than a decree from the Supreme Being (yours or mine?). ;’)

    The Tucker brothers who are behind the Church of the Universe have been fighting this battle in the courts for a long time (the battle of MJ as a religion, not of religion in general). There are cases in the early 1990s that essentially turn on the same points – and their success rate so far is nil.