No Religious Right to Smoke Marijuana

This is a follow-up post to a previously published Slaw post on a case in which two members of the Church of the Universe claim that the Ontario’s marijuana prohibition violates the freedom of religion protections in the Canadian Charter of Rights and Freedoms. Members of the Church of the Universe believe that smoking marijuana brings followers closer to God and use the drug as a sacrament.

After two weeks of hearings, on Monday February 7, 2011, Ontario Superior Court Judge Thea Herman found that the church members in question of the Church of the Universe who uses the drug as a sacrament and believe that smoking marijuana brings followers closer to God, are not protected from criminal charges because of their beliefs.

Prosecutors had told a Toronto judge that allowing the church’s application would effectively legalize marijuana, as others would claim a religious right as well.

The judge stated that while she felt these two members were sincere in their beliefs about the spiritual power of marijuana, and that the prohibition against pot possession limited their freedom of religion, laws against possession and trafficking were reasonable limits on their religious freedoms (as per Section 1 of the Charter).

The limits are proportional because there is no feasible way to make an allowance for the religious use of cannabis in the circumstances of this case. It is difficult, if not impossible for an outsider to identify the religious user and religious use because religious use is barely distinguishable from recreational use.

She dismissed the claim but stated that the government should introduce a licensing system for religions that find spiritual meaning in smoking weed, such as Rastafarianism.

The members of the Church of the Universe do not intend to abandon the battle. In addition, the two members are scheduled to appear in court on February 21, 2011, on trafficking charges for allegedly selling pot to undercover police officers posing as members of the church in 2006.

Defence lawyers say they may appeal the decision.

Source: The Canadian Press
Decision not yet available online

I believe that the judge’s ruling is reasonable under the circumstances. However, I would love to see an appeal all the way to the Supreme Court of Canada to have them weigh in again on the issue of religious right. I yearn to see a ruling that provides clear guidelines on what constitutes a religion? What are the essential characteristics of religion? What religious practices are religious in nature?

Although human rights legislation and the Charter guarantee rights related to freedom of religion or belief none have attempted to define it.

However, the Supreme Court of Canada has held religion to be about “sincere and deeply held personal convictions or beliefs connected to an individual’s spiritual faith and integrally linked to his or her self-definition and spiritual fulfilment, the practices of which allow individuals to foster a connection with the divine or with the subject or object of that spiritual faith”. (Syndicat Northcrest v. Amselem, 2004 SCC 47 CanLII.)

Relying on the above definition, which is too broad in my point of view, how do you know that a practice is a requirement of a religion or belief? How do you fully understand what is and is not protected?

The Church of the Universe is appealing the court’s Februrary 7, 2011 ruling.


  1. With all due respect to Judge Herman, I have a sneaking suspicion that this decision might have gone the other way if it was a well esetablished, mainstream (whether majority or minority religion) and wasnt a ‘quirky’, new age, Canadian-create religion that had advanced this argument. I honestly don’t understand how we can reasonably accomodate the kirpan but not marijuana use. I can only concluded that we have protected “spiritual beliefs” and unprotected spiritual beliefs–with antiquity and global numbers as the dividing line between the two.

  2. KC… well said!

  3. “Society” has decided that people should not smoke marijuana, since it is harmful to them and to the social order. (I don’t think I buy that, and the consequences of its criminality are worse than those of smoking it, in my view, but that’s the current law and thus social balance.) It is not harmful to others to have someone wearing a kirpan. I have not seen news stories of people using kirpans against others. SO there is no good parallel between accommodating people who wear them, and accommodating people who want to smoke marijuana.

    OTOH if the test of religion is a sincere belief in anything at all – which is basically the Amselem test – then it behoves our courts to be able to judge a sincere belief from an insincere one, and Justice Herman’s floodgates argument (if we let people smoke it if it’s their religion, everyone who wants to smoke it will claim it’s their religion) is not persuasive. The courts have frequently to decide if a claim to a religious-based right is sincere.

    I agree that mainstream religions get away with more strange practices than newly invented ones. Look at the law of charities and religion as a charity. Almost every court finds that some kind of belief in a deity is required – but no court finds that Buddhism is not a charity, though it has no god. Of course that’s not a freedom of religion area, it’s a state benefit to religion area, a different question.

    Maybe it just comes down to a deep-seated but sometimes only implied judicial scepticism over the sincerity of religions of convenience (such as that of the Tucker brothers). The newer and stranger the religion, the easier it is to be sceptical of claims of sincere belief.

  4. What concerns me about this judgment is that in the face of a law prohibiting the possession and sale of alcohol, the Charter would not protect the rights of, for example, Catholics to drink wine in mass.

    I find it hard to believe that would be a reasonable limit.

  5. The balancing of the freedom to believe in imaginary things as you see fit and the protection of society and individuals of something the harm of which has hardly been shown. Hmmm…

  6. I have to disagree with Jon G. “Society” has also decided that we should have time and place restrictions on weapons such as knives. Not because everyone who carries one will necessarily hurt someone but because they could.

    In deciding that reasonable accomodation could be made for the kirpan the court did delve into the merits of that rule and decided that it was outweighed by religious freedom. Yet it refused to with respect to marijuana.

    I think that the argument that there arent any cases of kirpans being used as weapons is pretty weak. For starters there have been cases albeit isolated cases. Secondly, it shouldnt be that surprising that there arent that many as there are only 278,000 Sikhs in a population of 30 million (of which only some wear the kirpan). Thirdly, I think there is a subtle prejudice in favour of the religious in the argument as if the devoutly religious are less prone to violence. As a non religious person I take exception to that assumption.

    So in that sense they are more similar.

  7. imagine: a few hundred thousand stoned, laid back to the point of passivity, potheads “marching” (giggle) on the local legislature waving Twinkies (or the local equivalent), some of whom almost manage to speak (the potheads, that is, Twinkies don’t speak, right?)coherently (about the Dead, the last time he or she saw Jesus, the relative qualities of local vs imported rolling papers, etc).

    I suppose the effect on local air quality of a few hundred thousand unwrapped Twinkies might concern a diabetic.

  8. John:

    As you know, there’s a trial now going on, on the other side of the big mountains far to the west of us, where a judge is deciding the constitutionality of Canada’s anti-polygamy laws and has heard evidence that from members of the Fundamentalist Church of Jesus Christ of Latter Day Saints’ belief that polygamy is required by their religions tenets.

    According to a number of the articles I’ve seen on the web – I haven’t yet seen the trial judge’s reasons, Justice Herman wrote [quoting from a Toronto Star summary, here] that

    There is no reasonable way to allow for the use of cannabis for religious purposes, Herman wrote. “It is difficult, if not impossible for an outsider to identify the religious user . . . because religious use is barely distinguishable from recreational use.”

    I’m struggling with how one might apply that statement to an instance of polygamy. For example, how would one distinguish – ahem, in principle – between between recreational use of polygamy and recreational use of pot?

    I’m sure a man charged with polygamy would refer to the Old Testament’s be fruitful admonition. And ask – I’m putting aside ONLY for this reply the fact that some of the girls are below the legal age for marriage in Canada, even below the legal age for sex with their husband – what’s the practical difference to the extent that his wives are all over the age of consent.

    That he or they may be receiving public money on account of their marital status is a separate issue.

    Anyway, I wonder if Justice Herman would have written the quoted words – which may or may not be out of context – if the defendants were Rastafarian? Or what would have said if presented evidence that recreational use is religious use?

    One obvious problem with what’s quoted from the reasons, assuming the excerpt is accurate, is that one can substitute almost any substance that can have harmful effects but is nonetheless used recreationally – alcohol, tobacco – and the statement about the impossibility of distinguishing religious user from recreational applies equally well. What that means, to me, is that the only difference between the cases (for present purposes) is that use of alcohol and tobacco is still more legal than use of grass. Putting this another way, Justice Herman’s reasons, if the quotations are accurate, require us to conclude she’d have arrived at the same result if it was alcohol or tobacco that is proscribed in the way that marijuana is, now.

    Which, to me, means that the justification for the decision, if it ultimately stands, is nothing more than that the legislature has (still) decided that reefers are madness, and that’s a social policy issue that has to be left to the Canadian equivalent of what Mark Twain once called America’s only native criminal class.