Legal Research

No Religious Right to Smoke Marijuana

By Yosie Saint-Cyr

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?

Full post as published by Slaw.ca on February 10, 2011 (boomark / email).