The Christian Legal Fellowship and The Evangelical Fellowship of Canada intervene in support of freedom of religion in Ktunaxa v. British Columbia   

On October 24, 2016, the Christian Legal Fellowship (CLF) and The Evangelical Fellowship of Canada (EFC) filed joint written submissions to the Supreme Court of Canada as interveners in Ktunaxa v. British Columbia.

The case is an historic one: when Ktunaxa is heard on December 1, 2016, it will mark the first time that a religious freedom claim of an Indigenous community is heard by the Supreme Court of Canada under s. 2(a) of the Charter.

The case arises from the proposed development of a ski resort on land that is sacred to the Ktunaxa people; the Ktunaxa Nation opposes the construction of the ski resort on the basis that it would desecrate the sacred site and would interfere with a variety of their spiritual practices. These objections were made known to the B.C. government in its consultation process surrounding the proposed ski resort, but the B.C. Minister ultimately approved the development. In so doing, the Minister did not specifically analyze how the decision would impact the Ktunaxa Nation's right to freedom of religion under s. 2(a) of the Charter; however, this was excused by the B.C. Supreme Court on the basis that, in its view, the substance of the Ktunaxa Nation’s claim was still addressed in the overall consultation process. On appeal, the BC Court of Appeal held that even if the Minister had not considered the substance of the s. 2(a) claim, it was insufficient to overturn the decision. The BC Court of Appeal also suggested that the Charter does not protect religious exercise to the extent that it requires others to “act or refrain from acting and behave in a manner consistent with a belief that they do not share.”

CLF Executive Director Derek Ross, who serves as co-counsel along with Albertos Polizogopoulos, explains why the lower courts’ approach is of concern:

“Section 2(a) of the Charter does not automatically exclude claims simply because they impact third parties. To suggest that religious freedom extends only so far as it has no impact on others is problematic: the existence of third party and/or public interests is inherent in virtually all freedom of religion jurisprudence. While these interests may ultimately be permitted to reasonably limit s. 2(a) Charter rights and freedoms, this must not become an automatic determination – it must only come after the limitations are shown to be proportionate and acceptable, in the fact-specific context of each individual case. This is an important issue that the Supreme Court will be asked to consider in Ktunaxa, which is one of several reasons why the decision ought to be of concern to all Canadians of faith.”

The CLF and the EFC’s submission emphasizes why an entrenched constitutional right such as freedom of religion must not be automatically overridden by impacts on third party interests—especially interests that are not actually Charter rights.

The submission also explains how state interference with the means, instruments or “vehicles” through which religious individuals or religious communities practice and manifest their faith can be equivalent to direct interference with religious practice itself. Litigation co-counsel Albertos Polizogopoulos explains:

“In the same way that a place of worship is an integral part of religious practice and observance for some believers, different means or ‘vehicles’ may also be integral for others. In the Hutterian Brethren case, that vehicle was the commune on which all Hutterites lived and which could only continue to exist if some Hutterites possessed drivers’ licenses. Here, for the Ktunaxa Nation, that vehicle is the land in question as it is integral to their relationship with the Grizzly Bear Spirit.”

Assuming their claim is accepted, the fact that the lands are necessary for the Ktunaxa Nation to exercise their faith does not automatically mean that the Minister’s decision ought to be set aside; as CLF and the EFC explain in their submissions, it simply means that the effect that the development of the lands would have on the Ktunaxa Nation’s 2(a) Charter rights to religious freedom must be considered.

EFC President Bruce Clemenger explains why the Ktunaxa case has the potential to impact all communities of faith:

“The loss of religious freedom for any faith group means a loss of religious freedom for every other faith group in Canada. If a religious freedom claim can be overlooked by a government decision-maker, then the freedom becomes hollow. There will be no requirement for governments to respect religious freedom in any meaningful way or to reasonably accommodate our freedom to worship and live out our faith if it may impact others.”

The CLF and the EFC’s factum is available here.