Document Type
Article
Abstract
This article addresses issues surrounding the way in which law apprehends religion in the judicial context. The first part of the article proposes the notion of legal fiction as a theoretical lens through which to view the law’s apprehension of religion. It is argued that this highlights and articulates a useful set of ideas about the social-symbolic process of the law’s interaction with religion. The second part of the article applies these theoretical ideas through an in-depth discussion of three cases: Ktunaxa Nation v. British Columbia, Multani v. Commission scolaire Marguerite-Bourgeoys, and Bentley v. Anglican Synod of the Diocese of New Westminster. The discussion of these cases demonstrates the descriptive and critical possibilities of reframing the law’s apprehension of religion in terms of legal fiction.
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Citation Information
Major, Blair.
"The Law’s Apprehension of Religion as a Legal Fiction."
Osgoode Hall Law Journal
59.3 (2022)
: 767-815.
DOI: https://doi.org/10.60082/2817-5069.3816
https://digitalcommons.osgoode.yorku.ca/ohlj/vol59/iss3/6
References
1. See e.g. Craig Martin, "Delimiting Religion" (2009) 12 Method & Theory in the Study of Religion 157. https://doi.org/10.1163/157006809X431015
2. I qualify "law" here as the law of the state, not the concept of law more generally. This is an important qualification because there are multiple modes of legality, including religious law, which I am not discussing here.
3. 2004 SCC 47 at para 39 [Amselem].
Defined broadly, religion typically involves a particular and comprehensive system of faith and worship. Religion also tends to involve the belief in a divine, superhuman or controlling power. In essence, religion is about freely and deeply held personal convictions or beliefs connected to an individual's spiritual faith and integrally linked to one's 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.
4. See e.g. Lori Beaman, "Defining Religion: The Promise and the Peril of Legal Interpretation" in Richard Moon, ed, Law and Religious Pluralism in Canada (UBC Press, 2008) 192. https://doi.org/10.59962/9780774814997-010
5. The level of influence and interdependence between broad conceptions of the category "religion" and the process of law apprehending religion in specific instances is an interesting question but will be left for future investigation.
6. Beyond Religious Freedom: The New Global Politics of Religion (Princeton University Press, 2015) at 13.
7. Law's Religion: Religious Difference and the Claims of Constitutionalism (University of Toronto Press, 2015) at 147-48 [B Berger, Law's Religion].
8. "Master Metaphors and Double-Coding" (2016) 53 San Diego L Rev 53 at 55. https://doi.org/10.5860/CHOICE.193583
9. See e.g. Winnifred Fallers Sullivan, The Impossibility of Religious Freedom (Princeton University Press, 2005); Cécile Laborde, Liberalism's Religion (Harvard University Press, 2017), ch 1.
10. See e.g. Howard Kislowicz, "Sacred Laws in Earthly Courts: Legal Pluralism in Canadian Religious Freedom Litigation" (2013) 39 Queen's LJ 175 (Kislowicz demonstrated the influence of state law norms on religious law norms-the state law process affects religious self-perception (via description) of their obligations).
11. See generally Ananda Abeysekara, "The Un-translatability of Religion, the Un-translatability of Life: Thinking Talal Asad's Thought Unthought in the Study of Religion" (2011) 23 Method & Theory in the Study of Religion 257. https://doi.org/10.1163/157006811X608386
12. See Alfred Schutz, "Symbol, Reality and Society" in Collected Papers I: The Problem of Social Reality (Martinus Nijhoff, 1962) 287. The notion of apperception is not discussed in this paper, but rather is offered here as a point of context for framing the thesis and analysis of the paper. https://doi.org/10.1007/978-94-010-2851-6_11
13. (Anchor Books, 1967).
14. What follows in this paragraph is my own summary understanding of P Berger's theory. See especially ibid, ch 1, 2. For further elaboration of this social theory of knowledge, see e.g. Peter L Berger & Thomas Luckmann, The Social Construction of Reality: A Treaties in the Sociology of Knowledge (Anchor Books, 1967). See also John R Searle, The Construction of Social Reality (Free Press, 1995).
15. See e.g. P Berger, supra note 13.
16. Similarly, see Benjamin L Berger, "Religious Freedom in Canada: A Crucible for Constitutionalism" (2018) 1 Quaderni di Diritto e Politica Ecclesiastica 111 [B Berger,
"Religious Freedom"].
17. See Martin Loughlin, "The Constitutional Imagination" (2015) 78 Mod L Rev 1 at 3, 12. https://doi.org/10.1111/1468-2230.12104
18. See B Berger, Law's Religion, supra note 7 at 17.
19. Ibid at 12. B Berger's argument echoes discourse theory insofar as in a discourse, the facts and concepts in discussion are prefigured by the discourse itself; the discourse is the entire field in which facts become objects of analysis. See e.g. Tim Murphy, Representing Religion: Essays in History, Theory and Crisis (Equinox, 2007) at 6. As Murphy states, "[d]iscourse is constitutive not only of the domain which can treat as a possible object of (mental) perception. It is also constitutive of the concepts it uses to identify the objects that inhabit that domain and to characterize the kinds of relationships they can sustain with one another") [emphasis in original], citing Hayden White, Metahistory: The Historical Imagination in Nineteenth-Century Europe (Johns Hopkins University Press, 1973) at 31.
20. See also Abeysekara, supra note 11.
21. For further discussion of the virtue of judicial humility, see B Berger, Law's Religion, supra note 7 at 170-77.
22. 2010 BCCA 506 [Bentley CA], aff'g 2009 BCSC 1608 [Bentley SC (TD)].
23. 2006 SCC 6, [Multani].
24. 2017 SCC 54 [Ktunaxa Nation SCC].
25. See e.g. Victor M Muniz-Fraticelli & Lawrence David, "Religious Institutionalism in a Canadian Context" (2015) 52 Osgoode Hall LJ 1049; Laborde, supra note 9. https://doi.org/10.60082/2817-5069.2963
26. The question of the Church's stance on same-sex unions was discussed during the Anglican Communion's 1998 Lambeth Conference. See Anglican Communion, "The Lambeth Conference Resolutions Archive from 1998" (9 August 1998), online (pdf): [perma.cc/E3QS-ZSNV]. The 1998 Lambeth Conference affirmed that same-sex couples should be cared for by the Church (ibid at resolutions I.10c, d); the Church's teaching on human sexuality and family relationships should not be changed from its traditional understanding as monogamous and heterosexual (ibid at resolution I.10b); and the blessing of same-sex unions should not be authorized (ibid at resolution I.10e). There was deep disagreement over the issue of human sexuality at the 1998 Lambeth Conference. See Anglican Communion, "Called to Full Humanity - Section 1 Report: Subsection 3 - Human Sexuality" (1998), online: [perma.cc/GC8C-XC82]. The Lambeth Conference is the primary international gathering of Anglicans in the global Church community and one of the four "Instruments of Communion" of
the Anglican Church. See Anglican Communion, "Instruments of Communion," online:
[perma.
cc/55C8-FSPK] [Anglican Communion, "Instruments of Communion"].
27. See Paula D Nesbitt, "Engaging Religion in a Contested Age: Contestations, Postmodernity, and Social Change" (2020) 81 Sociology of Religion 142 at 147-51 (providing a summary overview of the dispute). https://doi.org/10.1093/socrel/srz047
28. Miranda K Hassett, Anglican Communion in Crisis: How Episcopal Dissidents and their African Allies are Reshaping Anglicanism (Princeton University Press, 2007).
29. See e.g. Delicata v Incorporated Synod of the Diocese of Huron, 2013 ONCA 540, aff'g
2011 ONSC 4403. Regarding the organization of the Anglican religion, see Anglican Communion, "Structures," online: [perma. cc/YPE7-9PD4]; The Anglican Church of Canada, "How We are Organized," online:
[perma.cc/7TW9-VZ5E]. Individual churches form parishes, and parishes are subdivisions of a diocese. Dioceses are the fundamental administrative unit of the Anglican Church. Bishops are the leaders of dioceses and
carry broad responsibility both locally (to appoint and oversee priests and their parishes) and globally (to attend and participate in the Lambeth Conference, which is the regular meeting of the Anglican Church). Dioceses are grouped into Provinces. Provinces and their leaders (usually called Archbishops) have various administrative roles in the global Anglican Communion (including participating in the Primates Meeting and in the Anglican Consultative Council). Provinces have some authority to regulate and guide the individual bishops and dioceses within a designated territory, but the central units of administration are the dioceses and their respective bishops.
30. See the Anglican Communion, "Instruments of Communion," supra note 26.
31. See Bentley SC (TD), supra note 22 at para 67.
32. See e.g. Anglican Communion News Service, "A Statement by the Primates of the Anglican Communion meeting in Lambeth Palace" (16 October 2003), online: [perma.cc/75H2-664A].
33. See GAFCON, "About GAFCON," online:
[perma.cc/U2L9-37LU].
34. GAFCON, "The Complete Jerusalem Statement" (22 June 2008), online: https://www.gafcon.org/resources/the-complete-jerusalem-statement-2008; and GAFCON, "The Jerusalem Declaration" (29 June 2008), online: https://www.gafcon.org/resources/the-jerusalem-declaration.
35. For a description of the history of the dispute, see Bentley SC (TD), supra note 22 at paras 7-171.
36. For an outline of the history leading to the creation of the ACNA Province and the ANiC diocese, see Anglican Network in Canada, "Realignment in the Communion: A Canadian Chronology," online: [perma.cc/SUQ3-ZLVD].
37. See Bentley SC (TD), supra note 22 at paras 1-6.
38. Ibid at para 172ff.
39. Ibid at paras 211ff.
40. See ibid at para 256; Bentley CA, supra note 22 at para 74.
41. Bentley CA, supra note 22 at para 65.
42. Ibid at para 69.
43. Ibid at para 74.
44. Ibid.
45. Ibid at para 75.
46. Ibid at para 76.
47. Ibid at para 74.
48. Ibid at para 75.
49. Ibid at paras 52, 61.
50. Anglican Communion, "Walking Together in the Service of God in the World"
(11-15 January 2016), online (pdf): [perma.cc/DT6B-QTEM]. As an aside, it is not clear what follows after the 3-year suspension because the Primates did not convene for a formal meeting in 2019, and might not meet for a longer period of time due to the COVID-19 pandemic.
51. Anglican Communion, "God's Church for God's World" (6 October 2017), online (pdf): [perma.cc/GYR4-NUUB] [Anglican Communion, "God's Church"].
52. Recently there was an effort to amend the ACC Canon law definition of marriage to include same-sex unions. A motion to this effect was passed at the General Synod of the ACC in 2016. See Anglican Church of Canada, "General Synod 2016 Resolution A051-R2: Amendment to Canon XXI (On Marriage in the Church)" (July 2016), online (pdf): [perma.cc/549A-HYX4]. The resolution required a second reading and vote at the next General Synod in 2019. The resolution was ultimately defeated at the 2019 General Synod, narrowly falling short of the 2/3 majority support needed to pass. See Anglican Church of Canada, "General Synod Resolution A052-R2: Motion for a Second Reading of Amendment to Canon XXI (On Marriage in the Church)" (2019), online (pdf): [perma.cc/SZR5-DUQB]. The Bishops of the ACC issued a media statement affirming the shared commitment to allow individual dioceses and jurisdictions to continue celebrating same-sex marriage according to their own contexts and convictions. See Anglican Church of Canada, "A Message from the House of Bishops of the Anglican Church of Canada to General Synod 2019" (2019), online: [perma.cc/27VH-QHS2].
53. See Bentley SC (TD), supra note 22 at para 260.
54. Bentley CA, supra note 22 at para 76.
55. Ibid at para 74.
56. Ibid at para 75.
57. For a discussion on the importance of respecting territorial integrity with "consent and courtesy," and avoiding "cross-border interventions", see Anglican Communion, "God's Church," supra note 51.
58. ACNA is not recognized as a Province in the Anglican Communion. See ibid.
59. "Archbishop of Canterbury's statement at the final press conference of the Primates' Meeting" Anglican Communion News Service (16 October 2003), online: [perma.cc/MD7M-D54M].
60. "Archbishop Welby briefs ACC members on the Primates' gathering and meeting" Anglican Communion News Service (8 April 2016), online:
[perma.cc/MKN5-HEYV].
61. B Berger, Law's Religion, supra note 7 at 26. In the same place Berger referred to Bruno Latour's memorable idea that trying to access the world through law is like "trying to fax a pizza." Bruno Latour, The Making of Law: An Ethnography of the Conseil d'Etat (Polity Press, 2010) 268.
62. A thorough discussion of legal fictions from multiple perspectives can be found in Maksymilian Del Mar & William Twinning, eds, Legal Fictions in Theory and Practice (Springer, 2015).
63. Lon L Fuller, Legal Fictions (Stanford University Press, 1967) at 9.
64. Legal Fictions in Practice and Legal Science (Rotterdam University Press, 1975) at 36-37.
65. Ibid at 81.
66. A brief note of clarification. I am not arguing that law should be thought of as a fiction, although I do find the idea plausible and full of theoretical potential. The use of legal fiction here is more circumscribed, offering a different point of view from which to reflect on the gap between law and religion.
67. Fuller, supra note 64 at ix.
68. John Bowring, ed, The Works of Jeremy Bentham, vol 9 (William Tait, 1843) at 77. In this same chapter Bentham rattled off such a series of harsh criticisms against legal fictions that it was difficult to pick which one to include. The substance of his objection to legal fictions is that they fly in the face of utilitarian reasoning, and hence can (and only ever are) used to perpetuate a situation of social organization and distribution of advantages, which supports the few at the expense of the many. See ibid at 78 (representing this sentiment in the statement that legal fictions enable "[government functionaries] with the greater efficiency and to the greater extent, to make sacrifice of the universal interest to their several particular and sinister interests").
69. See Olivier, supra note 64 at 109-10.
70. See e.g. Fuller, supra note 63 at 70, 117-18; Olivier, supra note 64 at 108.
71. See e.g. Geoffrey Samuel, "Is Law a Fiction?" in Del Mar & Twinning, supra note 62, 31 at 51. As Samuel notes, "[t]he theorist provides a fictional ('as if') model for the judges within which the judges employ fictional ('as if') images to relate law to social fact, this social fact itself resulting from an 'as if' construction operating both within and without the facts." Also see Frederick Schauer, "Legal Fictions Revisited" in Del Mar & Twinning, supra note 62, 113 at 126. For Schauer, "[t]he examination of legal fictions, therefore, is not simply an examination of an epiphenomenal and quaint feature of legal reasoning. Rather, it is an entry into the difficult problem of legal truth."
72. See e.g. RA Samek, "Fictions and the Law" (1981) 31 UTLJ 290, in which the author argues that the temporariness of the legal fiction-the constant birth and death of legal fictions-is a part of a cycle of meaning formation that is central to the law. For Samek, "[t]he birth of a fiction inevitably leads to its death. A new dogma replaces the old, and the whole process starts all over again….The stability of law is an illusion, and so is the lawyers' fixed belief that it can be reformed from within. Law, like the fictions which it employs, is a means to a social end, not an end in itself" (at 317).
73. See Maksymilian Del Mar, "Legal Fictions and Legal Change" (2013) 9 Int'l J Law in Context 442. https://doi.org/10.1017/S1744552313000244
74. See e.g. Douglas Lind, "The Pragmatic Value of Legal Fictions" in Del Mar & Twinning, supra note 62, 83 at 102-03 (discussing the example of constructive eviction).
75. See ibid at 95-96.
76. Fuller, supra note 63 at 51.
77. Ibid at x-xi.
78. Ibid at 52.
79. Ibid at 21-22.
80. Ibid at xi.
81. Ibid at 105.
82. Ibid at 46.
83. Ibid at 117.
84. See e.g. Karen Petroski, "Legal Fictions and the Limits of Legal Language" (2013) 9 Intl https://doi.org/10.1017/S1744552313000268
J Law in Context 485 (reprinted in Del Mar & Twinning, supra note 62, 131); Kenneth Campbell, "Fuller on Legal Fictions" (1983) 2 Law & Phil 339. The notion of falsity has great potential for defining and delimiting the idea and use of legal fictions. See e.g. Olivier, supra note 64 for an extensive discussion of what constitutes a legal fiction. https://doi.org/10.2307/3504564
85. Olivier, supra note 64 at 67. There is, though, ambiguity regarding what counts as "qualities," and how they are identified. For example, rather than seeing the physical trait of live birth as the attributed "quality," it could instead be understood to be an object that symbolizes the quality of holding a legal right (like the stone symbolizes hardness, coldness, et cetera.). In this way the legal fiction "the unborn child was born alive" is no different than the example of the metaphor "she has a heart of stone." Olivier discusses both examples, ibid at 65-68.
86. See Searle, supra note 14.
87. Supra note 84.
88. Supra note 84. Others making a similar argument against the privileging of one form of reality include Samek, supra note 72, and Lind, supra note 74.
89. "Legal Fictions and Juristic Truth" (2010) 23 St Thomas L Rev 1 at 8.
90. Lind, supra note 74 at 99.
91. Ibid at 84.
92. Ibid at 89-90.
93. Ibid at 90.
94. Samek, supra note 72 at 313-14.
95. Ibid at 317.
96. Schauer, supra note 71 at 126.
97. Ibid at 127.
98. See Lind, supra note 74 at 97, 99.
99. Ibid at 94.
100. See, e.g. Talal Asad, Genealogies of Religion: Discipline and Reasons of Power in Christianity and Islam (Johns Hopkins University Press, 1993) at 29. As Asad notes, "[t]here cannot be a universal definition of religion, not only because its constituent elements and relationships are historically specific, but because that definition is itself the historical product of discursive process."
101. Fuller, supra note 63 at 105.
102. Ibid at 94.
103. Ibid at 65. Lind agrees, pointing out that truth is comprehensive and that new truths must be brought into accord with existing truths, either replacing or adjusting the whole system in order to accommodate the new (Lind, supra note 74 at 91-92).
104. Fuller, supra note 63 at 121. In particular, Fuller writes that
[o]ur concepts…are the constructs of our minds which facilitate thought by rendering comparison en masse possible. As all thinking proceeds through analogy and comparison, thought will be speeded up if we can group related phenomena into units convenient for comparison. But these constructs must be seen as instruments of thought only; we must treat them as servants to be discharged as soon as they have fulfilled their functions. They are foreign elements which may be inserted into the equation provisionally to render computation simpler, but which must be dropped from the final reckoning.
105. Hans Kelsen, "On the Theory of Juridical Fictions: With Special Consideration of Vaihinger's Philosophy of the 'As If,'" translated by Christoph Kletzer in Del Mar & Twining, supra note 62, 3 at 4.
106. Ibid at 5.
107. Ernst Cassirer, The Philosophy of Symbolic Forms, Vol 1: Language, translated by Ralph Manheim (Yale University Press, 1953) [PSF 1] at 93.
108. See e.g. The Oxford English Dictionary, 3d ed (Oxford University Press: 2010) sub verbo"symbol". The second definition of "symbol" in the Oxford English Dictionary is "a thing that represents or stands for something else."
109. Ernst Cassirer, "'Spirit' and 'Life' in Contemporary Philosophy" in Paul Arthur Schilpp, ed, The Philosophy of Ernst Cassirer: The Library of Living Philosophers Vol IV (The Library of Living Philosophers, 1949) 855 at 874. See also Thomas Meisenhelder, "Law as Symbolic Action: Kenneth Burke's Sociology of Law" (1981) 4 Symbolic Interaction 43 at 44-46.
110. Cassirer, PSF 1, supra note 107 at 107 and 112. Cassirer argued that reality is always only accessible through symbolic forms of meaning and that acquiring a sign is really what constitutes the first step toward knowledge of the nature of a thing.
111. See Deniz Coskun, Law as Symbolic Form: Ernst Cassirer and the Anthropocentric View of Law (Springer, 2007) at 193.
112. Cassirer, PSF 1, supra note 108 at 89. For a similar description of the dialectic process at the foundation of social reality, see also P Berger, Sacred Canopy, supra note 13, and P Berger & Luckmann, supra note 14.
113. Ibid note 107 at 86.
114. See Meisenhelder, supra note 109 at 44-46. https://doi.org/10.1177/0040571X4204426009
115. Cassirer, PSF 1, supra note 108 at 81. Cassirer writes, "True human knowledge can nowhere dispense with symbols and signs; but it is precisely this that characterizes it as human." Also see Ernst Cassirer, An Essay on Man: An Introduction to a Philosophy of Human Culture (Yale University Press, 1944), at 25-26.
116. Ibid at 113-14.
117. For further discussion of the implications of a relational model to the interpretation of constitutional rights more generally, see Jennifer Nedelsky, "Reconceiving Rights as Relationship" (1993) 1 Rev Const Stud 1. Despite the thematic overlap, my analysis is quite different than Nedelsky's. Nedelsky proposed that rights should be interpreted and applied in a way that foregrounds how law structures relationships and fosters the kinds of relationships that we value relationships through the language of rights. This, for her, makes judicial review of constitutional rights claims a kind of democratic discourse and source of institutional accountability.
118. Robert Cover, "Foreword: Nomos and Narrative" (1983) 97 Harv L Rev 4 at 45.
119. Gabriel Motzkin, "Cassirer's Philosophy of Symbolic Forms: A Foundational Reading" in Jeffrey Andrew Barash, The Symbolic Construction of Reality: The Legacy of Ernst Cassirer (University of Chicago Press, 2008) 73 at 86. https://doi.org/10.7208/chicago/9780226036892.003.0004
120. James MacLean, Rethinking Law as Process: Creativity, Novelty, Change (Routledge, 2012) at 86. https://doi.org/10.4324/9780203813126
121. I am indebted to Christopher Lund for this phraseology.
122. Benjamin L Berger made a similar argument in relation to the cultural paradigm of the constitutional rule of law, arguing that adopting a cultural lens for examining the law's intersection with religion increases our awareness of the cultural force exerted by the law and should inspire a judicial attitude of humility. See, e.g. B Berger, Law's Religion, supra note 7 at 103-04, 170. Also see B Berger, "Religious Freedom," supra note 16.
123. It should be noted that this analysis followed that in Doré v Barreau du Québec, [2012] 1 SCR 395, where the Court held that in evaluating administrative decision-making the standard of review is reasonableness and not the test in R v Oakes, [1986] 1 SCR 103 (applying s 1 of the Charter). The new Doré analysis and the old analysis used in Multani (the Oakes test), although distinct, are in "conceptual harmony" because both work the same "justificatory muscles" of proportionality (ibid at paras 5 and 57).
124. Multani, supra note 23 at para 87.
125. Ibid at paras 37, 55, 71.
126. This is a central tenant of the Sikh faith along with uncut hair (under a turban), carrying a wooden comb, wearing a kaccha undergarment and a steel bracelet. These "Five Ks" of the orthodox Sikh faith (kesh, kangha, kara, kaccha and kirpan) were noted in ibid at para
36. See also, SikhNet, "Who are Sikhs? What is Sikhism?" (last visited 17 September 2020) online: .
127. Multani, supra note 23 at paras 36 and 37.
128. Ibid at para 67.
129. Ibid at para 3.
130. Ibid at para 98.
131. See ibid at para 37. As Justice Charron notes "[t]he question at this stage of the analysis cannot be answered definitively by considering only the physical characteristics of the kirpan."
132. Ibid at para 49.
133. Ibid at para 52. The Court held that the constitutional standard of "minimal impairment" (part of the proportionality analysis established in Oakes, supra note 123) requires "reasonable accommodation" (where the argument of "undue hardship" comes from).
134. Multani, supra note 23 at para 55.
135. Ibid at para 57.
136. Ibid at paras 59-61.
137. Ibid at 59.
138. Ibid at para 67.
139. Ibid at para 98. In the concurring words of the minority decision, the kirpan was "almost totally stripped of its objectively dangerous characteristics."
140. See ibid at paras 63-66. The Court distinguished Hothi v R, [1985] 3 WWR 256 [Hothi], which prohibited bringing a kirpan into an assault trial; and Nijjar v Canada 3000 Airlines Ltd (1999), 36 CHRR D/76 (CHRT) [Nijjar], which prohibited a kirpan on an airplane.
141. Multani, supra note 23 at paras 70-74.
142. Ibid at para 76.
143. Ibid at para 78.
144. Ibid at para 79.
145. "The Power of Symbols and Symbols of Power: Secularism and Religion as Guarantors of Cultural Convergence" (2009) 30 Cardozo L Rev 2629 at 2655.
146. The Sikh understanding of their religious practices and identity, which includes carrying the kirpan, has evolved through a rich (and contested) historical tradition. See generally Harjot Oberoi, The Construction of Religious Boundaries: Culture, Identity, and Diversity in the Sikh Tradition (University of Chicago Press, 1994). See also Pauljit Bhandal, "Problems with the Current Interpretation of Section 2
(a) of the Charter" (2019) [unpublished,
on file with author].
147. See Amselem, supra note 3 at para 43.
148. See B Berger, Law's Religion, supra note 7 at 158-59. Berger observes, albeit in a slightly different context:
Even if I am successful in my religiously motivated claim, culture was irrelevant to the legal conclusion. If my position is legally acceptable, it is so despite my cultural commitments and only to the extent that I was capable of stripping my claim of the terms that make it meaningful to me in the first place. The "win" is not a product of cross-cultural understanding; rather it turns on the successful suppression of the dimension of culture.
149. Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
150. Ktunaxa Nation SCC, supra note 24 at para 13.
151. Ktunaxa Nation SCC, supra note 24 (Factum of the Appellant at para 22).
152. Ibid at para 27.
153. Ktunaxa Nation SCC, supra note 24 at paras 8, 115. See Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resource Operations), 2014 BCSC 568 [Ktunaxa Nation SC
(TD)], aff'd 2015 BCCA 352 [Ktunaxa Nation CA]. Both the Supreme Court of British Columbia (BCSC) and the Court of Appeal of British Columbia (BCCA) upheld the government approval of the development plan, refusing to protect the Ktunaxa spiritual claim. The focus of both the BCSC and BCCA was that religious meaning could be used to restrict or guide others in the otherwise lawful use of land. The BCSC held that section 2(a) of the Charter does not confer a right to restrict the otherwise lawful use of land on the basis that such use would result in loss of meaning to religious practices carried on elsewhere (Ktunaxa Nation SC (TD), at para 296). The BCCA held that section 2(a) of the Charter does not apply to protect the subjective meaning of a religious community when the subjective meaning depends on others being required to act (or refrain from acting) in a manner consistent with a belief that they do not share (Ktunaxa Nation CA, at paras 73-74).
154. Ktunaxa Nation SCC, supra note 24 at paras 70-71.
155. Ibid.
156. For a thorough discussion of the dialectics of symbolic meaning and ritual in the context of religious formation, see especially Asad, supra note 100, ch 1. For an extensive and illuminating study of the function of symbolic meaning in relation to the Christian religious experience, see CJC Pickstock, "The Ritual Birth of Sense" (2013) 162 Telos 29 https://doi.org/10.3817/0313162029
Louis-Marie Chauvet, Symbol and Sacrament: A Sacramental Reinterpretation of Christian Existence, translated by Patrick Madigan, SJ & Madeline Beaumont (The Liturgical Press, 1995). This dynamic in religion is also reflected in the law. For a discussion of this in relation to legal language and interpretation, see Roderick A Macdonald & Jason MacLean, "No Toilets in Park" (2005) 50 McGill LJ 721.
157. For two cogent articulations of the intersection between the philosophical and legal theories in this regard, see Ronald Dworkin, Religion Without God (Harvard University Press, 2013); Laborde, supra note 9. See also Rafael Domingo, "The Dworkinian Religion of Value" (2014) 29 JL & Religion 526 (commenting on Dworkin's theory of religion and its connection to religious freedom jurisprudence).
158. Ktunaxa Nation SCC, supra note 24 at para 130.
159. Ibid at para 128.
160. Ibid at para 131.
161. Ibid at para 130, citing Amselem, supra note 3 at para 47.
162. For a similar line of argument about a flattened view of religious reasons for particular religious actions, see Blair Major, "Translating the Conflict over Trinity Western University's Proposed Law School" (2017) 43 Queen's Law Journal 175.
163. Ktunaxa Nation SCC, supra note 24 at paras 6, 35-43.
164. Ktunaxa Nation SC (TD), supra note 153 at paras 19 and 280. The Court of Appeal and Supreme Court did not mention the mine in their reasons.
165. Ktunaxa Nation SCC, supra note 24 at para 69.
166. Ibid at para 99. This is inferred by the Minister's argument that the Late-2009 claim is "weak."
167. Ktunaxa Nation SC (TD), supra note 153 at para 280.
168. Ktunaxa Nation SCC, supra note 24 at paras 145-55.
169. Justice Moldaver outlined the statutory objectives of the Ministry. See ibid at para 145.
170. Ibid at para 152.
171. See Dwight Newman, "Implications of the Ktunaxa Nation / Jumbo Valley Case for Religious Freedom Jurisprudence" in Dwight Newman, ed, Religious Freedom and Communities (LexisNexis, 2016) 309.
172. See Natasha Bakht and Lynda Collins, "'The Earth is our Mother': Freedom of Religion and the Preservation of Indigenous Sacred Sites in Canada" (2017) 62 McGill LJ 777. https://doi.org/10.7202/1042774ar
73. B Berger, Law's Religion, supra note 7 at 12.
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