In his landmark essay, Nomos and Narrative, the late legal scholar Robert Cover wrote about the jurispathic function of courts—that is, its ability to quash other commitments and forms of interpretation when they are incompatible with national norms. Religious freedom cases brought before courts often highlight this ability. In such cases, courts assert one law, often the state’s, to the rejection of all others.
This fall, the Supreme Court of Canada (SCC) will hear an appeal involving the claim of the Ktunaxa First Nation that a proposed ski resort construction in a sacred mountain will cause the Great Spirit Bear to leave the area and thus render all their religious activities meaningless. The Ktunaxa asserts that, among others, the construction will violate their religious freedom under Section 2(a) of the Canadian Charter of Rights and Freedoms because it will effectively end the vitality of their religious community. The case is unique and unprecedented—the Canadian Constitution, after all, has distinct provisions that affirm and safeguard aboriginal rights, presumably including the protection of aboriginal spiritual beliefs and practices (Sections 25 and 35). So why claim general religious freedom protection under the Charter, and what are its benefits and drawbacks?