T- 1805-98.

Freedom of Religion

A presentation made to the Supreme Court of Canada in support of an Application to Appeal 15469 by John Allen West in 1979.

In Robertson and Rosetanni v. The Queen, the Supreme Court of Canada discussed s.1 of the Bill of Rights*, and in particular the freedom therein proclaimed, Ritchie J., on behalf of the majority, asserted that the rights and freedoms recognised were those which existed in Canada immediately before the passing of the Canadian Bill of Rights. One must then, he declared, understand the concept of “religious freedom” which existed at that time. In determining this he referred to two earlier judgments in the Supreme Court of Canada, taking a quotation from each. One of these was a statement by Taschereau J. ( as he then was) in Chaput v. Romain:

Dans notre pays, il n’existe pas de religion d’Etat. Personne n’est tenu d’adhérer a une croyance quelconque. Toutes les religions sont sur un pied d’égalité, et tous les catholiques comme d’ailleurs tous les protestants, les juifs, ou les autres adhérents des diverses dénominations religieuses, ont la plus entière liberté de penser comme ils le désirent. La conscience de chacun est une affaire personnelle, et l’affaire de nul autre. Il serait désolant de penser qu’une majorité puisse imposer ses vues religieuses à une minorité.

The other comment referred to by Ritchie J. was the summary of religious freedom in Canada given by Rand J. in Saumur v. City of Quebec.

From 1760 therefore, to the present moment, religious freedom has, in our legal system, been recognized as a principle of fundamental character; and although we have nothing in the nature of an established church, that the untrammeled affirmations of religious belief and it’s propagation personal or institutional, remains of the greatest constitutional significance throughout the Dominion is unquestionable.

Mr. Justice Ritchie then quoted from a judgment of the Supreme Court in the United States as being “directly applicable to the freedom of religion existing in this country both before and after the enactment of the Canadian Bill of Rights."

These references would seem to indicate that freedom of religion in Canada before and after the enactment of the Canadian Bill of Rights is somewhat equivalent to that in the United States under the First Amendment to the American Constitution, and to s.116 of the Australian Constitution which provides.

The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or trust under the Commonwealth.

The Western man who claims consciousness of oneness with God or the universe thus clashes with his society’s concept of religion. In most Asian cultures, however, such a man will be congratulated as having penetrated the true secret of life. He has arrived by chance or by some such discipline as Yoga meditation or Zen meditation, at a state of consciousness in which he experiences directly and vividly what our own scientists know to be true in theory. The biologist, the ecologist and the physicist know (but seldom feel) that every organism constitutes a single field of behavior, or process, with it’s environment.

Inability to accept the mystic experience is more than an intellectual handicap. Lack of awareness of the basic unity of organism and environment is serious and dangerous hallucination. For in a civilization equipped with immense technological power, the sense of alienation between man and nature leads to the use of technology in a hostile spirit - to the “conquest” of nature instead of intelligent cooperation with nature. The result is that we are eroding and destroying our environment, spreading Los Angelization instead of civilization.

The undoubted mystical and religious intent of most users of the psychedelics, even if some of these substances should prove injurious to physical health, requires that their free and responsible use be exempt from legal restraint in any republic which maintains a constitutional separation of Church and State. Responsible that is in the sense that such substances be taken by or administered to consenting adults only. The user of cannabis, in particular, is apt to have peculiar difficulties in establishing his “undoubted mystical intent” in court. Having committed so loathsome and serious a felony, his chances of clemency are better if he assumes a repentant demeanor, which is quite inconsistent with the sincere belief that his use of cannabis was religious. On the other hand, if he unrepentantly looks on such use as a religious sacrament, many judges will declare that they “dislike his attitude”, finding it truculent and lacking in appreciation of the gravity of the crime, and the sentence will be that much harsher. The accused is therefore put in a “double blind” situation in which he is “dammed if he does and dammed if he doesn’t.” Furthermore, religious integrity  - as in conscientious objection - is generally tested and established by membership in some church or religious organization with a substantial following. The felonious status of cannabis is such that grave suspicion would be cast on all individuals forming such an organization, and the test therefore cannot be fulfilled. It is generally forgotten that our guarantees of religious freedom were designed to protect precisely those who were not members of established denominations, but rather such  then regarded as subversive individuals as Quakers, Shakers, Levellers, and Anabaptists.

There is little question that those who use cannabis or other psychedelics, with religious intent are now members of a persecuted religion which appears to the rest of society as a risk to ”mental health” as distinct from the old fashioned “immortal soul”. But it’s the same old story.

To the extent that mystical experience conforms with the tradition of genuine religious involvement and to the extent that psychedelics induce that experience, users are entitled to some constitutional protection. Also to the extent that research into the psychology of religion can utilize such substances, students of the human mind must be free to use them. This case can be made even from the standpoint of believers in the monarchic universe of Judaism and Christianity, for it is a basic principle of both religions, derived from Genesis, that all natural  substances created by God are inherently good, and that evil can only arise only in their misuse, Thus laws against mere possession, or even cultivation, of these plants are in basic conflict with Biblical principles. Criminal conviction of those who employ these plants should be based on proven misuse ”And God said, ’Behold, I have given you every herb yielding seed, which is upon the face of the earth, and every tree, in which is the fruit of a tree yielding seed - to you it shall be for meat…. And God saw every thing that he made, and behold it was very good.“ (Genesis 1:29,31)

Much of the above presentation was extracted from the following publications:

Judicial Review of Legislation in Canada B.L.Strayer
Chapter 1 Judicial Review and the Common Law
Chapter 8 Future of Judicial Review Elements of Constitutional Decision
Marijuana Laws, A Crime against Humanity . Hyman m. Greenstein.
Drugs Morality and the law F.A,Whitlock.
Psychedelics and Religious Experience Alan Watts
California Law Review Vol 56:74 1968

* Not to be confused with the 1982 enactment of Canadian Charter of Right and Freedoms

The experiences resulting from the use of psychedelic drugs are often described in religious terms, but we have no satisfactory and definitive name for experiences of this kind. The terms ”religious experience,” ”mystical experience”, and “cosmic conscious“, are all too vague and comprehensive to denote that specific mode of consciousness which, to those who have known it, is as real as falling in love.

The idea of mystical experiences resulting from drug use is not readily accepted in Western societies. Western culture has, historically, a particular fascination with the value of man as an individual, self-determining, responsible ego, controlling himself and his world by the conscious effort and will. Nothing ,then, could be more repugnant to this culture tradition than the notion of spiritual or psychological growth through the use of drugs. A “drugged” person is by definition dimmed in consciousness, fogged in judgment, and deprived of will. But not all psychotropic ( consciousness-changing) chemicals are narcotic and soporific, as are alcohol, opiates, and barbiturates. The effects of what are now called psychedelic (mind manifesting) chemicals differ from those of alcohol as laughter differs from rage or delight form depression.

The ceremonial uses of marijuana are ancient. Herodotus describes people living on islands in the Araxes River who “meet together in companies throw marijuana on the fire, then sit around in a circle; and by inhaling the smoke of the fruit that has been thrown on, they become intoxicated by the odor, just as the Greeks do by wine; and the more fruit is thrown on, the more intoxicated they become, until they rise up and dance, and betake themselves to singing praises”.

Snyder cites the following passages from ”native literature” to illustrate the “ religious role” of marijuana: "To the Hindu the hemp plant is holy. A guardian lives in bhang…. Bhang is the joy giver, the sky flier, the heavenly guide, the poor man’s heaven, the soother of grief… No god or man is as good as the religious drinker of bhang. The students of scriptures of Benares are given bhang before they sit to study. At Benares, Ujjaim and other holy places, yogis take deep draughts of bhang, that they may center their thoughts on the Eternal… By the help of bhang ascetics pass days without food and drink. The supporting power of bhang has brought many a Hindu family through the miseries of famine.
Most authorities state that the disapproval of marijuana use in the East originates with Christian missionaries. Thus J. Cambell Oman notes that Christian missionaries often describe Hindu Saints as living “in a state of perpetual intoxication”, and “call this supefaction, which arises from smoking intoxicating herbs, fixing the mind on god”. The Brahmins of India are habitual users of marijuana(bhang), and view their god Shiva as a bhang drinker. In light of this sort of historical and cultural evidence, Synder cites this warning-issued by a “native writer” whose views were cited by the Indian Hemp Drug Commission Report of1893: To forbid or even seriously to restrict the use of so holy a herb as hemp would cause widespread suffering and annoyance and to large bands of worshipped ascetics deep seated anger. It would rob the people of solace in discomfort, of cure in sickness, of a guardian whose gracious protection saves them from the attacks of evil influences... so grand a result, so tiny a sin.

One of the most important aspects of ceremonial drug use is the desire for the drug experienced as issuing from the very depth of the user; whereas in the case of the therapeutic use of drugs, the user experiences external necessity.