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.