I. Introduction
The collective dimension of religious experience is protected by section 2(a) of the Canadian Charter of Rights and Freedoms, which reads that everyone has the fundamental freedom of conscience and religion.Footnote 1 Historically, the courts have understood this right in individual terms and as a matter of personal volition and choice, though they have acknowledged there are collective aspects to religion expressed in a community of believers.Footnote 2 As described below, while some forms of collective religious freedom have been acknowledged by the courts, scholars have argued the prevailing individualist framing does not fully capture the collective aspects of religious experience.Footnote 3 So far, courts have approached collective religious freedom in limited ways using the same conceptual tools that are used in individual religious freedom cases. These tools are arguably ill-fitting for collective expressions and practices, and while some recent decisions of the Supreme Court of Canada (the “Court”) may have gone some way to try to address the limited recognition of collective religious freedom, there remains no clear sense of what forms of collective expression are included in the Court’s conception of religious freedom and which are not.Footnote 4 The Court has yet to articulate a coherent theory as to why some collective 2(a) claims succeed while others fail. As such, the lower courts still lack clarity that could help them more adequately encompass collective religious freedom under section 2(a) of the Charter.
The sociological perspective can help clarify this ambiguity and express the Court’s approach more coherently. In particular, an interpretivist approach is useful because it places importance on subjective meaning and interpretation, which is compatible with the contextual approach of the courts. Drawing on concepts from interpretive sociology, it is possible to see there is an incoherence in the Court’s jurisprudence that is otherwise invisible. It is related to the relevance of individual volition in its approach to collective religious freedom. The paper begins by highlighting some relevant issues in the jurisprudence regarding collective religious freedom, in particular the question of whether an organization can claim the right. It then provides a brief summary of relevant cases, highlighting the judicial reasoning related to the scope and substance of collective religious freedom. The third part draws on concepts from interpretive sociology to understand the different ways the Court has approached collective religious expression. In particular, the concept of “associational action” can help to pull apart the different forms of collective expression that have been identified by the Court. In the fourth part of the paper, this analysis is used to identify unrecognized complexities related to how the Court invokes the idea of individual voluntariness in collective religious freedom cases. It shows how in the context of what is currently understood as collective religious freedom, the Court seems more inclined to protect those forms that are relatively less voluntary. Yet, there also seems to be a limit where the lack of voluntariness behind a collective expression places it outside the scope of religious freedom protection.
II. Who Can Claim Religious Freedom?
Religious freedom cases involving collective claims often involve organizational entities joined by individual complainants. For example, in Trinity Western University 2018 (TWU 2018) the complainants were the private Christian university and an individual graduate of TWU who wished to attend its proposed law school.Footnote 5 When institutional/organizational rights claimants find individuals to join them to bring the claim forward, it allows the courts to avoid the issues arising from a purely organizational claim, including whether an organizational entity can be the bearer of such a right, or whether it is a form of expression of individual belief.Footnote 6 In such cases, courts proceed on the basis of the individual claim and bypass the need to decide the status of the collective claim and/or organizational claimant. The right is characterized in individual terms, and where religious communities have been given some consideration, the courts have generally characterized them as groups of individuals pursuing common ends.Footnote 7 Thus, while several courts have alluded to the idea that collective religious freedom exists and some have speculated organizations could be the bearer of such a right, so far no case has been decided on the basis of a collective claim and it is not clear what the scope of such rights might be. This is one of the reasons why the ambiguities in regard to the scope and meaning of collective religious freedom described below have persisted.
The Court’s individualist orientation in the context of religious freedom has been critiqued by scholars for excluding collective aspects of religious experience, with some suggesting these exclusions are more likely to impact Indigenous religious traditions.Footnote 8 For instance, Benjamin Berger argues Charter jurisprudence on religious freedom is fundamentally informed by concepts of individual freedom and autonomy. He writes, “religion has force in the eyes of the law to the extent that it is aligned with autonomy and choice…religion has constitutional relevance because it is an expression of human autonomy and choice.”Footnote 9 Berger suggests this is a problem because a focus on protecting individual choice leaves out aspects of collective religious expression. For example, insofar as religion is conceived primarily in terms of personal autonomy, the courts tend to see it as a private matter with a limited role in public life.Footnote 10
These observations about the individualist framing of religious experience are correct but the situation is more complex. There is an additional tension in the case law related to the status of individual volition within the scope of what is included in collective religious freedom. As demonstrated below, when the Court does give regard to the collective aspects of religious freedom, it seems to step away from fidelity to the notion of individual voluntariness in favour of a more institutional understanding of forms of religious expression. In the section that follows, I demonstrate this with reference to recent cases involving claims for collective religious freedom.
III. Distilling the Case Law
The first relevant case is Trinity Western University v. British Columbia College of Teachers 2001 (TWU 2001).Footnote 11 Trinity Western University is a private Christian university based in Langley, British Columbia.Footnote 12 It espouses evangelical values and requires students to sign an agreement at admission known as the Community Covenant.Footnote 13 The Covenant is a behavioural contract that prohibits students (staff are also required to sign) from engaging in “biblically condemned” activities, including “homosexual behaviour.”Footnote 14 The case began in 1995 when TWU tried to take full responsibility for delivering a bachelor program in education, which up until that point had involved students completing their final year at Simon Fraser University. The British Columbia College of Teachers (BCCT) denied TWU’s application on the grounds that without one year in another university, the Covenant meant graduates of TWU would foster discrimination in public schools. Trinity Western appealed this decision to the Supreme Court, which found the BCCT decision infringed TWU’s religious freedom.Footnote 15 The Court framed the issue as balancing the religious freedom of “individuals wishing to attend TWU with the equality concerns of students in British Columbia’s school system.”Footnote 16 With this lens, it found that without “concrete evidence” that those trained at TWU would themselves go on to create discrimination in public schools, the denial of TWU’s application was not justified.Footnote 17 Thus, the BCCT’s decision infringed TWU’s religious freedom because it was not justified in preventing TWU students from associating to put their religious beliefs into practice in post-secondary education. Note, the Court did not base its decision on the assumption that TWU had religious freedom as an organizational entity. Rather, it referred to the rights of individual members of the TWU community as being engaged.Footnote 18
The next case where the Court had the chance to address collective religious freedom was Alberta v. Hutterian Brethren of Wilson Colony (2009),Footnote 19 which involved a challenge to an amendment to the Alberta Traffic Safety Act (TSA), which stipulates every driver’s licence requires a photograph of the holder. Since 1973, there had been an exemption for people who object to photos on religious grounds. In 2003, this exemption was removed as part of a governmental plan to create a complete collection of photos for a facial recognition database. At the time, 450 people held non-photo licences and most were members of the Hutterian Brethren, a closed religious community whose members do not believe in having their photos taken. The Hutterian also believe that living a communal lifestyle brings them closer to God.Footnote 20 This belief extends to economic activities (principally farming), which are largely self-sufficient and do not involve outsiders. The Hutterian argued the TSA amendment forced them to choose between violating their belief against having photos taken or compromising their practice of communal self-sufficiency.
In deciding the case, the Court adopted an individualist frame similar to TWU. However, there was no individual joiner with the organizational complainant. Only the Hutterian Brethren as a collective entity was named. This meant it was not easy to bypass the question of the status of the collective claim for religious freedom and the Court had to make at least some comments on the place of such claims in relation to existing jurisprudence. McLachlin CJ writing for the majority, framed the practice of economic self-sufficiency as an expression of individual belief. Such beliefs can be expressed collectively but this does not “transform the essential claim—that of the individual claimants for photo-free licences—into an assertion of a group right.”Footnote 21 From this characterization, religious freedom flows from individual belief and collective expressions are to be considered at the justification stage of a Charter analysis, only after the scope of the right has been characterized and an infringement has been found.Footnote 22 In the Hutterian case, the majority found that the impact of the law on the community’s practice of economic self-sufficiency was trivial as there were alternatives for individuals who did not want to get photo driver’s licences, such as hiring outside drivers. In contrast, the minority and concurring judgments put more importance on the collective dimension of religious freedom.Footnote 23 Abella J characterized the photo requirement as forcing the Brethren to choose between two religious beliefs, one regarding photos and one regarding collective self-sufficiency.Footnote 24 She suggests the majority’s conclusion that the harm caused by the government’s action was trivial fails to appreciate the significance of the practice of self-sufficiency to the integrity and vitality of the religious community.Footnote 25 Similarly, Lebel J wrote religious freedom “incorporates a right to establish and maintain a community of faith,”Footnote 26 which includes “religious relationships,” “communities of faith,” and “a [common] way of life… [passed] onto future generations.”Footnote 27 Both suggest such collective practices are equally central to individual belief in the context of religious freedom and should be considered when determining the scope of the right and not only at the justification stage. Thus, in Hutterian, a majority of the Court saw the collective expression of religion as secondary to individual belief, with a minority suggesting such expressions are protected as collective forms unto themselves.
Loyola High School v. Quebec (AG) (2015)Footnote 28 also involved a collective religious freedom claim. However, the form of expression was quite different from that in Hutterian. This case is more similar to TWU in that it involved an individual joiner and an organizational entity. The collective expression also took a more formal form. The Loyola case concerned a law that required schools in Quebec to include an Ethics and Religious Culture (ERC) program in their curriculum that was to be taught in an ethically and religiously neutral manner.Footnote 29 The law also included a provision allowing the provincial minister of education to grant private schools an exemption to the required curriculum if they had an equivalent alternative. Loyola, a Catholic high school in Montreal, sought an exemption to teach ethics and religious culture from a Catholic point of view. The minister denied the request because the curriculum did not reflect a neutral perspective and thus it did not satisfy the ERC objectives, which related to fostering tolerance and respect for difference. Loyola challenged the decision and was joined by a father of a child attending the school.
This case is interesting in that all judgments took some time to recognize the role of collective expression in religion. For instance, the majority stated religious freedom under the Charter must “account for the socially embedded nature of religious belief, and the deep linkages between this belief and its manifestation through communal institutions and traditions.”Footnote 30 It continued: “the collective aspects of religious freedom—in this case, the collective manifestation and transmission of Catholic beliefs—are a crucial part of [Loyola’s] claim.”Footnote 31 Despite these statements, however, the Court avoided deciding on whether Loyola as an organizational entity had religious freedom, instead basing its reasoning on the religious freedom of the individual members of the Loyola community.Footnote 32 The concurring minority went in a different direction, suggesting the collective expression of religion is part of the core of the freedom of religion based on the idea that protecting the religious freedom of individuals requires protecting the religious freedom of organizations.Footnote 33 It stated “Loyola as a religious organization is entitled to the constitutional protection of freedom of religion”Footnote 34 and went so far as to propose a test for organizational claimants of religious freedom adapted from the test for individual claimants articulated in Amselem. Footnote 35 Thus, the minority in Loyola would have extended the religious freedom framework to say that organizational entities can be bearers of the right.
The Court had the chance to respond again to the status of collective expressions of religion in 2017, when it decided on the case of Ktunaxa Nation v. British Columbia. Footnote 36 The Ktunaxa Nation had appealed the province of British Columbia’s decision to approve a ski resort in an area known as Qat’muk or Jumbo Valley. Qat’muk is not covered by a treaty and British Columbia characterizes it as Crown land.Footnote 37 However, the Ktunaxa claim the area as part of their traditional territory. Among other things, the Ktunaxa argued that the province’s decision to approve construction of the resort infringed its freedom of religion.Footnote 38 Evidence was presented of the community’s belief that a Great Bear Spirit resides in Qat’muk and that building a ski resort in the area would destroy the sacredness of the place. The action was brought by the Ktunaxa Nation Council and its Chair on behalf of the people of the Ktunaxa Nation. The claimant is an organizational entity, but also a political community.Footnote 39 The Court accepted that the Ktunaxa beliefs about Qat’muk were sincere and that, as a result of the minister’s decision, they would lose meaning, which would harm the vitality of the community. However, the majority held the claim fell outside the scope of section 2(a). It iterated the point that religious freedom is intended to protect the right of individuals to hold and manifest religious beliefs; it characterized the Ktunaxa as seeking protection for the Great Bear Spirit itself from third parties. Following from this, it stated, “[t]he state’s duty under s. 2(a) is not to protect the object of beliefs…. [T]he Charter protects the freedom to worship, but does not protect the spiritual focal point of worship.”Footnote 40 In a concurring decision, Justices Moldaver and Côté came to a similar result via a different route. They stated that if part of the purpose of s. 2(a) is to protect the vitality of religious communities, then state action that renders religious beliefs meaningless necessarily infringes religious freedom, regardless of the content of the beliefs. Despite this, however, they determined the minister’s decision to approve the development had proportionately balanced the infringement of the religious rights of the Ktunaxa with the duty to manage the land in the public interest.
Shortly after the Ktunaxa case, the Court had its most recent opportunity to consider a collective religious freedom claim. The case once again involves TWU’s Community Covenant, which was embroiled in a legal controversy over the same provision at issue in TWU 2001.Footnote 41 However, instead of seeking to deliver an education program, TWU now wished to open a law school.Footnote 42 After some debate, its application had been approved by five law societies (Alberta, Quebec, Saskatchewan, Prince Edward Island, and Yukon) However, British Columbia, Ontario, and Nova Scotia rejected it because of the discriminatory admissions policy. Trinity Western sought judicial review of these decisions and was joined by an individual who wished to attend the proposed law school. They argued the law societies were infringing their religious freedom. The law societies argued that they were fulfilling their duty to act in the public interest. The outcome of the appeals was mixed, with TWU prevailing in British Columbia and losing in Ontario.Footnote 43 Cross-appeals were heard jointly by the Supreme Court in 2018, which upheld the Ontario Court of AppealFootnote 44 decision and reversed that of the British Columbia Court of Appeal.Footnote 45 It found the Law Society of Ontario and Law Society of British Columbia had the authority to consider the discriminatory admissions policy in their decision and that both met their duty to balance the religious freedom of the TWU community with the public’s equality rights.Footnote 46 The Court did not address collective religious freedom directly but did frame the right at stake as belonging to individuals in the TWU community. In fact, the majority was assiduous in linking religious freedom back to individual belief. For example, it stated section 2(a) is engaged because “evangelical members of the TWU community sincerely believe that studying in an environment defined by religious beliefs in which members follow particular religious rules of conduct contributes to their spiritual development” (italics added).Footnote 47 Not once did the Court imply that religious freedom belonged to TWU as an organizational entity. The concurring minority diverged on this point. It argued religious freedom included the right to “express [religious] beliefs in institutional form.”Footnote 48 Thus, while there was a unanimous ruling in regard to remedy, the separate reasons show that the issues from Loyola remain unresolved.
IV. Conceptualizing Collective Religious Freedom Using Ideal Types
Current Charter jurisprudence is focused mainly on individual volition and autonomy as the foundation of religious freedom and only partially captures the spectrum of collective expressions of religion. However, there are additional tensions in the jurisprudence that conceptual tools from interpretive sociology can help us see, specifically in regard to the meaning of individual volition within the sphere of collective expression. An interpretive approach is compatible with the contextual approach taken by the courts to legal interpretation, which makes it possible to systematize the different forms of collective expression the courts have recognized so far. However, an interpretive approach also reveals how, within the scope of collective expressions protected by religious freedom, there are different forms of individual volition at stake. In what follows, I analyze the jurisprudence using an interpretivst method involving “ideal types” and a handful of sociological concepts pertinent to understanding collective action.
1. Ideal Types as Analytical Tools
Sociologist Max Weber developed a method for analyzing social action based on the construction of ideal types. These are conceptual tools that are based on abstractions of reality and are designed to highlight specific social meanings. For example, Weber offers the ideal type of an instrumental-rational social action, which he defines as “a pure type of the action as it would be if it proceeded in a rationally purposive way.”Footnote 49 This ideal type is constructed by taking one possible meaning of a social action for the individual—its instrumental or means/ends aspect—and generating a concept of an action imagined as if it were purely instrumentally rational, lacking any other emotional, traditional, or moral meaning for the individual. This abstract ideal can then be used as a conceptual reference point for understanding whether and how this kind of meaning is involved in real social actions. It is important to note the concept of an ideal type does not suggest a moral or normative ideal in any way. Nor does it imagine such an ideal type exists in reality. It is simply a conceptual tool used by sociologists to interpret real social action in a way that is grounded in its subjective meaning.
2. Social Action
The objective of interpretive analysis is understanding social action, which is any behaviour carried out by an individual who “attaches a subjective meaning to [it]—be it overt or covert, omission or acquiescence” and in some way takes into account other people (past, present, future) and their expectations, feelings, reactions, etc.Footnote 50 Actions such as eating, sleeping, and walking are not social actions unless they have a meaning for the individual that in some way takes others into account. Social action is distinguished from action in general by this aspect of subjective meaning relating to others. For example, having one’s photograph taken can be a social action, but its meaning must be understood by looking at the context. For an individual who wants to drive, the action could be quite instrumental: having the photo taken is a means to the end of being able to drive on the roads. Conversely, an individual who has a religious belief that having their photo taken has negative spiritual consequences may refuse to have the photo taken despite the instrumental consequences. In this case the social action would be more value-oriented than instrumental. Both examples are equally social action but the use of ideal types lets us see which is more and less instrumental, etc. and categorize actions according to their subjective meaning. Such examples also show how the use of ideal types allows for a flexible and contextual analysis of social action.
3. Social Relationships
Social action can be both individual and collective. Collective social action is characterized by the presence of a social relationship. A social relationship is the behaviour (social action) of a plurality of individuals insofar as its meaningful content is oriented in terms of the meanings of others, and leads to the probability of a coordinated outcome.Footnote 51 For example, a legal order can be understood as a social relationship insofar as it involves a plurality of individuals (lawyers, judges, police, law-abiding citizens, criminals) orienting their behaviour in relation to a “belief in the existence of a legitimate order.”Footnote 52 Legitimacy here does not refer to normative or moral correctness, or even that everyone in the social relationship believes in the legitimacy of the state, but rather that their actions reflect coordination in relation to what they call “law.” One could fully reject the morality of a legal order to the point of having no respect for it at all and thinking it should be overthrown.Footnote 53 Nonetheless, one is still meaningfully orienting action to the existence of a legal authority in the sense of understanding there is an organized staff of people (the police, etc.) who will enforce it. Similar to social action, social relationships can take a multitude of forms and have varying degrees of formalization and permanence. They can be fleeting, such as a consumer purchase, or as longstanding as an intergenerational way of life They can also take an organizational form, such as a church or educational institution. The common feature of all social relationships is a plurality of individuals orienting their social action in relation to others with the probability of a coordinated outcome.
4. Associational Social Relationships
There are many types of social relationships, but those pertinent for this paper are “associational” social relationships. Associational social relationships make a distinction between insiders and outsiders (also known as closed social relationships) and have individuals in place for the purpose of maintaining the social relationship.Footnote 54 These two elements define an associational social relationship: a distinction between insiders and outsiders and an internal structure of authority. Churches and administrative agencies, such as provincial law societies, represent associational social relationships. They have restricted membership and an organized staff (priests, elected benchers, etc.) that maintain the rules and procedures of the organization. Of course, not all closed social relationships are associational. Romantic relationships are closed social relationships, but they are not associational as long as there is no mutually recognized authority involved. On the other hand, a legal marriage is an associational social relationship because the law regulates how it can be formed and dissolved. There are recognized persons (e.g., family court judges) appointed for the purpose of maintaining these regulations. Thus, the concept of an associational social relationship is broad enough to include organizational entities, informal collectivities, romantic relations, and fleeting encounters.
5. Ideal Types of Associational Action
As is the case for social action generally, to understand the meaning of associational social relationships requires looking at context and the subjective meanings involved. In this regard, the ideal types of “voluntary” and “institutional” associational action are useful. Voluntary associational action refers to an adherence to norms that have legitimacy due to the personal volition of those who are in the social relationship.Footnote 55 As an ideal type, voluntary associational action is “at every moment” dependent on the personal choice of the individuals involved.Footnote 56 For example, the Hutterian collective practice of self-sufficiency has strong voluntary aspects because it is enmeshed in everyday activities that depend on the sustained personal volition of the individuals involved. In contrast, institutional associational action refers to social relationships that are imposed with relative success “within a specifiable sphere of application…on all activities satisfying certain criteria.”Footnote 57 In this sense, the ideal type of institutional associational action is a social relationship that applies to a class of individuals. For example, a university code of conduct has strong institutional aspects in that it is a set of regulations that applies to all individuals with the status of student at the university. It is jurisdictional in that unlike an honour code, for instance, its force does not come from the personal volition of individual students who choose to follow it. Of course, there are also voluntary aspects of a university code of conduct (recall ideal types are empirically unreal), such as how students have the option to leave an institution if they do not like its code of conduct. However, since all universities have something similar, it could be argued that this voluntary aspect is perhaps not so pronounced. Similarly, there could also be institutional dimensions to the practice of economic self-sufficiency as described above, for example, formal or informal pressure from other Church members. The ideal types make it possible to systematically identify and assess these different meanings.
V. Voluntarism and Limits to Collective Religious Freedom
How has the Court interpreted the social relationships that are evident in religious freedom cases? Since they do not define their object of analysis in this way, it is necessary to look for how these interpretations surface implicitly in the jurisprudence. As mentioned above, Trinity Western requires that students sign the Community Covenant as part of admission. The Supreme Court’s decision in TWU 2001 found that without empirical evidence that individuals trained at Trinity Western would go on to foster discrimination in the classroom, there was no basis to deny accreditation to the education program. Using the interpretive lens developed above, the importance of the impact on third parties to how courts interpret collective religious freedom becomes clear. In TWU 2001, the court essentially stated that the act of signing the Covenant does not affect anyone except for the students who make the individual choice to attend Trinity Western. The Court believed that since students make the choice to sign the Covenant, being under its authority is an expression of their personal volition. Recall, the ideal type of voluntary associational action is one that continuously depends on the personal volition of the individuals in the social relationship. In this case, the Court seems to have understood the Covenant as a voluntary associational action. However, a university admissions policy, including a behavioural contract, also has an institutional aspect in that it applies to all those who study at the school. In the context of a teaching program, where there are many university options if an individual does not believe in the Covenant, the institutional aspect is arguably less pronounced.
To what extent did the Court regard Loyola’s Catholic high school curriculum as voluntary or institutional associational action? Some light can be shed on this by noting how the majority identified two classes of persons affected by the curriculum: teachers and students. Teachers are required to teach it as part of employment, which is an institutional aspect. At the same time, teachers at Loyola are likely to share the religious beliefs that the high school promulgates. Thus, there is also a voluntary aspect to the curriculum, as it is also an expression of the religious beliefs of teachers. From the perspective of students, however, a school curriculum depends less on personal volition and more on their legally dependent status in relation to their parents, who are the ones who chose to put them in a religious school.Footnote 58 In this sense, there is a stronger institutional aspect for students than for teachers.
However, at this point a contradiction begins to emerge in the Court’s approach. Despite the emphasis on individual autonomy and choice in the religious freedom jurisprudence generally, the Court has shown signs that in the context of collective expressions of belief it is inclined to give more protection to institutional forms of associational action than to voluntary forms. When the Court had to speak to the content of collective religious freedom in Hutterian, for example, it seemed to regard the form of collective religious expression at stake as more voluntary than institutional, describing the practice of economic self-sufficiency as a mere tradition that could be adjusted with minimal difficulty. On an imagined spectrum, the associational action in TWU 2001 is seen as less voluntary than Hutterian but more voluntary than Loyola. This is interesting because it is different from the way voluntariness is emphasized in the context of individual freedom of religion. As discussed above, critics have noted how the Court’s individual focus fails to include collective religious experience. Yet, in cases involving collective expressions of religion, the Court’s emphasis on voluntariness is not only less apparent but seemingly reversed. Rather than favouring forms of collective expression that have the strongest voluntary aspects, there is a tendency to favour institutional expressions of religious belief.Footnote 59
The case of the Ktunaxa Nation is quite interesting in this regard as it involves what the Court seems to see as the most institutional form of social relationship in the case law so far. Recall the Ktunaxa Nation claim Qat’muk as part of their traditional territory.Footnote 60 While much of the Court’s reasoning in the case centred on the Crown’s duty to consult Indigenous peoples, with respect to the s. 2 (a) claim, it proceeded from the assumption that “the Ktunaxa stand in the same position as non-Aboriginal litigants.”Footnote 61 Indeed, the British Columbia Court of Appeal characterized the Ktunaxa as claiming the right to “restrain and restrict the behaviour of others who do not share that belief in the name of preserving subjective religious meaning.”Footnote 62 Kislowicz and Senwung note the Ktunaxa’s claim to uses of the land did “[threaten] to occupy some of the state’s role as the producer of rules that bind others.”Footnote 63 In this sense, the Ktunaxa claim has a jurisdictional quality, which is strongly institutional.Footnote 64 John Burrows has noted how Indigenous religious freedom “could have a strong impact on the government or a third party’s rights or interests” because of how the sacredness of land is understood.Footnote 65
Some have argued that the limits the Court has placed on section 2(a) will have a disproportionate effect on Indigenous spiritual beliefs and should be adapted in this light.Footnote 66 For example, Bakht and Collins argue any non-trivial state interference with an Indigenous sacred site should be seen to infringe religious freedom.Footnote 67 Further, the approval of commercial or industrial development on an Indigenous sacred site without consent and compensation would be unjustifiable under section 1.Footnote 68 Putting the substance of the argument aside, the idea of a Charter infringement that cannot be justified under section 1 raises the issue to the level of governmental constitutional jurisdiction. Charter rights can always be infringed by government action when it is justified to do so within the limits of a free and democratic society. The notwithstanding clause in section 33 reflects the supremacy of Parliament in this regard. Even when government actions conflict with Charter rights, the final word belongs to elected officials. Thus, it is a jurisdictional challenge that is reflected in Bakht and Collins’s argument. This resonates with the analysis above of the Ktunaxa claim as a strongly institutional associational action.Footnote 69 Within the current religious freedom framework, it is the strongest version of institutional associational action in the case law, which the Court places totally beyond the scope of section 2(a).Footnote 70
This suggests the idea of an internal limit to collective religious freedom, which is evident in the TWU 2018 case as well There the meaning of the Community Covenant was interpreted differently than in 2001. In TWU 2018, the context was a law school rather than an education program and the Court came to a different conclusion regarding the Covenant’s impact on the public interest. An interpretive analysis helps us understand why. In TWU 2018, the Court cast the Covenant with a less voluntary character. For example, the way it assessed the impact on the public interest in equality put weight on the impact on third parties, which suggests the Court saw the Covenant as an institutional action. Specifically, the Court described it as a barrier to the public’s access to the legal profession.Footnote 71 It follows from this view that, if some law schools are governed by a discriminatory admissions policy, it could impact the public’s access to the profession in a concrete way.Footnote 72 In contrast to TWU 2001, therefore, the Court characterized the Covenant as having a stronger institutional aspect by putting more focus on how it affected third parties. In finding an impact on the public outside of a volitional social relationship, it drew a limit to collective religious freedom. Thus, there is a difference in the Court’s emphasis on voluntariness within the context of collective freedom of religion The results in Ktunaxa and TWU 2018 suggest that institutional forms of associational action will be protected more readily than voluntary forms however, only up to a certain point. As Ktunaxa shows, after a point institutional associational action no longer garners more protection but falls outside the scope of religious freedom altogether.
VI. Conclusion
The analysis presented above hopes to add to existing scholarship on collective religious freedom by drawing on sociological concepts and the use of ideal types to better understand how the Court interprets collective expressions of religious belief. It is clear the Court has addressed forms of collective expression differently based on the kind of social relationship they are assumed to represent. This understanding makes it possible to systematize the jurisprudence by looking at how the courts evaluate different forms of collective expression based on the meaning they hold within a social relationship. Conceptual resources from interpretive sociology help express the Court’s approach more coherently. In particular, the concept of associational action is useful in that it maintains a link between the individual and collective social action and reveals an ambiguity in how the Court understands voluntariness in collective religious freedom claims. Typically, religious freedom is understood in individual terms as a matter of voluntary belief and practice, but within the sphere of collective religious expression volitional forms of associational action receive less protection than institutional forms. At the same time, there is a point beyond which an associational action becomes too distant from voluntariness to qualify for protection at all. Interpretive sociology does not provide an answer as to how courts should address these tensions regarding collective religious freedom moving forward, but it does help clarify the existing jurisprudence and highlight where the meaning and scope of collective religious freedom remain unclear.
