Theorizing ‘religion’ in Canadian law

Abstract

With primary reference to two Supreme Court rulings – Syndicat Northcrest v. Amselem ([2004] 2 SCR 551) and Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations) ([2017] 2 SCR 386) – the focal points of this study are twofold. In the first part, the authors analyse Amselem’s definition of religion with reference to concepts and theories that have a well-entrenched place in the field of religious studies. They contend that even as Amselem frames religion as an ontological entity, the Court’s definition is best understood as a particular type of social construct – namely, an ‘ethno-definition’ that is polythetic in approach. Segueing from a discussion of Amselem, the second part of this study concerns the issue of why – or perhaps whether – the Amselem articulation of religion remains relevant. In this regard, it is argued that there is a palpable transition between Amselem and Ktunaxa in terms of how the Supreme Court analyses the concepts of religion and religious freedom under the Charter.