Psychedelic Religious Rights & Law

Charter Protection

Section 2(a) of the Canadian Charter of Rights and Freedoms protects freedom of conscience and religion.

In Syndicat Northcrest v Amselem (SCC, 2004), the Supreme Court of Canada defined the scope of the right when it held that religion, though difficult to properly define, is “[i]n essence” a system of “freely and deeply held personal convictions or beliefs connected to an individual’s spiritual faith and integrally linked to one’s self-definition and spiritual fulfilment, the practices of which allow individuals to foster a connection with the divine or with the subject or object of that spiritual faith.” The right is infringed upon when (1) a claimant sincerely believes in a practice that has a nexus with religion; and (2) an impugned measure (i.e., law, regulation, or other government action) interferes with the claimant’s ability to act in accordance with his or her religious beliefs in a manner that is “more than trivial or insubstantial.”

“Everyone has the following fundamental freedoms:

(a) freedom of conscience and religion;

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication…”

Section 2, Canadian Charter of Rights and Freedoms

Cannabis Cases

In the cases R. v. Kerr (NSCA, 1986) and R. v. Kharanghani (ONSC, 2011), persons charged with cannabis-related offences argued their activities were connected with religious practices protected under s. 2(a) of the Charter. Accordingly, they argued that criminal prohibition of such activities constituted an unconstitutional violation of their Charter rights.

In both cases, the courts ruled against the accused, finding that even if criminal prohibition of cannabis-related activities infringed upon religious rights protected under s. 2, such infringements were justifiable in the interest of furthering legitimate state interests, and could be upheld under s. 1 of the Charter.

“The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

Section 1, Canadian Charter of Rights and Freedoms

Though the criminal prohibitions upheld in both cases no longer exist following Canada’s legalization of recreational cannabis in 2018, both cases established a precedent wherein even if a court found that criminal prohibition of psychedelics-related activities violated a party’s religious rights under s. 2 of the Charter, the prohibition could be upheld as a justifiable infringement under s. 1.

Ayahuasca Churches

Since 2017, Health Canada has used s. 56 of the Controlled Drugs and Substances Act to grant exemptions for six religious groups (aka ‘ayahuasca churches’) to import and use ayahuasca, a tea (of sorts) containing the psychedelic dimethyltryptamine (DMT). The exemptions allow each group to possess and use ayahuasca without fear of legal repercussion.

To the best of our knowledge, exempted churches currently include: