Smoke in the Court of the Thief: Smudging as a Religious Act in Canadian Law

Abstract

Should smudging, a spiritual Indigenous practice, be allowed in schools? Canadian jurisprudence regarding religion and religious freedom in the last 150 years has tended to favor a western, classical liberal approach that separates the secular from the spiritual. This approach excludes the possibility of meaningful decolonial dialogue and reconciliation in the spirit of the Truth and Reconciliation Commission’s (TRC) 94 Calls to Action. This paper uses the case of Candice Servatius to interrogate notions of “religion” and “public space” within Canadian law. I argue that while smudging does fall into the definition of a “religious” practice established by the Supreme Court of Canada, the challenge of reconciliation given to Canadians by the TRC compels us to recognize the place of the sacred within public life, including in the public school system.