B. Accommodation of Religion

Author:Robert J. Sharpe - Kent Roach
Profession:Court of Appeal for Ontario - Faculty of Law, University of Toronto

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In Syndicat Northcrest v Amselem,15the Supreme Court dealt with whether Orthodox Jews could construct a succah, a temporary structure on their balconies, in order to observe the nine-day festival of Succot even though they had signed a contract prohibiting constructions on their balconies and they were offered an alternative of a communal succah. They relied on freedom of religion under the Quebec Charter of Human Rights and Freedoms,16which, unlike the Canadian Charter, applies to private conduct. The Supreme Court nevertheless indicated that its analysis of freedom of religion would also apply to the Canadian Charter.

The Court divided 5:4 on whether freedom of religion had been violated by the prohibition on balcony constructions and on whether any violation was justified. Justice Iacobucci held for the majority that, assuming that freedom of religion could be waived, there had not been a voluntary or clear and express waiver of rights when the applicants signed the co-ownership agreement prohibiting constructions on balconies. He also concluded that there was a violation of freedom of religion and that it had not been justified. He held that a trial judge who had granted a permanent injunction against the construction of the succahs had erred in finding no violation of freedom of religion on the basis of the testimony of one rabbi over another rabbi about the objective and mandatory requirements of the Jewish religion. Justice Iacobucci warned that the proper focus was on the subjective, personal, and sincere beliefs of the applicants and that courts should not adjudicate questions of religious doctrine or obligations. He also indicated that "beliefs and observances evolve and change over time" for individuals and that their subjective distress at having to use a communal suc-

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cah should be considered as it made the violation of freedom of religion more than trivial or insubstantial.17The Court then found that the limitation on freedom of religion in order to protect the property interests of other residents in the balconies was not justified, especially given that the succahs were constructed for only nine days each year. It recognized that "security concerns, if soundly established would require appropriate recognition in ascertaining any limit on the exercise of the appellants’ religious freedom."18

The majority indicated that, in this case, the succahs could and should be constructed not to block any doors or fire lanes. The majority’s decision in this case indicates that the courts will take a broad and generous approach to the protection of religious freedom that focuses on the subjective beliefs of adherents and that the state will have to...

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