Syndicat Northcrest v. Amselem

Syndicat Northcrest v. Amselem
Collection
Supreme Court Judgments
Date
2004-06-30
Neutral citation
2004 SCC 47
Report
[2004] 2 SCR 551
Case number
29252, 29253
Judges
McLachlin, Beverley; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil; Arbour, Louise; LeBel, Louis; Deschamps, Marie; Fish, Morris J.
On appeal from
Quebec
Subjects
Constitutional law
Notes
SCC Case Information: 29253, 29252
Decision Content
Syndicat Northcrest v. Amselem, [2004] 2 S.C.R. 551, 2004 SCC 47
Moïse Amselem, Gladys Bouhadana,
Antal Klein and Gabriel Fonfeder Appellants
v.
Syndicat Northcrest Respondent
and
Evangelical Fellowship of Canada, Seventh-day
Adventist Church in Canada, World Sikh Organization
of Canada and Ontario Human Rights Commission Interveners
and
Miguel Bernfield and Edith Jaul Mis en cause
and between
League for Human Rights of B’Nai Brith Canada Appellant
v.
Syndicat Northcrest Respondent
and
Evangelical Fellowship of Canada, Seventh-day
Adventist Church in Canada, World Sikh Organization
of Canada and Ontario Human Rights Commission Interveners
and
Miguel Bernfield and Edith Jaul Mis en cause
Indexed as: Syndicat Northcrest v. Amselem
Neutral citation: 2004 SCC 47.
File Nos.: 29253, 29252.
2004: January 19; 2004: June 30.
Present: McLachlin C.J. and Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel, Deschamps and Fish JJ.
on appeal from the court of appeal for quebec
Civil rights — Freedom of religion — Definition of freedom of religion — Exercise of religious freedoms — Orthodox Jews setting up succahs in pursuit of their religious beliefs on balconies of their co-owned property — Syndicate of co-owners requesting removal of succahs because declaration of co‑ownership prohibits decorations, alterations and constructions on balconies — Whether freedom of religion infringed by declaration of co-ownership — If so, whether refusal to permit setting up of succahs justified by reliance on right to enjoy property and right to personal security — Whether Orthodox Jewish residents waived their right to freedom of religion by signing declaration of co-ownership — Charter of Human Rights and Freedoms, R.S.Q., c. C-12, ss. 1, 3, 6.
Constitutional law — Charter of Rights — Freedom of religion — Definition of freedom of religion — Proper approach for freedom of religion analyses — Canadian Charter of Rights and Freedoms, s. 2 (a).
The appellants A, B, K, and F, all Orthodox Jews, are divided co-owners of units in luxury buildings in Montréal. Under the terms of the by-laws in the declaration of co‑ownership, the balconies of individual units, although constituting common portions of the immovable, are nonetheless reserved for the exclusive use of the co‑owners of the units to which they are attached. The appellants set up “succahs” on their balconies for the purposes of fulfilling the biblically mandated obligation of dwelling in such small enclosed temporary huts during the annual nine‑day Jewish religious festival of Succot. The respondent requested their removal, claiming that the succahs violated the by‑laws, which, inter alia, prohibited decorations, alterations and constructions on the balconies. None of the appellants had read the declaration of co‑ownership prior to purchasing or occupying their individual units. The respondent proposed to allow the appellants to set up a communal succah in the gardens. The appellants expressed their dissatisfaction with the proposed accommodation, explaining that a communal succah would not only cause extreme hardship with their religious observance, but would also be contrary to their personal religious beliefs, which, they claimed, called for the setting up of their own succahs on their own balconies. The respondent refused their request and filed an application for a permanent injunction prohibiting the appellants from setting up succahs and, if necessary, permitting their demolition. The application was granted by the Superior Court and this decision was affirmed by the Court of Appeal.
Held (Bastarache, Binnie, LeBel and Deschamps JJ. dissenting): The appeal should be allowed.
Per McLachlin C.J. and Iacobucci, Major, Arbour and Fish JJ.: Defined broadly, religion typically involves a particular and comprehensive system of faith and worship. In essence, religion is about freely and deeply held personal convictions or beliefs connected to an individual’s spiritual faith and integrally linked to his or her 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.
Freedom of religion under the Quebec Charter of Human Rights and Freedoms (and the Canadian Charter of Rights and Freedoms ) consists of the freedom to undertake practices and harbour beliefs, having a nexus with religion, in which an individual demonstrates he or she sincerely believes or is sincerely undertaking in order to connect with the divine or as a function of his or her spiritual faith, irrespective of whether a particular practice or belief is required by official religious dogma or is in conformity with the position of religious officials. This understanding is consistent with a personal or subjective understanding of freedom of religion. As such, a claimant need not show some sort of objective religious obligation, requirement or precept to invoke freedom of religion. It is the religious or spiritual essence of an action, not any mandatory or perceived‑as‑mandatory nature of its observance, that attracts protection. The State is in no position to be, nor should it become, the arbiter of religious dogma. Although a court is not qualified to judicially interpret and determine the content of a subjective understanding of a religious requirement, it is qualified to inquire into the sincerity of a claimant’s belief, where sincerity is in fact at issue. Sincerity of belief simply implies an honesty of belief and the court’s role is to ensure that a presently asserted belief is in good faith, neither fictitious nor capricious, and that it is not an artifice. Assessment of sincerity is a question of fact that can be based on criteria including the credibility of a claimant’s testimony, as well as an analysis of whether the alleged belief is consistent with his or her other current religious practices. Since the focus of the inquiry is not on what others view the claimant’s religious obligations as being, but what the claimant views these personal religious “obligations” to be, it is inappropriate to require expert opinions. It is also inappropriate for courts rigorously to study and focus on the past practices of claimants in order to determine whether their current beliefs are sincerely held. Because of the vacillating nature of religious belief, a court’s inquiry into sincerity, if anything, should focus not on past practice or past belief but on a person’s belief at the time of the alleged interference with his or her religious freedom.
Freedom of religion is triggered when a claimant demonstrates that he or she sincerely believes in a practice or belief that has a nexus with religion. Once religious freedom is triggered, a court must then ascertain whether there has been non-trivial or non‑insubstantial interference with the exercise of the implicated right so as to constitute an infringement of freedom of religion under the Quebec (or the Canadian) Charter . However, even if the claimant successfully demonstrates non‑trivial interference, religious conduct which would potentially cause harm to or interference with the rights of others would not automatically be protected. The ultimate protection of any particular Charter right must be measured in relation to other rights and with a view to the underlying context in which the apparent conflict arises.
Here, the impugned stipulations in the declaration of co‑ownership infringe upon the appellants’ freedom of religion under s. 3 of the Quebec Charter. The trial judge’s approach to freedom of religion was incorrect. First, he chose between two competing rabbinical authorities on a question of Jewish law. Second, he seems to have based his findings with respect to freedom of religion solely on what he perceived to be the objective obligatory requirements of Judaism, thus failing to recognize that freedom of religion under the Quebec (and the Canadian) Charter does not require a person to prove that his or her religious practices are supported by any mandatory doctrine of faith. Furthermore, any incorporation of distinctions between “obligation” and “custom” or, as made by the respondent and the courts below, between “objective obligation” and “subjective obligation or belief” within the framework of a religious freedom analysis is dubious, unwarranted and unduly restrictive. On the issue of sincerity, the trial judge correctly concluded that the appellant A sincerely believed that he was obliged to set up a succah on his own property. The appellants K and F submitted expert evidence of their sincere individual belief as to the inherently personal nature of fulfilling the commandment of dwelling in a succah. Such expert testimony, although not required, suffices in positively assessing the sincerity and honesty of their belief. Lastly, the interference with their right to freedom of religion is more than trivial and thus, leads to an infringement of that right. It is evident that in respect of A the impugned clauses of the declaration of co‑ownership interfere with his right in a substantial way, as a prohibition against setting up his own succah obliterates the substance of his right. In the case of K and F, they have proven that the alternatives of either imposing on friends and family or celebrating in a communal succah as proposed by the respondent will subjectively lead to extreme distress and thus impermissibly detract from the joyous celebration of the holiday. In any event, there is no doubt that all the appellants sincerely believe they must fulfill the biblically mandated obligation, perhaps not of setting up one’s own succah, but of “dwelling in” a succah for the entire nine‑day festival of Succot. Although the declaration of co‑ownership does not overtly forbid the appellants to dwell in a succah — in that they are free to celebrate the holiday with relatives or in a proposed communal succah —, the burdens placed upon them as a result of the operation of the impugned clauses are evidently substantial. Preventing them from building their own succah therefore constitutes a non‑trivial interference with and thus an infringement of their protected rights to dwell in a succah during the festival of Succot.
The alleged intrusions or deleterious effects on the co‑owners’ rights to peaceful enjoyment of their property and to personal security guaranteed by ss. 6 and 1 respectively of the Quebec Charter are, under the circumstances, at best minimal and thus cannot be reasonably considered as imposing valid limits on the exercise of the appellants’ religious freedom. The respondent has not adduced enough evidence to conclude that allowing the appellants to set up such temporary succahs would cause the value of the units, or of the property, to decrease. Similarly, protecting the co‑owners’ enjoyment of the property by preserving the aesthetic appearance of the balconies and thus enhancing the harmonious external appearance of the building cannot be reconciled with a total ban imposed on the appellants’ exercise of their religious freedom. The potential annoyance caused by a few succahs being set up for a period of nine days each year would undoubtedly be quite trivial. Finally, the appellants’ offer to set up their succahs in such a way that they would not block any doors, would not obstruct fire lanes and would pose no threat to safety or security obviated any security concerns under the circumstances. In order to respect the co‑owners’ property interests, however, the appellants should set up their succahs in a manner that conforms, as much as possible, with the general aesthetics of the property.
Whether one can waive a constitutional right like freedom of religion is a question that is not free from doubt. However, even assuming that an individual can theoretically waive his or her right to freedom of religion, a waiver argument, or an argument analogous to waiver, cannot be maintained on the facts of this case. First, the prohibitions can properly be construed as falling under s. 9.3 of the declaration of co‑ownership, which does not absolutely prohibit, but rather, simply requires soliciting the consent of the co‑owners to enclose one’s balcony. Second, the appellants did not voluntarily, clearly and expressly waive their rights to freedom of religion. They had no choice but to sign the declaration of co‑ownership if they wanted to reside at that complex. It would be both insensitive and morally repugnant to intimate that the appellants simply move elsewhere if they take issue with a clause restricting their right to freedom of religion. Further, there is no evidence that the appellants were aware that signing the declaration amounted to a waiver of their rights to freedom of religion. Not only would a general prohibition on constructions, such as the one in the declaration of co‑ownership, be insufficient to ground a finding of waiver, but arguably so would any document lacking an explicit reference to the affected Charter right.
Per Bastarache, LeBel and Deschamps JJ. (dissenting): Since a religion is a system of beliefs and practices based on certain religious precepts, a nexus between the believer’s personal beliefs and the precepts of his or her religion must be established. To rely on his or her conscientious objection a claimant must demonstrate (1) the existence of a religious precept, (2) a sincere belief that the practice dependent on the precept is mandatory, and (3) the existence of a conflict between the practice and the rule.
The claimant must first show that the precept in question is genuinely religious and not secular. The test is reasonable belief in the existence of a religious precept. To this end, expert testimony will be useful, as it can serve to establish the fundamental practices and precepts of a religion the individual claims to practise. In the second step, the claimant must establish that he or she has a sincere belief and that this belief is objectively connected to a religious precept that follows from a text or another article of faith. It is not necessary to prove that the precept objectively creates an obligation, but it must be established that the claimant sincerely believes he or she is under an obligation that follows from the precept. The inquiry into the sincerity of beliefs must be as limited as possible, since it will expose an individual’s most personal and private beliefs to public airing and testing in a judicial or quasi‑judicial setting. The sincerity of a belief is examined on a case‑by‑case basis and must be supported by sufficient evidence, which comes mainly from the claimant. Although consistency in religious practice may be indicative of the sincerity of a claimant’s beliefs, it is the claimant’s overall personal credibility and evidence of his or her current religious practices that matter. The essential test must be the claimant’s intention and serious desire to obey the fundamental precepts of his or her religion. Finally, unless the impugned provisions or standards infringe the claimant’s rights in a manner that is more than trivial or insubstantial, the freedom of religion guaranteed by the Charters is not applicable.
Even if all religious conduct, practices or expression that could infringe or affect the rights of others in a private law context are protected a priori by the purpose of freedom of religion, they are not necessarily protected under the right to freedom of religion. According to the first paragraph of s. 9.1 of the Quebec Charter, the rights and freedoms subject to s. 9.1, including the right to freedom of religion, must be exercised in relation to one another while maintaining proper regard for democratic values, public order and the general well‑being of citizens. The Civil Code of Québec is the most important instrument for defining the principles governing public order and the general well‑being of the citizens of Quebec. The first paragraph of s. 9.1 requires not merely a balancing of the respective rights of the parties; it is necessary to reconcile all the rights and values at issue and find a balance and a compromise consistent with the public interest in the specific context of the case. The court must ask itself two questions: (1) Has the purpose of the fundamental right been infringed? (2) If so, is this infringement legitimate, taking into account democratic values, public order, and the general well‑being? A negative answer to the second question would indicate that a fundamental right has been violated. In the first step of the analysis, the person alleging the infringement must prove that it has occurred. In the second step, the onus is on the defendant to show that the infringement is consistent with the principles underlying s. 9.1. The reconciliation of rights is clearly different from the duty to accommodate in the context of an infringement of the right to equality guaranteed by s. 10 of the Charter.
In the case at bar, the prohibition against erecting their own succahs does not infringe the appellants’ right to freedom of religion. Based on the evidence that was adduced and accepted, the appellants sincerely believe that, whenever possible, it would be preferable for them to erect their own succahs; however, it would not be a divergence from their religious precept to accept another solution, so long as the fundamental obligation of eating their meals in a succah was discharged. It cannot therefore be accepted that the appellants sincerely believe, based on the precepts of their religion that they are relying on, that they are under an obligation to erect their own succahs on their balconies. It is, rather, the practice of eating or celebrating Succot in a succah that is protected by the guarantee of freedom of religion set out in s. 3 of the Quebec Charter. The declaration of co‑ownership does not hinder this practice, as it does not bar the appellants from celebrating in a succah, in that they can celebrate Succot at the homes of friends or family or even in a communal succah, as proposed by the respondent.
Assuming that the belief of the appellant A that he must erect a succah on his own balcony is sincere and that it is based on a precept of his religion, the infringement of his right to freedom of religion is legitimate, since the right to erect succahs on balconies cannot be exercised in harmony with the rights and freedoms of others and the general well‑being of citizens. The rights of each of the other co‑owners to the peaceful enjoyment and free disposition of their property and to life and personal security under ss. 6 and 1, respectively, of the Quebec Charter are in conflict with the appellant’s freedom of religion. In the case at bar, the right to the peaceful enjoyment and free disposition of one’s property is included in the purpose of the restrictions provided for in the declaration of co‑ownership. The restrictions are aimed first and foremost at preserving the market value of the dwelling units held in co‑ownership. They also protect the co‑owners’ right to enjoy the common portions reserved for exclusive use while preserving the building’s style and its aesthetic appearance of a luxury building and permitting the balconies to be used to evacuate the building in a dangerous situation. The restrictions are justified, in conformity with art. 1056 C.C.Q., by the immovable’s destination, characteristics and location. Also, preventing the obstruction of routes between balconies so that they can be used as emergency exits protects the co‑owners’ right to life and personal security. The argument that succahs can be erected without blocking access routes too much if certain conditions are complied with cannot be accepted at this point in the analysis, as it is based on the concept of reasonable accommodation, which is inapplicable in the context of s. 9.1.
The obligation imposed on the appellants to exercise their rights of ownership in harmony with the rights of the other co‑owners is not unfair. The declaration of co‑ownership was drafted in an effort to preserve the rights of all the co‑owners, without distinction. It must also be borne in mind that the erection, as proposed by the respondent, of a communal succah would have had the desired result of upholding not only the parties’ contractual rights, but also of the rights guaranteed by ss. 6, 1 and 3 of the Quebec Charter. Such a solution would be consistent with the principle that freedom of religion must be exercised within reasonable limits and with respect for the rights of others, subject to such limitations as are necessary to protect public safety, order and health and the fundamental rights and freedoms of others.
Per Binnie J. (dissenting): While freedom or religion as guaranteed by s. 3 of the Quebec Charter should be broadly interpreted, the Quebec Charter is also concerned in s. 9.1 with a citizen’s responsibilities to other citizens in the exercise of their rights and freedoms. Here, the threshold test of bringing the s. 3 claim within the protected zone of religious freedom has been met but, in the circumstances of this case, the appellants cannot reasonably insist on a personal succah.
The succah ritual exists as an article of the Jewish faith and at least one of the appellants sincerely believes that dwelling in his own succah is part of his faith, subject to a measure of flexibility when a personal succah is not available. The construction of a succah on the commonly owned balconies of the building, however, is clearly prohibited by the declaration of co‑ownership. Weight must fairly be given to the private contract voluntarily made among the parties to govern their mutual rights and obligations, including the contractual rules contained in the declaration of co‑ownership, as well as on the co‑owners’ offer of accommodation. Buried at the heart of this fact‑specific case is the issue of the appellants’ acceptance, embodied in the contract with their co‑owners, that they would not insist on construction of a personal succah on the communally owned balconies of the building. A person’s right to the peaceful enjoyment of his property is one of the rights guaranteed by s. 6 of the Quebec Charter and the primary right asserted by the co‑owners. Although s. 9.1 does not specifically impose a duty on third parties to accommodate a claimant, as a practical matter, the reasonableness of the claimant’s conduct will be measured, at least to some extent, in light of the reasonableness of the conduct of the co‑owners. The text of s. 9.1 puts the focus on the claimant, who must have regard to the facts of communal living, which includes the rights of third parties. Lastly, the reasonableness of a claimant’s objection must be viewed from the perspective of a reasonable person in the position of the claimant with full knowledge of the relevant facts. When all the relevant facts of this case are considered, especially the pre‑existing rules of the immovable accepted by the appellants as part of the purchase of their units, the appellants have not demonstrated that their insistence on a personal succah and their rejection of the co‑owner’s accommodation of a group succah show proper regard for the rights of others within the protection of s. 9.1. The appellants themselves were in the best position to determine their religious requirements and must be taken to have done so when entering into the co‑ownership agreement in the first place. They cannot afterwards reasonably insist on their preferred solution at the expense of the countervailing legal rights of their co‑owners. As found by the trial judge, the accommodation offered by the co‑owners was not inconsistent with the appellants’ sense of religious obligation in circumstances where a personal succah is simply not available.
Cases Cited
By Iacobucci J.
Referred to: Reference re Secession of Quebec, [1998] 2 S.C.R. 217; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3; British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; Re Funk and Manitoba Labour Board (1976), 66 D.L.R. (3d) 35; R. v. Jones, [1986] 2 S.C.R. 284; Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825; Thomas v. Review Board of the Indiana Employment Security Division, 450 U.S. 707 (1981); Frazee v. Illinois Department of Employment Security, 489 U.S. 829 (1989); R. v. Laws (1998), 165 D.L.R. (4th) 301; P. (D.) v. S. (C.), [1993] 4 S.C.R. 141; B. (R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315; Trinity Western University v. British Columbia College of Teachers, [2001] 1 S.C.R. 772, 2001 SCC 31; Insurance Corp. of British Columbia v. Heerspink, [1982] 2 S.C.R. 145; Ontario Human Rights Commission v. Borough of Etobicoke, [1982] 1 S.C.R. 202; Newfoundland Association of Public Employees v. Newfoundland (Green Bay Health Care Centre), [1996] 2 S.C.R. 3; Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, [2003] 2 S.C.R. 157, 2003 SCC 42; R. v. Mills, [1999] 3 S.C.R. 668; R. v. Rahey, [1987] 1 S.C.R. 588; R. v. Richard, [1996] 3 S.C.R. 525; Frenette v. Metropolitan Life Insurance Co., [1992] 1 S.C.R. 647; Godbout v. Longueuil (City), [1997] 3 S.C.R. 844.
By Bastarache J. (dissenting)
Québec (Procureur général) v. Lambert, [2002] R.J.Q. 599; British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; Bowman v. Secular Society, Ltd., [1917] A.C. 406; R. v. Registrar General, Ex parte Segerdal, [1970] 2 Q.B. 697; Barralet v. Attorney General, [1980] 3 All E.R. 918; Wisconsin v. Yoder, 406 U.S. 205 (1972); Trinity Western University v. British Columbia College of Teachers, [2001] 1 S.C.R. 772, 2001 SCC 31; B. (R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315; P. (D.) v. S. (C.), [1993] 4 S.C.R. 141; Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825; R. v. Jones, [1986] 2 S.C.R. 284; Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712; Aubry v. Éditions Vice‑Versa inc., [1998] 1 S.C.R. 591; Prud’homme v. Prud’homme, [2002] 4 S.C.R. 663, 2002 SCC 85; Devine v. Quebec (Attorney General), [1988] 2 S.C.R. 790; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; Desroches v. Québec (Commission des droits de la personne), [1997] R.J.Q. 1540.
By Binnie J. (dissenting)
B. (R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315; Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825; Trinity Western University v. British Columbia College of Teachers, [2001] 1 S.C.R. 772, 2001 SCC 31; Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990); Aubry v. Éditions Vice‑Versa inc., [1998] 1 S.C.R. 591; Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, s. 2 (a).
Charter of Human Rights and Freedoms, R.S.Q., c. C‑12, preamble, ss. 1, 3, 6, 9.1, 10, 13.
Civil Code of Québec, S.Q. 1991, c. 64, preliminary provision, arts. 1039, 1056, 1063.
United States Constitution, First Amendment.
Authors Cited
Brun, Henri. “Un aspect crucial mais délicat des libertés de conscience et de religion des articles 2 et 3 des Chartes canadienne et québécoise: l’objection de conscience” (1987), 28 C. de D. 185.
Brun, Henri, et Guy Tremblay. Droit constitutionnel, 4e éd. Cowansville, Qué.: Yvon Blais, 2002.
Chevrette, François. “La disposition limitative de la Charte des droits et libertés de la personne: le dit et le non‑dit” (1987), 21 R.J.T. 461.
Macklem, Timothy. “Faith as a Secular Value” (2000), 45 McGill L.J. 1.
Mill, John Stuart. On Liberty and Considerations on Representative Government. Edited by R. B. McCallum. Oxford: Basil Blackwell, 1946.
Quebec. Assemblée nationale. Journal des débats: Commissions parlementaires, 3e sess., 32e lég., 16 décembre 1982, p. B‑11609.
Shorter Oxford English Dictionary, vol. 2, 5th ed. Oxford: Oxford University Press, 2002, “precept”.
Tancelin, Maurice. “L’acte unilatéral en droit des obligations ou l’unilatéralisation du contrat”, dans N. Kasirer, dir., La solitude en droit privé. Montréal: Thémis, 2002, 214.
Tribe, Laurence H. American Constitutional Law, 2nd ed. Mineola, N.Y.: Foundation Press, 1988.
Woehrling, José. “L’obligation d’accommodement raisonnable et l’adaptation de la société à la diversité religieuse” (1998), 43 McGill L.J. 325.
APPEAL from judgments of the Quebec Court of Appeal, [2002] R.J.Q. 906, [2002] Q.J. No. 705 (QL), and [2002] Q.J. No. 707 (QL), affirming a judgment of the Superior Court, [1998] R.J.Q. 1892, [1998] Q.J. No. 1959 (QL). Appeal allowed, Bastarache, Binnie, LeBel and Deschamps JJ. dissenting.
Julius H. Grey, Lynne‑Marie Casgrain, Elisabeth Goodwin and Jean‑Philippe Desmarais, for the appellants Moïse Amselem, Gladys Bouhadana, Antal Klein and Gabriel Fonfeder.
David Matas and Steven G. Slimovitch, for the appellant the League for Human Rights of B’Nai Brith Canada.
Pierre‑G. Champagne and Yves Joli‑Coeur, for the respondent.
Dale Fedorchuk, Bradley Minuk and Dave Ryan, for the interveners the Evangelical Fellowship of Canada and the Seventh‑day Adventist Church in Canada.
Palbinder K. Shergill, for the intervener the World Sikh Organization of Canada.
Prabhu Rajan, for the intervener the Ontario Human Rights Commission.
The judgment of McLachlin C.J. and Iacobucci, Major, Arbour and Fish JJ. was delivered by
Iacobucci J. —
I. Introduction
1 An important feature of our constitutional democracy is respect for minorities, which includes, of course, religious minorities: see Reference re Secession of Quebec, [1998] 2 S.C.R. 217, at paras. 79-81. Indeed, respect for and tolerance of the rights and practices of religious minorities is one of the hallmarks of an enlightened democracy. But respect for religious minorities is not a stand-alone absolute right; like other rights, freedom of religion exists in a matrix of other correspondingly important rights that attach to individuals. Respect for minority rights must also coexist alongside societal values that are central to the make-up and functioning of a free and democratic society. This appeal requires the Court to deal with the interrelationship between fundamental rights both at a conceptual level and for a practical outcome.
2 More specifically, the cases which are the subject of this appeal involve a religious claim by the appellants for the setting up of a “succah” for nine days a year in the pursuit of their religious beliefs on their co-owned property under the Quebec Charter of Human Rights and Freedoms, R.S.Q., c. C-12 (the “Quebec Charter”). The Quebec courts denied the claim. With respect, I disagree and would allow the appeal.
3 In particular, after defining the scope of freedom of religion and its infringement, I find that the appellants’ religious freedom under the Quebec Charter has been infringed by the declaration of co-ownership. While the respondent has raised rights to enjoy property and personal security as justification for its refusal to allow a succah to be set up, I find that the impairment of the appellants’ religious freedom is serious whereas I conclude that the intrusion on the respondent’s rights is minimal. As such, I hold that the appellants must be permitted to set up succahs on their balconies, provided that the succahs remain only for the limited time necessary — in this case nine days —, allow for an emergency access route, and conform, as much as possible, with the general aesthetics of the property. I also find the argument that the appellants waived their religious rights cannot be maintained under the circumstances, nor did they implicitly agree not to set up succahs on their balconies by signing the declaration of co-ownership.
II. Background
4 The appellants, all Orthodox Jews, are divided co-owners of residential units in “Place Northcrest”, two luxury buildings forming part of “Le Sanctuaire du Mont-Royal” (the “Sanctuaire”), a larger complex in Montréal. Moïse Amselem has lived at the Sanctuaire, together with his wife Gladys Bouhadana, since 1996; Gabriel Fonfeder has lived at the complex since 1994; and, at the time of the proceedings below, Thomas Klein, the son of the appellant Antal Klein, had been living there since 1989. Under the terms of the Sanctuaire’s by-laws in the declaration of co-ownership, the balconies of individual units, although constituting [translation] “common portions” of the immovable, are nonetheless reserved to the [translation] “exclusive use” of the co-owners of the units to which they are attached.
5 In late September 1996, Mr. Amselem, at the time a new resident of the Sanctuaire, set up a “succah” on his balcony for the purposes of fulfilling a biblically mandated obligation during the Jewish religious festival of Succot. A succah is a small enclosed temporary hut or booth, traditionally made of wood or other materials such as fastened canvas, and open to the heavens, in which, it has been acknowledged, Jews are commanded to “dwell” temporarily during the festival of Succot, which commences annually with nightfall on the fifteenth day of the Jewish month of Tishrei. This nine-day festival, which begins in late September or early- to mid-October, commemorates the 40-year period during which, according to Jewish tradition, the Children of Israel wandered in the desert, living in temporary shelters.
6 Under the Jewish faith, in commemoration of the festival’s historical connection and as a symbolic demonstration of their faith in the divine, Jews are obligated to dwell in these succahs, as their ancestors did in the desert. Orthodox Jews observe this biblically mandated commandment of “dwelling” in a succah by transforming the succah into the practitioner’s primary residence for the entire holiday period. They are required to take all their meals in the succah; they customarily conduct certain religious ceremonies in the succah; they are required, weather permitting, to sleep in the succah; and they are otherwise required to generally make the succah their primary abode for the entirety of the festival period, health and weather permitting.
7 Technically, a succah must minimally consist of a three-walled, open-roofed structure which must meet certain size specifications in order to fulfill the biblical commandment of dwelling in it properly according to the requirements of the Jewish faith. While a succah is usually festively decorated interiorly, there are no aesthetic requirements as to its exterior appearance.
8 During the first two and last two days of the Succot holiday, as well as during any intermittent Saturday, Orthodox Jews are normally forbidden from inter alia turning electricity on or off and riding in cars or elevators. Similarly, during the Saturday(s) falling within the nine-day festival, Orthodox Jews are forbidden from carrying objects outside of their private domiciles in the absence of a symbolic enclosure, or eruv.
9 After Mr. Amselem put up his succah in September 1996, the syndicate of co-ownership, Syndicat Northcrest (the “respondent” or “Syndicat”), requested its removal, claiming the succah was in violation of the Sanctuaire’s by-laws as stated in the declaration of co-ownership, which inter alia prohibited decorations, alterations and constructions on the Sanctuaire’s balconies:
[translation]
2.6.3 Balconies, porches and patios — the owner of each exclusive portion (dwelling unit) with a door leading to a balcony, porch or patio adjoining his or her exclusive portion (dwelling unit) has the personal and exclusive use of the balcony, or of the portion of the porch adjoining his or her exclusive portion, subject to the following rules:
a) On porches, an area at least as wide as is required under fire safety by‑laws must be kept free of garden furniture and other accessories, as the porches serve as emergency exits.
b) No owner may enclose or block off any balcony, porch or patio in any manner whatsoever or erect thereon constructions of any kind whatsoever.
. . .
Perpetual rights of way for emergency situations (including elevator breakdowns) are hereby created in favour of all the above-mentioned exclusive portions (dwelling units), the dominant land, on the common portions, namely every porch, balcony, terrace or patio, the servient lands.
6.5 uniformity of décor in the building
Entrance doors to the exclusive portions (dwelling units), windows, painted exterior surfaces and, in general, any exterior elements contributing to the overall harmony of the building’s appearance may under no circumstances be altered, even if they are part of the limited common portions, without first obtaining the written permission of the Board of Directors, who themselves must first obtain the approval of the co-owners at a general meeting.
6.16 exterior decorations prohibited
Co-owners may not decorate, paint or alter the exterior of the exclusive portions in any way whatsoever without first obtaining the written consent of the Board of Directors, subject to any exceptions provided for in this declaration.
9.3 balconies and porches
Subject to the law and to this declaration, each co-owner having exclusive use of a balcony or a portion of a porch adjoining his or her exclusive portion (dwelling unit), as provided for in clause 2.6.3, shall keep said balcony or portion of the porch clean. The co-owner having exclusive use of said balcony or portion of the porch is solely responsible for the day-to-day maintenance thereof. However, the Board of Directors is responsible for the replacement of or repairs to said balconies and porches as a common expense, unless the balcony or porch must be repaired or replaced because of the fault or negligence of a co-owner or someone for whom that co-owner is legally responsible, in which case the costs and expenses of any repairs or replacement shall be assumed by the co-owner in question.
Furthermore, subject to acts and regulations of general application, nothing other than usual outdoor furniture may be left or stored on a balcony or porch without first obtaining permission in writing from the Board of Directors. Under no circumstances may balconies or porches be used for drying laundry, towels, etc.
No balcony or porch may be decorated, covered, enclosed or painted in any way whatsoever without the prior written permission of the co-owners or the Board of Directors, as the case may be.
None of the appellants had read the declaration of co-ownership prior to purchasing or occupying their individual units.
10 Mr. Fonfeder similarly placed a succah on his balcony in September 1996, but received no notice or complaint.
11 A year later, on October 6, 1997, and pursuant to the regulations in the declaration of co-ownership, Mr. Amselem requested permission from the Syndicat to set up a succah on, and thus enclose part of, his balcony to celebrate the same holiday of Succot. The Syndicat refused, invoking the restrictions in the declaration of co-ownership.
12 As the holiday was imminent, Mr. Amselem, of his own accord and in his personal capacity, contacted the Canadian Jewish Congress (which incidentally represented that it is not an organization th