View cases - Stewart McKelvey

- 6 -Here, the impugned stipulations in the declaration of co-ownership infringeupon the appellants’ freedom of religion under s. 3 of the Quebec Charter. The trialjudge’s approach to freedom of religion was incorrect. First, he chose between twocompeting rabbinical authorities on a question of Jewish law. Second, he seems to havebased his findings with respect to freedom of religion solely on what he perceived to bethe objective obligatory requirements of Judaism, thus failing to recognize that freedomof religion under the Quebec (and the Canadian) Charter does not require a person to2004 SCC 47 (CanLII)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 analysisis dubious, unwarranted and unduly restrictive. On the issue of sincerity, the trial judgecorrectly concluded that the appellant A sincerely believed that he was obliged to set upa succah on his own property. The appellants K and F submitted expert evidence of theirsincere individual belief as to the inherently personal nature of fulfilling thecommandment of dwelling in a succah. Such expert testimony, although not required,suffices in positively assessing the sincerity and honesty of their belief. Lastly, theinterference with their right to freedom of religion is more than trivial and thus, leads toan infringement of that right. It is evident that in respect of A the impugned clauses ofthe declaration of co-ownership interfere with his right in a substantial way, as aprohibition against setting up his own succah obliterates the substance of his right. In thecase of K and F, they have proven that the alternatives of either imposing on friends andfamily or celebrating in a communal succah as proposed by the respondent willsubjectively lead to extreme distress and thus impermissibly detract from the joyouscelebration of the holiday. In any event, there is no doubt that all the appellants sincerelybelieve they must fulfill the biblically mandated obligation, perhaps not of setting up