View cases - Stewart McKelvey

- 7 -one’s own succah, but of “dwelling in” a succah for the entire nine-day festival ofSuccot. Although the declaration of co-ownership does not overtly forbid the appellantsto dwell in a succah — in that they are free to celebrate the holiday with relatives or ina proposed communal succah —, the burdens placed upon them as a result of theoperation of the impugned clauses are evidently substantial. Preventing them frombuilding their own succah therefore constitutes a non-trivial interference with and thusan infringement of their protected rights to dwell in a succah during the festival of2004 SCC 47 (CanLII)Succot.The alleged intrusions or deleterious effects on the co-owners’ rights topeaceful enjoyment of their property and to personal security guaranteed by ss. 6 and 1respectively of the Quebec Charter are, under the circumstances, at best minimal andthus cannot be reasonably considered as imposing valid limits on the exercise of theappellants’ religious freedom. The respondent has not adduced enough evidence toconclude that allowing the appellants to set up such temporary succahs would cause thevalue 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 andthus enhancing the harmonious external appearance of the building cannot be reconciledwith a total ban imposed on the appellants’ exercise of their religious freedom. Thepotential annoyance caused by a few succahs being set up for a period of nine days eachyear would undoubtedly be quite trivial. Finally, the appellants’ offer to set up theirsuccahs in such a way that they would not block any doors, would not obstruct fire lanesand would pose no threat to safety or security obviated any security concerns under thecircumstances. In order to respect the co-owners’ property interests, however, theappellants should set up their succahs in a manner that conforms, as much as possible,with the general aesthetics of the property.