View cases - Stewart McKelvey

- 8 -Whether one can waive a constitutional right like freedom of religion is aquestion that is not free from doubt. However, even assuming that an individual cantheoretically waive his or her right to freedom of religion, a waiver argument, or anargument analogous to waiver, cannot be maintained on the facts of this case. First, theprohibitions can properly be construed as falling under s. 9.3 of the declaration ofco-ownership, which does not absolutely prohibit, but rather, simply requires solicitingthe consent of the co-owners to enclose one’s balcony. Second, the appellants did not2004 SCC 47 (CanLII)voluntarily, clearly and expressly waive their rights to freedom of religion. They had nochoice but to sign the declaration of co-ownership if they wanted to reside at thatcomplex. It would be both insensitive and morally repugnant to intimate that theappellants simply move elsewhere if they take issue with a clause restricting their rightto freedom of religion. Further, there is no evidence that the appellants were aware thatsigning the declaration amounted to a waiver of their rights to freedom of religion. Notonly would a general prohibition on constructions, such as the one in the declaration ofco-ownership, be insufficient to ground a finding of waiver, but arguably so would anydocument lacking an explicit reference to the affected Charter right.Per Bastarache, LeBel and Deschamps JJ. (dissenting): Since a religion isa system of beliefs and practices based on certain religious precepts, a nexus between thebeliever’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) theexistence of a religious precept, (2) a sincere belief that the practice dependent on theprecept is mandatory, and (3) the existence of a conflict between the practice and therule.