View cases - Stewart McKelvey

- 10 -in relation to one another while maintaining proper regard for democratic values, publicorder and the general well-being of citizens. The Civil Code of Québec is the mostimportant instrument for defining the principles governing public order and the generalwell-being of the citizens of Quebec. The first paragraph of s. 9.1 requires not merelya balancing of the respective rights of the parties; it is necessary to reconcile all therights and values at issue and find a balance and a compromise consistent with the publicinterest in the specific context of the case. The court must ask itself two2004 SCC 47 (CanLII)questions: (1) Has the purpose of the fundamental right been infringed? (2) If so, is thisinfringement legitimate, taking into account democratic values, public order, and thegeneral well-being? A negative answer to the second question would indicate that afundamental right has been violated. In the first step of the analysis, the person allegingthe infringement must prove that it has occurred. In the second step, the onus is on thedefendant to show that the infringement is consistent with the principles underlyings. 9.1. The reconciliation of rights is clearly different from the duty to accommodate inthe 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 notinfringe the appellants’ right to freedom of religion. Based on the evidence that wasadduced and accepted, the appellants sincerely believe that, whenever possible, it wouldbe preferable for them to erect their own succahs; however, it would not be a divergencefrom their religious precept to accept another solution, so long as the fundamentalobligation of eating their meals in a succah was discharged. It cannot therefore beaccepted that the appellants sincerely believe, based on the precepts of their religion thatthey are relying on, that they are under an obligation to erect their own succahs on theirbalconies. It is, rather, the practice of eating or celebrating Succot in a succah that isprotected by the guarantee of freedom of religion set out in s. 3 of the Quebec Charter.