View cases - Stewart McKelvey

- 18 -1 An important feature of our constitutional democracy is respect forminorities, which includes, of course, religious minorities: see Reference re Secessionof Quebec, [1998] 2 S.C.R. 217, at paras. 79-81. Indeed, respect for and tolerance of therights and practices of religious minorities is one of the hallmarks of an enlighteneddemocracy. But respect for religious minorities is not a stand-alone absolute right; likeother rights, freedom of religion exists in a matrix of other correspondingly important2004 SCC 47 (CanLII)rights that attach to individuals. Respect for minority rights must also coexist alongsidesocietal values that are central to the make-up and functioning of a free and democraticsociety. This appeal requires the Court to deal with the interrelationship betweenfundamental rights both at a conceptual level and for a practical outcome.2 More specifically, the cases which are the subject of this appeal involve areligious claim by the appellants for the setting up of a “succah” for nine days a year inthe pursuit of their religious beliefs on their co-owned property under the QuebecCharter of Human Rights and Freedoms, R.S.Q., c. C-12 (the “Quebec Charter”). TheQuebec 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 itsinfringement, I find that the appellants’ religious freedom under the Quebec Charter hasbeen infringed by the declaration of co-ownership. While the respondent has raisedrights to enjoy property and personal security as justification for its refusal to allow asuccah to be set up, I find that the impairment of the appellants’ religious freedom isserious whereas I conclude that the intrusion on the respondent’s rights is minimal. Assuch, 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