View cases - Stewart McKelvey

- 29 -30 Dalphond J. stated that even if he had found a distinction, it would not havehad the effect of “nullifying or impairing” the appellants’ rights to freedom of religion,and thus would not have amounted to discrimination within the meaning of s. 10, sincethe appellants were not religiously obligated to have succahs on their balconies.According to Dalphond J., since there was no discrimination in this case, it was notnecessary to examine the duty to accommodate. Nor did he believe it necessary to applys. 9.1 of the Quebec Charter since he reasoned that s. 9.1 is not applicable to an analysis2004 SCC 47 (CanLII)under ss. 10 and 13 of the Quebec Charter. Dalphond J. therefore dismissed the appeal.Baudouin J.A. agreed with Dalphond J.’s reasons.31 Morin J.A., in a concurring opinion, found that Rochon J. had adopted aninterpretation of freedom of religion that was unduly restrictive. After considering themeaning of freedom of religion as articulated in R. v. Big M Drug Mart Ltd., [1985] 1S.C.R. 295, he wrote, at para. 32:[TRANSLATION] According to that case, it is the sincerity of theindividual’s beliefs as dictated by his or her own conscience that must beconsidered when he or she relies on freedom of religion to justify an act ora refusal to act. It matters little that those beliefs may be erroneous inrelation to the official teachings of the leaders of the religious communityto which the individual belongs.32 Morin J.A. found that the appellants sincerely believed they must set up theirown succah (at para. 33):[TRANSLATION] The evidence shows that the appellants sincerelybelieve, based in particular on the Bible, Book of Nehemiah, Chapter 8,verses 13 to 18, that they must erect their own succahs and dwell in them forseveral days during the festival of Succot. In accordance with the principleof freedom of religion, they should normally be able to do so, but the abovequotedclauses of the declaration of co-ownership, by banning the erection