View cases - Stewart McKelvey

- 44 -B. Application to the Facts(1) Freedom of Religion and Infringement(a) As Pertaining to Setting Up One’s Own Succah65 As outlined above, the first step in successfully advancing a claim that an2004 SCC 47 (CanLII)individual’s freedom of religion has been infringed is for a claimant to demonstrate thathe or she sincerely believes in a practice or belief that has a nexus with religion. Thesecond step is to then demonstrate that the impugned conduct of a third party interfereswith the individual’s ability to act in accordance with that practice or belief in a mannerthat is non-trivial. At trial, Rochon J., relying primarily on the testimony of Rabbi Levy,whose testimony he found more compelling than that of Rabbi Ohana, found that theimpugned clauses in the declaration of co-ownership did not infringe the appellants’rights to freedom of religion since, according to him, Judaism does not require itsadherents to build their own succah (at p. 1909):[TRANSLATION] First of all, the court notes that practising Jews are notunder a religious obligation to erect their own succahs. There is nocommandment as to where they must be erected.As a result, Rochon J. believed that freedom of religion was not even triggered. AlthoughMorin J.A., in his concurring opinion, quite properly concluded that this was not thecorrect approach to take to freedom of religion, the majority of the Court of Appealseemed to endorse the trial judge’s reasoning. With respect, I believe their approach wasmistaken.