View cases - Stewart McKelvey

- 45 -66 More particularly, the approach adopted by Rochon J. at trial and DalphondJ. for the majority of the Court of Appeal is inconsistent with the proper approach tofreedom of religion. First, the trial judge’s methodology was faulty in that he chosebetween two competing rabbinical authorities on a question of Jewish law. Second, heseems to have based his findings with respect to freedom of religion solely on what heperceived to be the objective obligatory requirements of Judaism. He thus failed torecognize that freedom of religion under the Quebec (and the Canadian) Charter does2004 SCC 47 (CanLII)not require a person to prove that his or her religious practices are supported by anymandatory doctrine of faith.67 Furthermore, in my opinion, any incorporation of distinctions between“obligation” and “custom” or, as made by the respondent and the courts below, between“objective obligation” and “subjective obligation or belief” within the framework of areligious freedom analysis is dubious, unwarranted and unduly restrictive. In my view,when courts undertake the task of analysing religious doctrine in order to determine thetruth or falsity of a contentious matter of religious law, or when courts attempt to definethe very concept of religious “obligation”, as has been suggested in the courts below,they enter forbidden domain. It is not within the expertise and purview of secular courtsto adjudicate questions of religious doctrine.68 Similarly, to frame the right either in terms of objective religious“obligation” or even as the sincere subjective belief that an obligation exists and that thepractice is required would lead to arbitrary and hierarchical determinations of religious“obligation”, would exclude religious custom from protection, and would disregard thevalue of non-obligatory religious experiences by excluding those experiences fromprotection. Jewish women, for example, strictly speaking, do not have a biblically