View cases - Stewart McKelvey

- 46 -mandated “obligation” to dwell in a succah during the Succot holiday. If a woman,however, nonetheless sincerely believes that sitting and eating in a succah brings hercloser to her Maker, is that somehow less deserving of recognition simply because shehas no strict “obligation” to do so? Is the Jewish yarmulke or Sikh turban worthy of lessrecognition simply because it may be borne out of religious custom, not obligation?Should an individual Jew, who may personally deny the modern relevance of literalbiblical “obligation” or “commandment”, be precluded from making a freedom of2004 SCC 47 (CanLII)religion argument despite the fact that for some reason he or she sincerely derives acloseness to his or her God by sitting in a succah? Surely not.69 Rather, as I have stated above, regardless of the position taken by religiousofficials and in religious texts, provided that an individual demonstrates that he or shesincerely believes that a certain practice or belief is experientially religious in nature inthat it is either objectively required by the religion, or that he or she subjectively believesthat it is required by the religion, or that he or she sincerely believes that the practiceengenders a personal, subjective connection to the divine or to the subject or object ofhis or her spiritual faith, and as long as that practice has a nexus with religion, it shouldtrigger the protection of s. 3 of the Quebec Charter or that of s. 2(a) of the CanadianCharter, or both, depending on the context.70 On the question of sincerity, the respondent argues that the appellants do notsincerely believe that their religion requires them to build their own individual succahson their balconies. That said, the trial judge did find that Mr. Amselem, at least,sincerely believed that he was obliged to set up a succah on his own property, thustriggering his freedom of religion protection according to the first step in our analysis.