View cases - Stewart McKelvey

- 48 -the significance of a strict fulfilment of the biblical commandment of “dwelling” in asuccah, and that, in and of itself, would suffice in grounding a claim of freedom ofreligion.73 When the appellants adduced Rabbi Ohana’s expert testimony, they weresubmitting evidence of their sincere individual belief as to the inherently personal natureof fulfilling the commandment of dwelling in a succah. As expounded upon by Rabbi2004 SCC 47 (CanLII)Ohana, according to Jewish law the obligation of “dwelling” must be complied withfestively and joyously, without causing distress to the individual. Great distress, suchas that caused by inclement weather, extreme cold or, in this case, the extremeunpleasantness rendered by forced relocation to a communal succah, with all attendantramifications, for the entire nine-day period would not only preclude the acknowledgedobligation of dwelling in a succah but would also render voluntary compliance wrongfuland inappropriate, thus necessitating the setting up of a private succah. In light of ourtest for freedom of religion, such expert testimony, although not required, would in myview certainly support a positive finding of sincerity and honesty of the appellants’belief. As a result, all of the appellants have, in my opinion, successfully implicatedfreedom of religion.74 According to the governing principles, however, in order for a triggered rightof religious freedom to have been infringed, the interference with the right needs to bemore than trivial or insubstantial: see Jones, supra. It is evident that in respect of Mr.Amselem the impugned clauses of the declaration of co-ownership interfere with hisright in a substantial way. For if, as Rochon J. himself found, Mr. Amselem sincerelybelieves that he is obligated by the Jewish religion to set up and dwell in his own succah,then a prohibition against setting up his own succah obliterates the substance of his right,