View cases - Stewart McKelvey

- 51 -communal succah —, the appellants’ protected rights will nonetheless be infringed,according to this Court’s jurisprudence, if the impugned clauses constrain their rights todwell in a succah in a manner that is non-trivial or not insubstantial. In my view, theydo.79 The burdens placed upon the appellants as a result of the operation of theimpugned clauses, either by requiring them to celebrate the holiday by imposing on2004 SCC 47 (CanLII)others or by forcing them, as suggested by the respondent, to celebrate in a communalsuccah, are evidently substantial. Preventing the appellants from building their ownsuccah therefore constitutes a non-trivial interference with their protected rights to dwellin a succah during the festival of Succot, which all acknowledge they sincerely regardas a religious requirement. The result is that the impugned stipulations in the declarationof co-ownership infringe upon the appellants’ freedom of religion under s. 3 of theQuebec Charter.80 Consequently, I believe that all of the appellants have successfully made outan infringement of their freedom of religion.81 As discussed above, to my mind, the impairment of the appellants’ religiousfreedom resulting from the refusal of the respondent to allow the setting up of succahson balconies is serious. As a result, the enjoyment of their rights to religious freedomhas been significantly impaired. The Syndicat’s offer of allowing the appellants to setup a communal succah in the Sanctuaire’s gardens does not remedy nor does it evenaddress that impairment.(2) The Alleged Justification for the Limit on the Exercise of Freedom ofReligion in this Case