View cases - Stewart McKelvey

- 55 -91 Dalphond J. held, and the respondent contends, that the appellants hadwaived their rights to freedom of religion — or had implicitly agreed with the terms ofthe by-laws — when they signed the declaration of co-ownership, and that the appellantsmust comply with the impugned provisions of the Sanctuaire’s by-laws, including thegeneral prohibition against decorations or constructions on balconies. I confess to somedifficulty in understanding the legal basis for this proposition. Whether it amounts to“waiver” — or to waiver by another name —, the argument does not withstand scrutiny.2004 SCC 47 (CanLII)92 Whether one can waive a constitutional right like freedom of religion is aquestion that is not free from doubt: see, e.g., for cases where waiver was disapprovedof: Insurance Corp. of British Columbia v. Heerspink, [1982] 2 S.C.R. 145, at p. 158;Ontario Human Rights Commission v. Borough of Etobicoke, [1982] 1 S.C.R. 202;Newfoundland Association of Public Employees v. Newfoundland (Green Bay HealthCare Centre), [1996] 2 S.C.R. 3, at para. 21; Parry Sound (District) Social ServicesAdministration Board v. O.P.S.E.U., Local 324, [2003] 2 S.C.R. 157, 2003 SCC 42, atpara. 28. But see where cases recognized waiver: R. v. Mills, [1999] 3 S.C.R. 668; R. v.Rahey, [1987] 1 S.C.R. 588; R. v. Richard, [1996] 3 S.C.R. 525; Frenette v. MetropolitanLife Insurance Co., [1992] 1 S.C.R. 647.93 But I need not explore that question in this case. I say that because, evenassuming that an individual can theoretically waive his or her right to freedom ofreligion, I believe that a waiver argument, or an argument analogous to waiver, cannotbe maintained on the facts of this case for the following reasons.94 First, while the respondent claims that succahs are “plainly” andunconditionally prohibited under s. 2.6.3b) of the declaration of co-ownership, I am not