View cases - Stewart McKelvey

- 84 -Charter involves finding a balance and a compromise consistent with the public interestin the specific context of the case. To attain this balance and compromise would beimpossible if the right in issue and the exercise thereof were subject only to thesubjective assessment of the person wishing to exercise it. Nor would a simple inquiryinto the relative importance of the infringement of the co-owners’ rights be appropriatein the case at bar; that would be equivalent to requiring a reasonable accommodation onthe respondents’ part, whereas accommodation is irrelevant to a s. 9.1 analysis. That is2004 SCC 47 (CanLII)why this Court stressed in Devine v. Quebec (Attorney General), [1988] 2 S.C.R. 790,at p. 818, that s. 10 of the Quebec Charter, which brings the duty to accommodate intoplay, cannot be used to circumvent the operation of s. 9.1 and thereby to avoid specifyingthe scope of the fundamental right in issue in accordance with the limits established bys. 9.1. Nor is it a question of simply comparing the inconvenience for one party with theinconvenience for the other; that would distort s. 9.1, which refers specifically to thecommon interest of all citizens of Quebec.155 A court engaged in a reconciliation exercise must ask itself twoquestions: (1) Has the purpose of the fundamental right been infringed? (2) If so, is thisinfringement legitimate, taking into account democratic values, public order, and thegeneral well-being? A negative answer to the second question would indicate that afundamental right has been violated.156 In the first step of the analysis, the person alleging the infringement of aright bears the burden of proving that it has occurred. To do this, as I explained above,the claimant must demonstrate the existence of a religious precept, a sincere belief thatthe practice dependent on the precept is mandatory, and the existence of a conflictbetween the practice and the rule. At this stage, the issue is an infringement of the