View cases - Stewart McKelvey

- 87 -As for Thomas Klein, he has lived in the Sanctuaire since 1989 and hadnever erected a succah before 1996. During that period, even though hepractised his religion, he usually went to New York state to celebrate Succotwith his family. For several years, he remained in Montréal for the firstimportant days of the holiday but did not erect a succah, as he thought itwould be too difficult to do so for just a few days.. . . We heard no evidence from the other respondents on this point.161 After reviewing the testimony of each of the appellants and the nature of the2004 SCC 47 (CanLII)religious teachings as explained by Rabbi Levy and Rabbi Ohana, the trial judge did notdismiss the appellants’ belief or reject their argument based on freedom of conscience.Rather, he weighed and examined the evidence before him to verify the existence of areligious precept supporting the appellants’ belief, as this examination of religiousteachings is an integral part of the required analysis.162 The evidence shows that the appellants sincerely believed they were underan obligation to eat their meals and celebrate Succot in a succah. Although it would bepreferable to do so in their own succahs whenever possible, there are numerouscircumstances, such as the ones noted by the trial judge, in which using another person’ssuccah would appear to be justified. Based on the evidence that was adduced andaccepted by the trial judge, I accept that the appellants sincerely believe that, wheneverpossible, it would be preferable for them to erect their own succahs; however, it wouldnot be a divergence from their religious precept to accept another solution, so long as thefundamental obligation of eating their meals in a succah was discharged. I thereforecannot accept that the appellants sincerely believe, based on the precepts of their religionthat they are relying on, that they are under an obligation to erect their own succahs ontheir balconies, patios or porches. Rather, it is their practice of eating or celebratingSuccot in a succah that is protected by the guarantee of freedom of religion set out in s. 3of the Quebec Charter. The declaration of co-ownership does not hinder this practice,