View cases - Stewart McKelvey

- 101 -190 I do not think it is the function of the courts to choose between thecompeting views of Rabbi Levy and Rabbi Ohana, each of great respectability, as to theprecise content of the divine command. Mr. Amselem believes what he believes, and hesincerely believes that dwelling in his own succah, rather than just in a succah, is partof his faith, subject to a measure of flexibility when a personal succah is not available,as hereinafter described.2004 SCC 47 (CanLII)191 The rigour of the analysis should, in my view, not occur at the front end ofthe s. 3 analysis, when the existence of a religious precept (or divine command) and thesincerity in the belief of that religious precept is being considered, where the freedomshould be generously accorded, but at the subsequent limitation stage under s. 9.1 where,in the private context, the reasonableness of the exercise of a religious practice at theexpense of others is being assessed. Religion is by nature an intensely personal andsubjective matter. It is therefore, as Iacobucci J. demonstrates, a right of immensepotential scope. The appellants urge both a broad front end acceptance of religious beliefand a restricted view of acceptable accommodation. Such an approach would create animbalance between the rights of the individual and the countervailing rights and interestsof other members of Quebec society, whose “general well-being” is also protected bys. 9.1 of the Quebec Charter. As stated by the Quebec Minister of Justice when s. 9.1was adopted in 1982:[TRANSLATION] The purpose of s. 9.1 is to temper the absoluteness ofthe freedoms and rights set out in ss. 1 through 9 both by imposing limits,which are set out in the first paragraph, on the holders of those rights andfreedoms in relation to other citizens, and by establishing, in the secondparagraph, the principle that the legislature may impose limits in relation tothe community at large. [Emphasis added.]