In 2004 the Supreme Court of Canada considered an appeal about whether contract terms could justifiably limit the right to religious freedom and in doing so clarified the correct approach for the courts to take in relation to claims of freedom of religion in Canada.

The appeal was brought by four Orthodox Jewish residents of a luxury apartment complex in Montreal. The appellants argued that their religious freedoms to celebrate a Jewish festival had been violated by Syndicat Northcrest’s reliance on its private bylaws which prohibited temporary structures on apartment balconies.

All four appellants had signed a contract (the declaration of co-ownership) agreeing to bylaws when they moved into their apartments. The bylaws prevented structures, alterations and decorations on balconies (the bylaws) unless written approval was first obtained from the Board of Directors of the Syndicat Northcrest, which represented all co-owners in the apartment complex (the Syndicat). Unfortunately, none of the appellants had read the declaration of co-ownership and were unaware of the effect of the bylaws.

The structures and the Jewish festival

The circumstances of the case arose in 1996 when two of the four appellants, Mr Amselem and Mr Fonfeder, each erected temporary structures, called succah, on their own balconies for the commemoration of Succot. Succot is a 9-day religious festival, celebrated annually, which requires Jews to dwell in temporary dwellings as their ancestors did. Succahs typically have no roof, have at least 3 sides, meet certain size requirements and are often made of wood or canvas. Orthodox Jews are obligated to take all their meals, conduct some religious ceremonies, sleep (weather permitting) and generally make the succah their primary abode for the 9 days of the festival. There are also various rules forbidding turning electricity on or off, riding in cars or using elevators during Succot. Shortly after erecting his succah Mr Amselem received a notice from the Syndicat pointing out the bylaws requirements and that he did not have permission to erect a succah. Mr Fonfeder, however, received no such notice.

The following year Mr Amselem, now being aware of the requirement to ask for permission, requested permission to erect his succah on his balcony but the Syndicat refused his request. After Mr Amselem sought the assistance of the Canadian Jewish Congress to help resolve the matter, the Syndicat offered a compromise solution by proposing that a communal succah could be set up in the gardens for all Orthodox Jews in the apartment complex.

The appellants, however, were dissatisfied with the Syndicat’s offer and wrote to the Syndicat that a communal succah would cause extreme hardship with their religious observance and be contrary to their personal religious beliefs which they said required “their own succah, each on his own balcony.” The appellants also offered to ensure that when setting up their succahs they would do so in such a way to prevent blocking any doors or fire safety access routes and ensure there was no threat to safety or security for the building. All four appellants proceeded to erect a succah for their own use on their balconies.

In response the Syndicat applied for a permanent injunction to prevent succahs being erected. The injunction was granted in 1998 by the Quebec Superior Court and later affirmed by the Quebec Court of Appeal. The appellants appealed to the Supreme Court of Canada.

Appeal to the Supreme Court

The appeal to the Supreme Court of Canada raised the following issues:

1. Whether the bylaws infringed the appellants' freedom of religion;
2. If so, whether the refusal by the Syndicat to permit succahs was justified by reliance on the co-owners' rights to enjoy property and their rights to personal security; and
3. Whether the appellants waived their rights to freedom of religion by signing the declaration of co-ownership.

The Supreme Court began with setting out how the lower courts had treated the issues. The trial judge when issuing the injunction found that the declaration of co-ownership contained a clear prohibition which prevented the appellants from setting up a succah.

To argue an individual’s religious freedom had been infringed the trial judge considered that the individual must first prove that a religious practice is an official teaching of that religion. It was not enough that a personal belief was held, it needed to be part of a mandatory doctrine of faith.

The trial judge heard evidence from two Rabbis with different points of view about the religious requirements for erecting succahs for Succot. By preferring the evidence of one Rabbi over the other, the trial judge concluded there was no obligation requiring practising Jews to erect their own succahs and no rules requiring where they should be. In addition, the trial judge did not accept that all four appellants held a sincere belief that their religious belief required individual succahs on their own balconies because in past years some of the appellants had not set up a succah at all instead being hosted elsewhere by family or friends.

After finding that religious freedom was not triggered in this case the trial judge considered, for the sake of argument, whether the bylaw prohibitions were a justifiable limit to the freedom of religion. He concluded that the prohibitions were justified to protect the aesthetic value of the property and to maintain building security in the event of fire.

At the Court of Appeal stage, the court by majority agreed with the decision of the trial judge finding that the restrictions in the declaration of co-ownership were valid property restrictions under the applicable civil code. Dalphond J for the majority position, said that freedom of religion in this case was waived by the appellants signing the declaration of co-ownership. Further that every co-owner was treated the same way meant that the prohibitions in the bylaws did not amount to a distinction based on religion.

In a decision concurring with the majority, Morrin JA called the trial judge’s interpretation of freedom of religion an unduly restrictive approach. He considered that a religious belief was a sincere belief dictated by the individual’s own conscience. On the facts of the case Morrin JA had no difficulty accepting that all appellants held a sincere belief that they must each set up their own succah. Any duty on the Syndicat to accommodate the religious belief, however, was not established because the appellants’ intransigent attitude in refusing the offer to construct a succah in the garden made it impossible to accommodate their religious practice.

Freedom of religion protects a sincere personal religious belief

The Supreme Court, by a 5-4 majority, found the lower courts’ various approaches to the case were wrong. The correct approach requires the courts to determine that the practice is connected to a religion and that the individual holds a sincere belief about what their religious belief requires. The principle of religious freedom is founded in respect for the inherent dignity and the inviolable rights of the human person. Freedom of religion correctly interpreted is the right of the individual to choose what they believe in and not to be forced to act in a way contrary to those beliefs.

In its reasoning the Supreme Court said it was not possible to define religion precisely but broadly it will involve convictions and practices rooted in religion and not secular, social or conscientiously held beliefs. It is about freely and deeply held personal beliefs and practices connected to a spiritual faith and a belief in a divine. The appellants did not have to prove the objective validity of their beliefs, and they were not required to be an official teaching of that religion, what is required is that the appellants hold a sincere personal conviction about what their religious belief requires.

The Supreme Court was also clear that it was not the role of the court to decide what any religion believes. The role of the court was to inquire into the sincerity of the person claiming to hold the belief not to rule on the validity of any given religious practice.

When considering the sincerity of a person’s belief the Supreme Court also recognised that it was inappropriate for courts to rigorously study the past practices of individuals. It said individual beliefs “are fluid and rarely static”. A court’s inquiry into the sincerity of a belief should focus on what the person believed at the relevant time. That two of the appellants in previous years had not set up a succah was not sufficient to establish that their religious beliefs were not sincere at the time.

Balancing the right to freedom of religion with other rights

The Supreme Court found all appellants had established a sincerely held religious belief that they each must dwell in their own succah for the festival of Succot. As no freedom is ‘absolute’, once religious freedom is triggered the Supreme Court said the court’s role is to ascertain whether there has been a sufficient interference with the exercise of the right to constitute an infringement of freedom of religion and to consider whether there is harm to or interference with the rights of others.

In its consideration of this issue the Supreme Court said a “trivial or insubstantial breach” is not a breach of freedom of religion. In relation to the burden placed on the appellants, the Supreme Court referred to the evidence of the appellants that the prohibition against setting up their own succah on their balconies was very distressing to them. The communal succah proposed by the Syndicat amounted to a severe burden because using elevators was forbidden during several days of Succot. Requiring the elderly and households with children to use the stairs and to cross a large residential complex carrying all the items necessary for living and sleeping away from their individual units was similarly “non-trivial”.

Having found a significant burden upon the appellants’ rights, the Supreme Court considered the rights of others. The Syndicat argued that succah on balconies would impact on the co-owners’ rights to peaceful enjoyment of their properties. The Syndicat said the bylaws were necessary to preserve the economic and aesthetic value of their property and that because the balconies are fire escape routes, in the event of a fire, the prohibition against structures protects the safety of co-owners.

The Supreme Court disagreed with the Syndicat and found that the impact on co-owners was minimal. There was insufficient evidence about a drop in property value and the impact on building aesthetics for 9 days per year was deemed not significant. The appellants also proposed to mitigate impact by setting up their succahs in such a way to ensure they would not block doors or fire routes and to conform to general building aesthetics as much as possible.

Waiver

On the issue of whether it was possible that by signing the declaration of co-ownership the appellants had waived their right to freedom of religion, the Supreme Court said it was not clear whether someone can ever waive their right to religious freedom. In this case, however, the Supreme Court said the argument failed on the facts of the case. If waiver of constitutional rights is possible at all it would require the person with full knowledge of the consequences to voluntarily and expressly waive their rights. As none of the appellants had read the declaration of co-ownership the appellants did not voluntarily, clearly and expressly waive their rights to freedom of religion when they signed the declaration of co-ownership.

The Supreme Court also considered that there can be no waiver in circumstances where individuals have no real choice but to sign a contract. In this case the appellants had no choice but to sign the declaration of co-ownership if they wished to live in the apartment complex. It was ‘repugnant’ to suggest that the appellants move elsewhere to enjoy their right to freedom of religion.

The appellants had not waived their right to freedom of religion.

Decision

The Supreme Court allowed the appeal, set aside the decision of the Court of Appeal and made a declaration that the appellants had a right to set up succahs on their balconies, subject to undertakings to allow room for emergency access and to conform as much as possible with the aesthetics of the property.

Syndicat Northcrest v Amselem [2004] SCC 47

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