Canada’s Court Weighs Religious Freedom

By Sheldon Gordon

Published January 23, 2004, issue of January 23, 2004.
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MONTREAL — The Supreme Court of Canada heard an appeal this week by a group of seven condominium owners who contend that they have a constitutional right to build makeshift huts on their balconies in celebration of the autumn festival of Sukkot.

Julius Grey, a constitutional lawyer representing the group of Orthodox Jews, argued at the three-hour hearing that Quebec’s Charter of Human Rights and Freedoms trumps the contract signed by his clients prohibiting such construction. B’nai Brith Canada, which is an intervenor in the case, contended that the lower court acted improperly by effectively choosing sides in a rabbinic dispute over the nature of the religious duty to erect the huts, or sukkot.

The outcome of the case, not expected for several months, could have far-reaching implications for Canadian society, especially in housing and employment law.

“I believe there is plenty of jurisprudence to the effect that the Charter prevails over clauses of leases, over clauses of collective agreements,” Grey said. “Fundamental human rights prevail over everything.”

The seven Orthodox Jews own units in the Le Sanctuaire du Mont-Royal complex, whose co-owners’ association, the Syndicat Northcrest, has prohibited the construction, on balconies and patios, of the temporary huts that are part of the week-long observance of Sukkot. The squabble has been before the Quebec courts since 1997, when the Syndicat first sought a temporary injunction against the building of the huts. The following year, citing the contract, a Quebec Superior Court judge issued a permanent injunction, which was upheld by the Quebec Court of Appeal.

Grey argued before the top Canadian court that the provincial charter’s protection against religious discrimination is “not limited to actions required by specific commands within a religion, but extends to the exercise of one’s religion or conscience according to an honest and sincere belief.”

Pierre G. Champagne, a lawyer representing the Syndicat, said that “the appellant’s position is not based on the facts evidenced at trial.

“There is no divine commandment to have a sukkah on one’s balcony,” Champagne said. “We’re not talking about an obligation that, if breached, would put the worshipper in default with his own religion. That position was sustained by the court of first instance [Superior Court] and also by the Court of Appeal.”

The Superior Court heard conflicting testimony from two religious authorities called as expert witnesses. Rabbi Moise Ohana, religious leader of Congregation Or Hahayim in Montreal, testified that setting up a sukkah is an essential practice in Judaism. He said that an offer by the Syndicat to have a sukkah erected in a common area does not suffice because if one is subjected to “exceptional hardship” by having to leave one’s home to visit a sukkah, it detracts from the enjoyment of the act and, as a result, does not qualify as celebrating the holiday.

But Rabbi Barry Levy, a professor of Jewish studies at McGill University, testified for the Syndicat that the notion of “exceptional hardship” was irrelevant in Jewish law and that having sukkot on the balconies was a matter of convenience rather than of religious principle.

The appellants’ lawyers interpreted the lower-court ruling against their clients as an endorsement of Levy’s position. But the Syndicat’s lawyer, Champagne, told the Forward that he did not rely on the expert testimony to win the case. “The worshippers are very sincere in their belief, but their belief is not that God orders them to do a sukkah on their balcony,” the lawyer said. “Their sincere belief, established on cross-examination, is that the divine commandment is to do the sukkah anywhere.”

B’nai Brith Canada, however, challenged the lower-court ruling on the grounds that it improperly endorsed one rabbinical interpretation over another. “Our appeal turns on what the trial judge should do when two conflicting opinions are in front of him,” said Steve Slimovitch, legal counsel for the advocacy organization. “I don’t want the state to become an arbiter of religious dogma.”

Slimovitch said the outcome of B’nai Brith’s legal argument could be extremely important for every case concerning freedom of religion that is heard in Canada. “If an Orthodox Jewish employee says he cannot work on the Sabbath and is fired because of that and goes to court, his Reform Jewish boss should not be allowed to call his Reform Jewish rabbi to testify that you can work on the Sabbath as long as you go to synagogue in the morning,” Slimovitch said. “We don’t want a judge to be deciding what in fact Judaism dictates.”

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