Syndicat Northcrest v. Amselem

?The facts are as follows: 

The appellants are Orthodox Jews owning units in a luxury Montreal condominium. Their balconies are exclusive-use common elements. They wished to install succahs on their balconies during the Succot festival. As explained in the Supreme Court’s decision: 

“A succah is a small enclosed temporary hut or booth, traditionally made of wood or other materials such as fastened canvas, and open to the heavens, in which, it has been acknowledged, Jews are commanded to “dwell” temporarily during the festival of Succot, which commences annually with nightfall on the fifteenth day of the Jewish month of Tishrei. This nine-day festival, which begins in late September or early- to mid-October, commemorates the 40 year period during which, according to Jewish tradition, the Children of Israel wandered in the desert, living in temporary shelters.” 

The syndicate of co-ownership (the Quebec equivalent of a condominium corporation), Syndicat Northcrest, did not allow succahs on balconies on the grounds that the succahs violated the by-laws contained in the declaration of co-ownership, which prohibited decorations, alterations and constructions on the balconies. Syndicat Northcrest proposed to allow the residents to set up a communal succah in the gardens. The residents claimed that a communal succah would not meet their religious requirements and beliefs, which they said called for their own succahs on their own balconies. 

The Trial Court and the Quebec Court of Appeal ruled in favour of Syndicat Northcrest. The affected residents appealed to the Supreme Court of Canada. The Supreme Court of Canada overturned the lower Court decisions and ruled in favour of the residents. 

Very briefly, the Supreme Court’s reasoning was as follows: 

1. Freedom of religion is guaranteed under the Quebec Charter of Human Rights and Freedoms and the Canadian Charter of Rights.  The Court said: 

“freedom of religion consists of the freedom to undertake practices and harbour beliefs, having a nexus with religion, in which an individual demonstrates he or she sincerely believes or is sincerely undertaking in order to connect with the divine or as a function of his or her spiritual faith, irrespective of whether a particular practice or belief is required by official religious dogma or is in conformity with the position of religious officials.”

In other words, freedom of religion protects a person’s rights to follow practices or rituals which they honestly believe enhance their religious or spiritual well-being. The Court said: 

“It is the religious or spiritual essence of an action, not any mandatory or perceived–as–mandatory nature of its observance, that attracts protection.” 

The Supreme Court said that it is not for the state to rule on the validity or veracity of any given religious practice or belief, but only to enquire into the sincerity of a person’s belief. 

In this case, the Court was satisfied that the residents were genuine and sincere in their beliefs that observance of their religion requires that they have their own succah on their own balcony. The Court saw no need to resolve the debate between religious experts as to whether or not this belief was reasonable or correct. 

2.                  Having found that the religious beliefs of the residents were genuine and sincere, the Court then determined that refusing individual succahs on the balconies would infringe or interfere with those religious beliefs in a manner that is “more than trivial or insubstantial”. Therefore, the Court found that the by-laws in question did infringe the appellants’ religious freedoms.

3.                  The Court also considered whether or not this infringement was acceptable or justified in order to protect the rights and interests of the other members of the community.  The Court considered this issue and concluded that the intrusions or deleterious effects on the rest of the community would, at most, be “minimal”. The Court said: “Although residing in a building with a year-long uniform and harmonious external appearance might be the co-owners preference, the potential annoyance caused by a few succahs being set up for a period of nine days each year would undoubtedly be quite trivial.”

The Court said: “In a multi-ethnic and multicultural country such as ours, which accentuates and advertises its modern record of respecting cultural diversity and human rights and promoting tolerance of religious and ethnic minorities – and is in many ways an example thereof for other societies –, the argument of the respondent that nominal, minimally intruded-upon aesthetic interests should outweigh the exercise of the appellants religious freedom is unacceptable. Indeed, mutual tolerance is one of the cornerstones of all democratic societies.”

 4.                  Finally, the Supreme Court said that the appellants had not “waived” their religious rights and freedoms when they decided to purchase units in the condominium and to sign the declaration of co-ownership. The Court’s reasons included the following: 

• The by-laws did not clearly prohibit succahs, but only noted the need for consent to install such a structure;
• The appellants had no choice but to sign the declaration of ownership in order to live in the condominium. The appellants did not “voluntarily and validly” waive their rights to religious freedom;
• There was no clear and explicit indication to the appellants that their rights of religious freedom would be fettered. 

The Supreme Court accordingly ruled that the appellants are entitled to have their own succahs on their own balconies, during the annual festival of Succot. The Court did include an order that the appellants comply with their undertakings given with respect to the size, placement and general aesthetics of the succahs.  These restrictions were required for reasons of safety (fire escape routes) and aesthetics.  The Court said:

 “Since the appellants have never claimed that the succah need have any exterior aesthetic religious component, the appellants should set up their succahs in a manner that conforms, as much as possible, with the general aesthetics of the property in order to respect the co-owners property interests.”

The dissent 

Before concluding, I should include a few words about the dissenting decisions, particularly given the fact that four justices were in dissent.  

The dissenting justices felt that the individual succahs were not essential to the religious freedoms of the residents. The dissenting justices felt that the communal succah could adequately fulfill the residents’ religious beliefs, while also upholding the rights and interests of the other members of the community. In short, the dissenting justices felt that the communal succah could meet the religious needs of the appellants and therefore would achieve the required balancing of interests between the individual residents and the other members of the community.    

Again, however, this was not the majority decision.