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David Matas

 
DAVID MATAS: FREDOM OF RELIGIOUS EXPRESSION: THE CASE OF THE SUCCAH ON THE BALCONY

by David Matas, October 21, 2016

A condominium association asked the courts to issue an order prohibiting Moise Amselem and three other owners of individual units from building a symbolic religious makeshift shelter, called in the Jewish religion a succah, on the balconies of their condominiums . The reason the condominium owners were opposed was that the succahs, in their view, impacted adversely on the appearance of the buildings and violated the condominium agreement.  According to the Jewish religion, Jews are supposed to live in a succah during a nine day Jewish autumn holiday. I participated in the case at the Supreme Court of Canada as counsel for intervener League for Human Rights of B'nai Brith Canada. Syndicat Northcrest v. Amselem, 2004 SCC 47, [2004] 2 SCR 551]

 

The trial judge heard religious expert rabbi witnesses from the two sides.  The rabbi expert witness for the building co-owners testified that there was no Jewish religious duty to erect one's own succah and no religious commandment about where they were to be erected; a succah near the local synagogue would do.   The rabbi expert witness for the condominium unit owners testified that Jewish obligation of dwelling in a succah for nine days must be complied with festively and joyously, without causing distress to the individual. Distress, such as that caused by forced relocation to a communal succah, would run contrary to the obligation of dwelling in a succah.

 

The trial judge, who was not Jewish, found the evidence of the rabbi expert witness for the condominium association more compelling as an explanation of what the Jewish religion required and issued the order sought.  The unit owners appealed.

 

The League, in support of the principle of freedom of religion, took the position that the courts had no business deciding what the Jewish religion dictated.  The Supreme Court of Canada agreed. The Court reasoned:  

          "Secular judicial determinations of theological or religious disputes, or of contentious matters of religious doctrine, unjustifiably entangle the court in the affairs of religion."

In the result, the request of the condominium owners for an injunction prohibiting the setting up of succahs on balconies was denied.

 

One does not have to get very far into any religion to find that, whatever the religion, there are disputes about its meaning and obligations. Freedom of religious expression does not mean just freedom to express the religious beliefs of one particular doctrine within the religion or what one particular religious authority says is the religion. The right to freedom of religion is a right of individuals not a right of religious authorities or the Government or the courts.  The Amselem case from 2004 is a useful reminder of that principle.

 

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