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Elliot Leven

Elliot Leven: The Sukkah on the Balcony Case: Canadian law strikes balance on religious accommodation

By Elliot Leven, re-posted October 19, 2011-written July 3, 2011

In 2004, the Supreme Court of Canada heard a strange case about a succah on a balcony.  The case set out some important principles about balancing freedom of religion against other rights in Canada.

As most Jews know, during the eight-day holiday of Succot, Jewish families build temporary huts called succot, for ritual purposes. The succot come down when the holiday ends. Canada’s Charter of Rights and Freedoms guarantees freedom of religion. Provincial human rights laws prohibit discrimination on the basis of religion.

A few Montreal Orthodox Jewish families lived in a condominium building. The condo bylaws prohibited construction on condo balconies. Come Succot, the families wanted to build succot on their balconies.  The condo corporation objected because it claimed that the balcony succot would lower property values, and for aesthetic and alleged safety reasons. There was no evidence to support the property-value and safety arguments. The corporation offered the families the option of building a communal succah in the gardens. The dispute went to court.

The majority of the Supreme Court ruled that the families could build their balcony succot.

There was a dispute about Jewish law. The families sincerely believed that Jewish law required individual family succot, rather than a communal succah.  The condo corporation argued for a different interpretation of Jewish law.  The Supreme Court refused to get embroiled. The majority ruled that the State should not become the arbiter of religious dogma.  As long as the religious beliefs were sincere, and were not fictitious or capricious, the courts would look no further. In this case, there was no dispute about the families being sincere.

On the practical question, the majority felt that any annoyance caused by succot erected for about nine days each year would be trivial.

On the issue of the condo bylaws, the majority noted that the bylaws were very general, and did not specifically mention succot or religious rituals of any kind.  The majority did leave the door open for future arguments that perhaps one can waive one’s Charter right to freedom of religion by doing so deliberately and explicitly. That was obviously not the case in the succah dispute.

The Montreal succah case nicely illustrates how Canadian courts deal with freedom of religion.  There is a strong pragmatic streak in the decisions.  The principle that secular courts will not get embroiled in disputes about religious dogma is a very practical one.  Also, the focus on the details of the religious accommodation (e.g. the fact that the balcony succot would only be up for about nine days, and would have no effect on safety or property values) is very pragmatic.

Another Supreme Court case illustrates the limits of religious freedom.  In 2009, the court dealt with a 14-year-old Manitoba Jehovah’s Witness who needed a blood transfusion to live.  Jehovah’s Witnesses have a sincere religious prohibition against blood transfusions. Child and Family Services got a court order allowing it to force the girl to have the life-saving blood transfusion, against her wishes and those of her parents.

The case went to court and various Charter rights, including religious freedom, were argued.  The majority of the Supreme Court ruled that Child and Family Services was right.  The State has an interest in protecting children and, in this case, that right overrode the Charter rights of the girl and her family.  The majority noted that the age and maturity of the child will be one factor to consider in cases like this one.

In a sense, the Montreal succah case and the Manitoba blood transfusion case are legal bookends to the issue of religious freedom. At one extreme there is a temporary aesthetic effect on a building, and at the other extreme there is the life and death of a child.

Most future religious freedom cases will fall somewhere between those two extremes.  However, we can make some educated guesses about how tribunals and courts will handle future cases.  They will probably focus on pragmatic, concrete details.  They will ask: if the person asserting religious freedom gets what they want, what will be the specific, concrete, negative effects, if any?  How serious or how trivial will those negative effects be?

In litigation, parties sometimes make a “floodgates” or “slippery slope” argument.  This type of argument ignores the facts of the instant dispute and focuses instead on hypothetical future disputes.  For example, if the issue is whether observant Sikh Mounties should be allowed to wear religious head-coverings instead of Stetsons, a floodgates argument might be: if the Sikh Mounties get what they want, next thing you know some nudist teacher will claim the right to teach Kindergarten in the nude!

Needless to say, courts have little patience for floodgates arguments. One Quebec court referred to these as the unsuccessful argument “of last resort” in Charter litigation.

We can’t predict which religious freedom disputes will make the headlines tomorrow, but we can make pretty good predictions about what legal principles will apply to those disputes.

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