Orthodox Jews who live in a luxury Montreal condominium will ask the Supreme Court of Canada today to consider whether they bargained away their rights to religious freedom when they signed their deeds of purchase.
Several religious organizations will side with five families as they argue that a condo rule barring them from putting huts on their balconies for about a week each year to celebrate a fall religious festival contravenes the Charter of Rights.
The case is considered one of the most significant in the court's winter session because the outcome could determine whether private contracts can override the charter and human-rights legislation.
"Human-rights legislation sets a floor beneath which the parties cannot contract out," the Ontario Human Rights Commission says in a brief.
The lower courts in Quebec sided with the condo owner's association, Syndicat Northcrest, lauding its offer to compromise by erecting a communal hut on the property.
The condo association contends the open-roof huts - called Sukkahs - are eyesores that would denigrate property values in one of the most exclusive condominiums in Montreal.
The litigants signed a declaration of co-ownership when they bought their condominiums, which bars decorations, alterations and construction on their balconies.
The Quebec courts, basing their decision on conflicting testimony from two rabbis, concluded the huts are not essential to celebrate the festival of Sukkot, which commemorates the exodus of Jews from Egypt. The huts, in which they live and eat their meals, are reminders of the way Jews lived during 40 years of wandering the Sinai desert.
The Jewish human-rights group B'Nai Brith is one of several religious organizations that will argue it is inappropriate for judges to decide the merits of individual religious beliefs, as long as they are sincerely held and based on a believer's interpretation of his or her religion.
The litigants say the Quebec Court of Appeal was off-base to describe them as "intransigent" for insisting on their own private huts - a ruling they say amounts to being told their conception of Judaism is incorrect.
"To a non-believer, Kosher rules, the Sikh kirpan and turban, Jehovah's Witnesses' views on blood transfusions, and the Muslim woman's veil may all appear irrational and intransigent," says a brief from lawyer Julius Grey, representing Moise Amselem, Gladys Bouhadana, Miguel Bernfield, Edith Jaul and Antal Klein.
The United States Supreme Court has already upheld an individual's religious beliefs need not be shared with all members of the faith, or even be logical, to be worthy of protection.
"The Supreme Court of Canada is still deciding the parameters of the constitutional protection for religious freedom in Canada, so every case is extremely significant," said Janet Epp Buckingham, director of law and public policy for the intervening Evangelical Christian Fellowship.
The Ontario Human Rights Commission says anything short of an outright rejection of the Quebec Court of Appeal's reliance on the "freely signed" declaration of ownership could lead to bargaining away one's constitutional rights.
In a separate appeal being heard today, a group of Jehovah's Witnesses will argue the village of Lafontaine, about 50 kilometres from Montreal, is violating their religious freedom by refusing to rezone a piece of land to allow them to build a Kingdom Hall.