## Facts

- Orthodox Jewish co-owners in a Montréal condominium complex built temporary *succahs* on their unit balconies to observe the nine-day festival of Succot.
- The declaration of co-ownership treated balconies as common portions reserved for exclusive use but prohibited “decorations, alterations and constructions on balconies.”
- The condominium syndicate demanded removal of the succahs as contrary to the by-laws and offered a communal succah in a garden area.
- The co-owners refused, asserting their sincerely held religious belief required a succah at or adjacent to their own residence and that a communal structure would cause serious hardship for their observance.
- The syndicate sought a permanent injunction to prohibit balcony succahs and to authorize demolition if necessary.
- The Québec Superior Court granted the injunction; the Québec Court of Appeal affirmed.
- The Supreme Court of Canada granted appeal review and considered the dispute under the Québec Charter of Human Rights and Freedoms (and conceptually s. 2(a) of the Canadian Charter).

## Issues

1. Whether applying the declaration of co-ownership to prohibit balcony succahs infringed the co-owners’ freedom of religion.
2. If so, whether the infringement was justified in light of other co-owners’ interests in property enjoyment, personal security, and building aesthetics.
3. Whether signing the declaration of co-ownership amounted to a waiver of the co-owners’ freedom of religion.

## Decision

- The Supreme Court of Canada allowed the appeal in a 5–4 decision (Iacobucci J.).
- The prohibition, as applied, infringed freedom of religion because it non-trivially interfered with a practice the claimants sincerely believed they must perform in a particular way.
- The syndicate did not justify the restriction based on safety, access, property enjoyment, or aesthetics given the limited, temporary nature of the structures and the availability of conditions to reduce risk.
- The co-owners did not waive freedom of religion by signing the declaration; waiver of fundamental rights must be clear and explicit and was not established on these facts.
- The Court permitted balcony succahs subject to conditions, including time limits (only during Succot), maintaining emergency access, and conforming as much as possible to the building’s aesthetics.

## Legal Principles

- Freedom of religion protects practices and beliefs with a nexus to religion that an individual sincerely holds, regardless of whether religious authorities or official dogma deem the practice mandatory.
- Courts assess sincerity of belief in good faith and should keep inquiries into sincerity limited; expert evidence may assist but is not required to validate the belief.
- An infringement is established where state or private action (under the applicable charter framework) causes a non-trivial or non-insubstantial interference with religious exercise.
- Even where religious freedom is infringed, protection is not automatic; competing rights and interests (including property and security) must be balanced in context, and categorical bans may fail where less restrictive conditions adequately address legitimate concerns.
- Waiver of fundamental rights is not lightly inferred; it must be clear and explicit rather than implied from general contractual terms.

## Conclusion

The Court held that enforcing a condominium bylaw to ban temporary balcony succahs unjustifiably infringed the co-owners’ freedom of religion, adopted a sincerity-centered approach to defining protected religious practice, rejected implied waiver, and required a context-sensitive balancing that allowed the practice under reasonable safety and aesthetic conditions.


Syndicat Northcrest v. Amselem, [2004] 2 S.C.R. 551 (Can. 2004)