October 15, 2005
Zoning bylaw clashes with Charter rights
Which law should take priority?
Cottages used for religious purposes
A
judge of the Quebec Superior Court has ordered a congregation of orthodox Jews
in the Laurentian village of Val-Morin to stop using two summer cottages as a
communal house of prayer and religious school for their children.
The decision, which was released last month, is a classic contest over
whether a municipal zoning bylaw can take priority over rights guaranteed in the
Canadian Charter of Rights and Freedoms.
Val-Morin is a peaceful riverside village, where about 200 people in 40
families from an Outremont Jewish congregation spend their summers. Since the
early 1980s, one of the riverside cottages has been used for the daily prayers
of the group, and a second as a summer school for teaching religion to the
children.
Most members of the congregation live in about 16 cottages scattered
along wooded land beside the Riviere du Nord. Another half-dozen families live
about 600 metres away, across the road in cottages in the community campground.
The group has never disputed that the two cottages being used for its
religious purposes are located in an area zoned for residential purposes only.
Over the past 23 years, relations between the municipal leaders and the
Congregation of the Followers of the Rabbis of Belz to Strengthen Torah have
been strained, and marked with a history of complaints, warning letters, visits
from building inspectors, a temporary injunction and other court proceedings.
Finally, in April 2003, the municipality started legal proceedings to
force the congregation to stop using the cottages to pray and to educate their
children. The allegation was that one cottage had been used for two hours a day
in the summer as a synagogue and the other house as a place of religious
learning and a playground for five hours daily.
At the trial last May, the Belz congregation was supported by the
Canadian Jewish Congress, which acted as an intervenor in the proceedings. An
inspector testified that the properties were not being used for residential
purposes, and the congregation took no issue with that evidence.
Instead, the cottagers argued that the zoning bylaw was discriminatory
and a violation of their fundamental rights under the Charter.
By law, every Canadian is guaranteed freedom of conscience and religion,
peaceful assembly and association, but those rights are not absolute. According
to the Charter, those rights are subject only to "such reasonable limits
prescribed by law as can be demonstrably justified in a free and democratic
society."
The village had repeatedly tried to get the congregation to convert the
two cottages back to exclusive residential use and relocate their religious
activities to a nearby campground it owns about a seven-minute walk away from
the existing structures. The campground zoning permits non-residential,
religious uses.
In court, the congregation argued it did not have the money to construct
a synagogue and school on the campground. In addition, it said that much of the
land was already in use as a baseball diamond and the rest was swampy and
unsuitable for any other use.
In a nutshell, the case centred on the question of which law takes
priority: the village zoning bylaw or the fundamental freedom of religion
guaranteed in the Charter.
Were the restrictions in the zoning bylaw "reasonable limits" on the
freedom of religion that were "demonstrably justified" in a free and democratic
society?
The congregation argued that the small synagogue and school were only a
"minor inconvenience" to the few residents of the area who are not part of the
religious group.
Judge Benoit Emery rejected all the arguments of the Belz congregation
and ruled in favour of the municipality on every point.
He stressed that the synagogue building could not fall under the
definition of a residence since there are no sleeping accommodations or cooking
facilities in it.
It's tempting to wonder what his decision would have been if there had
been a bedroom and kitchen somewhere in the building.
This case is not the first dispute between a religious group and a Quebec
municipality.
In 2004, the Supreme Court of Canada was faced with a dispute between the
Jehovah's Witnesses and the village of Lafontaine. Two other church groups
intervened in the case, along with the Canadian Civil Liberties Association.
In that case, the Supreme Court of Canada ruled that the municipality had
not fairly considered the Witnesses' three requests to amend the zoning bylaw to
allow it to build a new church in the village.
The court sent the request to change the bylaw back to the village, with
instructions to consider it properly, based on the evidence and legal
principles.
After the Val-Morin and Belz decision was released, congregation
president Yankel Binet told La Presse that the municipality's actions
amounted to "religious bigotry," and said that if it was necessary to go to the
Supreme Court of Canada, "we will go."
Does a house cease to be a residence because no one sleeps there? If prayers are held in a house, does that automatically make it a church, temple or synagogue? Does the state have any place in the country's houses of worship? Send your comments to me by fax at 416-364-3818, email to bob@aaron.ca, or mail to 1400 10 King St. E., Toronto, M5C 1C3.
Bob Aaron is a Toronto real estate lawyer. He can be reached by email at bob@aaron.ca, phone 416-364-9366 or fax 416-364-3818.
Visit the Toronto Star column archives at http://www.aaron.ca/columns for articles on this and other topics or his main webpage at www.aaron.ca.