Boroughing Themselves into a Constitutional Challenge: Religious Freedom and Outremont’s New Zoning Bylaw

The Borough of Outremont recently passed a zoning law banning any new houses of worship from establishing themselves on Laurier and Bernard Avenues. The goal of the law is encourage businesses in the area, particularly around Laurier, Bernard, and Van Horne, and create a public secular space.

The vote was four in favor, one opposed. Mindy Pollack, a member of the borough’s Chasidic community, was the city councilor who voted against the bylaw. She and other members of the borough’s religious Jewish community argue that the new bylaw doesn’t take into account the needs of the community and claim that it isn’t based on any demographic studies.

They demanded that the vote on the bylaw be postponed until demographic studies were conducted with the participation of Outremont’s religious communities. The Borough’s council went and voted on it anyway despite a letter from constitutional lawyer Julius Grey threatening to immediately contest the bylaw before the courts should it pass.

Those against the bylaw argue that it shows a remarkable insensitivity to the religious Jewish community in Outremont. Religious Jews cannot drive automobiles or use public transit on the Sabbath. The ban would allegedly force them to walk 20 to 30 minutes to a house of worship.

By Jeangagnon – Wikimedia CC BY-SA 3.0
By Jeangagnon – Wikimedia CC BY-SA 3.0

Those in favor of the bylaw argue that it will encourage businesses to open and expand in Outremont and provide a safe secular space.

Here are the facts:

The bylaw in question was actually based on a demographic study. But it was a demographic study that’s four years old. The working paper issued by the Borough of Outremont prior to the vote cited a 2011 demographic study of the religious demographics of the area. The Chasidic Community is growing exponentially due to high birth rates, so the numbers in the report would most certainly be out of date.

This same working paper raised concerns that allowing places of worship in certain areas would result in a concentration of them in a given area that would ultimately lead to clashes between religious communities and secular residents and businesses, ultimately deterring the latter. These concerns are not unfounded.

In 2008, for example, a YMCA in Outremont succumbed to pressure from a neighboring Chasidic synagogue that complained because they could see women exercising in outfits that didn’t conform to their sense of modesty. The religious community argued that it was distracting their teenage boys and agreed to foot the $3,500 bill for the YMCA to install frosted windows. Though the Chasidic Community considered the solution a reasonable one, many members of the YMCA begrudged the accommodation and felt that their freedoms were being curtailed for extremist religious sexism.

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Places of Worship in Quebec do not pay municipal taxes. According to An Act Respecting Municipal Taxation, property belonging to a religious institution constituted as a legal person and used primarily for public worship is exempt from municipal property and school taxes. They’re also exempt from business taxes if their activities are part of the exercise of public worship or for charitable or religious goals and would have no monetary gain for the institution. That means that any new place of worship wouldn’t bring any revenue and would only benefit the borough in a purely cultural way.

The new bylaw doesn’t affect existing places of worship, only new ones.

When laws allegedly infringing on religious freedoms go before the courts, religious groups often win. Cases are generally argued on the basis of the Canadian Charter of Rights and Freedoms, which guarantees freedom of religion and equality before the law.

The Supreme Court of Canada has ruled on everything from a Sikh’s obligation to wear a ceremonial dagger and turban, to the Jewish obligation on Sukkot to set up a small outdoor shack (called a Sukkah) for meals, to rants against LGBT people made by people claiming to be good Christians.

In most cases, the Supreme Court ruled in favor of the religious groups or individuals, so it’s highly likely a constitutional challenge to the bylaw would succeed. All Outremont’s religious Jewish community would have to argue is that the ban on using any mode of transportation on the Sabbath is associated with their religion and that the petitioners’ belief in this practice is sincere. From there, it’s a matter of arguing that the bylaw interferes with their right to practice their faith.

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It would then be up to the Borough to prove that the bylaw is both important and necessary. The Borough would also have to argue that the bylaw’s limit on freedom of religion is rationally connected to its purpose, encroaches on this freedom as little as possible, and strikes a fair balance between the negative effect of the bylaw and its’ benefits. This test, established by the Supreme Court of Canada in R. v. Oakes, [1986] 1 S.C.R. 103 is used to gauge the constitutionality – as per Canadian Charter of Rights and Freedoms – of any legislation brought before the courts.

There are no specific religious laws in Judaism regarding the location of a synagogue. However, since most religious Jews don’t believe in using any form of motorized transportation on the Sabbath, it would be pointless to establish one that wasn’t within walking distance of its congregants. Conversely it should be noted that many religious communities on the Island of Montreal have successfully established houses of worship in residential areas and even parks. The Beth Zion Congregation in Cote-Saint-Luc for example was started in the basement of one of its members and was eventually moved to a park in order to allow for potential expansion.

Having said all that is the new bylaw discriminatory?

Yes.

It clearly discriminates not just against Chasidic Jews, but against every religious community in Outremont.

Was the bylaw passed without a proper up-to-date demographic study of the borough?

Yes indeed.

Is it unconstitutional?

That’s up to the courts.

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