Simon Jackson
Legal Advisor to Torah Mitzion
In a precedent-setting decision, the Justices of the Canadian Supreme Court recently ruled that the building of a sukkah on a balcony was a fundamental right anchored in law, “for the potential annoyance caused by a few sukkahs being set up for a period of nine days [including one day to set up the sukkah] each year would undoubtedly be quite trivial.”
However, this decision took seven years, three appeals and the above mentioned revolutionary ruling by Canada’s highest court, before removing a great deal of uncertainty as to the right of Canada’s Jewish residents to legally construct sukkahs on their balconies.
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The legal adventure began at 3 p.m.on the eve of Sukkot 1997, when a court official knocked at the door of the Amselems’ apartment in Montreal’s prestigious Le Sanctuaire du Mont-Royal housing complex. The official informed Amselem that he and three other residents were to report immediately to the courthouse for a hearing on a request by the complex’s management company for an emergency injunction against them. The injunction hearing concerned the sukkah erected on Amselem’s balcony in preparation for the holiday.
The overwhelming majority of the residents wanted the sukkahs removed from their balconies. However, “the sukkah people” (as the four Jewish residents became known) viewed their neighbors as the ones who tried to discriminate against them and impose hardships on them because of their religious faith. The opposition by the tenants’ committee to the sukkahs was anchored in the apartment complex’s by-laws. These regulations prohibited the building of any structures on the balconies or the placing of any object there that was above the height of the railing. This was intended to preserve a uniform aesthetic look to the building.
The tenants’ committee argued that the issue was clear cut: “condominium bylaws should be obeyed by all of the complex’s residents.” By contrast, the Jewish tenants argued that their case dealt with the question of whether the condominium bylaw was superior to the Canadian Charter of Rights and Freedoms that ensured freedom of religion.
Armed with these opposing perspectives, the two sides embarked on a legal battle. In the 1997 emergency hearing, the presiding judge rejected the request for an injunction, explaining that there was nothing urgent about removing the sukkahs and that the matter could definitely be discussed at a later date. But that was the last time (at least until this year) that sukkahs would be seen on the Le Sanctuaire du Mont-Royal premises.
In one of the court sessions, the lawyer representing the Jewish tenants prodded the building manager with questions about what was really so bothersome about the sukkahs. “If we allow a sukkah, then other owners will want to put out Christmas decorations and others will want Muslim symbols on the balcony,” the manager explained. “And what is wrong with that?” the attorney asked. The building manager responded indignantly, “This is a luxury complex, not St. Urban,” referring to a Montrealneighborhood where many immigrants live.
The fact that the Supreme Court decided to hear the sukkah case in 2003 took both sides by surprise because Canada’s highest court of appeal only accepts a few cases each year, and the sukkah question seemed to be relatively marginal and local. But the court decided to tackle it as a test case for religious tolerance in Canada.
The Jewish residents were delighted at the Supreme Court’s decision. They were also convinced that they succeeded in plugging the dike with their finger and stopping a huge anti-Semitic wave (Canadahas experienced a rise in anti-Semitic incidents over recent years). “It starts with the sukkah, but then they try to change the rules of kosher slaughter and circumcision,” they argued.
However, while the battle ended in victory, it is doubtful whether the relations with the neighbors at Le Sanctuaire du Mont-Royal will ever be mended. “We have to live with them. We are in galut [exile]. I don’t like them, so why should they like me?” one of the residents said.
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Compare the above scenario to the situation in modern-day Israel. Every Jew has an unquestioned right to build a sukkah! This can be seen in an interesting clause introduced to Israel’s Land Law, 5729-1969, some 10 years ago. The Law sets out specific provisions concerning ‘cooperative houses’ (condominiums), one of which is that an unspecified part of the ‘common property’ (the roofs, the staircases, the lifts and gardens etc.) of a cooperative house is linked to each dwelling therein.
Generally, therefore, specific parts of the common property may not be linked to a particular dwelling (an owner may own, for example, “a 1/8 share of all the common property,” where there are 8 equally sized apartments). However, the Law now provides that the owners of 3/4 of the apartments in an apartment building (to whose apartments 2/3 of the common property is appended) may pass a decision to remove specific areas from the common property and to append these to particular apartments, with the aim of expanding those apartments.
But the clause that has never ceased to impress me is the one that states: “No such expansion decision shall be taken in favor of one apartment owner where it would prevent another apartment owner from the possibility of building a sukkah, where he was accustomed to do so before the decision.” The right to live in a sukkah (and specifically in the sukkah that one has become accustomed to build each year) enshrined in the law – only in Israel!
Or take the example of tree trimming by the JerusalemMunicipality(the Iriyah)in preparation for the winter months, when storms can cause damage to electricity lines. TheMunicipality deliberately carries out the trimming on the days preceding the Sukkot holiday in the fall, thus concomitantly providing schach (thatch/roofing material) for the city’s residents to build their sukkot. This is a prime example of what the Talmud calls: ze nehene ve’ze lo chaser (one party benefits, but the other party does not lose out).
One of the joys of living in Israelis that the public space at least is identifiably Jewish. Generally, people ‘rest’ on Shabbat – even DizengoffCenteris closed to traffic! Chagim are celebrated, after a fashion, by most of the Jewish population. Almost every Jew sits down to a Seder; most families light Chanukah candles. On Yom Kippur, the country falls largely silent, and most Israeli Jews fast and spend some part of the day in synagogue. Even many secular kibbutzimcelebrate Sukkot as Chag Ha’asif (the harvest festival), with the themes of the gathering of the second grain crop and the autumn fruit, the start of the agricultural year, and the first rains.
We as religious Zionist Jews need to capitalize on these common elements in order to encourage and strengthen the sense of belonging felt by our secular friends and acquaintances towards our rich traditions and common heritage.
