Robertson and Rosetanni v. R., [1963] S.C.R. 651 (1963)

Supreme Court of Canada

Robertson and Rosetanni v. R., [1963] S.C.R. 651

Date: 1963-10-18

Walter Robertson and Fred Rosetanni (Plaintiffs) Appellants;

and

Her Majesty The Queen (Defendant) Respondent.

1963: February 27, 28; 1963: October 18.

Present: Taschereau, Cartwright, Fauteux, Abbott and Ritchie JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Criminal law-Constitutional law-Sunday closing-Bowling alley-Whether infringement of religious freedom-Whether conflict with Canadian Bill of Rights, 1960 (Can.), c. 44-Lord's Day Act, R.S.C. 1952, c. 171.

The appellants were convicted on a charge that they unlawfully carried on their ordinary calling, to wit, the operation of a bowling alley on a Sunday, contrary to the Lord's Day Act, R.S.C. 1952, c. 171. Their appeals were dismissed and they were granted leave to appeal to this Court. Their main attack was that the Canadian Bill of Rights, 1960 (Can.), c. 44, had in effect repealed s. 4 of the Lord's Day Act, or, in any event, rendered it ineffective.

Held (Cartwright J. dissenting): The appeal should be dismissed.

Per Taschereau, Fauteux, Abbott and Ritchie JJ.: The Canadian Bill of Rights was not concerned with "human rights and fundamental freedoms" in any abstract sense, but rather with such "rights and freedoms" as they existed in Canada immediately before the statute was enacted. Legislation for the preservation of the sanctity of Sunday has existed in Canada from the earliest times and has, at least since 1903, been regarded as part of the criminal law in its widest sense. Historically such legislation has never been considered as an interference with the kind of "freedom of religion" guaranteed by the Canadian Bill of Rights. The effect rather than the purpose of the Lord's Day Act should be looked to in order to determine whether its application involved the abrogation, abridgment or infringement of religious freedom. There was nothing in that statute which in any way affected the liberty of religious thought and practice. The practical result of this law on those whose religion required them to observe a day of rest other than Sunday was purely secular and financial. In some cases this was no doubt a business inconvenience, but it was neither an abrogation nor an infringement of religious freedom. The fact that it had been brought about by reason of the existence of a statute enacted for the purpose of preserving the sanctity of Sunday could not be construed as attaching some religious significance to an effect which was purely secular insofar as non-Christians were concerned.

Per Cartwright J., dissenting: The purpose and effect of the Lord's Day Act are to compel the observance of Sunday as a re...

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