Criminal Law

• Author: M.H. Ogilvie
• Pages: 163-196

163

CHAPTER 5

CRIMINAL LAW

A. INTRODUCTION

At one time, a description of the criminal law in a book about law and

religion might have entailed di scussion of much of criminal law because

that law ref‌lected divine law, was patently understood to do so, and was

expected to do so by most people. While the criminal law in Canada

continues to ref‌lect the moral commands of Ch ristianity, especially in re-

lation to offences against the person, the law also now permits, through

its regulation, conduct once forbidden by both divine and civil law, but

now forbidden by divine law alone to Christians, as well as to adherents

of other religious faiths more recently established in Canada who either

share the same religious texts or other religious texts that enjoin believ-

ers to similar standards of personal conduct.

In this chapter, the topics covered are those sect ions of the Criminal

Code1 that either expressly deal with religion per se or that would be

recognized, still, by most people in Canada as having a religious back-

ground and context. The latter category is potentially large, if crimes

such as murder or manslaughter were included, so these obvious cat-

egories have been excluded in favour of categories in which religious

actors in Canadian s ociety have sought a role, such as suicide, abortion,

the right to life, and the duty to preser ve life. Nor is consideration given

to criminal categories such as sexual assault, even when committed by

1 R.S.C. 1985, c. C-46.

RELIGIOUS INSTITUTIONS AND T HE LAW IN CANADA164

clergy, because there is no specif‌ically religious signif‌icance to the nor-

mal application of the criminal law to such offenders. Civil law impli-

cations of crimin al conduct for religious institutions, such as vicarious

liability on the part of the employer religious institution, are consid-

ered in later chapters.

B. SUNDAY OBSERVANCE

Although no provision in the Criminal Code either expressly regulates

the religious observa nce of Sunday or prescribe s what may or may not be

done on Sunday, the Privy Council2 established that legislation relating

to Sunday falls within federal jurisdiction over criminal law within sec-

tion 91(27) of the Constitution Act, 1867.3 Parliament still retains exclusive

legislative authority over Sunday obser vance; however, federal legislation

in this area would very likely be struck down pursuant to section 2(a) of

the Canadian Charter of Rights and Freedoms, after the federal Lord’s Day

Act was struck down in its entirety by the Supreme Court of Canada in

R. v. Big M Drug Mart.4

Provincial Sunday observance legislation that purports to regulate

Sunday activities as a matter of exclusive provincial jurisdiction is ultra

vires, thus provincial legislation prohibiting theatrical performances on

Sunday5 and permitting Sunday movies,6 horse racing,7 and dance halls8

has been declared invalid. Moreover, a somewhat extended construction

of the federal crimin al law power over Sunday regulation has also led the

Supreme Court of Canada to f‌ind that provincial legislation purporting

to regulate the obser vance of certain Roman Catholic feast days was al so

an unconstitutional infringement of the federal criminal power.9

On the other hand, and despite lingering doubts as to whether Par-

liament may delegate its juris diction to the provinces or that the opting

out clauses in the federal Lord’s Day Act were properly construed as

delegation, provincial legislation has been found to be intra vires in

2 A.G. Ontario v. Hamilton Street Railway Co., [1903] A.C. 524 (P.C.). For a full dis-

cussion, see ab ove chapter 4, section D(2).

3 R.S.C. 1985, App. II, No. 5.

4 [1985] 1 S.C.R. 295.

5 Ouimet v. Bazin (1912), 46 S.C.R. 502.

6 Marin v. United Amusement Corp. (1929), 47 Que. K.B. 1 (C.A.).

7 Connaught Park Jockey Club v. District Magi strate’s Court (1966), 51 D.L.R. (2d)

559 (Que . S.C.).

8 Montreal (City) v. Salle de danse “Dans le Vent,” [1966] R.L. 365 (Tribunal de Mont-

real).

9 Henry Birks & Sons (Montreal) Ltd. v. City of Montreal, [1955] S.C.R. 799.

Criminal Law165

relation to Sunday sports.10 In addition, provincial legislation pursuant

to sections 92(13) or 92(16) in relation to the regulation of the hours

of work for labour,11 and to securing a reasonable degree of quiet in the

neighbourhood of a miniature golf course,12 have been found to be int ra

vires the provinces.

The courts have been unwilling to extend the criminal law power

over Sundays, and possibly other days of religious observance, to non-

religious holidays; thus in R. v. Southland Corp.,13 the Manitoba Court

of Appeal aff‌ir med a decision of the Provincial Court that Remembrance

Day legislation should not be classif‌ied as criminal law and that its reg-

ulation falls within provincial jurisdiction pursuant to section 92(13).

While these cases stand and continue to def‌ine the content and

contours of federal jurisdiction pursuant to section 91(27) over Sunday

regulation, it is doubtful after Big M Drug Mart that this jurisdiction

will be exercised in the foreseeable future.

C. LEGAL PROCESS ON SUNDAY

The common law prohibited the issuance and execution of legal process

on holidays, including Sundays.14 However, section 20 of the Criminal

Code has reversed that rule and provides that a warrant or summons

authorized by the Code, or an appearance notice, promise to appear,

undertaking or recognizance issued, given, or entered into in accord-

ance with the Code, may be issued, executed, given, or entered into on

a holiday,15 including a Sunday.16 An arrest under warrant on a Sunday

is also valid.17

Where the Criminal Code is silent as to the holidays to be observed

in the criminal courts, then days that were dies non juridicus in England,

10Lord’s Day Alliance of Canad a v. A.G. B.C., [1959] S.C.R. 497.

11Reference Re L egislative Jurisdiction over Hours of L abour, [1925] S.C.R. 505; A.G.

Canada v. A.G. Ontario, [1937] A.C. 326 (P.C.); Cusson v. Philion, [1961] B.R. 566

(Que. C.A.); Lieberman v. R., [1963] S.C.R. 643; and R. v. Top Banana Ltd. (19 74),

4 O.R. (2d) 513 (H.C.).

12R. v. Epstein, [1931] O.R. 726 (H.C.).

13 [1978] 6 W.W.R. 166 (Man. Prov. Ct.), aff’d [1979] 2 W.W.R. 171 (Man. C.A.).

14Ex p arte Frecker (1897), 33 C.L.J. 248 (N.B.S.C.); and R. v. Lawl or (1916), 44

N.B.R. 347 (K.B.).

15R. v. McGillivray (1907), 41 N.S.R. 321 (C.A.); R. v. Train (1959), 31 C.R. 139

(N.B.C.A.).

16Interpretation Act, R.S .C. 1985, c. I-21, s. 35.

17R. v. Leahy (1901), 35 N.B.R. 509 (C.A.); and R. v. Smit h, [1927] 2 D.L.R. 982 (Man.

C.A.).