Criminal Law

AuthorM.H. Ogilvie
At one time, a description of the crim inal law in a book about law and
religion might have entailed di scussion of much of criminal law because
that law ref‌lected divi ne law, was patently understood to do so, and was
expected to do so by most people. While the cr iminal 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, t hrough
its regulation, conduct once forbidden by both divine and civil l aw, but
now forbidden by divine law alone to Christia ns, as well as to adherents
of other religious faiths more recently est ablished in Canada who either
share the same religious texts or other religious texts that enjoin believ-
ers to similar st andards of personal conduct.
In this chapter, the topics covered are those sect ions of the Criminal
Code1 th at either expressly deal with religion per se or that would be
recognized, stil l, by most people in Canada as havi ng a religious back-
ground and context. The latter category is potentia lly large, if crimes
such as murder or manslaughter were included, so these obv ious cat-
egories have been excluded in favour of categories in which relig ious
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 crimina l categories such as sexual a ssault, even when committed by
1 R.S.C. 1985, c. C-46.
clergy, because there is no specif‌ically religious signif‌icance to the nor-
mal application of the crimi nal 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.
Although no provi sion 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 establ ished that le gislation re lating
to Sunday falls wit hin federal jurisdiction over criminal law wit hin 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 pursua nt to section 2(a) of
the Canadian Charter of Rights and Freedoms, after the federal Lord’s Day
Act was struck down in it s entirety by the Supreme Court of Canada in
R. v. Big M Drug Mart.4
Provincial Sunday observance legislation that pur ports to regulate
Sunday activities as a m atter of exclusive provincial jurisd iction is ultra
vires, thus provincial legislation prohibiting theatrical performances on
Sunday5 and per mitting Sunday movies,6 horse racing,7 and dance halls8
has been declared i nvalid. 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 provi ncial legislation purport ing
to regulate the obser vance of certain Roman Catholic feast days was al so
an unconstitutional inf ringement of the federal crimin al 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 ha s 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.
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-
rea l).
9 Henry Birks & Sons (Montreal) Ltd. v. City of Montreal, [1955] S.C.R. 799.
Criminal Law 165
relation to Sunday sports.10 In addition, provinci al 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 t he provinces.
The courts have been unwilling to extend the crimi nal 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 a nd that its reg-
ulation falls wit hin provincial juri sdiction 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 jurisd iction
will be exercis ed in the foreseeable future.
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 t hat a warrant or summons
authorized by the Code, or an appear ance notice, promise to appear,
undertaking or recogn izance issued, given, or entered into in accord-
ance with the Code, may be i ssued, executed, given, or entered into on
a holiday,15 including a Sunday.16 An arrest under warra nt 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 t hat were dies non juridicus in Engla nd,
10 Lord’s Day Alliance of Canad a v. A.G. B.C., [1959] S.C.R. 497.
11 Reference 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.).
12 R. 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.).
14 Ex 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.).
15 R. v. McGillivray (1907), 41 N.S.R. 321 (C.A.); R. v. Train (1959), 31 C.R. 139
(N. B.C. A.).
16 Interpretation Act, R.S .C. 1985, c. I-21, s. 35.
17 R. v. Leahy (1901), 35 N.B.R. 509 (C.A.); and R. v. Smit h, [1927] 2 D.L.R. 982 (Man.
C. A.).

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