Criminal Law
| Author | M.H. Ogilvie |
| Pages | 157-188 |
Chapter
Five
Criminal
Law
A.
INTRODUCTION
At
one
time,
a
description
of the
criminal
law in a
book about
law and
religion might have entailed
discussion
of the
entire criminal
law
because
that
law so
closely
reflected
divine law,
and 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
Christianity, espe-
cially
in
relation
to
offences
against
the
person.
The law
also
now
per-
mits, 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
Cana-
da
who
either share
the
same religious texts
or
other religious texts that
enjoin
believers
to
similar standards
of
personal conduct.
In
this
chapter,
the
topics covered
are
those sections
of the
Criminal
Code1
that either expressly deal with religion
per se or
that would
be
rec-
ognized, still,
by
most people
in
Canada
as
having
a
religious background
and
context.
The
latter category
is
potentially large,
if
crimes such
as
murder
or
manslaughter were included,
so
these obvious categories have
been
excluded
in
favour
of
categories
in
which religious actors
in
Cana-
dian society have sought
a
role, such
as
suicide, abortion,
the
right
to
life,
1
R.S.C. 1985,
c.
C-46.
157
158
RELIGIOUS
INSTITUTIONS
AND THE LAW
and the
duty
to
preserve
life.
Nor is
consideration given
to
criminal cat-
egories such
as
sexual assault, even when committed
by
clergy, because
there
is no
specifically religious significance
to the
normal application
of
the
criminal
law to
such
offenders.
Civil
law
implications
of
criminal
conduct,
such
as
vicarious liability
on the
part
of the
employer religious
institution,
are
considered
in
later chapters.
B.
SUNDAY
OBSERVANCE
Although
no
provision
in the
Criminal
Code
either expressly regulates
the
religious
observance
of
Sunday
or
prescribes
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 section
91(27)
of the
Constitution
Act,
1867?
Parliament
still
retains exclusive
legislative
authority over Sunday observance; 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
Sunday,5
permitting Sunday
movies,6
horse
racing,7
and
dance
halls8
has
been declared invalid. Moreover,
a
somewhat extended construction
of
the
federal
criminal
law
power over Sunday regulation
has
also
led the
Supreme
Court
of
Canada
to
find
that provincial legislation purporting
to
regulate
the
observance
of
certain Roman Catholic
feast
days
was
also
an
unconstitutional infringement
of the
federal
criminal
power.9
2
A.G.
Ontario
v.
Hamilton
Street
Railway
(EC.).
For a
full
discussion,
see
above chapter
4,
section D(2).
3
R.S.C.
1985, App.
II,
No. 5.
4
295.
5
Ouimet
v.
Bazin
(1912),
46
S.C.R.
502.
6
Mann
v.
United
Amusement
Corp.
(1929),
47
Que. K.B.
1
(C.A.).
7
Connaught
Park
Jockey
Club
v.
District
Magistrate'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
Montreal).
9
Henry
Birks
&>
Sons
(Montreal)
Ltd.
v.
City
of
Montreal,
[1955]
S.C.R.
799.
Criminal
Law 159
On the
other hand,
and
despite lingering doubts
as to
whether Par-
liament
may
delegate
its
jurisdiction
to the
provinces
or
that
the
opting
out
clauses
in the
federal
Lord's
Day Act
were properly construed
as
del-
egation,
provincial legislation
has
been
found
to be
intra
vires
in
relation
to
Sunday
sports.10
In
addition, provincial legislation pursuant
to
section
92(13)
or
section
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
intra
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
affirmed
a
decision
of the
Provincial Court that Remembrance
Day
legislation should
not be
classified
as
criminal
law and
that
its
regu-
lation
falls
within provincial jurisdiction pursuant
to
section
92(13).
While these cases stand
and
continue
to
define
the
contents
and
con-
tours
of
federal
jurisdiction pursuant
to
section
91(27)
over Sunday reg-
ulation,
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
accor-
dance
with
the
Code,
may be
issued, executed, given,
or
entered into
on
10
Lord's
Day
Alliance
of
Canada
v.
A.G. B.C.,
[1959]
S.C.R.
497.
11
Reference
Re
Legislative
Jurisdiction
over
Hours
of
Labour,
[1925]
S.C.R.
505;
A.G.
Canada
v.
A.G.
Ontario,
(EC.);
Cusson
v.
Philion,
[1961]
Que.
Q.B.
566
(C.A.);
Lieberman
v.
R.,
[1963]
S.C.R.
643;
and R. v.
Top
Banana
Ltd.
(1974),
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
(C.A.).
14 Ex
parte
Frecker
(1897),
33
C.L.J.
248
(N.B.S.C.);
and R. v.
Lawlor
(1916),
44
N.B.R.
347
(K.B.).
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