Criminal Law

• Author: M.H. Ogilvie
• Pages: 155-187

155

CHAPTER 5

CRIMINAL LAW

A. INTRODUCTION

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

religion might have entailed discussion of much of criminal law be-

cause that law so closely ref‌lected divine law, was patently understood

to do so, and was expected to do so by most people. While the criminal

law in Canada conti nues to ref‌lect the moral commands of Christi anity,

especially in relation to offences against the person, the law also now

permits, th rough its regulation, conduct once forbidden by both divine

and civil law, but now forbidden by divine law alone to Christia ns, as

well as to adherents of other religious fa iths more recently established

in Canada who either share t he same religious texts or other relig ious

texts that enjoin believers to sim ilar 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 society have sought a role, such a s suicide, abort ion,

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 THE LAW I N CA NADA156

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

mal application of the crimi nal law to such offenders. Civil l aw impli-

cations of crimi nal conduct for religious institutions, such as vicarious

liability on the par t of the employer religious institution, are considered

in later chapters.

B. SUNDAY OBSERVANCE

Although no provi sion in the Criminal Code either expressly regulates

the religious observa nce of Sunday or prescribes wh at may or may not

be done on Sunday, the Privy Council2 est ablished that leg islation relat-

ing to Sunday falls within federal jurisdiction over criminal law within

section 91(27) of the Constitution Act, 1867.3 Parliament still retains ex-

clusive legislative authority over Sunday obser vance; however, federal

legislation in thi s area would very likely be st ruck down pursuant to

section 2(a) of the Canadian Charter of Rights and Freedoms, after the

federa l 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 observa nce legisl ation that purport s to regulate

Sunday activities as a matter of exclusive provincial jurisdiction is ultra

vires, thus provincia l legislat ion prohibiting theatr ical per formance s on

Sunday5 and permitting Sunday movies,6 hors e 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 provinci al legislation purport ing

to regulate the observa nce of certain Roman Catholic feast days was also

an unconstitutional infringement of the federal crim inal power.9

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

liament may delegate its jurisdiction to the provinces or that the opt-

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

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

discus sion, see above chapter 4, section D(2).

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

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

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

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

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

559 (Que. S.C.).

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

Montreal).

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

Criminal Law 157

as delegation, provincial legislat ion has been found to be intra vires in

relation to Sunday sports.10 In addition, provincial leg islation 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 re asonable 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 relig ious observance, to non-

religious holidays; thus in R. v. So uthl and C orp.,13 the Manitoba Court of

Appeal aff‌irmed a decision of the Provincial Court that Remembrance

Day legislation should not be classif‌ied as cri minal law and that its regu-

lation falls within provincia l jurisdiction pursuant to section 92(13).

While these cases stand and continue to def‌ine the content and

contours of federal juris diction pur suant to se ction 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 t hat a warrant or summons

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

undertaking or recogn izance issued, g iven, or entered into in accord-

ance with the Code, may be is sued, 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,

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

11 Reference Re Leg islative Jurisdiction over Hours of La bour, [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 Bana na 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. P rov. Ct.), aff ’d [1979] 2 W.W.R. 171 (Man. C.A.).

14 Ex parte Frecker (1897), 33 C.L.J. 248 (N.B.S.C.); and R. v. La wlor (1916), 44

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

15 R. v. McGillivray (1907), 41 N.S.R. 321 (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. Smith, [1927] 2 D.L.R. 9 82

(Man. C.A.).