R. v. Big M Drug Mart Ltd., (1985) 60 A.R. 161 (SCC)

• Judge: Ritchie, Dickson, Beetz, McIntyre, Chouinard, Lamer and Wilson, JJ.
• Court: Supreme Court (Canada)
• Case Date: April 24, 1985
• Jurisdiction: Canada (Federal)
• Citations: (1985), 60 A.R. 161 (SCC);[1985] 1 SCR 295;1985 CanLII 69 (SCC);18 DLR (4th) 321;[1985] 3 WWR 481;37 Alta LR (2d) 97;60 AR 161;18 CCC (3d) 385;58 NR 81;[1985] SCJ No 17 (QL);13 CRR 64;[1985] ACS no 17

R. v. Big M Drug Mart Ltd. (1985), 60 A.R. 161 (SCC)

MLB headnote and full text

R. v. Big M Drug Mart Ltd.

Indexed As: R. v. Big M Drug Mart Ltd.

Supreme Court of Canada

Ritchie, Dickson, Beetz, McIntyre, Chouinard, Lamer and Wilson, JJ.

April 24, 1985.

Summary:

The accused retail store was charged with conducting its business on a Sunday, contrary to s. 4 of the Lord's Day Act, R.S.C. 1970, c. L-13. The Alberta Provincial Court, in a judgment not reported in this series of reports, acquitted the accused, holding that the Act was ultra vires the Parliament of Canada and also infringed the accused's right to freedom of conscience and religion as guaranteed under s. 2(a) of the Canadian Charter of Rights and Freedoms. The Crown appealed.

The Alberta Court of Appeal, in a judgment reported (1984), 49 A.R. 194, dismissed the appeal. Laycraft, J.A., Harradence and Stevenson, JJ.A., concurring, held that the Lord's Day Act infringed the fundamental right to freedom of conscience and religion guaranteed under the Charter. Belzil, J.A., dissenting, McGillivray, C.J.A., concurring, held that the Act did not infringe the accused's rights. The Crown appealed.

The Supreme Court of Canada dismissed the appeal. The court held that the purpose of the Lord's Day Act was religious and that since it compelled the observance of the Christian Sabbath it infringed upon the freedom of conscience and religion under s. 2(a) of the Charter. The court held that the Act, which by s. 52(1) of the Charter was of no force and effect, was not saved by the reasonable limits provision of s. 1 of the Charter.

Civil Rights - Topic 304

Freedom of religion - Freedom of conscience and religion defined - The Supreme Court of Canada held that whatever else it meant, freedom of conscience and religion at the very least meant that government could not coerce individuals to affirm a specific religious belief or manifest a specific religious practice for a sectarian purpose - The court stated that the freedom prevents the government from compelling individuals to perform or abstain from performing otherwise harmless acts because of the religious significance of those acts to others - See paragraphs 122, 132.

Civil Rights - Topic 304

Freedom of religion - Freedom of conscience and religion defined - The Supreme Court of Canada stated that the right to freedom of conscience and religion under s. 2(a) of the Charter of Rights and Freedoms was not limited to those persons who could prove a genuinely held religious belief. - See paragraphs 40 - 43.

Civil Rights - Topic 386

Freedom of religion - Infringement - Sunday observance legislation - The Supreme Court of Canada held that the Lord's Day Act, R.S.C. 1970, c. L-13, and particularly s. 4 thereof, infringed upon the right to freedom of conscience and religion guaranteed in s. 2(a) of the Charter of Rights and Freedoms, because the purpose of the Act was to compel the observance of the Christian Sabbath - See paragraph 135.

Civil Rights - Topic 386

Freedom of religion - Infringement of - Sunday observance legislation - The Supreme Court of Canada held that the purpose of the federal Lord's Day Act was religious, not secular - The court stated that the Act was enacted to secure public observance of the Christian institution of the Sabbath; a uniform day of rest from labour was an indirect effect of the Act, not the purpose - See paragraphs 48, 78.

Civil Rights - Topic 8004

Canadian Bill of Rights - Operation and interpretation - Bill of Rights - Nature of - The Supreme Court of Canada held that the 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 - The court held that because of the Bill of Rights limitations, cases under it were of limited value in interpreting rights under the Charter of Rights and Freedoms - See paragraphs 67, 109.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law, s. 1 - The Supreme Court of Canada noted that not every government interest or policy objective was entitled to s. 1 consideration - The court stated that principles would have to be developed for recognizing which government objectives were of sufficient importance to warrant overriding a constitutionally perfected right or freedom; that if the objective was considered under s. 1, the means chosen to achieve the objective must be reasonable (proportionality test) - See paragraph 138.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law, s. 1 - Proponents of the validity of the Lord's Day Act submitted that it was saved under s. 1 of the Charter, because the value and need of a universal day of rest and recreation was accepted - The Supreme Court of Canada held that the statute was inconsistent with the Constitution and therefore of no force and effect pursuant to s. 52(1) - The court held that it was therefore unnecessary to determine whether s. 1 could save the Act, because "it seems clear that Parliament cannot rely upon an ultra vires purpose under s. 1 of the Charter" - See paragraphs 136 - 142.

Civil Rights - Topic 8367

Canadian Charter of Rights and Freedoms - Denial of Rights - Remedies - S. 24 - The Supreme Court of Canada stated that where legislation was challenged as being unconstitutional recourse to s. 24 remedies was unnecessary, because a successful challenge would result in the legislation being "of no force and effect" pursuant to s. 52(1) of the Constitution Act - See paragraph 37.

Civil Rights - Topic 8424

Canadian Charter of Rights and Freedoms - Operation - Purpose test - The constitutionality of the Lord's Day Act, R.S.C. 1970, c. L-13, was challenged as an infringement of the right to freedom of conscience and religion under s. 2(a) of the Charter - The Supreme Court of Canada held that the initial test of the constitutionality of the Act was whether the purpose of the Act was valid - The court held that resort to the effects test was necessary only where the challenged legislation passed the purpose test - See paragraphs 80 - 97.

Civil Rights - Topic 8425

Canadian Charter of Rights and Freedoms - Operation - Effects test - The Supreme Court of Canada held that in determining whether legislation was unconstitutional as an infringement of a Charter right, the effect of the legislation on Charter rights was only to be considered if the purpose of the legislation was first found to be valid or purportedly valid - See paragraphs 80 - 97.

Civil Rights - Topic 8461

Canadian Charter of Rights and Freedoms - Interpretation - "Generous" - The Supreme Court of Canada held that Charter rights should be interpreted generously rather than legalistically - At the same time, the court warned that it was important not to overshoot the actual purpose of the right or freedom in question, but to recall that the Charter was not enacted in a vacuum and must therefore be placed in its proper linguistic, philosophic and historical contexts - See paragraph 116.

Civil Rights - Topic 8461

Canadian Charter of Rights and Freedoms - Interpretation - General - The Supreme Court of Canada stated that the Charter was intended to set a standard upon which to test both present and future legislation, therefore the meaning of the concept of a particular right or freedom was not to be interpreted solely by the degree to which that right was enjoyed by Canadians prior to the proclamation of the Charter - See paragraph 114.

Civil Rights - Topic 8462

Canadian Charter of Rights and Freedoms - Interpretation - Of purpose of right or freedom - The Supreme Court of Canada held that the purpose of a right or freedom was to be interpreted by reference to the character and the larger objects of the Charter itself, the language chosen to articulate the specific right or freedom, the historical origins of the concept enshrined, and, where applicable, the meaning and purpose of the other specific rights and freedoms with which it is associated within the context of the Charter - See paragraph 116.

Civil Rights - Topic 8469

Canadian Charter of Rights and Freedoms - Interpretation - United States experience - The Supreme Court of Canada, in determining whether the Lord's Day Act, R.S.C. 1970, c. L-13, infringed upon the right to freedom of conscience and religion under s. 2(a) of the Charter, considered the United States decisions respecting the constitutionality of their Sunday observance legislation - See paragraphs 73 - 77, 82.

Civil Rights - Topic 8473

Canadian Charter of Rights and Freedoms - Interpretation - Precedent - Pre-Charter - The Supreme Court of Canada held that pre-Charter cases decided under the Canadian Bill of Rights were of limited use in interpreting Charter rights - The court stated that the Bill of Rights was not concerned with human rights and freedoms in any abstract sense, but only with such rights and freedoms as they existed in Canada before the statute was enacted, whereas the Charter was not limited to recognizing and declaring existing rights - See paragraphs 67 - 109.

Civil Rights - Topic 8504

Canadian Charter of Rights and Freedoms - Enforcement - Jurisdiction - Court of competent jurisdiction - S. 24 - The Supreme Court of Canada referred to the two prevailing views as to which court was the "court of competent jurisdiction" in which to bring a constitutional challenge - The first view was that the competent court was the court with jurisdiction over the remedy sought; the second was that the competent court was the court that had jurisdiction over the subject matter being litigated - The court found it unnecessary to choose between the two views - See paragraph 44.

Civil Rights - Topic 8504

Canadian Charter of Rights and Freedoms - Enforcement - Jurisdiction - Court of competent jurisdiction - A company was charged with violating a provision of the federal Lord's Day Act - The Provincial Court judge declared the Act to be of no force and effect under s. 52(1) of the Constitution - The Crown submitted that the Provincial Court was not a court of competent jurisdiction to make the declaration - The Supreme Court of Canada held that where an accused is charged under constitutionally challenged legislation "it has always been open to provincial courts to declare legislation invalid in criminal cases. No one may be convicted of an offence under an invalid statute" - See paragraphs 35, 46.

Civil Rights - Topic 8508

Canadian Charter of Rights and Freedoms - Enforcement - Who may apply - A company was charged with violating the Lord's Day Act - The Crown submitted that the company, which had no conscience or religious beliefs, had no status to challenge the legislation as infringing the right to freedom of conscience and religion under s. 2(a) of the Charter - The Supreme Court of Canada held that whether the company could have religious beliefs was irrelevant, because the company did not voluntarily seek to challenge the legislation - The court stated that "any accused, whether corporate or individual, may defend a criminal charge by arguing that the law under which the charge is brought is constitutionally invalid" - See paragraphs 33-34, 37-43.

Civil Rights - Topic 8542

Canadian Charter of Rights and Freedoms - Interpretation - Freedom - The Supreme Court of Canada stated that "freedom can primarily be characterized by the absence of coercion or constraint. If a person is compelled by the state or the will of another to a course of action or an inaction which he would not otherwise have chosen, he is not acting of his own volition and he cannot be said to be truly free" - See paragraph 94.

Civil Rights - Topic 8704

Canadian Charter of Rights and Freedoms - Preservation of multi-cultural heritage - Section 27 - Effect of - Section 27 stated that "This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians" - The Supreme Court of Canada stated that "to accept that Parliament retains the right to compel universal observance of the day of rest preferred by one religion" would be inconsistent with s. 27 - See paragraph 98.

Common Law - Topic 6

Elements of - Christianity - The Supreme Court of Canada discussed, without deciding, whether Christianity formed part of the common law - See paragraph 146.

Constitutional Law - Topic 2502

Determination of validity of statutes - Purpose or aim of statute - The Supreme Court of Canada held that the initial test of the constitutionality of legislation must be whether or not the legislation's purpose is valid - The court held that the effect of the legislation need only be considered when the challenged legislation has passed or purportedly passed the purpose test - The court also stated that the effects test could never be relied on to save legislation with an invalid purpose - See paragraphs 80 - 87.

Constitutional Law - Topic 2502

Determination of validity of statute - Purpose or aim of statute - The Supreme Court of Canada held that in determining the purpose of legislation the relevant time is when the legislation was passed; the fact that the purpose may have changed because of shifting social conditions was irrelevant - The court stated that the purpose was a function of the intent of those who drafted and enacted the legislation at the time and not of any shifting variable - See paragraphs 88 - 92.

Constitutional Law - Topic 6507

Federal jurisdiction - Constitution Act, s. 91 - Criminal law - Sunday observance legislation - The Supreme Court of Canada affirmed that the Lord's Day Act, R.S.C. 1970, c. L-13, was validly enacted under the federal criminal law power under s. 91(27) of the Constitution Act - See paragraphs 143 - 145.

Constitutional Law - Topic 6507

Federal jurisdiction - Constitution Act, s. 91 - Criminal law - Sunday observance legislation - The Supreme Court of Canada stated that if the Lord's Day Act, R.S.C. 1970, c. L-13, was unconstitutional as an infringement of the right to freedom of conscience and religion under s. 2(a) of the Charter of Rights and Freedoms, it did not ineluctably follow that the whole subject of a day of rest and recreation for Canadians was exclusively committed to the provincial legislatures - The court stated that federal legislation respecting a day of rest and recreation would have to rest on some federal power under s. 91 other than the criminal law power - See paragraph 59.

Constitutional Law - Topic 7293

Provincial jurisdiction - Constitution Act, s. 92 - Property and civil rights - Regulatory statutes - Holiday or closing legislation - Day of rest - The Supreme Court of Canada stated that if the purpose of the Lord's Day Act was not religious, but rather the secular goal of enforcing a uniform day of rest from labour, the Act would come under the provincial power respecting property and civil rights under s. 92(13) of the Constitution Act and fall under provincial rather than federal competence - See paragraph 148.

Courts - Topic 5683

Provincial courts - Jurisdiction or powers - Re constitutionality of statutes - The Supreme Court of Canada stated that "it has always been open to provincial courts to declare legislation invalid in criminal cases. No one may be convicted of an offence under an invalid statute" - See paragraphs 35, 44.

Statutes - Topic 1624

Interpretation - Extrinsic aids - Prior statutes respecting same subject matter - The Supreme Court of Canada, on an appeal challenging the constitutional validity of the Lord's Day Act, R.S.C. 1970, c. L-13, considered similar Lord's Day Act legislation dating from the 7th century as an aid to determining the purpose of the Act - See paragraphs 48 - 56.

Statutes - Topic 1831

Interpretation - Intrinsic aids - Preamble - The Supreme Court of Canada, in determining whether the federal Lord's Day Act violated the right to freedom of conscience and religion under s. 2(a) of the Charter of Rights and Freedoms, referred to the preamble to the Charter - See paragraphs 10, 147.

Words and Phrases

God - The Supreme Court of Canada noted that the reference to "God" in the preamble to the Canadian Charter of Rights and Freedoms was not restricted to an identifiably Christian conception of God - See paragraphs 10, 147.

Cases Noticed:

Boardwalk Merchandise Mart Ltd. et al. v. The Queen, [1972] 6 W.W.R. 1, revsd. [1973] 1 W.W.R. 190 (Alta. C.A.), refd. to [para. 16].

Robertson and Rosetanni v. The Queen, [1963] S.C.R. 651, dist. [para. 17].

Sherbert v. Verner, et al. (1963), 374 U.S. 398, refd. to [para. 22].

Thorson v. Attorney General of Canada, [1975] 1 S.C.R. 138; 1 N.R. 225, refd. to [para. 38].

McNeil v. Nova Scotia Board of Censors, [1976] 2 S.C.R. 265; 5 N.R. 43; 12 N.S.R.(2d) 85; 6 A.P.R. 85, refd. to [para. 38].

Borowski v. Minister of Justice of Canada et al., [1981] 2 S.C.R. 265; 39 N.R. 331, refd. to [para. 38].

Attorney General for Ontario v. Hamilton Street Railway Company, [1903] A.C. 524, consd. [para. 53].

In re Legislation Respecting Abstention From Labour on Sunday (1905), 35 S.C.R. 581, refd. to [para. 55].

Lord's Day Alliance v. Attorney General of Manitoba et al., [1925] A.C. 384, refd. to [para. 56].

Lord's Day Alliance v. Attorney General of British Columbia et al., [1959] S.C.R. 497, refd. to [para. 56].

Ouimet v. Bazin (1912), 46 S.C.R. 502, consd. [para. 57].

La Corporation de la Paroisse de St. Prosper v. Rodrigue (1918), 56 S.C.R. 157, refd. to [para. 60].

Saumur v. City of Quebec, [1953] 2 S.C.R. 299, consd. [para. 61].

Henry Birks & Sons (Montreal) Ltd. v. City of Montreal, [1955] S.C.R. 799, consd. [para. 62].

Chaput v. Romain, [1955] S.C.R. 834, refd. to [para. 64].

Lieberman v. The Queen, [1963] S.C.R. 643, refd. to [para. 71].

City of Hamilton v. Canadian Transport Commission and others, [1978] 1 S.C.R. 640; 17 N.R. 573, consd. [para. 72].

McGowan v. Maryland (1961), 366 U.S. 420, dist. [para. 73].

Braunfeld v. Brown (1961), 366 U.S. 599, dist. [para. 73].

Callagher v. Crownkosher Supermarkets of Massachusetts (1961), 366 U.S. 617, dist. [para. 73].

Two Guys from Harrison-Allentown v. McGinley (1961), 366 U.S. 582, dist. [para. 73].

Quebec Association of Protestant School Boards et al. v. Attorney General of Quebec et al., [1984] 2 S.C.R. 66; 54 N.R. 196, consd. [para. 83].

Attorney General for Ontario v. Canada Temperance Foundation, [1946] A.C. 193, refd. to [para. 89].

R. v. Zelensky, [1978] 2 S.C.R. 940; 21 N.R. 372, refd. to [para. 91].

Widmar v. Vincent (1981), 454 U.S. 263, refd. to [para. 104].

Southam Inc. v. Hunter (1984), 55 N.R. 241; 55 A.R. 291 (S.C.C.), refd. to [para. 115].

Skapinker v. Law Society of Upper Canada (1984), 53 N.R. 169; 3 O.A.C. 321; 9 D.L.R.(4th) 161 (S.C.C.), refd. to [para. 116].

Board of Education v. Barnette (1943), 319 U.S. 624, refd. to [para. 126].

Reference as to the Validity of Section 5(a) of the Dairy Industry Act, [1949] S.C.R. 1, refd. to [para. 145].

Bank of Toronto v. Lambe (1887), 12 App. Cas. 575 (P.C.), refd. to [para. 154].

Munro v. National Capital Commission, [1966] S.C.R. 663, refd. to [para. 154].

Reference Re Alberta Statutes, [1939] A.C. 117 (P.C.), refd. to [para. 155].

Taxada Mines Ltd. v. Attorney General of British Columbia, [1960] S.C.R. 713, refd. to [para. 155].

Walter v. Attorney General of Alberta, [1969] S.C.R. 383, refd. to [para. 156].

Quong-Wing v. The King (1914), 49 S.C.R. 440, refd. to [para. 156].

Co-operative Committee on Japanese Canadians v. Attorney General of Canada, [1947] A.C. 87 (P.C.), refd. to [para. 156].

Morgan v. Attorney General of Prince Edward Island, [1976] 2 S.C.R. 349; 5 N.R. 455; 7 Nfld. & P.E.I.R. 537; 3 A.P.R. 537, refd. to [para. 156].

Griggs v. Duke Power Co. (1970), 401 U.S. 424, refd. to [para. 157].

Statutes Noticed:

Act Against Papists, 1593 (Imp.), 35 Eliz. I, c. 2 [para. 51].

Act Against Sectaries, 1593 (Imp.), 35 Eliz. I., c. 1 [para. 51].

Act for Punishing Diverse Abuses Committed on The Lord's Day called Sunday, 1625 (Imp.), 1 Car. I, c. 1 [para. 52].

Act for the Better Observation of the Lord's Day commonly called Sunday, 1677 (Imp.), 26 Car. II, c. 7 [para. 52].

Act for the Further Reformation of Sunday Abuses committed on the Lord's Day commonly called Sunday, 1627 (Imp.), 3 Car. I, c. 2 [para. 52].

Act for the Keeping of Holy Days and Fasting Days, 1552 (Imp.), 5 & 6 Edw. VI, c. 3 [para. 51].

Act of Uniformity, 1551 (Imp.), 5 & 6 Edw. VI, c. 1 [para. 51].

Act of Uniformity, 1559 (Imp.), 1 Eliz. I, c. 2 [para. 51].

Act to Prevent the Profanation of the Lord's Day commonly called Sunday, 1845 (Imp.), 8 Vict. c. 45 [para. 53].

Act to Repeal an Act as related to Rectories, S.C. 1851, c. 175 [para. 125].

Canadian Bill of Rights, R.S.C. 1970, App. III, generally [para. 25]; sect. 1 [para. 66].

Canada Temperance Act, R.S.C. 1927, c. 196 [para. 89].

Canadian Charter of Rights and Freedoms, 1982, preamble [para. 10]; sect. 1 [para. 136]; sect. 2 [para. 10]; sect. 24(1), sect. 32(1) [para. 13]; sect. 27 [para. 11]; sect. 29 [para. 12].

Charter of the French Language, R.S.Q. 1977, c. C-11, sect. 73 [para. 158].

Colonial Laws Validity Act (Imp.), 28 & 29 Vict., c. 63, sect. 2 [para. 35].

Constitution Act, 1867, sect. 91, sect. 92 [para. 3].

Constitution Act, 1982, sect. 52(1) [para. 13].

Convention for the Protection of Human Rights and Fundamental Freedoms (1950), 213 U.N.T.S. 221, article 9 [para. 26].

International Covenant on Civil and Political Rights (1966), G.A. Res. 2200A; 21 U.N. GAOR, Supp. No. 16, article 19 [para. 26].

Lord's Day Act, S.C. 1906, c. 27 [para. 55].

Lord's Day Act, R.S.C. 1970, c. L-13, sect. 2, sect. 4 [para. 5].

Lord's Day (Ontario) Act, R.S.O. 1980, c. 253 [para. 56].

Lord's Day (Saskatchewan) Act, R.S.S. 1978, c. L-34 [para. 56].

Statute of Westminster, R.S.C. 1970, App. III, no. 26, sect. 7(1) [para. 35].

Sunday Fairs Act, 1448 (Imp.), 27 Hen. VI, c. 5 [para. 51].

Universal Declaration of Human Rights (1948), G.A. Res. 217a; 3 U.N. GAOR, part I, article 18 [para. 26].

Authors and Works Noticed:

Barron, J.A., Sunday in North America (1965), 79 Harv. L. Rev. 42, pp. 43 [para. 77]; 53 [para. 100].

Blackstone, Commentaries IV (1897), p. 63 [para. 49].

Cotler, Freedom of Assembly, Association, Conscience and Religion, The Canadian Charter of Rights and Freedoms: Commentary (Tarnopolsky & Beaudoin Ed. 1982), pp. 201-220 [para. 86].

Funkelstein, The Relevance of Pre-Charter Case law for Post-Charter Adjudication (1982), 4 Supt. Ct. L. Rev. 267 [para. 86].

Gibson, Enforcement of The Canadian Charter of Rights and Freedoms, The Canadian Charter of Rights and Freedoms: Commentary (Tarnopolsky & Beaudoin Ed. 1982), p. 500 [para. 44].

Hogg, Canada Act 1982 Annotated (1982), p. 65 [para. 44].

Hogg, Constitutional Law of Canada (1977), pp. 80-81, 85 [para. 153].

Laskin, Canadian Constitutional Law (3rd Ed. 1969), p. 85 [para. 153].

Laskin, Freedom of Religion and the Lord's Day Act (1964), 42 Can. Bar Rev. 147 [para. 86].

Law Reform Commission of Canada, Report on Sunday Observance (1978) [para. 91].

Oxford Companion to Law [para. 30].

Tribe, American Constitutional Law (1978), p. 815 [para. 104].

Counsel:

William Henkel, Q.C., and Inge Freund, for the appellant;

Julius A. Isaac, Q.C., and Virginia L. Davies, for the Attorney General of Canada;

Richard Speight, for the Attorney General of New Brunswick;

James C. MacPherson, for the Attorney General of Saskatchewan;

Tim J. Boyle and William S. Klym, for the respondent.

This appeal was heard on March 6 and 7, 1984, at Ottawa, Ontario, before Ritchie, Dickson, Beetz, McIntyre, Chouinard, Lamer and Wilson, JJ., of the Supreme Court of Canada.

On April 24, 1985, the judgment of the Supreme Court of Canada was delivered and the following opinions were filed:

Dickson, J. - see paragraphs 1 - 150;

Wilson, J. - see paragraphs 151 - 163.

Beetz, McIntyre, Chouinard and Lamer, JJ., concurred with Dickson, J.

Ritchie, J., did not take part in the judgment.