R. v. Videoflicks Ltd. et al., (1984) 5 O.A.C. 1 (CA)

• Judge: Howland, C.J.O., Arnup, Martin, Robins and Tarnopolsky, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: September 19, 1984
• Jurisdiction: Ontario
• Citations: (1984), 5 O.A.C. 1 (CA);1984 CanLII 44 (ON CA);48 OR (2d) 395;14 DLR (4th) 10;15 CCC (3d) 353;[1984] OJ No 3379 (QL);34 RPR 97;5 OAC 1;9 CRR 193

R. v. Videoflicks Ltd. (1984), 5 O.A.C. 1 (CA)

MLB headnote and full text

R. v. Videoflicks Ltd., Nortown Foods Ltd., Chaimovitz, Longo Brothers Fruit Markets Ltd. et al., Commisso, Magder, Edwards Books and Art Ltd., Creative Sportswear Company Ltd. et al. (appellants) and Seventh-Day Adventist Church (intervenant)

Indexed As: R. v. Videoflicks Ltd. et al.

Ontario Court of Appeal

Howland, C.J.O., Arnup, Martin, Robins and Tarnopolsky, JJ.A.

September 19, 1984.

Summary:

Eight businesses were convicted of carrying on a retail business or offering goods or services for sale on a Sunday contrary to s. 2 of the Ontario Retail Business Holidays Act. The businesses appealed on the ground, inter alia, that the prohibition against carrying on business on Sunday violated their right to freedom of conscience and religion as guaranteed by s. 2(a) of the Canadian Charter of Rights and Freedoms.

The Ontario Court of Appeal allowed the appeal of one business and entered an acquittal on this ground where the business, whose operators celebrated their Sabbath on Saturday, could show sincerely and genuinely that their rights under s. 2(a) of the Charter were violated. The appeals of two businesses were allowed and acquittals entered where the businesses were either found not to be subject to s. 2 of the Retail Business Holidays Act, or entitled to an exemption under the Act. The appeals of the other five businesses were disallowed and the convictions affirmed.

Civil Rights - Topic 300

Freedom of religion - General - Charter of Rights and Freedoms v. Bill of Rights - The Ontario Court of Appeal stated that the historical restrictions which determined the parameters of the freedom of religion under the Canadian Bill of Rights are not determinative of the freedom of conscience and religion under the Canadian Charter of Rights and Freedoms - See paragraphs 36 to 40.

Civil Rights - Topic 304

Freedom of conscience and religion defined - The Ontario Court of Appeal discussed the meaning of the phrase "freedom of conscience and religion" as it appeared in s. 2(a) of the Canadian Charter of Rights and Freedoms - See paragraphs 41 to 45.

Civil Rights - Topic 383

Freedom of religion - Infringement - Conditions precedent - The Ontario Court of Appeal stated that where one claims an exemption under the Charter to a particular government regulation or requirement on the grounds of religion or conscience, one must be prepared to show that the objection is based upon a sincerely held belief based upon a lifestyle required by one's conscience or religion - See paragraph 48.

Civil Rights - Topic 386

Freedom of religion - Infringement - Sunday observance legislation - Retail Business Holidays Act (Ont.) - The Ontario Court of Appeal held that the Retail Business Holidays Act, although secular in intent, may have the effect of infringing on a person's guaranteed right to freedom of conscience and religion under s. 2(a) of the Canadian Charter of Rights and Freedoms - See paragraphs 30 to 57.

Civil Rights - Topic 386

Freedom of religion - Infringement - Sunday observance legislation - The Ontario Retail Business Holidays Act, s. 2, restricted the operation of businesses on Sunday - The Ontario Court of Appeal held that the Act infringed the right to freedom of religion (as guaranteed by s. 2(a) of the Charter) of those who must observe a Sabbath other than on a Sunday - The court therefore held that s. 2 of the Act was of no force and effect respecting a retail business whose owners celebrated their Sabbath on Saturday and quashed a conviction against the business for remaining open on Sunday - See paragraphs 1 to 62.

Civil Rights - Topic 501

Mobility rights - Where applicable - The Ontario Retail Business Holidays Act, s. 2, restricted the operation of businesses on Sunday, subject to certain exemptions - Two local Ontario businesses charged under the Act, argued that the Act violated their right to pursue a livelihood as guaranteed by s. 6(2)(b) of the Charter - The Ontario Court of Appeal held that the Act did not offend s. 6(2)(b) of the Charter because that section dealt with the right to "move" from one province to another to work - See paragraph 67.

Civil Rights - Topic 1200

Security of the person - General - The Ontario Retail Business Holidays Act, s. 2, restricted the operation of businesses on Sunday, subject to certain exemptions - A business, charged with a violation of the Act, argued that the Act was so fundamentally discriminatory that it violated s. 7 of the Charter (the right to life, liberty and security of the person) - The Ontario Court of Appeal held that the Act did not contravene s. 7 - See paragraph 68.

Civil Rights - Topic 1851

Freedom of expression - Sunday observance legislation - The Ontario Retail Business Holidays Act, s. 2, restricted the operation of businesses on Sunday, subject to certain exemptions - The Ontario Court of Appeal held that the Act was a reasonable infringement on the right to freedom of thought, belief, opinion and expression (as guaranteed by s. 2(b) of the Charter) of a videofilm outlet whose business was affected by the Act - See paragraphs 63 to 66.

Civil Rights - Topic 8315

Canadian Charter of Rights and Freedoms - Whether statute conflicts - Considerations - Effect test - The Ontario Court of Appeal stated that in determining whether impugned legislation offends the Canadian Charter of Rights and Freedoms it is necessary to examine the effect of the legislation and not merely the intent and purpose - See paragraphs 30 to 35.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - Freedom of religion - The Ontario Retail Business Holidays Act, s. 2, restricted the operation of businesses on Sunday, subject to certain exemptions - The Ontario Court of Appeal held that the Act infringed on the right to freedom of religion (as guaranteed by s. 2(a) of the Charter) of those who must observe a Sabbath other than on a Sunday - The court also held that for those whose rights were infringed, the infringement could not be justified as reasonable under s. 1 of the Charter - See paragraphs 58 to 62.

Civil Rights - Topic 8425

Canadian Charter of Rights and Freedoms - Operation - Effect test - The Ontario Court of Appeal held that a law which has a valid purpose or intent as far as legislative jurisdiction is concerned may in its actual operation offend the Canadian Charter of Rights and Freedoms - See paragraphs 30 to 35.

Civil Rights - Topic 8469

Canadian Charter of Rights and Freedoms - Interpretation - United States experience - Respecting freedom of religion - The Ontario Court of Appeal distinguished between the meaning of freedom of religion under the United States constitution and the Canadian Charter of Rights and Freedoms - See paragraphs 49 to 52.

Civil Rights - Topic 8591

Charter - Practice - Onus of proof - To establish that an infringement of a right is reasonable under s. 1 of Charter - The Charter, s. 1, provided that the rights set out in the Charter were subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society - The Ontario Court of Appeal reiterated that the onus of proof under s. 1 is on the party seeking to uphold the validity of the impugned legislation - The court also discussed what proof was required where it was alleged that a statute violated the right to freedom of religion - See paragraphs 59 to 61.

Civil Rights - Topic 8704

Canadian Charter of Rights and Freedoms - Preservation of multicultural heritage - Effect of - Section 27 of the Canadian Charter of Rights and Freedoms provided that the Charter should be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians - The Ontario Court of Appeal stated that any right or freedom in the Charter should be interpreted in light of s. 27 - The court also outlined the history of s. 27 and stated that the history is a useful aid in interpreting the Charter - See paragraphs 52 to 56.

Constitutional Law - Topic 3614

Paramountcy of federal statutes - Overlapping legislation - Conflict - What constitutes - Sunday observance legislation - The Ontario Court of Appeal held that there was no repugnancy between the federal Lord's Day Act and the Ontario Retail Business Holidays Act and accordingly the Acts could stand side by side without the need to invoke the doctrine of paramountcy - See paragraphs 3 to 6, 23, 24.

Constitutional Law - Topic 7293

Provincial jurisdiction - Constitution Act, s. 92(13) - Property and civil rights - Regulatory statutes - Holiday or closing legislation - Retail Business Holidays Act (Ont.) - The Ontario Court of Appeal held that the Retail Business Holidays Act (Ont.) was regulatory in scope and intent, secular in its framework and intra vires the provincial legislature under the Constitution Act, s. 92(13) (property and civil rights) - See paragraphs 3 to 23.

Constitutional Law - Topic 7511

Provincial jurisdiction - Constitution Act, s. 92(16) - Matters of a local or private nature - Holiday or closing legislation - Retail Business Holidays Act (Ont.) - The Ontario Court of Appeal held that the Retail Business Holidays Act was regulatory in scope and intent, secular in its framework and intra vires the provincial legislature under the Constitution Act, s. 92(16) (matters of a merely local and private nature) - See paragraphs 3 to 23.

Trade Regulation - Topic 4624

Retailers - Regulation - Holiday or closing legislation - Sales by retail - Defined - The Ontario Retail Business Holidays Act, s. 2, restricted the retail sale or offering for sale of goods and services by retail business establishments on Sunday - A video film rental business was charged with a violation under the Act and argued that the rental of video films was not the sale of a service by retail within the meaning of the Act - The Ontario Court of Appeal agreed that the rental of films was not a retail sale and acquitted the video film business - See paragraphs 69 to 75.

Trade Regulation - Topic 4625

Retailers - Regulation - Holiday or closing legislation - Retail business - Defined - The Ontario Retail Business Holidays Act, s. 2, restricted the retail sale or offering for sale of goods and services by retail business establishments on Sunday - A flea market operator charged under the Act, argued that his business was not carried on in a "retail business establishment" within the meaning of s. 2 because he used numerous stalls in a shopping mall on Sunday only - The Ontario Court of Appeal agreed that the stalls were not a retail business establishment and acquitted the accused - See paragraphs 76 to 80.

Trade Regulation - Topic 4630

Retailers - Regulation - Holiday or closing legislation - Exemptions - Closed during 24 hours immediately prior to Sunday - The Ontario Business Holidays Act, s. 2, restricted retail sales in retail business establishments on Sundays - A flea market operator used stalls in a mall on Sundays only - The Ontario Court of Appeal held that the flea market was not a "retail business establishment" within the meaning of s. 2 and therefore the operator was not subject to the Act - The court also held that the operator in any event was entitled to an exemption from s. 2 under s. 3(4) of the Act because his business was closed for 24 hours during the 32 hour period preceding Sunday - See paragraph 80.

Words and Phrases

Freedom Of Conscience And Religion - The Ontario Court of Appeal discussed the meaning of the phrase "freedom of conscience and religion" as it appeared in s. 2(a) of the Canadian Charter of Rights and Freedoms - See paragraphs 41 to 45.

Words and Phrases

Retail Business Establishment - The Ontario Court of Appeal held that stalls in a shopping mall used only on Sundays by a flea market operator could not be considered to be a "retail business establishment" within the meaning of the Retail Business Holidays Act, R.S.O. 1980, c. 453, s. 2, which required business establishments to be closed on Sundays - See paragraphs 76 to 80.

Words and Phrases

Retail Sale Of A Service In A Retail Business Establishment - The Ontario Court of Appeal held that a business that rented video films was not involved in the "retail sale of a service in a retail business establishment" such as to be subject to the provisions of the Ontario Retail Business Holidays Act, R.S.O. 1980, c. 453, s. 2, that required businesses to be closed on Sunday - See paragraphs 69 to 75.

Cases Noticed:

Attorney-General of Ontario v. Hamilton Street Railway Company, [1903] A.C. 524, consd. [para. 10].

Legislation Respecting Abstention from Labour on Sunday, Re (1905), 35 S.C.R. 581, consd. [para. 11].

Ouimet v. Bazin (1912), 46 S.C.R. 502, consd. [para. 11].

Parish of St. Prosper v. Rodrigue (1917), 56 S.C.R. 157, ref'd to. [para. 11].

R. v. Slowin, [1923] 1 W.W.R. 252 (B.C.S.C.), ref'd to. [paras. 11, 14].

Henry Birks & Son (Montreal) Limited v. Montreal and Attorney General of Quebec, [1955] S.C.R. 799, consd. [para. 12].

Lord's Day Alliance v. Attorney-General of Manitoba et al., [1925] A.C. 384; [1925] 1 D.L.R. 561, ref'd to. [para. 14].

Lord's Day Alliance v. Attorney-General of British Columbia et al., [1959] S.C.R. 497, ref'd to. [para. 14].

R. v. Waldon (1914), 6 W.W.R. 850 (B.C.C.A.), ref'd to. [para. 14].

Clarke v. Rural Municipality of Wawken, [1930] 1 W.W.R. 319 (Sask. C.A.), ref'd to. [para. 14].

R. v. Epstein, [1931] O.R. 726; 56 C.C.C. 139, consd. [para. 15].

Gregory and City of Hamilton, Re, [1942] 4 D.L.R. 735, consd. [para. 15].

Lieberman v. R., [1963] S.C.R. 643, consd. [paras. 16, 24].

R. v. Top Banana (1974), 4 O.R.(2d) 513, consd. [para. 17].

O'Brien v. "Royal George" (1921), 35 C.C.C. 22; 57 D.L.R. 301, consd. [para. 17].

R. v. Tamarack Foods Limited et al. (1978), 45 C.C.C.(2d) 442, consd. [paras. 18, 20].

R. v. Duncan Supermarket Limited et al. (1982), 66 C.C.C.(2d) 534, consd. [para. 19].

O'Grady v. Sparling, [1960] S.C.R. 804, ref'd to. [para. 24].

Multiple Access Limited v. McCutcheon et al., [1982] 2 S.C.R. 161; 44 N.R. 181, folld. [para. 24].

Carnation Company Limited v. Quebec Agricultural Marketing Board, [1968] S.C.R. 238, ref'd to. [para. 26].

Robertson and Rosetanni v. R., [1963] S.C.R. 651, consd. [paras. 28, 29, 36].

West Virginia State Board of Education v. Barnette (1943), 319 U.S. 624, ref'd to. [para. 29].

Russell v. R. (1882), 7 App. Cas. 829, consd. [paras. 31, 33].

Union Colliery v. Bryden, [1899] A.C. 580, consd. [paras. 31, 33].

Anti-Inflation Act, Reference Re, [1976] 2 S.C.R. 373; 9 N.R. 541, ref'd to. [para. 32].

Residential Tenancies Act, Reference Re, [1981] 1 S.C.R. 714; 37 N.R. 158, ref'd to. [para. 32].

Munro v. National Capital Commission, [1966] S.C.R. 663, ref'd to. [para. 33].

Toronto Electric Commissioners v. Snider, [1925] A.C. 396, ref'd to. [para. 33].

Attorney-General for Alberta v. Attorney-General for Canada (Alberta Bank Taxation Case), [1939] A.C. 117, ref'd to. [para. 33].

Texada Mines Ltd. v. Attorney-General of British Columbia, [1960] S.C.R. 713, ref'd to. [para. 33].

Attorney-General for Ontario v. Reciprocal Insurers, [1924] A.C. 328, ref'd to. [para. 34].

Southam Inc. and R. (No. 1), Re (1983), 41 O.R.(2d) 113, consd. [paras. 35, 49, 59].

Ontario Film and Video Appreciation Society and Ontario Board of Censors, Re (1983), 41 O.R.(2d) 583 (Div. Ct.), appealed (1984), 2 O.A.C. 388; 45 O.R.(2d) 80 (C.A.), consd. [paras. 35, 49, 59, 63].

Skapinker v. Law Society of Upper Canada (1984), 53 N.R. 169; 3 O.A.C. 321, reversing (1983), 40 O.R.(2d) 481 (Ont. C.A.), ref'd to. [paras. 37, 67].

Chaput v. Romain, [1955] S.C.R. 834, ref'd to. [para. 38].

Saumur v. City of Quebec, [1953] 2 S.C.R. 299, ref'd to. [para. 38].

R. v. Big M Drug Mart et al., [1984] 1 W.W.R. 625; 49 A.R. 194, ref'd to. [para. 40].

Edwards v. Attorney-General for Canada, [1930] A.C. 124, ref'd to. [para. 40].

Attorney-General for Canada v. Attorney-General for Ontario (Labour Conventions Case), [1937] A.C. 326, ref'd to. [para. 42].

Donald et al. v. Hamilton Board of Education et al., [1945] O.R. 518, consd. [para. 44].

New York v. Sandstrom et al. (1939), 279 N.Y. 523, ref'd to. [para. 44].

Civil Service Association of Ontario Inc. and Anderson et al., Re (1975), 9 O.R.(2d) 341, ref'd to. [para. 48].

Funk and Manitoba Labour Board, Re (1976), 66 D.L.R.(3d) 35, ref'd to. [para. 48].

McGowan v. Maryland (1961), 366 U.S. 420, dist. [paras. 49, 60].

Two Guys from Harrison-Allentown v. McGinley (1961), 366 U.S. 582, dist. [para. 49].

Braunfield v. Brown (1961), 366 U.S. 599, dist. [para. 49].

Gallagher v. Crown Kosher Supermarket of Massachusetts (1961), 366 U.S. 617, dist. [para. 49].

R. v. Oakes (1983), 40 O.R.(2d) 660, ref'd to. [para. 49].

Sherbert v. Verner (1963), 374 U.S. 398 (U.S.S.C), consd. [para. 50].

Thomas v. Review Board of the Indiana Employment Security Division et al. (1981), 450 U.S. 707, consd. [para. 51].

Minority Language Educational Rights, Re; (1984), 4 O.A.C. 321, ref'd to. [para. 53].

Federal Republic of Germany v. Rauca, 41 O.R.(2d) 225, ref'd to. [para. 59].

Clarkson Company Limited et al. v. Ace Lumber Company et al., [1963] S.C.R. 110, consd. [para. 70].

Xerox of Canada and Regional Assessment Commissioner Region No. 10 et al., Re (1980), 30 O.R.(2d) 90, consd. [para. 71].

Greenwood v. Whelan, [1967] 1 Q.B. 396, folld. [para. 78].

Maby v. Warwick Corporation, [1972] 2 Q.B. 242, folld. [para. 78].

Statutes Noticed:

Assessment Act, R.S.O. 1970, c. 32, sect. 7(1)(e) [para. 71].

Canadian Bill of Rights, R.S.C. 1970, Appendix III, generally [paras. 28, 37, 42]; sect. (1)(c) [para. 38].

Canadian Charter of Rights and Freedoms, sect. 1 [paras. 28, 49, 58 to 62]; sect. 2(a) [paras. 25 to 62]; sect. 2(b) [paras. 35, 63 to 66]; sect. 6(2)(b) [para. 67]; sect. 7 [para. 68]; sect. 27 [paras. 52 to 56, 60].

Constitution Act, 1867, sect. 91(27) [para. 4]; sect. 92(13), sect. 92(16) [paras. 5, 6]; sect. 92(15) [paras. 5, 22].

Constitution Act, 1982, sect. 52(1) [para. 62].

Constitution Amendment Act, 1978 (Bill C-60), sect. 4 [para. 55].

Holiday Shopping Regulation Act, S.B.C. 1980, c. 17 [para. 19].

International Covenant on Civil and Political Rights, art. 18 [para. 42]; art. 19(2) [para. 63]; art. 27 [para. 56].

Juvenile Delinquents Act, R.S.C. 1970, c. J-3, sect. 12(1) [para. 35].

Lord's Day Act, R.S.C. 1980, c. L-13, generally [para. 4]; sect. 4 [paras. 13, 23, 36, 39].

Lord's Day (Ontario) Act, R.S.O. 1980, c. 253 [para. 14].

Mechanics' Lien Act, R.S.O. 1960, c. 233, sect. 5(1) [para. 70].

Retail Business Holidays Act, R.S.O. 1980, c. 453, sect. 1(1)(a) [para. 7]; sect. 1(1)(b) [paras. 69, 77]; sect. 2(1) [paras. 1 to 80]; sect. 3(4) [paras. 27, 46, 57, 62, 76 to 80].

Retail Business Holiday Closing Act, S.M. 1977, c. 26 [para. 18].

Theatres Act, R.S.O. 1980, c. 498, sect. 3(2)(a) [para. 35].

United States Constitution, First Amendment [para. 49].

Authors and Works Noticed:

Black's Law Dictionary [para. 73].

Jowitt's Dictionary of English Law [para. 73].

Laskin, B., Review of B.L. Strayer - Judicial Review of Legislation in Canada, 19 U. of T.L.J. 86 [para. 31].

Oxford English Dictionary [paras. 43, 73, 77].

Random House Dictionary of the English Language [para. 77].

Strayer, B.L., The Canadian Constitution and the Courts (2nd Ed., 1983), pp. 214 to 218 [para. 31].

Webster's New World Dictionary [paras. 43, 73, 77].

Counsel:

John J. Robinette, Q.C., and Jeffrey S. Klein, for the appellant Nortown Foods Ltd.;

G.A. Levitan, for the appellant Videoflicks Ltd.;

R.J. Arcand and R.B. Hayles, for the appellant Michael Chaimovitz;

John A. Keefe, for the appellant Longo Brothers Fruit Markets Ltd. et al.;

M.P. Forestell, Q.C., for the appellant Tony Commisso;

Timothy Danson, for the appellant Paul Magder (No. 3);

John W. Brown, Q.C., and C.S. Goldman, for the appellant Edwards Books and Art Ltd.;

Theodor Kerzner, Q.C., and J.P. Maggisano, for the appellant Creative Sportswear Company Ltd. et al.;

Ian Scott, Q.C., for Seventh Day Adventist Church (Ont. Conference Corp.), Intervenant;

Bonnie J. Wein and Elizabeth C. Goldberg, for the Crown, respondent.

This appeal was heard on April 2 to 5, 1984, before Howland, C.J.O., Arnup, Martin, Robins and Tarnopolsky, JJ.A., of the Ontario Court of Appeal. The following decision of the Court of Appeal was delivered by Tarnopolsky, J.A., and was released on September 19, 1984: