A. Sunday Closing Laws

Author:Robert J. Sharpe - Kent Roach
Profession:Court of Appeal for Ontario - Faculty of Law, University of Toronto

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Sunday closing laws may be characterized as having a religious purpose. Their origins lie, at least in part, in the desire to protect against the profanation of the Christian Sabbath and to maintain Sunday as a holy day. Over time, however, Sunday closing laws have also taken on a secular purpose: that of providing workers with a day of rest or a "pause day." From this perspective, Sunday was chosen not because of its religious significance but because it historically has been a day without work. On the other hand, even if there is a secular purpose behind Sunday closing laws, they do impose burdens on those who observe another day of rest for religious reasons.

R v Big M Drug Mart,9a case dealing with the constitutionality of the federal Lord’s Day Act prohibition of Sunday shopping, was the Supreme Court’s first decision on the Charter guarantee of freedom of religion. As a corporate entity, the drug store could not claim a right to freedom of religion for itself, but, since it had been prosecuted, it was allowed to challenge the constitutionality of the Lord’s Day Act on the theory that no one should be prosecuted under an unconstitutional law.

The distribution of powers between federal and provincial governments in the Canadian federal system allows the federal Parliament to

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enact laws designed to protect religion and to prevent profanation of the Sabbath. The Lord’s Day Act was enacted pursuant to this authority to legislate with respect to the criminal law under section 91(27) of the Constitution Act, 1867. The federal Parliament does not, however, have jurisdiction to enact Sunday closing laws with a secular purpose. Legislation of that kind falls within the general provincial jurisdiction under section 92(13) over "property and civil rights," which includes labour relations and regulation of business within the province. Accordingly, any attempt to justify the Lord’s Day Act as having a secular "day of rest" purpose would make it vulnerable to a finding of invalidity on federalism grounds. As a result, the federal Lord’s Day Act was held to have the purpose of promoting observance of the Christian Sabbath.

Writing for the majority, Dickson J took the opportunity to interpret the guarantee broadly, as protecting not only the right to hold religious beliefs but also the right to express beliefs through observance, teaching, and practice. The state would violate an individual’s freedom if it coerced religious observance. In his words,

[F]reedom means that, subject to such limitations as are necessary to protect public safety, order...

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