R. v. Edwards Books and Art Ltd.

R. v. Edwards Books and Art Ltd.
Collection
Supreme Court Judgments
Date
1986-12-18
Report
[1986] 2 SCR 713
Case number
19046, 19053, 19054, 19069
Judges
Dickson, Robert George Brian; Beetz, Jean; McIntyre, William Rogers; Chouinard, Julien; Wilson, Bertha; Le Dain, Gerald Eric; La Forest, Gérard V.
On appeal from
Ontario
Subjects
Constitutional law
Notes
SCC Case Information: 19069, 19054, 19046, 19053
Decision Content
R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713
Edwards Books and Art Limited Appellant
v.
Her Majesty The Queen Respondent
and between
Her Majesty The Queen Appellant
v.
Nortown Foods Limited Respondent
and between
Longo Brothers Fruit Markets Limited, Thomas Longo, Joseph Longo, carrying on business as Longo Brothers Fruit Market Appellants
v.
Her Majesty The Queen Respondent
and between
Paul Magder Appellant
v.
Her Majesty The Queen Respondent
and
The Attorney General of Canada,
the Attorney General of Quebec,
the Attorney General of Nova Scotia,
the Attorney General for New Brunswick,
the Attorney General of Manitoba,
the Attorney General of British Columbia,
the Attorney General for Saskatchewan,
the Attorney General for Alberta,
the Attorney General of Newfoundland,
and the Ontario Conference Corporation of the Seventh‑day Adventist Church Interveners
indexed as: r. v. edwards books and art ltd.
File Nos.: 19053, 19069, 19054, 19046.
1986: March 4, 5, 6; 1986: December 18.
Present: Dickson C.J. and Beetz, McIntyre, Chouinard, Wilson, Le Dain and La Forest JJ.
on appeal from the court of appeal for ontario
Constitutional law ‑‑ Charter of Rights ‑‑ Freedom of religion ‑‑ Right to liberty ‑‑ Retail businesses required to close on Sundays ‑‑ Act premised on secular concern for common pause day ‑‑ Exemptions provided for in Act, including limited exemption for Saturday observers ‑‑ Whether or not Act within province’s legislative powers ‑‑ Whether or not Act infringed Charter rights to freedom of religion (s. 2 (a)), or the right to liberty (s. 7 ), or the right to equality before the law (s. 15 ) ‑‑ Whether or not limitation imposed by the Act on these rights justifiable in a free and democratic society ‑‑ Retail Business Holidays Act, R.S.O. 1980, c. 453, ss. 2(1), 3(4) ‑‑ Constitution Act, 1867, ss. 91 , 92 ‑‑ Constitution Act, 1982, s. 52 ‑‑ Canadian Charter of Rights and Freedoms, ss. 1 , 2 (a), 7 , 15 , 27 , 32 .
Four Ontario retailers were charged in 1983 with failing to ensure that no goods were sold or offered for sale by retail on a Sunday contrary to the Retail Business Holidays Act. The cases were tried at different times by judges of the Provincial Offences Court. Edwards, Longo and Magder won in that Court, but lost in the Provincial Offences Appeal Court and the Ontario Court of Appeal. In their appeals to this Court they challenged the constitutionality of the Retail Business Holidays Act. Little evidence, if any, as to the religious beliefs of the employees or customers, was adduced. Nortown, a kosher food store owned by Jewish businessmen, violated the Act in that the number of employees serving the public exceeded the maximum allowed in the exemption provided for in s. 3(4). Under s. 3(4), stores could open on Sunday if they had been closed on Saturday, and had no more than seven employees and had less than 5,000 square feet of retail space to serve the public. Nortown lost in the first two courts but won in the Court of Appeal. In answer to the Crown appeal, Nortown questioned the applicability of the Act to its particular business on constitutional grounds.
The constitutional questions stated by the Court queried: (1) whether or not the Retail Business Holidays Act was within the province's legislative competence; (2) whether or not ss. 2 , 7 , and/or 15 of the Charter had been violated; and (3) the extent to which an infringement of these rights could be justified by s. 1 of the Charter .
Held (Wilson J. dissenting in part): The Retail Business Holidays Act is upheld.
Held: The appeal of Edwards Books and Art Limited should be dismissed.
Held (Wilson J. dissenting): The Crown appeal against Nortown Foods Limited should be allowed and respondent convicted.
Held: The appeal of Longo Brothers Fruit Markets Limited, Thomas Longo, Joseph Longo, carrying on business as Longo Brothers Fruit Market should be dismissed.
Held: The appeal of Paul Magder should be dismissed.
Per Dickson C.J. and Chouinard and Le Dain JJ.: The Retail Business Holidays Act and the exemption found in s. 3(4) are within provincial legislative competence under s. 92 of the Constitution Act, 1867 . Although the Act abridges the freedom of religion of some Saturday‑observers, it is justifiable as a reasonable limit under s. 1 of the Charter . Accordingly, the Act is upheld.
The Act was not a surreptitious attempt to encourage religious worship but rather was enacted for the secular purpose of providing uniform holidays for retail workers. The title and text of the Act, the legislative debates and the Report on Sunday Observance Legislation all point to its secular purposes. Although the exemption in s. 3(4) was inspired by concerns about the effect of the Act on Saturday observers, not all religious matters fall within exclusive federal competence. Legislation concerning religion or religious freedom ought to be characterized in light of its context, according to the particular religious matter upon which the legislation is focussed. It is open to a provincial legislature to attempt to neutralize or minimize the adverse effects of otherwise valid provincial legislation on human rights such as freedom of religion. The exemption in s. 3(4), merely subtracted a duty imposed elsewhere in the Act. Neither the Act, nor the exemption, is ultra vires the province.
All coercive burdens on religious practice, be they direct or indirect, intentional or unintentional, foreseeable or unforeseeable, are potentially within the ambit of s. 2 (a). A more restrictive interpretation would be inconsistent with the Court's decision in R. v. Big M Drug Mart Ltd. and with the Court's obligation under s. 27 of the Charter to preserve and enhance the multicultural heritage of Canadians. This does not mean that every burden on religious practices is offensive to the constitutional guarantee of freedom of religion. Legislative or administrative action which increases the cost of practising or otherwise manifesting religious beliefs is not prohibited if the burden is trivial or insubstantial.
The impact of the Act is that it significantly infringes on the freedom of Saturday observers to manifest or practise religious beliefs. Exemptions aside, the Act imposes on the Saturday observing retailer the disadvantage of being closed an extra day relative to the Sunday observer. The competitive pressure on non‑exempt retailers to abandon the observance of a Saturday Sabbath is not insubstantial or trivial. The Act also burdens Saturday observing consumers in that it circumscribes their shopping or their seeking of professional services, and for the purposes of these appeals it will be assumed that the burden is substantial enough to constitute an abridgment of their religious freedom.
The Act had no negative impact on the rights of Sunday observers. The evidence was not satisfactory as to its impact on faiths observing weekly holidays other than Saturday or Sunday, and accordingly whether the Act infringes the freedom of religion of adherents to such faiths is a question which ought not to be answered in the present appeals. The impact on retailers who do not observe any weekly religious holiday was generally secular in nature and, absent convincing evidence that the desire to remain open was motivated by dissentient religious purposes rather than purely business considerations, did not impair or abridge their freedom of conscience or religion.
The limitations on the freedom of religion of Saturday observers imposed by the Retail Business Holidays Act met the requirements necessary to establish them as reasonable and demonstrably justified in a free and democratic society. Firstly, the Act when viewed in the context of a fast‑growing trend to wide‑scale store openings was aimed at a pressing and substantial concern and the objective it was designed to promote was sufficiently important to warrant overriding a constitutional right. The desirability of enabling parents to have regular days off from work in common with their child's day off from school, and with a day off enjoyed by most other family and community members is self‑evident.
Secondly, the legislation was appropriate to its ends and carefully designed to achieve its purposes. The exemption in s. 3(4) has the effect of very substantially reducing the impact of the Act on those religious groups for whom Saturday is a Sabbath. Although there might exist other alternative schemes to minimize the effect of the Act on the religious freedom of Saturday observers, no scheme provides complete relief for the class of Saturday observers as a whole. Moreover, the legislature cannot be faulted for limiting the availability of the s. 3(4) exemption to stores with more than seven employees working on a Sunday. The legislature has weighed the interests of more than seven vulnerable employees in securing a common day of rest against the interests of their employer in transacting business on a Sunday. Although it is incumbent on a legislature which enacts Sunday closing laws to attempt very seriously to alleviate the effects of those laws on Saturday observers, there is a point at which the large size of a retail business makes permissible a legislative decision to favour the employees' interests over those of the store owner. A serious effort has been made by the Ontario legislature to accommodate the freedom of religion of Saturday observers, in so far as that is possible, without undue damage to the scope and quality of the pause day objective.
The application of a "constitutional exemption", which might be granted to particular individuals whose religious freedom was affected by otherwise valid legislation, did not need to be considered here, since the limitation on the freedom of religion of Saturday observers has been addressed by means of a statutory exemption which is justifiable under s. 1 .
The legislation did not offend s. 7 of the Charter . "Liberty " in that section is not synonymous with unconstrained freedom. "Liberty ", whatever be its precise contours, does not extend to an unconstrained right to transact business whenever one wishes. It was not necessary to consider arguments based on the right to equality before the law because s. 15 of the Charter was not in force at the time of the store openings or convictions involved here.
Per Beetz and McIntyre JJ.: The Retail Business Holidays Act is intra vires the province. It does not contravene s. 7 of the Charter and s. 15 , as it did not have effect during the relevant time, was not applicable.
The impugned legislation does not violate the freedom of conscience and religion guaranteed by s. 2 (a) of the Charter and is of full force and effect without any need to rely on s. 1 of the Charter . The economic burden experienced by Saturday observers exists independently of the impugned legislation and results from the deliberate choice of the Saturday observer to give priority to his religious tenets over financial benefit. A similar financial disadvantage would exist for Saturday observers if all Sunday observance laws were repealed and most stores were to stay open seven days a week. In consequence, this is not the kind of prejudice contemplated in R. v. Big M Drug Mart Ltd. where it was established that the coercion must come from the state in order to amount to a violation of s. 2 (a) of the Charter .
There was no evidence as to the Act's impact on employees and there was too little evidence with respect to its effect on Saturday observing consumers to establish even a prima facie case.
Per La Forest J.: Section 2 (a) of the Charter does not require the legislature to provide a Sabbatarian exemption in order to relieve those who worship on Saturday from the burden they may suffer because of the Act.
While s. 2(a) of the Charter protects the individual against both direct and indirect legislative coercion and while some might suffer an indirect burden from the Retail Business Holidays Act sufficient to constitute an infringement of religion, the Act is demonstrably justified as a reasonable limit prescribed by law under s. 1 of the Charter . The objective of the Act is of sufficient importance to warrant some intrusion on the freedom set forth in s. 2 (a).
The Court will examine whether the means chosen by the legislature are proportionate to the ends sought to be achieved. However, in this context it must be recognized that if the legislative goal is to be achieved, it will be done to the detriment of some. In seeking to achieve a goal that is demonstrably justified in a free and democratic society, therefore, the legislature must be given room to manoeuvre. What is reasonable will vary with the context, regard being had to the nature of the interest infringed and the legislative scheme sought to be implemented. Here, exemptions for observers of days other than Sunday may substantially interfere with the workings of the Act and impose burdens on Sunday observers as well as creating inequalities. Absent unreasonableness or discrimination, the choices of having or of not having, and the nature of religious exemptions, are in essence legislative choices.
Per Wilson J. (dissenting in part): The Retail Business Holidays Act is intra vires the province because its purpose is to establish a common pause day for those employed in retail business. Section 2 of the statute, however, infringes the freedom of religion of those who close on Saturdays for religious reasons because it attaches an economic penalty to their religious observance. The limit imposed in s. 3(4) cannot be justified under s. 1 of the Charter .
A limit on freedom of religion which recognizes the freedom of some members of the group but not of other members of the same group cannot be reasonable and justified in a free and democratic society. The effect of the disparate treatment is that the religious freedom of some is respected by the legislation while the religious freedom of others continues to be violated. The Charter , when it protects group rights, protects the rights of all members of the group and not of just some members of the group because to do otherwise would introduce an invidious distinction into the group and sever the religious and cultural tie that binds them together. Section 27 of the Charter , which ties its interpretation to the preservation and enhancement of Canada's multicultural heritage, expressly precludes such an interpretation. In any event, much more compelling evidence than that adduced by the Crown would be required to establish that such disparate treatment was necessary in order to achieve the government objective of a common pause day. Section 3(4) (a) is a perfectly valid exemption from the operation of s. 2 because it recognizes and accommodates the s. 2 (a) right protected by the Charter but paras. (b) and (c) impose a limit to that exemption which is neither reasonable nor justified in a free and democratic society. These paragraphs should be severed.
Only Nortown Foods Ltd. qualified for the exemption under s. 3(4)(a) in that it was closed on the Saturday preceding the laying of the charges against it.
Cases Cited
By Dickson C.J.
Considered: R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; In re Legislation Respecting Abstention from Labour on Sunday (1905), 35 S.C.R. 581; McGowan v. Maryland, 366 U.S. 420 (1961); Braunfeld v. Brown, 366 U.S. 599 (1961); distinguished: Robertson and Rosetanni v. The Queen, [1963] S.C.R. 651; referred to: R. v. Top Banana Ltd. (1974), 4 O.R. (2d) 513; Lieberman v. The Queen, [1963] S.C.R. 643; Attorney‑General for Ontario v. Hamilton Street Railway Co., [1903] A.C. 524; Ouimet v. Bazin (1912), 46 S.C.R. 502; Henry Birks & Sons (Montreal) Ltd. v. City of Montreal, [1955] S.C.R. 799; St. Prosper (La Corporation de la Paroisse de) v. Rodrigue (1917), 56 S.C.R. 157; Attorney‑General for Canada v. Attorney‑General for Ontario, [1937] A.C. 326; Reference re Validity of Section 5(a) of the Dairy Industry Act, [1949] S.C.R. 1; Clarke v. Wawken, [1930] 2 D.L.R. 596; Attorney General for Canada and Dupond v. City of Montreal, [1978] 2 S.C.R. 770; R. v. Tamarac Foods Ltd. (1978), 96 D.L.R. (3d) 678; Walter v. Attorney General of Alberta, [1969] S.C.R. 383; Saumur v. City of Quebec, [1953] 2 S.C.R. 299; Scowby v. Glendinning, [1986] 2 S.C.R. 226; Two Guys from Harrison‑Allentown, Inc. v. McGinley, 366 U.S. 582 (1961); Gallagher v. Crown Kosher Super Market of Massachusetts, Inc., 366 U.S. 617 (1961); R. v. Jones, [1986] 2 S.C.R. 284; R. v. Oakes, [1986] 1 S.C.R. 103; Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; Williamson v. Lee Optical of Oklahoma, 348 U.S. 483 (1955); Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486.
By Beetz J.
Followed: R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295.
By La Forest J.
Considered: McGowan v. Maryland, 366 U.S. 420 (1961); referred to: R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; R. v. Oakes, [1986] 1 S.C.R. 103; Braunfeld v. Brown, 366 U.S. 599 (1961); Attorney‑General for Alberta v. Attorney‑General for Canada, [1939s <) A.C. 117, affirming Reference re Alberta Statutes, [1938] S.C.R. 100; Curr v. The Queen, [1972] S.C.R. 889; R. v. Jones, [1986] 2 S.C.R. 284; Roe v. Wade, 410 U.S. 113 (1973); State v. Gates, 141 S.E.2d 369 (W. Va. 1965).
By Wilson J.
Referred to: Attorney‑General for Alberta v. Attorney‑General for Canada, [1947] A.C. 503; Ontario Human Rights Commission and O'Malley v. Simpsons‑Sears Ltd., [1985] 2 S.C.R. 536; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295.
Statutes and Regulations Cited
Act to Prevent the Profanation of the Lord’s Day, in Upper Canada, C.S.U.C. 1859, c. 104.
Canadian Bill of Rights, R.S.C. 1970, App. III, s. 1(c).
Canadian Charter of Rights and Freedoms, ss. 1 , 2 (a), 7 , 15 , 24(1) , 27 , 32(2) .
Commercial Establishments Business Hours Act, R.S.Q., c. H‑2, s. 5.3.
Constitution Act, 1867, ss. 91 , 92 .
Constitution Act, 1982, s. 52 .
Constitution of the United States of America, First Amendment.
Day of Rest Act, S.P.E.I. 1985, c. 12, s. 4(3).
Days of Rest Act, S.N.B. 1985, c. D‑4.2, s. 7(1).
Holiday Shopping Regulation Act, S.B.C. 1980, c. 17.
Lord’s Day Act, R.S.C. 1970, c. L‑13.
Municipal Government Amendment Act, S.A. 1985, c. 43, s. 31, enacting s. 241.
Ontario Human Rights Code, S.O. 1961‑62, c. 93.
Retail Business Holidays Act, R.S.O. 1980, c. 453, ss. 1(1), 2(1), (2), 3(1), (2), (3), (4), (6), (7), (8), 4, 4(b), (c), 7.
Retail Business Uniform Closing Day Act, S.N.S. 1985, c. 6.
Retail Businesses Holiday Closing Act, S.M. 1977, c. 26.
Shops Closing Act, S.N. 1977, c. 107.
Shops (Sunday Trading Restriction) Act, 1936, 26 Geo. 5 & 1 Edw. 8, c. 53.
Sunday Observance Act, R.S.Q. 1977, c. O‑1.
Urban Municipality Act, 1984, S.S. 1983‑84, c. U‑11, s. 121, as am.
Weekly Rest in Industrial Undertakings Act, S.C. 1935, c. 14, s. 3.
Authors Cited
Canada. Canada Year Book, 1985. Ottawa: Minister of Supply and Services.
Canadian Encyclopedia, vols. 2 and 3. Edmonton: Hurtig Publishers.
Cihlar, Frank P., et al. “Church‑State‑‑State‑Religious Institutions and Values: A Legal Survey‑‑1964‑66,” 41 Notre Dame Lawyer 681 (1966).
Dworkin, Ronald. Law’s Empire. Cambridge, Mass.: Belknap Press of Harvard University, 1986.
Hogg, Peter W. Constitutional Law of Canada, 2nd ed. Toronto: Carswells, 1985.
Lempert, Richard O. and Stephen A. Saltzburg. A Modern Approach to Evidence. American Casebook Series. St. Paul, Minn.: West Publishing Co., 1977.
New Encyclopedia Britannica, Macropedia, vol. 22, 15th ed. Chicago: Encyclopedia Britannica Inc., 1986.
Ontario. Law Reform Commission. Report on Sunday Observance Legislation. Toronto: Department of Justice, 1970.
Petter, Andrew. "Not ‘Never on a Sunday’: R. v. Videoflicks Ltd. et al." (1984‑85), 49 Sask. Law Rev. 96.
Rozéfort, Wallace. "Are Corporations Entitled to Freedom of Religion Under the Canadian Charter of Rights and Freedoms ?" (1986), 15 Man. L.J. 199.
Schiff, Stanley A. Evidence in the Litigation Process, vol. 2. Toronto: Carswells, 1978.
Spellman, Richard A. "A New Look at Sunday Closing Legislation," 45 Nebraska Law Rev. 775 (1966).
Strayer, Barry Lee. The Canadian Constitution and The Courts, 2nd ed. Toronto: Butterworths, 1983.
Tarnopolsky, Walter Surma. "The Equality Rights". In The Canadian Charter of Rights and Freedoms : Commentary. Walter Surma Tarnopolsky and Gérald‑A. Beaudoin, eds. Toronto: Carswells, 1982.
APPEAL (Edwards Books and Art Limited v. The Queen) from a judgment of the Ontario Court of Appeal sub nom. R. v. Videoflicks Ltd. (1984), 48 O.R. (2d) 395, 5 O.A.C. 1, 14 D.L.R. (4th) 10, 9 C.R.R. 193, 15 C.C.C. (3d) 353, dismissing an appeal from a judgment of Conant Co. Ct. J. (1984), 11 W.C.B. 375, entering conviction on appeal and allowing an appeal from a judgment of Charlton Prov. Offences Ct. J. dismissing the charges. Appeal dismissed.
APPEAL (The Queen v. Nortown Foods Limited) from a judgment of the Ontario Court of Appeal sub nom. R. v. Videoflicks Ltd. (1984), 48 O.R. (2d) 395, 5 O.A.C. 1, 14 D.L.R. (4th) 10, 9 C.R.R. 193, 15 C.C.C. (3d) 353, allowing an appeal from a judgment of Kane Co. Ct. J. dismissing an appeal from conviction by Davidson Prov. Ct. J. Appeal allowed, Wilson J. dissenting.
APPEAL (Longo Brothers Fruit Markets Limited, Thomas Longo, Joseph Longo, carrying on business as Longo Brothers Fruit Market v. The Queen) from a judgment of the Ontario Court of Appeal sub nom. R. v. Videoflicks Ltd. (1984), 48 O.R. (2d) 395, 5 O.A.C. 1, 14 D.L.R. (4th) 10, 9 C.R.R. 193, 15 C.C.C. (3d) 353, allowing an appeal from a judgment of Latimer Prov. Offences Appeal Ct. J. entering conviction on appeal and allowing an appeal from a judgment of B. P. McDermott, Justice of the Peace, dismissing the charges. Appeal dismissed.
APPEAL (Magder v. The Queen) from a judgment of the Ontario Court of Appeal sub nom. R. v. Videoflicks Ltd. (1984), 48 O.R. (2d) 395, 5 O.A.C. 1, 14 D.L.R. (4th) 10, 9 C.R.R. 193, 15 C.C.C. (3d) 353, allowing an appeal from a judgment of Davidson Co. Ct. J. (1984), 11 W.C.B. 374, entering conviction on appeal and allowing an appeal from a judgment of Harris Prov. Ct. J. Appeal dismissed.
John W. Brown, Q.C., and Calvin S. Goldman, for the appellant Edwards Books and Art Limited.
John A. Keefe and Ted Saskin, for the appellants Longo Brothers Fruit Markets Limited, Thomas Longo, Joseph Longo, carrying on business as Longo Brothers Fruit Market.
Tim Danson, for the appellant Paul Magder.
Bonnie Wein and Elizabeth Goldberg, for the appellant‑respondent Her Majesty The Queen.
John J. Robinette, Q.C., for the respondent Nortown Foods Limited.
Graham R. Garton, for the intervener the Attorney General of Canada.
Réal A. Forest and Pierre Jauvin, for the intervener the Attorney General of Quebec.
Reinhold Endres and Alison Scott, for the intervener the Attorney General of Nova Scotia.
Bruce Judah, for the intervener the Attorney General for New Brunswick.
Brian F. Squair, Q.C., for the intervener the Attorney General of Manitoba.
Joseph J. Arvay, for the intervener the Attorney General of British Columbia.
Robert J. Richards, for the intervener the Attorney General for Saskatchewan.
William Henkel, Q.C., for the intervener the Attorney General for Alberta.
Leslie R. Thoms, for the intervener the Attorney General of Newfoundland.
David B. Thomas, for the intervener the Ontario Conference Corporation of the Seventh‑day Adventist Church.
The judgment of Dickson C.J. and Chouinard and Le Dain JJ. was delivered by
1. The Chief Justice‑‑In this appeal the Court is called upon to consider the constitutional validity of Sunday closing legislation enacted by the Province of Ontario sub nom. Retail Business Holidays Act, R.S.O. 1980, c. 453. Four Ontario retailers were charged in 1983 with failing to ensure that no goods were sold or offered for sale by retail on a holiday, contrary to s. 2 of the Retail Business Holidays Act. Each of the retailers admits that his store was open for business on a Sunday. In the Ontario Court of Appeal, in a decision reported sub nom. R. v. Videoflicks Ltd. (1984), 48 O.R. (2d) 395, three of the retailers, the appellants, Edwards Books and Art Ltd., Longo Brothers Fruit Markets Ltd. et al., and Paul Magder, were convicted. In their appeals to this Court they challenge the constitutional validity of the Retail Business Holidays Act. The fourth, the respondent Nortown Foods Ltd., was acquitted. In answer to a Crown appeal, Nortown Foods Ltd. questions on constitutional grounds the applicability of the Act to its particular business. Nortown Foods Ltd. asks to be exempted from the Act, saying that otherwise its freedom of religion, or that of its owners, would be violated.
2. The Attorneys General of each of the provinces except Prince Edward Island have intervened in support of Ontario. The Ontario Conference Corporation of the Seventh‑day Adventist Church lends its voice to that of the retailers. The Attorney General of Canada has intervened to question the manner in which the Ontario Court of Appeal purported to apply s. 52 of the Constitution Act, 1982 to acquit Nortown.
3. Counsel for the retailers and for the Seventh‑day Adventist Church have variously selected arrows from a quiver of constitutional arguments against the Retail Business Holidays Act. Sections 2 (a), 7 and 15 of the Canadian Charter of Rights and Freedoms and the distribution of powers under the Constitution Act, 1867 have each been invoked by at least one of the retailers.
4. This Court had the opportunity to consider federally enacted Sunday‑closing legislation in R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295. The majority of the Court in the Big M Drug Mart Ltd. case, while acknowledging the importance of the effects of legislation, relied on the predominantly religious purpose of the Lord’s Day Act, R.S.C. 1970, c. L‑13, in finding that Act to be inconsistent with freedom of conscience and religion guaranteed by s. 2 (a) of the Charter .
5. The present cases require a consideration of the effects of the Retail Business Holidays Act as well as its purpose or purposes.
I
The Constitutional Questions
6. The following constitutional questions were stated by the Court in these appeals:
1. Is the Retail Business Holidays Act, R.S.O. 1980, c. 453, within the legislative powers of the Province of Ontario pursuant to s. 92 of the Constitution Act, 1867 ?
2. Does the Retail Business Holidays Act, R.S.O. 1980, c. 453 or any part thereof, infringe or deny the rights and freedoms guaranteed by ss. 2 (a), 7 , and/or 15 of the Canadian Charter of Rights and Freedoms and, if so, to what extent does it infringe or deny these rights?
3. If the Retail Business Holidays Act, R.S.O. 1980, c. 453, or any part thereof, infringes or denies in any way ss. 2 (a), 7 and/or 15 of the Canadian Charter of Rights and Freedoms , to what extent, if any, can such limits on the rights protected by these sections be justified by s. 1 of the Canadian Charter of Rights and Freedoms and thereby rendered not inconsistent with the Constitution Act, 1982 ?
II
The Legislation
7. The scheme of the Retail Business Holidays Act is simple. Section 1 defines "holiday" to include Sundays and various other days, including some days which are of special significance to Christian denominations, and some which are clearly secular in nature:
1.‑‑(1) In this Act,
(a) "holiday" means,
(i) New Year's Day
(ii) Good Friday
(iii) Victoria Day
(iv) Dominion Day
(v) Labour Day
(vi) Thanksgiving Day
(vii) Christmas Day
(iii) Boxing Day
(ix) Sunday, and
(x) any other public holiday declared by proclamation of the Lieutenant Governor to be a holiday for the purposes of this Act;
8. Sections 2 and 7 make it an offence to carry on a retail business on a holiday, punishable by a maximum fine of $10,000:
2.‑‑(1) Every person carrying on a retail business in a retail business establishment shall ensure that no member of the public is admitted thereto and no goods or services are sold or offered for sale therein by retail on a holiday.
(2) No person employed by or acting on behalf of a person carrying on a retail business in a retail business establishment shall,
(a) sell or offer for sale any goods or services therein by retail; or
(b) admit members of the public thereto on a holiday.
7. Every person who contravenes section 2 is guilty of an offence and on conviction is liable to a fine of not more than $10,000.
9. Sections 3 and 4 contain a diverse array of exceptions. Most "corner store" operations are exempted by s. 3(1). Pharmacies, gas stations, flower stores, and, during the summer months, fresh fruit and vegetable stores or stands are excluded by s. 3(2) and (3). Section 3(6) exempts educational, recreational or amusement services. Prepared meals, laundromat services, boat and vehicle rentals and service are permitted under s. 3(7). Section 3(8) and s. 4 allow a municipality to create its own scheme of exemptions where necessary for the promotion of the tourist industry.
10. A particularly controversial exemption is contained in s. 3(4). It applies to businesses which, on Sundays, have seven or fewer employees engaged in the service of the public and less than 5,000 square feet used for such service. Its effect is to exempt these businesses from having to close on Sunday if they closed on the previous Saturday:
3.‑‑ ...
(4) Section 2 does not apply in respect of the carrying on of a retail business in a retail business establishment on a Sunday where,
(a) the retail business establishment was closed to the public and no goods or services were sold or offered for sale therein during a period of twenty‑four consecutive hours in the period of thirty‑two hours immediately preceding the Sunday; and
(b) the number of persons engaged in the service of the public in the establishment on the Sunday does not at any time exceed seven; and
(c) the total area used for serving the public or for selling or displaying to the public in the establishment on the Sunday is less than 5,000 square feet.
III
The Facts
11. The four cases were tried by different judges of the Provincial Offences Court at different times. The facts in each of the cases are as follows.
Edwards Books and Art Ltd.
12. On Sunday, March 6, 1983, police officers observed the Edwards Books and Art Store in Toronto to be open for business and admitting the public. A sign posted outside the store read, "Open Sunday, 11 to 6". By consent, the facts were read into the record by Crown counsel and the only evidence on the record of the religious persuasion of the company's principals is contained in the following exchange in the trial court:
MR. ATKINSON [Crown Counsel]: ... My understanding is that the principals of this company are of the Jewish faith and accordingly my understanding is that their Sabbath day would be on a Saturday. Can you confirm that, Mr. Scott?
MR. SCOTT [Defence Counsel]: Well, I can confirm that the owners may be. I haven't asked them lately.
13. There was no evidence at trial concerning the religious beliefs of the company's employees. Nor was there any evidence that the store's customers were predominantly of any particular faith.
14. Edwards Books and Art Ltd. did not close its store on Saturday, March 5, 1983.
Longo Brothers Fruit Markets Ltd.,
Tommy Longo and Joseph Longo
15. Tommy Longo is the President and Joseph Longo is the Secretary of Longo Brothers Fruit Markets Ltd. The company operates a full service grocery store "akin to a Loblaws or a Dominion" in Oakville, Ontario.
16. The store was carrying on business, admitting the public, and selling goods, on Sunday, December 5, 1982 and Sunday, December 12, 1982. The store had not been closed on the preceding Saturdays.
17. There was no evidence regarding the religious beliefs of Tommy or Joseph Longo or of the owners, employees or customers of the store.
18. The defence called two witnesses, neither of them having any apparent connection with Longo's Fruit Market. The first, Mottle Goodbaum, ran a supermarket in Toronto which stayed open on Sundays. The supermarket specialized in Kosher foods and was supervised by an inspector from the Canadian Jewish Congress. In order to conform to Kosher requirements, the store had to close on the Jewish Sabbath and on other Jewish holidays. Mr. Goodbaum testified that eighty‑five percent of the store's customers were Jewish. The store had, at one time, closed on Sundays. When it did, customers complained bitterly about their inability to shop properly, particularly on occasions when a Sunday fell between other Jewish religious holidays and/or other holidays defined by the Act. Mr. Goodbaum's evidence was that the store was too large to comply with paras. 3(4)(b) and (c).
19. The second defence witness was Bhulesh Lodhia, a jeweller carrying on business in the Gerrard India Bazaar in Toronto. The India Bazaar is a complex of stores operated by approximately forty‑five businessmen of East Indian culture, including Hindus, Sikhs and Moslems. Mr. Lodhia said that most of his customers likewise were Hindus, Sikhs and Moslems. He testified that there were various Hindu holidays "which we observe. Not necessarily close because if we were to couple closing on our own religious days with the Christian holidays then we probably would be out of business". I will refer to other portions of Mr. Lodhia's testimony below.
Paul Magder
20. Paul Magder operates a retail fur store in Toronto as a sole proprietorship. Police officers observed that his store was open for business on Sunday, July 17, 1983, and that it had been open the preceding Saturday. In the window of the store were two "open" signs and the words, "Toronto's best known Sunday seller".
21. There was evidence at trial that Paul Magder's store was located within a tourist exemption area known as "Chinatown West" designated by the municipality of Metropolitan Toronto under s. 4 of the Act. The relevant by‑laws of Metropolitan Toronto, which form part of the record, indicate, however, that furriers are not exempted from the Act. Mr. Magder's evidence was that many of his customers were American and that between twenty and fifty percent of his sales were on Sundays.
22. There was no evidence of the religious persuasion of Paul Magder's customers or employees, nor of his own religious beliefs, except for his assertion that, "I believe I have the freedom of conscience. If I wish to work on Sunday I have that right".
Nortown Foods Ltd.
23. Nortown Foods Ltd. is a corporation with two shareholders, both of the Jewish faith. It operates a grocery store specializing in the sale of fresh meats, poultry and groceries, primarily for a Jewish clientele. There was no evidence regarding the square footage of Nortown's store. Its products are Kosher and it has closed every Saturday and on other Jewish religious days for the twenty‑two years of its existence. Two customers testified that they would not patronize the store if it were open on Saturdays.
24. On Sunday, January 16, 1983, Nortown Foods Ltd. was open for business. A police officer observed fifteen employees working in the establishment, of which nine (two more than the number permitted by s. 3(4)) were serving customers. There was evidence from one of the company's principals that the store could not operate on Sundays if it were limited to seven employees. He also testified that Thursdays and Sundays were the two busiest days of the week and it would be detrimental for the business to close on Sundays. The trial judge asked the witness if he went to the synagogue every Saturday. He replied, "almost every Saturday".
25. There was no evidence regarding the religious beliefs of the company's directors or employees.
IV
Judgments Below
(A) Provincial Offences Court
Edwards Books and Art Ltd.
26. Charlton Prov. Offences Ct. J. dismissed the charge against Edwards Books and Art Ltd. relying on s. 2 (a) of the Charter . He held that although it was constitutionally permissible for the Ontario Legislature to select a weekly pause day and that it was permissible for that day to be Sunday, the Act did not make adequate provision for those people who would select another day of rest or those who "want nothing to do with Sunday".
Longo Brothers Fruit Markets Ltd. et al.
27. Justice of the Peace McDermott concluded that the Act infringed the rights of persons of the Jewish faith under s. 2 (a) and s. 27 of the Charter . He arrived at this conclusion by looking, in a general way, to the effects of the legislation. Accordingly, he dismissed the charges against the corporate and individual defendants.
Paul Magder
28. Harris Prov. Ct. J. acquitted Paul Magder. He held that in so far as the Retail Business Holidays Act concerned itself with Sundays, as distinct from the other named holidays, it was ultra vires the province as trenching upon the federal criminal law power.
Nortown Foods Ltd.
29. Nortown Foods Ltd. was convicted at trial by Davidson Prov. Ct. J. In his view, the Act created inconvenience for the defendant and the defendant's customers, but did not infringe their freedom of religion. He found that any penalty imposed by the Act on Jews was no different than the burden on members of any other religious group.
(B) Provincial Offences Appeal Court
Edwards Books and Art Ltd.
30. Conant Co. Ct. J. allowed the Crown appeal and convicted the defendant. He held that the purpose of the Act was secular and intra vires, there being no evidence that the Act was passed as part of a strategy to preserve the religious sanctity of Sundays. In disposing of the freedom of religion issue, Conant Co. Ct. J. relied on the decision of this Court in Robertson and Rosetanni v. The Queen, [1963] S.C.R. 651, as authority for the proposition that extra economic sacrifice by persons whose religious day of rest is not Sunday cannot be seen as infringing their freedom to practice their own religion. In his view, the incidental effect of the Act on religious practices was too marginal to characterize the Act as relating to freedom of religion.
Longo Brothers Fruit Markets Ltd. et al.
31. Latimer Prov. Offences Appeal Ct. J. allowed the Crown appeal. He ruled that the inconvenience to customers and possible economic detriment to retailers were insufficient to constitute a violation of s. 2 (a). In the alternative, he found the Act to be a reasonable limit on freedom of religion under s. 1 . The distribution of powers was not argued.
Paul Magder
32. Davidson Co. Ct. J. substituted a conviction for the acquittal in the court below, allowing the Crown appeal. In reaching the conclusion that the Retail Business Holidays Act was intra vires the province, he relied on R. v. Top Banana Ltd. (1974), 4 O.R. (2d) 513, in which Lieberman v. The Queen, [1963] S.C.R. 643, was applied.
33. Davidson Co. Ct. J. then turned to s. 2 (a) of the Charter . In his view, a conclusion that the Act did not intrude upon federal legislative jurisdiction over the profanation of the Sabbath necessarily dictated that there was no infringement of freedom of religion.
Nortown Foods Ltd.
34. Kane Co. Ct. J. dismissed Nortown's appeal from conviction without written reasons.
(C) Ontario Court of Appeal
35. The Court of Appeal was concerned with eight appeals from convictions under the Retail Business Holidays Act. I will restrict my summary of the Court's decision to the reasons relating to the four appeals present