R v. Big M Drug Mart [1985]

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R v. Big M Drug Mart 1985
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Judgment per Dickson, C.J.

• First SCC decision on Charter guarantee of
  freedom of religion
• Lords Day Act, R.S.C. 1970 required businesses
  to close on Sunday
• Origin of such laws desire to maintain Christian
  Sabbath as a holy day
• Main Question Does the Lords Day Act, R.S.C.
  1970 infringe Section 2(a) of the Charter which
  guarantees freedom of conscience and religion

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• Preliminary Question
• What is the purpose of Lords Day legislation?
• Two possibilities
• securing public observance of the Christian
  institution of the Sabbath (53) religious
• providing for uniform day of rest from labour
  (53) secular

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Division of Powers

• If 1., then falls within constitutional
  jurisdiction of federal Parliament to use the
  criminal sanctions at its disposal to achieve a
  religious purpose (58)
• If 2., then falls within jurisdiction of
  provincial legislatures to legislate with respect
  to business and labour relations
• Historically, there seems little doubt that it
  was religious purpose which underlay the
  enactment ofLords Day legislation in Canada
  and the Commonwealth (53)

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• A finding that the Lords Day Act has a secular
  purpose issimply not possible. Its religious
  purpose, in compelling sabbatical observance, has
  long been established and consistently maintained
  by the courts of this country. (54)
• AG Alta. claims purpose irrelevant only effects
  relevant to constitutionality

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• SCC both purpose and effect are relevant in
  determining constitutionality either an
  unconstitutional purpose or an unconstitutional
  effect can invalidate legislation. (54)
• Intended and actual effects have often been
  looked to for guidance in assessing legislations
  object and thus, its validity. (54)

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• the effects test will only be necessary to
  defeat legislation with a valid purpose effects
  can never be relied upon to save legislation with
  an invalid purpose. (55)
• So cannot argue that, despite invalid purpose
  (sabbatical observance), the effects of Lords
  Day Act (common day of rest) enough to save Act

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Shifting Purpose Doctrine

• AG of Saskatchewan the purpose of legislation
  may shift, or be transformed over time by
  changing social conditions (55)
• Purpose originally religious currently secular
  (common day of rest)

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• Shifting purpose doctrine rejected
• Creates uncertainty
• Encourages re-litigation (as purpose shifts)
• stands in contrast to fundamental notions
  developed in our law concerning the nature of
  Parliamentary intention. (55)
• Purpose is a function of the intent of those who
  drafted and enacted the legislation at the time,
  and not of any shifting variable. (55)

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• In result, therefore, the Lords Day Act must
  be characterized as it has always been, a law the
  primary purpose of which is the compulsion of
  sabbatical observance. (55)

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• Therefore, Lords Day Act
• Falls under Federal jurisdiction not ultra
  vires
• engages Sec 2(a)s freedom of conscience and
  religion

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Interpreting Charter Rights The Purposive
Approach

• New Question Does an Act of Parliament with the
  purpose of compelling observance of Christian
  Sabbath infringe freedom of conscience and
  religion guaranteed by Sec. 2(a) of Charter?
• Preliminary Question How to interpret Charter
  rights and freedoms?

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Interpreting Charter Rights The Purposive
Approach, contd

• The meaning of a right or freedom guaranteed by
  the Charter is to be ascertained by an analysis
  of the purpose of such a guarantee it is to be
  understoodin light of the interests it was meant
  to protect. (56)

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Interpreting Charter Rights The Purposive
Approach, contd

• Purpose of a right or freedom is to be sought by
  reference to
• the larger objects of Charter itself (various
  interests meant to be protected)
• the language chosen to articulate the specific
  right or freedom
• the historical origin of concepts enshrined
• Where applicable, the meaning and purpose of
  other rights associated with it in text

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Interpreting Charter Rights The Purposive
Approach, contd

• Interpretation should be
• a generous rather than a legalistic one
• aimed at fulfilling the purpose of the
  guarantee and
• securing for individuals the full benefit of the
  Charters provisions
• placed in its proper linguistic, philosophic and
  historical contexts. (56-7)

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Section 2(a)

• Specific Questions re Meaning of Sec 2(a)
• What does freedom mean?
• Does legislation the purpose of which is to
  compel sabbatical observance violate the freedom
  of religion of non-Christian Canadians?

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• Freedom
• founded in respect for the inherent dignity and
  inviolable rights of the human person (55)
• Freedom can primarily be characterized by the
  absence of coercion or constraint. (55, emphasis
  added)

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• Freedom in a broad sense embraces both the
  absence of coercion and constraint, and the right
  to manifest beliefs and practices. Freedom means
  that, subject to such limitations as are
  necessary to protect public safety, order,
  health, or morals or the fundamental freedoms of
  others, no one is to be forced to act in a way
  contrary to his beliefs or his conscience. (55,
  emphasis added)
• 1. Not prevented from doing X
• 2. Not compelled to do Y
• the tyranny of the majority (55)
• de Tocqueville J.S. Mill

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• Non-Christians are prohibited for religious
  reasons from carrying out activities which are
  otherwise lawful, moral and normal. (55-6)
• disparate impact destructive of the religious
  freedom of the collectivity. (56)
• If I am a Jew or a Sabbatarian or a Muslim, the
  practice of my religion at least implies my right
  to work on a Sunday if I wish...any law purely
  religious in purpose, which denies me that right,
  must surely infringe my religious freedom. (56)

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• whatever else freedom of conscience and
  religion may mean, it must at the very least mean
  this government may not coerce individuals to
  affirm a specific religious belief or to manifest
  a specific religious practice for a sectarian
  purpose. (57)
• it is non-action rather than action that is
  being decreed, butcompulsion is nevertheless
  what it amounts to. 957)

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First Main Conclusion

• The state shall not use the criminal sanctions
  at its disposal to achieve a religious purpose,
  namely, the uniform observance of the day chosen
  by the Christian religion as its day of rest.
  (58)
• the true purpose of the Lords Day Act is to
  compel the observance of the Christian Sabbath
  and I find that the Actinfringes upon the
  freedom of conscience and religion guaranteed in
  s. 2(a) of the Charter (58)

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New Question Sec 1 Justification

• Lords Day Act shown to infringe freedom of
  conscience and religion of non-Christians
• New Question Can the infringement nevertheless
  be justified because its among those reasonable
  limits prescribed by law as can be demonstrably
  justified in a free and democratic society?
  (sec. 1)

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Reasonable Limit?

• Reasons given
• Convenience Choice of day of rest adhered to by
  Christian majority most practical
• Everyone accepts the need and value of a
  universal day of rest from all work, business and
  labour and it may as well be the day
  traditionally observed in our society (58)

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• Dicksons response
• Reason 1 an argument of convenience and
  expediencyfundamentally repugnant
• Rights should not be infringed for reasons of
  convenience

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• Reason 2 imputes a secular objective which
• (a) violates separation of powers
• (b) is not the objective of the Act
• (c) it seems disingenuous to say that the
  legislation is valid criminal law and offends s.
  2(a) because it compels the observance of a
  Christian religious duty, yet it is still a
  reasonable limit, demonstrably justifiable
  because it achieves a secular purpose the
  legislators presumably did not intend (58)
  nor should have intended as per (a) above?

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Wilson J.s Concurring Opinion

• Agrees with Dickson as to result differs on
  reasons
• Charter is first and foremost an
  effects-oriented document
• Lords Day Act has the effect of
• Requiring all to observe Christian Sabbath
• Protecting one religion at expense of others,
  thus leading to
• disparate impact destructive of the religious
  freedom of the collectivity. (59)

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• The Act infringes on the freedom of conscience
  and religion guaranteed in s. 2(a) of the
  Charter. This is not, however, because the
  statute was enacted for this purpose but because
  it has this effect. In my view, so long as a
  statute has such an actual or potential effect on
  an entrenched right, it does not matter what the
  purpose behind the enactment was (59)

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Questions

• Is prohibiting non-Christians from working on
  Sunday forcing them
• to affirm a specific religious belief
• to manifest a specific religious practice?, or
  only
• to refrain from working when they would otherwise
  have the right to do so?
• Are non-Christians who are compelled not to work,
  affirming a religious belief or just not
  working?
• Are non-Christians who are compelled not to work,
  manifesting a religious practice?
• Can one affirm or manifest a religious practice
  without intending to do so without seeing
  oneself as doing so?

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Questions, contd

• Is it relevant that observant Jews and Muslims
  prohibited (in one case by law, in other by
  religious duty) from working on two Sabbaths but
  Christians only one? (disparate impact)

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Questions, contd

• Would compelled Sunday observance be a
  reasonable limit on religious freedom if
  non-Christians entitled, by law, not to work on
  own Sabbath/day of rest?
• reasonable accommodation