110/7/2014 R v. Big M Drug Mart [1985]. 10/7/20142 Judgment per Dickson, C.J. First SCC decision on Charter guarantee of freedom of religion First SCC.

1104/11/2304/11/23

R v. Big M Drug Mart R v. Big M Drug Mart [1985][1985]

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Judgment per Dickson, Judgment per Dickson, C.J.C.J.

• First SCC decision on Charter First SCC decision on Charter guarantee of freedom of religionguarantee of freedom of religion

• Lord’s Day ActLord’s Day Act, R.S.C. 1970 required , R.S.C. 1970 required businesses to close on Sundaybusinesses to close on Sunday

• Origin of such laws: desire to maintain Origin of such laws: desire to maintain Christian Sabbath as a holy dayChristian Sabbath as a holy day

• Main QuestionMain Question: Does the : Does the Lord’s Day Lord’s Day ActAct, R.S.C. 1970 infringe Section 2(a) , R.S.C. 1970 infringe Section 2(a) of the Charter which guarantees of the Charter which guarantees “freedom of conscience and religion”“freedom of conscience and religion”

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• Preliminary QuestionPreliminary Question: :

What is the What is the “purpose”“purpose” of Lord’s Day of Lord’s Day legislation?legislation?

• Two possibilities: Two possibilities: 1.1. ““securing public observance of the securing public observance of the

Christian institution of the Sabbath” (53) – Christian institution of the Sabbath” (53) – religiousreligious

2.2. ““providing for uniform day of rest from providing for uniform day of rest from labour” (53) – labour” (53) – secularsecular

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Division of PowersDivision of Powers• If 1., then falls within constitutional If 1., then falls within constitutional

jurisdiction of federal Parliament to “use jurisdiction of federal Parliament to “use the criminal sanctions at its disposal to the criminal sanctions at its disposal to achieve a religious purpose” (58)achieve a religious purpose” (58)

• If 2., then falls within jurisdiction of If 2., then falls within jurisdiction of provincial legislatures to legislate with provincial legislatures to legislate with respect to business and labour relations respect to business and labour relations

• ““Historically, there seems little doubt that Historically, there seems little doubt that it was religious purpose which underlay it was religious purpose which underlay the enactment of…Lord’s Day legislation the enactment of…Lord’s Day legislation [in Canada and the Commonwealth] (53)[in Canada and the Commonwealth] (53)

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• ““A finding that the A finding that the Lord’s Day Act Lord’s Day Act has a has a secular purpose is…simply not possible. secular purpose is…simply not possible. It’s religious purpose, in compelling It’s religious purpose, in compelling sabbatical observance, has long been sabbatical observance, has long been established and consistently maintained established and consistently maintained by the courts of this country.” (54)by the courts of this country.” (54)

• AG Alta. claims AG Alta. claims purpose irrelevantpurpose irrelevant; only ; only effectseffects relevant to constitutionality relevant to constitutionality

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• SCC: “both SCC: “both purposepurpose and and effecteffect are relevant in are relevant in determining constitutionality; either an determining constitutionality; either an unconstitutional purpose or an unconstitutional purpose or an unconstitutional effect can invalidate unconstitutional effect can invalidate legislation.” (54)legislation.” (54)

• ““Intended Intended and and actualactual effects have often been effects have often been looked to for guidance in assessing looked to for guidance in assessing legislation’s object and thus, its validity.” (54)legislation’s object and thus, its validity.” (54)

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• “…“…the effects test will only be necessary the effects test will only be necessary to to defeatdefeat legislation with a valid purpose; legislation with a valid purpose; effects can never be relied upon to effects can never be relied upon to savesave legislation with an invalid purpose.” (55)legislation with an invalid purpose.” (55)

• So cannot argue that, So cannot argue that, despite invalid despite invalid purpose purpose (sabbatical observance), the (sabbatical observance), the effectseffects of of Lord’s Day Act Lord’s Day Act (common day of (common day of rest) enough to save rest) enough to save ActAct

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ShiftingShifting Purpose Purpose DoctrineDoctrine

• AG of Saskatchewan: “the purpose of AG of Saskatchewan: “the purpose of legislation may shift, or be legislation may shift, or be transformed over time by changing transformed over time by changing social conditions…” (55)social conditions…” (55)

• Purpose originally religious; currently Purpose originally religious; currently secular (common day of rest)secular (common day of rest)

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Shifting purpose doctrine rejectedShifting purpose doctrine rejected::1.1. Creates Creates uncertaintyuncertainty

2.2. Encourages Encourages re-litigationre-litigation (as purpose shifts) (as purpose shifts)

3.3. “…“…stands in contrast to fundamental notions stands in contrast to fundamental notions developed in our law concerning the nature developed in our law concerning the nature of “of “Parliamentary intentionParliamentary intention.” (55).” (55)

4.4. ““Purpose is a Purpose is a function of the function of the intentintent of those of those who drafted and enacted the legislation at who drafted and enacted the legislation at the timethe time, and not of any shifting variable.” , and not of any shifting variable.” (55)(55)

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““In result, therefore, the In result, therefore, the Lord’s Day Lord’s Day Act Act must be characterized as it has must be characterized as it has always been, a law the always been, a law the primary primary purposepurpose of which is the of which is the compulsion compulsion of sabbatical observanceof sabbatical observance.” (55).” (55)

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Therefore, Therefore, Lord’s Day ActLord’s Day Act : :

1.1. Falls under Federal jurisdiction – Falls under Federal jurisdiction – not not ultra viresultra vires

2.2. engages Sec 2(a)’s “freedom of engages Sec 2(a)’s “freedom of conscience and religion”conscience and religion”

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Interpreting Charter Rights: Interpreting Charter Rights: The Purposive ApproachThe Purposive Approach

• New QuestionNew Question: Does an Act of : Does an Act of Parliament with the purpose of Parliament with the purpose of compelling observance of Christian compelling observance of Christian Sabbath Sabbath infringeinfringe freedom of freedom of conscience and religion guaranteed conscience and religion guaranteed by Sec. 2(a) of Charter?by Sec. 2(a) of Charter?

• Preliminary QuestionPreliminary Question: How to interpret : How to interpret Charter rights and freedoms?Charter rights and freedoms?

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Interpreting Charter Rights: Interpreting Charter Rights: The Purposive Approach, The Purposive Approach,

cont’dcont’d

• ““The meaning of a right or freedom The meaning of a right or freedom guaranteed by the guaranteed by the Charter Charter [is] to be [is] to be ascertained by an analysis of the ascertained by an analysis of the purposepurpose of such a guarantee; it [is] of such a guarantee; it [is] to be understood…in to be understood…in light of the light of the interests interests it was meant to protectit was meant to protect.” .” (56)(56)

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Interpreting Charter Rights: Interpreting Charter Rights: The Purposive Approach, The Purposive Approach,

cont’dcont’dPurpose of a right or freedom “is to be Purpose of a right or freedom “is to be

sought by reference to”…sought by reference to”…1.1. ““the larger objects of Charter itself” (various the larger objects of Charter itself” (various

interests meant to be protected)interests meant to be protected)

2.2. ““the language chosen to articulate the the language chosen to articulate the specific right or freedom”specific right or freedom”

3.3. ““the historical origin of concepts enshrined”the historical origin of concepts enshrined”

4.4. Where applicable, the meaning and purpose Where applicable, the meaning and purpose of other rights associated with it in textof other rights associated with it in text

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Interpreting Charter Rights: Interpreting Charter Rights: The Purposive Approach, The Purposive Approach,

cont’dcont’d

Interpretation should be:Interpretation should be:1.1. ““a generous rather than a legalistic one”a generous rather than a legalistic one”2.2. ““aimed at fulfilling the purpose of the aimed at fulfilling the purpose of the

guarantee” andguarantee” and3.3. ““securing for individuals the full benefit of securing for individuals the full benefit of

the Charter’s provisions’the Charter’s provisions’4.4. ““placed in its proper linguistic, philosophic placed in its proper linguistic, philosophic

and historical contexts.” (56-7)and historical contexts.” (56-7)

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Section 2(a)Section 2(a)

Specific Questions re: Meaning of Specific Questions re: Meaning of Sec 2(a)Sec 2(a): :

1.1. What does What does “freedom”“freedom” mean? mean?

2.2. Does legislation the purpose of which Does legislation the purpose of which is to compel sabbatical observance is to compel sabbatical observance violate the freedom ofviolate the freedom of religionreligion of non- of non-Christian Canadians? Christian Canadians?

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• Freedom:Freedom:– ““founded in respect for the founded in respect for the inherent inherent

dignitydignity and and inviolable rightsinviolable rights of the of the human person” (55)human person” (55)

– ““Freedom can primarily be Freedom can primarily be characterized by characterized by the absence of the absence of coercion or constraintcoercion or constraint.” (55, emphasis .” (55, emphasis added)added)

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• ““Freedom in a broad sense embraces both the Freedom in a broad sense embraces both the absence of coercion and constraint, absence of coercion and constraint, andand the right the right to manifest beliefs and practices. Freedom means to manifest beliefs and practices. Freedom means that, subject to such limitations as are necessary that, subject to such limitations as are necessary to protect public safety, order, health, or morals to protect public safety, order, health, or morals or the fundamental freedoms of others, or the fundamental freedoms of others, no one is no one is to be forced to act in a way contrary to his beliefs to be forced to act in a way contrary to his beliefs or his conscienceor his conscience.” (55, emphasis added).” (55, emphasis added)

– 1. Not 1. Not prevented fromprevented from doingdoing X X– 2. Not 2. Not compelled tocompelled to dodo Y Y

• ““the tyranny of the majority” (55) the tyranny of the majority” (55) [de Tocqueville & J.S. Mill][de Tocqueville & J.S. Mill]

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• ““Non-Christians are prohibited for religious Non-Christians are prohibited for religious reasons from carrying out activities which are reasons from carrying out activities which are otherwise lawful, moral and normal.” (55-6)otherwise lawful, moral and normal.” (55-6)

• “…“…disparate impactdisparate impact destructive of the religious destructive of the religious freedom of the collectivity.” (56)freedom of the collectivity.” (56)

• ““If I am a Jew or a Sabbatarian or a Muslim, the If I am a Jew or a Sabbatarian or a Muslim, the practice of my religion at least implies my right to practice of my religion at least implies my right to work on a Sunday if I wish...any law purely work on a Sunday if I wish...any law purely religious in purpose, which denies me that right, religious in purpose, which denies me that right, must surely infringe my religious freedom.” (56)must surely infringe my religious freedom.” (56)

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• “…“…whatever else freedom of conscience and whatever else freedom of conscience and religion may mean, it must at the very least religion may mean, it must at the very least mean this: government mean this: government may not coerce may not coerce individuals toindividuals to affirm a specific religious affirm a specific religious beliefbelief or to or to manifest a specific religious manifest a specific religious practicepractice for a sectarian purpose.” (57) for a sectarian purpose.” (57)

• “…“…it is non-action rather than action that is it is non-action rather than action that is being decreed, but…compulsion is being decreed, but…compulsion is nevertheless what it amounts to.” 957)nevertheless what it amounts to.” 957)

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First Main ConclusionFirst Main Conclusion

• ““The state shall not use the criminal The state shall not use the criminal sanctions at its disposal to achieve a sanctions at its disposal to achieve a religious purpose, namely, the uniform religious purpose, namely, the uniform observance of the day chosen by the observance of the day chosen by the Christian religion as its day of rest.” (58)Christian religion as its day of rest.” (58)

• “…“…the true purpose of the the true purpose of the Lord’s Day Lord’s Day Act is Act is to compel the observance of the Christian to compel the observance of the Christian Sabbath and I find that the Act…infringes Sabbath and I find that the Act…infringes upon the freedom of conscience and religion upon the freedom of conscience and religion guaranteed in s. 2(a) of the Charter…” (58)guaranteed in s. 2(a) of the Charter…” (58)

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New Question: Sec 1 New Question: Sec 1 JustificationJustification

• Lord’s Day ActLord’s Day Act shown to infringe shown to infringe freedom of conscience and religion of freedom of conscience and religion of non-Christiansnon-Christians

• New QuestionNew Question: Can the infringement : Can the infringement nevertheless be justified because it’s nevertheless be justified because it’s among those “reasonable limits among those “reasonable limits prescribed by law as can be prescribed by law as can be demonstrably justified in a free and demonstrably justified in a free and democratic society?” (sec. 1)democratic society?” (sec. 1)

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Reasonable Limit?Reasonable Limit?

Reasons given:Reasons given:1.1. Convenience: Choice of day of rest Convenience: Choice of day of rest

adhered to by Christian majority most adhered to by Christian majority most practicalpractical

2.2. ““EveryoneEveryone accepts the need and value of a accepts the need and value of a universal day of restuniversal day of rest from all work, from all work, business and labour and it may as well be business and labour and it may as well be the day traditionally observed in our the day traditionally observed in our society” (58)society” (58)

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• Dickson’s response:Dickson’s response:

– Reason 1: “an argument of convenience Reason 1: “an argument of convenience and expediency…fundamentally and expediency…fundamentally repugnant…”repugnant…”

– Rights should not be infringed for Rights should not be infringed for reasons of conveniencereasons of convenience

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– Reason 2 imputes a Reason 2 imputes a secular objectivesecular objective whichwhich• (a) violates separation of powers;(a) violates separation of powers;•(b) is not the objective of the (b) is not the objective of the Act;Act;•(c)(c) “it seems disingenuous to say that the “it seems disingenuous to say that the

legislation is valid criminal law and offends s. legislation is valid criminal law and offends s. 2(a) because it compels the observance of a 2(a) because it compels the observance of a Christian religious duty, yet it is still a Christian religious duty, yet it is still a reasonable limit, demonstrably justifiable reasonable limit, demonstrably justifiable because it achieves a secular purpose the because it achieves a secular purpose the legislators presumably did not intend” (58) legislators presumably did not intend” (58) … nor … nor should should have intended as per (a) above?have intended as per (a) above?

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Wilson J.’s Concurring Wilson J.’s Concurring OpinionOpinion

• Agrees with Dickson as to result; differs on Agrees with Dickson as to result; differs on reasonsreasons

• Charter is “first and foremost an Charter is “first and foremost an effects-effects-oriented documentoriented document””

• Lord’s Day Act Lord’s Day Act has the effect of:has the effect of:– Requiring all to observe Christian SabbathRequiring all to observe Christian Sabbath– Protecting one religion at expense of others, Protecting one religion at expense of others,

thus leading to…thus leading to…– ““disparate impact destructive of the religious disparate impact destructive of the religious

freedom of the collectivity.” (59)freedom of the collectivity.” (59)

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

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QuestionsQuestions

11 Is prohibiting non-Christians from working Is prohibiting non-Christians from working on Sunday forcing them:on Sunday forcing them:

a.a. to “to “affirm a specific religious beliefaffirm a specific religious belief””

b.b. to “to “manifest a specific religious practicemanifest a specific religious practice?, or only?, or only

c.c. toto refrain from working refrain from working when they would otherwise when they would otherwise have the right to do so?have the right to do so?

Are non-Christians who are compelled not to work, Are non-Christians who are compelled not to work, affirmingaffirming a religious belief – or just a religious belief – or just not workingnot working??

Are non-Christians who are compelled not to work, Are non-Christians who are compelled not to work, manifestingmanifesting a religious practice? a religious practice?

Can one affirm or manifest a religious practice Can one affirm or manifest a religious practice without without intending to do sointending to do so – without – without seeing oneself seeing oneself as doing so?as doing so?

Questions, cont’dQuestions, cont’d

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

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Questions, cont’dQuestions, cont’d

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

• ““reasonable accommodation”reasonable accommodation”

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