Gordon v. R., [1961] SCR 592

Supreme Court of Canada

Gordon v. R., [1961] S.C.R. 592

Date: 1961-06-26

Lewis E. Gordon (Plaintiff) Appellant;

and

Her Majesty The Queen (Defendant) Respondent.

1961: June 13, 26.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Criminal law—Sunday observance—Coin-operated automatic laundry open on Sunday—Owner and employees not in attendance—Whether “carrying on business of ordinary calling”—Lord’s Day Act, R.S.C. 1952, c. 171, s. 4.

The accused was charged with carrying on business on Sunday contrary to s. 4 of the Lord’s Day Act, R.S.C., 1952, c. 171. As the owner of an automatic laundry business, the accused operated two establishments which remained open and in use by the public on a Sunday. The premises in question contained automatic washing machines and dryers which customers could operate automatically by inserting a

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coin in a slot. The soap and bleach were supplied by the customers but the water and electricity were furnished by the accused. On the Sunday in question the police found customers operating the machines at both premises. Neither the accused nor any of his servants or agents were present. There was a sign on the wall with instructions as to the operation of the machines and another sign giving telephone numbers to be called in case of emergency.

The accused was acquitted, but the Court of Appeal directed that a verdict of guilty be entered. The accused was granted leave to appeal to this Court.

Held (Cartwright J. dissenting): The accused was guilty of carrying on the business of his ordinary calling on Sunday within the meaning of s. 4 of the Lord’s Day Act.

Per Kerwin C.J. and Taschereau, Fauteux, Abbott, Martland, Judson and Ritchie JJ.: The evidence adduced indicated that the business carried on by the accused on the Sunday in question was “of his ordinary calling”. The words of s. 4 were very wide. Even in the absence of the accused or any of his servants or agents, he was carrying on business on the Sunday in question. What he did in the ordinary acceptance of the term was carrying on any business of his ordinary calling.

The question as to whether the accused was carrying on a work of necessity and mercy within the meaning of s. 11 of the Lord’s Day Act was not raised before the County Court Judge, whose decision was appealed to the Court of Appeal, and in the absence of any evidence as to what was being washed or dried in the machines, the point could not be considered.

Per Locke, Martland, Judson and Ritchie JJ.: The conduct of the accused fell within the prohibition of s. 4. The presence of the proprietor or his servants was an irrelevant circumstance in the situation disclosed by the evidence in the present case. The uncontradicted evidence given before the County Court Judge was sufficient to establish that the business carried on by the accused was that of his ordinary calling.

If it were intended by the accused to contend that the operation fell within the exception of s. 11 of the Act, the onus was on him to prove it. The accused, however, called no evidence and there was none in the case for the prosecution upon which such a finding could conceivably be made.

Per Cartwright J., dissenting: On the facts found by the County Court Judge, the latter was right in law in holding that the accused was not carrying on the business of his ordinary calling on the day in question within the meaning of those words as used in s. 4. The Act is intended to prevent people from working on Sundays, and to come within the words “carry on business” there must be some act of a positive nature, the doing of something. The Act forbids actions, it does not forbid omissions. On its true construction s. 4 makes the doing of some act on Sunday an essential ingredient of an offence against the section. In the case at bar nothing was done by the accused or any of his employees in connection with the business.

APPEAL from a judgment of the Court of Appeal for Ontario[1] setting aside a verdict of acquittal. Appeal dismissed, Cartwright J. dissenting.

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A.M. Ferriss, Q.C., for the appellant.

W.C. Bowman, Q.C., for the respondent.

The judgment of Kerwin C.J. and of Taschereau, Fauteux, Abbott, Martland, Judson and Ritchie JJ. was delivered by

THE CHIEF JUSTICE:—By leave of this Court Lewis E. Gordon appeals from an order of the Court of Appeal for Ontario¹ allowing appeals by the Attorney General for Ontario against the orders of His Honour Judge Carscallen on appeals before the latter by way of trials de novo from the acquittal by a magistrate of the appellant of charges based upon two informations. In one of these it was alleged that the appellant “did unlawfully carry on the business of his ordinary calling, to wit, washing clothes (Automatic Laundry) at 469 N. Christina Street, in the City of Sarnia, contrary to The Lord’s Day Act, R.S.C. 1952, c. 171, s. 4”; in the other he was charged with the same offence but with reference to 102 East Street, in the City of Sarnia. The Court of Appeal allowed the appeals, set aside the verdict of acquittal on each charge and directed that a verdict of guilty be entered against the appellant and a fine of ten dollars on each charge and of the costs of the proceedings before the magistrate be imposed, and that, in default of such payment, the appellant be imprisoned for a period of five days.

Section 4 of the Lord’s Day Act is as follows:

4. It is not lawful for any person on the Lord’s Day, except as provided herein, or in any provincial Act or law now or hereafter in force, to sell or offer for sale or purchase any goods, chattels, or other personal property, or any real estate, or to carry on or transact any business of his ordinary calling, or in connection with such calling, or for gain to do, or employ any other person to do, on that day, any work, business, or labour.

There is in the record a licence, dated January 5, 1959, from the City of Sarnia, to “Econ‑O‑Wash, 469 N. Christina, per Lewis Gordon, to enable him to use and exercise the calling and business of keeper of a laundry until the 31st day of December, 1959”. Evidence was given by the landlord of the premises at 102 East Street that he had rented them to the appellant and that the same type of business was carried on by the appellant at both addresses.

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There is also in the record a certified copy of a declaration by the appellant, dated March 25, 1959, under The Partnership Registration Act of Ontario, that he has had carried on and intended to carry on a coin-operated laundry business at 469 N. Christina Street, in the City of Sarnia, under the name of “Econ-O-Wash”; that the business had subsisted since February 20, 1959, since which date he was the sole partner of the said business.

The premises at each address contained automatic washing machines and dryers. Customers supplied their own soap and bleach and by inserting a coin in a slot the articles they brought with them would be automatically washed or dried in the appropriate machines by the water and electricity furnished by the appellant. On Sunday, November 22, 1959, two policemen entered the premises at each of the above addresses of which the doors were unlocked. At one of the addresses at least there was a sign on a wall with instructions as to the operation of the machines and another sign reading: “This store designed and equipped by L. Gordon, 469 N. Christina Street, Sarnia” and there was also a pay telephone to which was attached a card with the information “Emergency No. Call Ed6-2201, Di4-0854”. A number of persons were present at each of the premises and there were a number of automatic washers or a number of dryers in operation. Neither the appellant nor any of his servants or agents were present at either of the premises.

Leave to appeal was granted on the points mentioned in the notice of application therefore but the only important argument requiring consideration was that it was not possible to say, within the meaning of s. 4 of the Lord’s Day Act, that the appellant was a person who carried on or transacted any business of his ordinary calling on Sunday. The learned County Court judge found that there was evidence that the appellant was the proprietor of both stores on the date in question. He defined the issue before him as being “if the evidence indicates that the accused was carrying on or transacting business on 22nd November, 1959”. There is no suggestion in his judgment that if the appellant were carrying on business on that date that it was not “of his ordinary calling”. The evidence adduced

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indicates that it was, and there is no evidence to the contrary. The words of s. 4 are very wide. The decisions in the Courts of the State of New York referred to on the argument and also the later judgment of the Court of Appeals in People v. Welt[2] are interesting but do not assist me in construing s. 4 of the Lord’s Day Act. I have no difficulty in arriving at the conclusion that even in the absence of the appellant or any of his servants or agents he was carrying on business on the Sunday in question. Presuming that on Sunday he would not go or send someone to either establishment in order to collect the money that had been deposited in the slot machines and that he or his servant or agent would not go on a Sunday to repair any of the machines, what he did in the ordinary acceptance of the term was carrying on any business of his ordinary calling.

Counsel for the appellant referred us to a decision of the High Court of Australia in Spence v. Ravenscroft[3], There, however, Spence was charged with an offence under a section of an Act that provided “whosoever trades or deals or keeps open any shop, store or other place for the purpose of trading or dealing on Sunday… shall be liable to a penalty”. The majority of the Court held that “trades” was to be narrowly construed, saying at p. 352:

We think that the word “trades” is not used in sec. 61 in the wide sense of keeping a place of business open for trading, which is dealt with by the succeeding words of the section, but is limited to personal acts done on Sunday in the nature of trading.

I can find no assistance in this decision in coming to a solution in the present case nor in the reasons for judgment of Laidlaw J.A., speaking for himself, in Re Pszon[4]. What was there in issue was the question as to whether a man was carrying on business within the meaning of the Bankruptcy Act,—a statute enacted for an entirely different purpose and any decision under it can have no relevancy to the matter now before us.

Counsel for the appellant stated that while before the magistrate the question arose as to whether the appellant was carrying on a work of necessity and mercy within the meaning of s. 11 of the Lord’s Day Act, no such question was raised before the County Court judge and it was from

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the decisions of the latter that appeals were taken to the Court of Appeal. There is nothing in the evidence to show what was being washed or dried in the machines and in the absence of any such evidence the point cannot be considered. It is, therefore, unnecessary to express any opinion as to the decision of the District Court judge in Regina v. Coin Launder-All Limited[5].

The appeal should be dismissed.

The judgement of Locke, Martland, Judson and Ritchie JJ. was delivered by

LOCKE J.:—In the premises operated by the appellant at 102 East Street and 469 North Christina Street in Sarnia there were placed numbers of automatic washing machines and drying machines. Upon placing a sum of .20cts. in a slot the washing machine, using water supplied by the appellant, operated for 10 minutes, the motive power being electricity, also supplied by him. The drying machines operated for a similar period of time when .10cts. was placed in the slot. The public availing themselves of this service supplied their own soap or detergent. In return for the deposit of .05cts. in another slot machine the customer could purchase a supply of detergent for this purpose. In the premises there were signs instructing customers that, in case of emergency, they should call a given telephone number.

The carrying on of this business was thus entirely automatic. Whether either the appellant or anyone on his behalf were present on the premises during the week is not shown.

On the Sunday referred to in the charges, neither the appellant nor anyone on his behalf were there and the question to be determined is whether, by reason of this, the appellant was not carrying on or transacting any business of his ordinary calling or in connection therewith on the Lord’s Day, within the meaning of s. 4 of the Lord’s Day Act, R.S.C. 1952, c. 171.

The situation does not appear to me to differ in any respect from that which would arise if the proprietor of a self-service grocery store left his premises open and unattended on Sunday, thus inviting the public, to enter and

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to purchase his goods at the marked price. It seems to me quite impossible to suggest that such conduct would not fall within the prohibition of s.4. The presence or absence of the proprietor or his servants is, in my opinion, an irrelevant circumstance in the situation disclosed by the evidence in the present case.

The learned County Court judge relied in acquitting the appellant upon a passage in a judgment of Laidlaw J.A. in Re Pszon[6], in which that learned judge expressed his opinion as to what constituted carrying on business within the meaning of the Bankruptcy Act. In the passage quoted it was said that a person who devoted no time or attention or labour to the working or conduct of the affairs of an enterprise does not carry on the business of that enterprise. But here the appellant actively carried on this business throughout every day of the week, merely absenting himself from the premises on Sunday. The passage quoted has, in my opinion, no application in these circumstances and does not bear the meaning sought to be assigned to it by the appellant. If it were treated as applicable, the operator of the self‑service grocery store above mentioned would not be carrying on business.

Reliance is also placed upon the decision of the Divisional Court in Willesden Urban District v. Morgan[7]. The prosecution in that case was under the Shops Act 1912, which required that every shop should be closed for the serving of customers on the weekly half-holiday. The accused person had affixed to the door of his shop an automatic machine by which a supply of milk was offered to the public on the insertion of a penny in the slot provided for that purpose. The court considered that the language of the relevant section should be construed as a prohibition of the personal serving of customers and that the purpose of the Act was to provide a weekly half-holiday for shop assistants which was not interfered with. The language of the sections under consideration differed materially from that of s. 4 of the Lord’s Day Act and the case affords no support for the appellant’s contention, in my opinion.

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We were also referred to three American cases: the People v. Kaplan[8]; the People v. Welt[9]; and the People v. Andob Corporation[10].

The section of the Penal Law considered in these three cases read:

All trades, manufactures, agricultural or mechanical employments upon the first day of the week are prohibited, except that when the same are works of necessity they may be performed on that day in their usual and orderly manner, so as not to interfere with the repose and religious liberty of the community.

In Kaplan’s case it was decided that to operate a self-service automatic coin laundry on a Sunday violated this section.

In Welt’s case the Court arrived at a different conclusion without giving reasons.

In the Andob Corporation case, evidence was given by several witnesses that the use of the laundry on Sunday was a necessity for them and not a mere convenience within the meaning of the section and McCullough J. who wrote the judgment of the Court quoted with approval a passage from a judgment of a lower Court in Welt’s case, saying that not all businesses are prohibited on Sunday but only those which are serious interruptions of the Sabbath. It is not clear as to whether this was the ground upon which the judgment proceeded.

The language of the section of the Penal Law differs so materially from s. 4 of the Lord’s Day Act and the evidence given in the last two is of such a different nature to that in the present matter that I obtain no assistance from them.

In Spence v. Ravenscroft[11], the judgment of the majority written by Griffith C.J. appears to have proceeded on the view that the history of the legislation as to Sunday observance in New South Wales indicated that s. 61 of the Police Offences Act 1901 should be construed as importing a personal act or omission of the person charged. Isaacs J. dissented in a carefully reasoned judgment and, with great respect, I agree with the opinion expressed by him. There is nothing in the history of the Lord’s Day Act since it was

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first enacted in 1906 to justify a conclusion similar to that reached by the majority in Ravenscroft’s case and I think the case has no application.

The uncontradicted evidence given before the County Court judge, in my opinion, was sufficient to establish that the businesses carried on by the appellant were those of his ordinary calling and, while the learned County Court judge made no finding as to this, no issue was made of the matter before us.

It appears from the reasons for judgment delivered by the Court of Appeal that before that Court it was contended that the operation of the business, so far as the customers were concerned, was a work of necessity and, therefore, came within the exempting provisions of s. 11 of the Lord’s Day Act. The question had not been considered either by the learned magistrate nor by the learned County Court judge and no evidence was adduced as to this at the hearing before the latter. Accordingly, the Court expressed no opinion on the point.

Section 11 provides an exception in the case of any work of necessity or mercy. If it were intended by the appellant to contend that the operation fell within this exception, the onus was on him to prove it by reason of the provisions of s. 702(2) of the Criminal Code. The appellant, however, elected to call no evidence and there is none in the case for the prosecution upon which a finding such as is suggested could conceivably be made.

I would dismiss these appeals.

CARTWRIGHT J. (dissenting):—This appeal is brought, pursuant to leave granted by this Court, from a judgment of the Court of Appeal for Ontario[12] pronounced on October 17, 1960, allowing appeals from orders of His Honour Judge Carscallen and directing that a verdict of guilty be entered against the appellant on each of two charges, that in each case a fine of $10.00 be imposed and that the appellant do pay the costs of the proceedings in the Magistrate’s Court.,

The first of these charges was as follows:

That on or about the 22nd day of November, 1959, at the City of Sarnia, Lewis E. Gordon, 469 Christina Street, Sarnia. Did unlawfully carry on the business of his ordinary calling, to wit, washing clothes

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(Automatic Laundry) at 102 East Street in the City of Sarnia, contrary to the Lord’s Day Act, Revised Statutes of Canada 1952, Chapter 171, Section 4.

The second charge was in the same words as the first except that the words “at 102 East Street’’ were replaced by the words “at 469 North Christina Street”.

The appellant was tried on both charges before His Worship Magistrate Dunlap and was acquitted. The informant appealed to the County Court of the County of Lambton. The appeals were heard separately by way of trials de novo by His Honour Judge Carscallen and were dismissed.

The informant served notice of an application for leave to appeal to the Court of Appeal against these orders of acquittal on the following ground:

1. The learned County Court Judge erred in law in the interpretation of the words ‘to carry on or transact any business of his ordinary calling’ as they appear in Section 4 of the Lord’s Day Act, R.S.C. 1952, Chapter 123.

The jurisdiction of the Court of Appeal is conferred by s. 743 of the Criminal Code which provides inter alia that, with leave of that Court, an appeal may be taken on any ground that involves a question of law alone against a decision of a court in respect of an appeal under s. 727, which was the section pursuant to which the appeals to His Honour Judge Carscallen had been heard.

Up to a point, the relevant facts are not in dispute; they were summarized as follows by Schroeder J.A. who at the conclusion of the argument delivered orally the unanimous judgment of the Court of Appeal.

The premises referred to were either owned or controlled by the respondent and they contained automatic washing machines and dryers which customers could operate automatically by inserting a coin in a slot. The soap and bleach used in the cleaning operation were supplied by the customer, but the water and electricity were furnished by the accused, as owner of the establishment.

The evidence indicates that on Sunday, November 22nd, 1959, both places were visited by two members of the Sarnia Police force. They found five persons in attendance at 469 North Christina Street and twelve washers and two dryers were in operation. Neither the accused nor any of his servants or agents were present. There was a sign on the wall containing instructions as to how to operate the machines and another sign which read ‘this store designed and equipped by L. Gordon, 469 North Christina Street, Sarnia’. Over the pay telephone in the premises there was a card bearing the words ‘Emergency No. call Ed.6-2201. Di.4-0854.’

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At the East Street premises there were eight persons present and four dryers in operation. These premises were furnished in a manner similar to the North Christina Street premises and the same information as to operation of the machines was posted on the wall. Here again neither the accused nor his servants or agents or any of them were in attendance.

The reasons of the learned Justice of Appeal continue:

The learned trial Judge found, on the evidence, that the accused was the sole proprietor of the business in question and that the operation thereof was his ordinary calling.

The last quoted statement appears to be inaccurate; while the learned County Judge found that the appellant was the sole proprietor of the business at the two locations mentioned in the charges he made no express finding that the operation of those businesses was the ordinary calling of the appellant and, since he acquitted the appellant on both charges, no such finding can be said to be implicit in his reasons.

The appellant applied to this Court for leave to appeal from the judgment of the Court of Appeal on the following grounds:

(i) The learned Court of Appeal erred in law in holding that the appellant was carrying on or transacting any business of his ordinary calling within the meaning of the Lord’s Day Act, R.S.C. 1952, Chapter 123.

(ii) The learned Court of Appeal erred in law in holding that the fact that neither the accused nor his servants or agents were on the premises to take part in or supervise the conduct of the automatic laundry, was irrelevant.

(iii) The learned Court of Appeal erred in holding on the evidence that the operation of a coin-operated automatic laundry was the ordinary calling carried on by the appellant, the evidence being silent on this question, and erred in believing that the learned County Court Judge has so found.

Leave was granted by this Court on November 14, 1960; the operative part of the order reads as follows:

This Court did Order and Adjudge that leave to Appeal from the said Judgment of the Court of Appeal for Ontario should be and the same was granted.

The main question arising on this appeal is whether on the facts found by the learned County Court Judge, which have been summarized above, he was right in law in holding that the accused was not carrying on the business of his

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ordinary calling on the date stated within the meaning of those words as used in s. 4 of the Lord’s Day Act. That section reads as follows:

4. It is not lawful for any person on the Lord’s Day except as provided herein, or in any Provincial Act or law now or hereafter in force, to sell or offer for sale or purchase any goods, chattels or other personal property or any real estate or to carry on or transact any business of his ordinary calling or in connection with such calling or for gain to do or employ any other person to do on that day any work, business or labour.

In his reasons the learned County Judge, after stating that he had not been referred to and had not found any decided case dealing with the meaning of the phrase “carry on business” as used in s. 4 of the Lord’s Day Act, considered the judgment of Laidlaw J.A. in Re Pszon[13]. In that case it was necessary to consider the meaning of the phrase “carrying on business” as used in the Bankruptcy Act. Laidlaw J.A., after stating that it involved at least three elements (i) the occupation of time, attention and labour; (ii) the incurring of liabilities to other persons; and, (iii) the purpose of a livelihood or profit, went on to say at page 234:

A person who devotes no time or attention or labour, by himself or by servants or employees, to the working or conduct of the affairs of an enterprise does not carry on the business of such enterprise.

Having quoted from this judgment the learned County Court Judge continued:

Applying the above to the facts in the instant cases, I cannot find that the accused was carrying on business on Sunday, November 22nd, 1959. He was not, either by himself or by his servants or employees, devoting any time, attention or labour to the business of washing clothes. The very nature of the machines used for that purpose rendered his time, attention or labour unnecessary on that day. He did not give attention or perform labour for the maintenance or furtherance of the undertaking nor devote time to the accomplishment of its objects.

I agree with the conclusion arrived at by the learned County Court Judge and I am in substantial agreement with his reasons and with those of the learned Magistrate, but in view of the importance of the question raised and the difference of opinion in the courts below and in this Court I propose to state my reasons in my own words.

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In Willesden Urban Council v. Morgan1[14], the Divisional Court had to consider, inter alia, whether vending milk by means of an automatic machine amounted to carrying on the retail trade or business of a dairyman. The statute there under consideration was the Shops Act, (1912) 2 Geo. V, c. 3, the wording of which differs considerably from that of the Lord’s Day Act but the following observations in the judgments appear to me to be of assistance as indicating the proper approach to the problem of construction.

At p. 353, Ridley J. said:

The Shops Act, 1912, was passed for the benefit of those who serve as shop assistants; but it is an Act whose provisions are enforced by the infliction of penalties, and we have therefore to be careful how we construe it. We have to be sure that while we give it a fair reading we do not give it too wide a construction. Being intended for the benefit of those serving in shops, the Act is not intended to prevent people buying goods so long as their doing so does not interfere with the object of the Act. I should not assent to any construction of the Act which would prevent shop assistants obtaining their weekly half‑holiday; but I do not think that we should so construe it as to make it apply to the supply of articles by automatic machines unless the language of the Act compels us to do so. Sect. 4 is satisfied by reading the words ‘for the serving of customers’ as meaning ‘for the personal serving of customers.’

At p. 354 Lush J. said:

The case is one in which I think it is most necessary to apply that fundamental rule—a rule founded on good sense rather than on law—that where words in a statute are capable of two different meanings we must carefully consider, before determining which of the two meanings to attribute to them, what the mischief is which the Act was intended to obviate.

I do not think it necessary to review the history of legislation dealing with the observance of the Lord’s Day. This has been recently done in the judgments delivered in this Court in Henry Birks and Sons (Montreal) Ltd. et al. v. City of Montreal et al.[15] and a more extensive review is to be found in Holmsted, The Sunday Law in Canada (1912). I think it safe to say that the origin of this sort of legislation in Christian countries is to be found in Exodus c. 20 verses 8 to 11, where the words of prohibition are “in it thou shalt not do any work”.

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I agree with the submission of Mr. Ferriss that to come within the words “carry on business” in s. 4 of the Lord’s Day Act there must be some act of a positive nature, the doing of something.

In the case at bar the evidence is that on the Sunday in question neither the accused nor any employee of his did anything at all in connection with the laundry business. There is no evidence that either of the telephone numbers listed on the notice in the shops to be called in case of emergency was that of the accused or of any employee of his; but that is of little importance for we do not have to consider what would have been the result if either the accused or an employee had been called and had responded; that did not happen.

I am in agreement with the judgment of the High Court of Australia in Spence v. Ravenscroft[16]. Griffith C.J. with the concurrence of Gavan Duffy and Rich JJ. says at page 352:

Prima facie a law creating an offence imports a personal act or omission on the part of a human actor. If the day on which the act is done, or omission is made is material, it imports a personal act or omission on that day. A person may, of course, be responsible for the conduct of his agents. The subject-matter of the law or context of the enactment may require a larger construction. In this case there is no such context. As to subject‑matter the history of the legislation as to Sunday observance shows that it is all directed to personal conduct on that day. The provision now in question is one dealing with that subject, and not with trade in general.

The reasoning in this passage and particularly the sentence I have italicized appears to me to be applicable to the question now before us. It is hardly necessary to observe that the Lord’s Day Act forbids actions, it does not forbid omissions.

In the course of the argument reference was made to a number of cases decided in the courts of the State of New York dealing with the question whether the operation of a self-service automatic coin-operated laundry on Sunday was a breach of s. 2146 of the Penal Law, which provides that all trades, manufactures, agricultural or mechanical employments on the first day of the week are prohibited “except that when the same are works of necessity they may be

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performed on that day in their usual and orderly manner, so as not to interfere with the repose and religious liberty of the comunity”. These decisions disclose a conflict of opinion as to whether a breach of the section is committed when the place in which the coin-operated laundry is located is left open to and used by members of the public on Sunday but neither the owner of the business nor any employee of his is present on that day.

That conflict appears to have been finally resolved in the State of New York by the judgment of the Court of Appeals in People v. Welt[17], delivered on July 8, 1960, in which the Court unanimously affirmed a judgment of the County Court of Nassau County reversing a conviction and dismissing the charge. The report is brief but the judgment is discussed by McCullough J. in the case of People v. Andob Corporation[18]. It appears from the last mentioned judgment that in People v. Welt, supra, the Court of Appeals had before it the judgment of the First Appellate Division in People v. Kaplan[19] and that the judgment of the majority in that case must be regarded as over-ruled. In People v. Andob Corporation, supra, the present state of the law in the State of New York is summed up as follows at page 93:

It is, therefore, now the law in New York that it is not a violation of s. 2146 of the Penal Law to operate an automatic coin operated laundromat on Sunday where the owner or any employee is not present on such day.

It follows from my agreement with Mr. Ferriss’ submission that on its true construction s. 4 of the Lord’s Day Act makes the doing of some act on Sunday an essential ingredient of an offence against the section that I would allow the appeal and it becomes unnecessary to deal with other matters mentioned during the argument; but I do not wish to be understood as agreeing either (i) that it was within the power of the Court of Appeal to make the finding of fact, which the learned County Court Judge did not make, that “the operation of a coin‑operated automatic laundromat and dryers is the business of his ordinary calling carried on by the accused”, or (ii) that it was open to the Court of Appeal to substitute a verdict of guilty for that of acquittal without

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having reached a conclusion as to the applicability of s. 11 of the Lord’s Day Act to the facts found by the learned County Court Judge. Assuming, contrary to the view which I have expressed, that the appellant did on the Sunday in question, within the meaning of section 4, “carry on the business of his ordinary calling, to wit, washing clothes (Automatic Laundry)”, the question whether he was thereby doing a work of necessity or mercy within the meaning of s. 11 was put in issue by the plea of “not guilty”. If on the facts as found by the learned County Court Judge it became a question of law whether the conduct which the Court of Appeal regarded as a breach of s. 4 fell within s. 11, the Court of Appeal should have dealt with that question; if on the other hand it was, as the Court of Appeal indicated, a mixed question of fact and law, that Court could not deal with it and should have remitted the cases to the learned County Court Judge. In making this observation I have not overlooked the provisions of s. 702 of the Criminal Code, placing upon the accused the burden of proving that an exception prescribed by law operates in his favour; in the case at bar, the evidence given on behalf of the prosecution proved everything necessary to be known as to the nature of what was done by the accused to enable the appropriate tribunal to determine whether or not it fell within s. 11. Until a finding on that point adverse to the accused has been made by a tribunal having jurisdiction to make it I am unable to see how a verdict of guilty can validly be entered against him. However, I do not pursue these questions further.

I would allow the appeal, set aside the judgment of the Court of Appeal and restore the judgments of the learned County Court Judge.

Appeal dismissed, CARTWRIGHT J. dissenting.

Solicitors for the appellant: Garvey, Ferriss & Murphy, Toronto.

Solicitor for the respondent: The Attorney-General for Ontario, Toronto.