Supreme Court of Canada
Motorways (Ontario) Ltd. v. R., [1974] S.C.R. 635
Date: 1973-05-07
Motorways (Ontario) Limited (Plaintiff) Appellant;
and
Her Majesty The Queen (Defendant) Respondent.
1973: February 20, 21; 1973: May 7.
Present: Abbott, Martland, Judson, Ritchie, Spence, Pigeon and Laskin JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Criminal law—Sunday observance—Transportation of non-perishable goods on Sunday—Exemption for “works of necessity”—Exigencies of modern day society and economy—Lord’s Day Act, R.S.C., 1970, c. L-13, ss. 4, 11.
The appellant company, in the course of its business as a motor carrier of goods, carried non-perishables on a Sunday, and was charged with a violation of s. 4 of the Lord’s Day Act. The trial judge acquitted the appellant on the ground that it was carrying on a “work of necessity”, which was excepted from the prohibitions of the Act by s. 11. In the case stated by the trial judge for the opinion of the Supreme Court of Ontario, it is mentioned that the appellant had not sought the authorization or permission of the Canadian Transport Commission. It was further mentioned that the work conducted by the appellant was necessitated by: the operational requirements of the appellant; the geographic distances between points of departure and destination; the requirements of the appellant’s customers; the economic well-being of the appellant, its customers, and to an extent, as well, the ultimate purchasers of the goods involved; and the exigencies of modern day society and economy. The acquittal was affirmed by a judge of the Supreme Court of Ontario. On a further appeal to the Court of Appeal, the order of acquittal was set aside and a conviction was registered. The company appealed to this Court.
Held: The appeal should be dismissed.
The appellant’s activities were clearly within the prohibitions of s. 4 unless exempted under s. 11. Parliament has not chosen to include motor transport in the exception under s. 11 (h) but has left it to the Canadian Transport Commission to give exemptions under s. 11(x). The appellant company cannot invoke the general words “work of necessity” in s. 11. If, as is the case, the appellant can claim no exemption
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under s. 11 as a transportation operation, there is nothing else in the facts herein that would entitle it to exemption, any more than any other operator of a business that would find it convenient or that would respond to customers’ requests to carry on business on Sunday.
APPEAL from a judgment of the Court of Appeal for Ontario, setting aside an order of acquittal and registering a conviction. Appeal dismissed.
Brian A. Crane, and Douglas MacLeod, for the appellant.
W.J. Parker, for the respondent.
The judgment of the Court was delivered by
LASKIN J.—The appellant company was charged with a violation of s. 4 of the Lord’s Day Act, R.S.C. 1970, c. L-13, in operating a commercial vehicle on Sunday in the ordinary course of its business as a motor carrier of goods. At the time of the alleged violation, the particular vehicle was carrying non-perishables. The accused company was acquitted in the Provincial Court on the ground that it was carrying on a “work of necessity”, which was excepted from the prohibitions of the Act by s. 11 thereof.
The trial judge stated a case for the opinion of the Supreme Court of Ontario and, in addition to the facts already mentioned, it contained the following findings:
(v) The respondent had not sought the authorization or permission of the Canadian Transport Commission for the conduct of its business on September 5, 1971, as proved.
(vi) The work conducted by the respondent was necessitated by: the operational requirements of the respondent; the geographic distances between
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points of departure and destination; the requirements of the respondent’s customers; the economic well-being of the respondent, his customers, and to an extent, as well, the ultimate purchasers of the goods involved; and the exigencies of modern day society and economy.
Grant J., after an extensive canvass of the authorities, affirmed the acquittal under the following conclusions:
I therefore hold that the learned Provincial Judge, in determining whether the respondent’s activities on the day in question amounted to a work of necessity, was entitled to take into consideration the requirements of the respondent’s customers as well as those ultimate purchasers of the goods involved and the exigencies of modern day society and economy, as well as the other matters referred to by him in the stated case.
On the narrower limits of jurisdiction of a Court of Appeal when hearing an appeal by way of stated case, I am unable to determine that the decision appealed from is wrong.
On further appeal to the Ontario Court of Appeal, the order of acquittal was set aside and a conviction was registered. Schroeder J.A., speaking for the Court, summed up in these words:
Giving the words “work of necessity” their ordinary meaning, we are unable to agree with the submissions of counsel for the respondent that a case of necessity has been made out so as to bring the respondent within the exempting provisions of s. 11.
The issue in this appeal is narrow. The appellant’s activities were clearly within the prohibitions of s. 4 unless exempted under s. 11. The relevant portions of that provision read as follows:
11. Notwithstanding anything herein contained, any person may on the Lord’s Day do any work of necessity or mercy, and for greater certainty, but not so as to restrict the ordinary meaning of the expression “work of necessity or mercy”, it is hereby declared that it shall be deemed to include the following classes of work:
(g) the conveying of travellers and work incidental thereto;
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(h) the continuance to their destination of trains and vessels in transit when the Lord’s Day begins, and work incidental thereto;
(x) any work that the Canadian Transport Commission, having regard to the object of this Act, and with the object of preventing undue delay, deems necessary to permit in connection with the freight traffic of any transportation undertaking.
The Lord’s Day Act does not define “work of necessity or mercy”, and the heterogeneous classes of deemed inclusions in paras. (a) to (x) of s. 11 do not reflect any consistent approach. They range from the supply of health services and attendant drugs and medicines to specified emergency services; they include utility and communication services and specified transportation services; milk delivery, and maple sugar and maple syrup grove operations; domestic service and service of watchmen; certain loading and unloading operations; unavoidable late Sunday work by fishermen and by newspapermen preparing next day’s edition. Although para. (g) excepts conveyance of travellers without limitation of the means of conveyance, there is no equivalent provision respecting conveyance of goods save as this is included in para. (h) respecting trains and vessels in transit and as may be permitted under para. (x). Assuming the conveyance of perishable goods (“caring” for them is covered by para. (m)) could fall within the general words “work of necessity”, that is not this case.
The evidence does not show when the transit in question here began, and hence even an analogous application of the words “work of necessity” in the light of para. (h) is precluded. To the extent to which business or economic convenience of the operator of transportation services and of its customers underlies the exception in para. (h), there may be as much to be said for permitting motor transport as rail and vessel service. Parliament has not, however, chosen to do this by a general exception but has left it open to the Canadian Transport Commis-
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sion to give exemption under para. (x). Since it is work within para. (x) that the Commission “deems necessary” that may be exempted, and since, admittedly, the respondent’s activities fall within the Commission’s authority, I am unable to accept the contention of the appellant company that it may properly invoke the general words “work of necessity” in s. 11.
If, as I think is the case, the appellant company can claim no exemption under s. 11 as a transportation operation, there is nothing else in the facts herein that would entitle it to exemption, any more than any other operator of a business that would find it convenient or that would respond to customers’ requests to carry on business on Sunday. Parliament has declared otherwise.
I would dismiss the appeal.
Appeal dismissed.
Solicitors for the appellant: Trivett, Morris, Bright & Co., Toronto.
Solicitor for the respondent: The Attorney General of Ontario, Toronto.
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