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 presented to this Court.
36. The appeals were heard by a panel consisting of Howland C.J.O., and Arnup, Martin, Robins and Tarnopolsky, JJ.A. The Court unanimously dismissed the appeal of Edwards Books and Art Ltd., Longo Brothers, and Paul Magder, and allowed the appeal of Nortown Foods Ltd. Tarnopolsky J.A. delivered the reasons of the Court.
37. The Court held that the legislative intent and purpose of the Act, manifested in its title and its substantive provisions, was to provide for certain holidays to some persons engaged in certain retail trades. The fact that most of the holidays designated in s. 1 of the Act had religious origins was not conclusive. Tarnopolsky J.A. said, at p. 409:
The inclusion of Sunday and other "holy" days is incidental to the main purpose, which is to provide for holidays on days which are generally recognized as such in that they are days on which such institutions as schools, banks, government offices, courts, and most professional business and retail establishments are closed, whether by operation of the federal Lord’s Day Act or other provincial legislation. Unlike the provincial statutes struck down on the basis of the criminal law power and reviewed earlier in this judgment, the Retail Business Holidays Act does not legislate forced religious adherence nor does it even make statements about the need to preserve and protect Sunday as a religious day. The various exceptions permitting certain businesses to remain open on Sundays strongly indicate that the Act is not concerned with preserving the "sanctity of the Lord's Day". The exceptions themselves are not drawn in a way that suggests deference to Sunday for religious reasons. For example, businesses are not required to remain closed until normal worshipping hours are over. In my view, although some of the prohibitions and exemptions provided for in the Act are religious in origin, they have been retained and developed as secular practices long after their religious significance has ended.
38. Tarnopolsky J.A. also referred to the Ontario Law Reform Commission's Report on Sunday Observance Legislation (1970), as accurately reflecting the Ontario legislature's intent in enacting the Retail Business Holidays Act. The Report, in his view, articulated secular objectives for the Act. The Court therefore concluded that the Act was within provincial legislative competence.
39. The Court rejected an alternative argument based on the application of the paramountcy principle to a purported conflict between the Lord’s Day Act and the Retail Business Holidays Act. This Court's decision in Big M Drug Mart Ltd., which was rendered after the Ontario Court of Appeal's decision in the present cases, makes it unnecessary to review Tarnopolsky J.A.'s analysis of the paramountcy argument. In Big M Drug Mart Ltd., the federal Lord’s Day Act was held to be of no force and effect. An unconstitutional statute cannot render provincial legislation inoperative under the paramountcy doctrine.
40. With respect to the Charter guarantee of freedom of religion and conscience, Tarnopolsky J.A. held that what was required was an assessment not just of the purpose of legislation, but also its effects. He repudiated the applicability of the narrow concept of freedom of religion embodied in Robertson and Rosetanni v. The Queen, in which this Court interpreted s. 1(c) of the Canadian Bill of Rights as protecting only such freedom of religion as existed in Canada immediately before the enactment of the Canadian Bill of Rights. Tarnopolsky J.A. defined freedom of religion to include the freedom to manifest and practice one's religious beliefs. In these respects, Tarnopolsky J.A. anticipated conclusions which were reached by this Court in the Big M Drug Mart Ltd. case.
41. The Court of Appeal's analysis of the effects of the Retail Business Holidays Act led it to hold that the Act did not abridge the freedom of religion or conscience of those retailers who did not close their store for religious reasons on a day other than Sunday. For those who did close their establishments on another day to comply with their religious beliefs, however, the Act constituted a major inducement to suppress the practice of religion. For this second group, the Act made the observance of the Sabbath financially onerous. The Act thereby was held to infringe the freedom of religion of observers of a day other than Sunday.
42. The Court of Appeal was not prepared to strike down the entire statute on this account, however. Only those retailers who could demonstrate that their own sincerely held religious beliefs required them to observe a non‑Sunday Sabbath were entitled to be relieved from compliance with the Act. Sincerity of belief could be ascertained by analogy to the inquiry pursued under labour relations legislation with respect to conscientious objection to trade union membership. On the evidence, the Court held, only Nortown Foods Ltd. qualified for constitutional relief from the Act. The Court did not expressly address the questions whether and in what circumstances a corporation could be deemed to maintain and practise religious beliefs.
43. The Court of Appeal considered the exemption in s. 3(4) of the Act to be inadequate:
For one thing, it does not accommodate those whose sabbath is on a day other than a Saturday or Sunday, such as Friday, the sabbath observed by Muslims. For another, its limitation to seven employees makes a distinction which an enterprise like Nortown Foods Ltd. claims it cannot meet without seriously restricting its operation. The economic impact is only somewhat less severe than prohibition or being required to pay a special fee. [p. 428]
44. It held, further, that there was insufficient evidence from the Crown concerning the inconveniences that might result from permitting full Sabbatarian exemptions. Accordingly, the Act could not be justified under s. 1 of the Charter . The Report on Sunday Observance Legislation was not discussed in this context.
45. The Court's analysis of the remedial aspects of its decision is contained in the following passage:
In accordance with s. 52(1) of the Constitution Act, 1982 , the Act "is inconsistent with the provisions of the Constitution" and is "to the extent of the inconsistency, of no force or effect". I have already held that the Act is inconsistent only to the extent that it does not provide for adequate religious exemptions. Otherwise s. 2 of the Act is valid in its application to all appellants who cannot make such a claim sincerely or genuinely. The only appellant to establish such a claim is Nortown Foods Ltd. It would appear with respect to Nortown, that the defect in the Act is not in s. 2, but in s. 3(4) in that that subsection does not provide for adequate religious exemption. However, to strike down s. 3(4) would leave s. 2 in operation and thus no exemption at all for religious minorities who do not observe Sunday as the sabbath. What is required is a redrafting of s. 3(4) to meet the requirements of the Charter . This is not the role of the judiciary: R. v. Oakes (1983), 40 O.R. (2d) 660, 2 C.C.C. (3d) 339, 145 D.L.R. (3d) 123. The criteria which a new exemption section must meet have been described. For the purposes of disposing of these appeals it is sufficient to hold that s. 2 of the Act is of no force or effect as concerns Nortown Foods Ltd. and so its appeal is allowed, the conviction is quashed and a verdict of acquittal is directed to be entered. With respect to all other appellants, their appeals are dismissed to the extent they are based on this ground. [p. 430]
46. In summary, Edwards, Longo and Magder won in the Provincial Offences Court but lost in the Provincial Offences Appeal Court and in the Ontario Court of Appeal. Nortown lost in the first two courts but won in the Court of Appeal.
V
The Distribution of Powers Under ss. 91‑92 of the Constitution Act, 1867
47. I observe at the outset that counsel for Nortown was prepared to assume that the legislation was intra vires the province. Many of the arguments propounded by the appellant retailers in an effort to have this Court declare the Act ultra vires would also serve to impugn the legislation for the purposes of s. 2( a ) of the Charter . For if the Retail Business Holidays Act were intended by the legislators to promote or prefer certain Christian faiths, it would not only be ultra vires but would also be inconsistent with the Charter guarantee of freedom of religion, for the reasons given by this Court in the Big M Drug Mart Ltd. case. First, however, I wish to deal with an argument of a different nature, which requires a careful assessment of the jurisprudence concerning the distribution of legislative authority in relation to Sunday‑closing laws, so called.
(A) The Jurisprudence
48. In Big M Drug Mart Ltd., at p. 355, after concluding that the Lord’s Day Act was within the federal criminal law power, the majority of the Court stated:
It should be noted, however, that this conclusion as to the federal Parliament's legislative competence to enact the Lord’s Day Act depends on the identification of the purpose of the Act as compelling observance of Sunday by virtue of its religious significance. Were its purpose not religious but rather the secular goal of enforcing a uniform day of rest from labour, the Act would come under s. 92(13), property and civil rights in the province and, hence, fall under provincial rather than federal competence: In the Matter of Legislative Jurisdiction Over Hours of Labour, [1925] S.C.R. 505; Attorney‑General for Canada v. Attorney‑General for Ontario, [1937] A.C. 326 (P.C.).
Ritchie J. expressed a similar opinion in Robertson and Rosetanni v. The Queen, at p. 657.
49. Paul Magder in effect urges the Court to reconsider what was said in Big M Drug Mart Ltd. and Robertson and Rosetanni. The Sunday‑closing jurisprudence, he argues, discloses a principle that prohibitory legislation which dictates particular days when businesses must be closed is legislation in relation to public morals, and consequently is exclusively within the competence of Parliament under s. 91(27). Prohibitory legislation is to be distinguished, in his submission, from valid provincial or municipal regulatory legislation by the absence of any attempt to regulate the hours of closing of businesses on days other than Sunday. Provincial legislative jurisdiction over labour matters, including rest from labour, only extends to a specification of the amount of rest to which workers are entitled, but not to the naming of days when the rest shall be taken.
50. In my view, the argument is predicated on a fundamental misconception regarding the reasons for which the courts have generally held Sunday observance legislation to be a matter of "public morals".
51. In Big M Drug Mart Ltd. at pp. 319‑28, the leading distribution of powers cases relating to Sunday‑closing laws were reviewed. It would be otiose to review them again. It suffices to articulate two principles that emerge from the cases. First, profaning the Sabbath has historically been regarded as a criminal offence: Attorney‑General for Ontario v. Hamilton Street Railway Co., [1903] A.C. 524, at p. 529 (see also the argument of counsel at pp. 527‑28); Ouimet v. Bazin (1912), 46 S.C.R. 502, at pp. 508 and 528‑29; Henry Birks & Sons (Montreal) Ltd. v. City of Montreal, [1955] S.C.R. 799, at pp. 803, 813 and 820‑22. Second, the criminal law characterization evolved from a societal perception, propagated by followers of the dominant religious groups, that it was morally repugnant to violate certain religious tenets. This second principle finds expression in the reasons of Idington J. in St. Prosper (La Corporation de la Paroisse de) v. Rodrigue (1917), 56 S.C.R. 157, at p. 160, in which he refers to the reasoning in Ouimet v. Bazin:
... I cannot read the several opinions which led to the decision without feeling that it was founded in truth upon the common notion of a peculiar sanctity found in the religious obligations to observe the day as one devoted to religious observances, which leads to viewing its desecration with such abhorrence as to constitute that something criminal in its nature and hence legislation relative thereto as criminal legislation.
52. The moral abhorrence which historically grounds the criminal characterization of Sunday observance legislation is entirely absent from legislation designed to implement a secular pause day concept.
53. In my view, the decision in the reference to this Court, In re Legislation Respecting Abstention from Labour on Sunday (1905), 35 S.C.R. 581, does not assist the appellants. There, the Court held that both the draft bill and the hypothetical legislation which were under review were designed to promote Sunday observance, notwithstanding the absence of an overt reference to the Lord's Day or profaning the Sabbath. Undoubtedly the Court was influenced by the fact that the reference was initiated so soon after the Hamilton Street Railway case (in which legislation of a very similar nature, albeit with express reference to profaning the Sabbath, was struck down) and by one of the constitutional questions submitted by the Province. The question indicated that the draft bill was advanced as a replacement for An Act to Prevent the Profanation of the Lord’s Day, in Upper Canada, C.S.U.C. 1859, c. 104. Furthermore, the draft bill not only prohibited business activities but also the shooting of guns, the playing of games or contests for prizes and the opening of parks and pleasure grounds for an admission fee. These prohibitions, which stand in marked contrast to s. 3(6) of the Retail Business Holidays Act, provide a strong indication that the draft bill was not so much designed to provide a uniform day of rest and recreation for workers, as it was to enforce the prevailing religious ideal of appropriate Sunday behaviour.
54. I am, therefore, unable to extract from this reference any legal principle dictating that pause day legislation is inherently legislation in respect of "public morals". Nor, incidentally, can I extract a rule of law that a province's selection of Sunday as a common pause day must inevitably be held to be a colourable attempt to enforce majoritarian religious beliefs. Indeed, such principles would be in conflict with Attorney‑General for Canada v. Attorney‑General for Ontario (The Labour Conventions Case), [1937] A.C. 326 (P.C.), in which the judgment of the Judicial Committee expressly proceeded on the understanding that the Weekly Rest in Industrial Undertakings Act, S.C. 1935, c. 14, was legislation in respect of property and civil rights. Section 3 of that Act required industrial employers to grant at least one day of rest to employees, and wherever possible, the rest period was to be on a Sunday. If such legislation is within provincial jurisdiction, as the Judicial Committee accepted, then the propositions advanced by counsel for Paul Magder must be rejected. The protection of workers from pressure to work on a day when their children are out of school, their friends and relatives are available for visits, and their community is geared to social, sporting and recreational activities is not, in my opinion, a criminal law objective. If a primary purpose of the legislative enactment of a pause day is to benefit workers in these respects, the legislation is properly characterized as relating to property and civil rights within the province.
55. Since the Reference re Validity of Section 5(a) of the Dairy Industry Act, (The Margarine Reference), [1949] S.C.R. 1 at p. 50, it is trite law that not all prohibitory legislation is criminal in nature. Nevertheless, counsel referred to several Sunday closing cases, particularly the Henry Birks case and Clarke v. Wawken, [1930] 2 D.L.R. 596 (Sask. C.A.), in which an absence of a complete regulatory scheme extending to business closing hours on days other than Sunday was apparently an important factor in holding the legislation unconstitutional. It was submitted that in Lieberman v. The Queen, this Court upheld a municipal by‑law prohibiting the opening of pool halls and bowling alleys on Sundays precisely because the by‑law did regulate the hours of business on days other than Sunday. All these cases, however, concerned municipal by‑laws or their enabling legislation. The definition of the boundary between the regulation of local matters and criminal law has often proven difficult: contrast, for example, the views of the majority and minority in Attorney General for Canada and Dupond v. City of Montreal, [1978] 2 S.C.R. 770. The search for a comprehensive regulatory scheme in cases such as Clarke, Lieberman and Henry Birks has been a part of the difficult task of ascertaining whether the true purpose of a particular local regulation was to enact a localized criminal law.
56. The present case involves an entirely different provincial interest, namely the "civil rights" of employees to enjoy a common day of rest and recreation. In such circumstances, the presence or absence of a regulatory scheme on week‑days is of little probative value. Accordingly, I am unimpressed with the alleged prohibitory nature of the Retail Business Holidays Act and I remain convinced of the correctness of the opinion expressed by the Court in Big M Drug Mart Ltd., at p. 355.
(B) Religious Origins or Religious Purposes?
57. In Lieberman v. The Queen, Ritchie J. stated, at p. 648:
It is not to be lightly assumed that any part of the by‑law is directed to a purpose beyond the legislative competence of the enacting authority and I do not think that the inclusion of Sunday in the hours of closing of these businesses necessarily carries with it any moral or religious significance.
Counsel for the appellant has called to our attention a number of cases in this Court deciding that provincial statutes designed to enforce the observance of days of religious obligation are ultra vires, but in each of these cases the legislation in question carried within itself clear evidence that it was directed to this end.
Two distinct principles may be distilled from those remarks. First, the presumption of constitutionality applies in respect of Sunday‑closing laws; the courts will not readily leap to the conclusion that such a law is a colourable attempt to enforce or encourage religious observance. Second, distinctive legislative treatment of a day, such as Sunday, which has particular religious significance does not invariably require the legislation to be characterized as religious in nature. It is upon this second point that I now wish to dwell.
58. It is beyond doubt that days such as Sundays, Christmas and Easter were celebrated as holidays in Canada historically for religious reasons. The celebration of these holidays has continued to the present partly because of continuing, though diminished, religious observances of the largest denominations of the Christian faith, partly because of statutory enforcement under, inter alia, the now unconstitutional Lord’s Day Act, and partly because of the combined effect of social inertia and the perceived need for people to have days away from work or school in common with family, friends and other members of the community. These, in my view, are the social facts which explain the selection by individuals, businesses, school boards, and others of particular days as holidays.
59. It is important to keep in mind, however, that the Court is not called upon to characterize the historical origins, or even the continuing cause for the selection by individual members of the community of particular holidays. To do so would be to characterize social facts rather than characterizing the impugned law. The question in the present cases therefore cannot be reduced to a mathematical exercise of computing the number of holidays prescribed by the Act which have a religious origin. Our society is collectively powerless to repudiate its history, including the Christian heritage of the majority. My opinion in this respect is reinforced by the words of Warren C.J., writing for the majority of the United States Supreme Court in McGowan v. Maryland, 366 U.S. 420 (1961), at p. 445:
To say that the States cannot prescribe Sunday as a day of rest for these purposes solely because centuries ago such laws had their genesis in religion would give a constitutional interpretation of hostility to the public welfare rather than one of mere separation of church and State.
60. In my view, Hall J., writing on behalf of a majority of the Manitoba Court of Appeal, correctly stated and applied the law in R. v. Tamarac Foods Ltd. (1978), 96 D.L.R. (3d) 678 (Man. C.A.), at p. 682, in which Manitoba's Retail Businesses Holiday Closing Act, S.M. 1977, c. 26, C.C.S.M., c. R120, was alleged to be ultra vires:
What therefore emerges is the question of whether it can be said that the impugned statute has for its true object, purpose and character, the prevention of the profanation of Sunday or other days of religious significance, or whether it is designed to provide holidays for some persons engaged in certain retail trades.
An examination of the statute itself and the agreed statement of facts does not reveal a legislative object or intent to prevent the profanation of the Sabbath or other days of religious significance. On the contrary, the title of the enactment and its substantive provisions reveal that the Legislature desired and intended to make provisions for holidays to some persons engaged in certain retail trades. The fact that Sunday and some other days of a religious significance are included in the definition of "holiday" is incidental to the main purpose of the legislation and is not a sufficient basis from which to conclude that the statute is directed towards the prevention of the profanation of the Sabbath or other days of religious significance and thus beyond provincial legislative competence.
61. What must be determined in the present appeals is whether the purpose of the Retail Business Holidays Act was to confer holidays on retail workers in common with the holidays enjoyed by other members of the community, or whether it was a carefully drafted colourable scheme to promote or prefer religious observance by historically dominant religious groups.
(C) The Legislative Purpose of the Retail Business Holidays Act
62. I agree with Tarnopolsky J.A. that the Retail Business Holidays Act was enacted with the intent of providing uniform holidays to retail workers. I am unable to conclude that the Act was a surreptitious attempt to encourage religious worship. The title and text of the Act, the legislative debates and the Ontario Law Reform Commission's Report on Sunday Observance Legislation (1970), all point to the secular purposes underlying the Act.
63. The Act includes Victoria Day, Canada Day and Labour Day as "holidays". These are secular holidays and I am not prepared to infer that they have been included to disguise a religious purpose. I have already observed that the Act, unlike the draft bill submitted to the Court in In re Legislation Respecting Abstention from Labour on Sunday, exempts recreational businesses. Such an exemption is inconsistent with the traditional religious view of appropriate Sunday conduct. The variety of other exemptions, such as those pertaining to small businesses and tourism, also suggests that secular and not religious values have prompted the legislation.
64. The Legislative Debates of the Ontario Legislature, First Session of the Thirtieth Legislature, November 6, 1975, at p. 330, include the following remarks of then Solicitor General MacBeth:
Rather than the approach that the original Lord's Day Act took in 1906‑‑it was a federal Act and took a religious approach‑‑the Law Reform Commission suggested that a secular approach should be taken, and that is the approach, of course, that is embodied in our legislation. The intent of the legislation is to permit as many people as reasonably as possible to enjoy a common pause day.
65. The reference of Mr. MacBeth to the Law Reform Commission was to the Report on Sunday Observance Legislation which was a project undertaken by the Commission (then composed of H. Allan Leal, Q.C., Chairman, and the Hon. James C. McRuer, the Hon. Richard A. Bell, Q.C., W. Gibson Gray, Q.C. and William R. Poole, Q.C.) at the request of the Minister of Justice and Attorney General for Ontario. From the symmetry between the suggestions in the Report and the actual provisions of the legislation, particularly in respect of businesses which should be exempted from the law, I accept that the Report accurately reflects the purposes of the Act.
66. The Report recommends at pp. 265‑68 that a uniform weekly pause day be enacted in Ontario. Amongst the factors leading the Commission to advocate uniform or common holidays were (i) the problems of coordinating holidays amongst family and friends in a staggered holiday system (especially for families with children of school age), (ii) the difficulty of holding community events under an alternative regime, and (iii) the expressed preference of most people to spend their days off with family, friends or even among crowds.
67. The Report then turned to the question which day of the week ought to be selected as a weekly pause day. According to the authors, the selection of Saturday would ignore traditions whereby Saturday has come to be regarded as a retail shopping or market day. The Report concluded that Sunday was the best choice, but for secular reasons:
Sunday as a day of religious observance in Ontario appears to be decreasing in significance, if church and Sunday school attendance on that day is any indication. But this does not mean that Sunday is losing its significance as a pause day‑‑characterized by a high degree of social interaction and leisure activities among family and friends. Indeed, our behavioural research revealed that Sunday in Ontario in 1970 has these latter characteristics to a very high degree, certainly more so than on any other day of the week. We would therefore regard the singling out of Sunday as the day of government support as consistent with the promotion of these characteristics. [pp. 268‑69]
...
There are very few countries in the world in which Sunday has not been chosen as the uniform pause day by legislation. Yet many of these countries would hardly characterize their legislation as "Christian" or "religious" in nature. The U.S.S.R., for example, established Sunday as the pause day (or "day off") by an edict of the Praesidium of the Supreme Soviet in 1940. We were told by the Canadian Ambassador in Moscow that Sunday is officially a day of rest, recreation, cultural education, amusement and political activity. The basic labour law of the Socialist Federal Republic of Yugoslavia recognizes Sunday as a day of rest subject to municipal regulation, and violations of municipal ordinances respecting Sunday work are subject to fines. Even in Japan, a country where Christianity has never been more than a minor religion, three separate government regulations exist requiring Sunday to be a day of rest, the first promulgated in 1876 relating to public servants, the second in 1922 relating to business hours at government agencies, and the third in 1949 respecting the 1922 regulation and adding that officials should be on duty every day except holidays and Sundays. We were advised by the Canadian Ambassador in Japan that Sunday is not a working day except for people in service industries and retail merchandising, but neither is it a day of religious observance.
In short, there are sufficient precedents throughout the world for the legislative selection of Sunday as a uniform pause day for secular rather than religious purposes. For the reasons outlined, we would propose that this practice be followed in Ontario. [pp. 269‑70]
68. The Report concedes at p. 269 that the selection of Sunday as a pause day would have the incidental effect of benefiting a substantial minority of the population that attends church on Sundays. I am satisfied, however, that the acknowledgment of the religious effects of a Sunday pause day is precisely that: a frank acknowledgment of effects, rather than an expression of concealed purpose.
69. It was pointed out in argument that the Law Reform Commission recommended legislation of general application, while the Retail Business Holidays Act, as its title implies, is restricted to the retail trade. In my opinion, the narrower focus of the Act does not reflect a repudiation of the Report, but rather, a decision to deal with an area of special concern. At pages 294‑95, the Report identifies the retail trade as an industry particularly sensitive to competitive pressures and therefore less likely than other industries to provide a uniform pause day without legislative enforcement. It also refers to retail workers as particularly vulnerable, with less than ten percent of retail labour unionized. At page 295, the Report summarizes the special need for regulation of the retail trade:
This all points to our major concern that most retail employees, in the absence of Sunday regulation, would not really have much freedom of choice whether they wanted to work or not. In many cases, they would be subject to subtle economic pressure to work, particularly in large establishments where employee resistance to management decisions to open would be met simply by replacing the resisting employees. This is not a criticism of large economic aggregates in retailing, but an acknowledgment of the potential power which they wield on this matter.
70. The Ontario Legislature's decision to apply the recommendations of the Law Reform Commission only to the retail trade therefore does not imbue me with doubt as to the validity of its aims.
(D) The Saturday Exemption
71. Another apparent point of departure between the Report on Sunday Observance Legislation and the Act was the inclusion in the latter of s. 3(4). The subsection provides a limited exemption to retailers who close their store for twenty‑four consecutive hours in the period running from four o'clock on Friday afternoon to midnight on Saturday. As we have seen, the exemption is limited in that it permits the retailer to maintain no more than seven employees or 5,000 square feet of store space to serve the public at any given time on the subsequent Sunday.
72. Chapter 16 of the Report recommends against the adoption of a religious or "Sabbatarian" exemption, which the Commission defines, at p. 350, as an exemption "for those persons who conscientiously observe Saturday or some other day as their religious day ... providing they close on Saturday or that other religious day". Amongst the reasons given for recommending against the creation of such an exemption were (i) it would be inconsistent with the secular objectives of the legislation; (ii) it would jeopardize the constitutional validity of the scheme; and (iii) it would create practical difficulties of administration and enforcement. The anticipated difficulties included the undesirability of a state‑conducted inquiry into the sincerity of an individual's religious beliefs and the difficulty of ensuring a minimal disruption of the uniformity of the pause days. The Report also expressed concern that the protection of workers' freedom of religion might require any Sabbatarian exemption to contain a proviso dictating that Sabbatarian retailers only employ co‑religionists on Sundays, and that such a proviso would be contrary to The Ontario Human Rights Code, S.O. 1961‑62, c. 93. At pages 352‑53, the Report quotes passages, which will be discussed below, from Warren C.J.'s judgment in Braunfeld v. Brown, 366 U.S. 599 (1961), at pp. 608‑09 and from Frankfurter J.'s judgment in McGowan v. Maryland, at pp. 515‑16, in which these concerns are voiced.
73. The exemption in s. 3(4) is not an exemption of the type considered and rejected by the Law Reform Commission. It is available to retailers of any religion, and thereby avoids imparting the religious flavour which the Report deemed undesirable. No state‑conducted inquiry into religious beliefs is needed. The Act cushions the disruptive effect of the exemption by limiting the size of establishments which can open on Sundays instead of implementing a generally undesirable and possibly illegal rule requiring the hiring of co‑religionists. In many respects, therefore, the exemption in s. 3(4) conforms to the spirit of the Report.
74. There was considerable argument regarding the motives of the Legislature in enacting s. 3(4) until Mr. Robinette drew our attention to the Legislative Debates of Ontario for December 17, 1975. The debates clearly indicate that the exemption was inspired by concerns about the effect of the Act on Saturday observers. One member, for example, is reported to have said, at p. 1872:
Mr. Samis: We will support this amendment even though the strange anomaly is that we are talking about religion here. We all know that the section here deals entirely with religion, but the legal eagles tell us, apparently, that to include the word "religion" would jeopardize the constitutionality of this bill. Rather than give any extra business to the legal eagles of Ontario and delay the process of justice, we'll support the amendment.
Other members also acknowledged the origin of the exemption in religious concerns. In any event, the religious purpose of the exemption is plainly revealed by the timing of the exemption to coincide with a Sabbath beginning at sundown on Friday evening.
75. In Walter v. Attorney General of Alberta, [1969] S.C.R. 383, the Court was prepared to assume, without deciding, that the federal Parliament had exclusive legislative jurisdiction in relation to religion or religious freedom, in the course of upholding a provincial statute. A similar assumption was made by Cartwright J., Fauteux J. concurring, in Saumur v. City of Quebec, [1953] 2 S.C.R. 299, at p. 387, again, in the course of upholding provincial legislation. Of the other judges in Saumur, three (Rinfret C.J., Taschereau and Kerwin JJ.) held that freedom of religion was a civil right within s. 92(13) of the Constitution Act , 1867 , while four (Rand, Kellock, Estey and Locke JJ.) expressed the opinion that it was beyond provincial competence to enact legislation restricting religious freedom. Never has a majority of this Court held that Parliament (or indeed the provincial legislatures) has exclusive jurisdiction in respect of religion or freedom of religion. The question remains an open one.
76. There are, undoubtedly, religious matters within exclusive federal competence, most notably prohibitions against the profanation of the Sabbath. As I have already observed, however, the characterization of Sabbath observance legislation as criminal law has its roots not in any general or inherent connection between religion and criminal law, but in the history of the specific criminal offence of profaning the Sabbath. In my view there exist religious matters which must similarly fall within provincial competence. Section 92(12) expressly allocates the solemnization of marriages, a class of subjects with important historical or traditional religious dimensions, to the provincial legislatures. Section 93 imposes restrictions on provincial competence with respect to denominational schools which would be unnecessary if religion as a whole were beyond the sphere of provincial jurisdiction. It would seem, therefore, that the Constitution does not contemplate religion as a discrete constitutional "matter" falling exclusively within either a federal or provincial class of subjects. Legislation concerning religion or religious freedom ought to be characterized, I believe, in light of its context, according to the particular religious matter upon which the legislation is focussed.
77. Such an approach finds support in the recent decision of this Court in Scowby v. Glendinning, [1986] 2 S.C.R. 226. Estey J., on behalf of the majority, observed at p. 233 that "human rights", without more, was not a free standing program falling within a single class of subjects in ss. 91‑92. Provincial human rights provisions must be assessed in their context according to the following criteria:
In each case, the essential question is whether provincial legislation is valid as in relation to property and civil rights or some other head of s. 92, or impermissibly deals with matters in relation to a subject over which Parliament has been given exclusive legislative jurisdiction. Should the root of the human rights legislation under challenge be within the territory of pure criminal law, and not in a valid provincial legislative object, it is beyond the powers of the provincial legislature. [p. 236]
78. Applying the above principles to the appeals at bar, it is, in my opinion, 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. All that is achieved by s. 3(4) of the Retail Business Holidays Act is the subtraction of a duty imposed elsewhere in the Act. Section 3(4) cannot be divorced from its context in valid provincial legislation in relation to property and civil rights: an exemption must be read in light of the affirmative provision to which it relates. I might add that it would be a peculiar result indeed if the federal Parliament and not the provincial legislature were the competent body to create exemptions from provincial legislation, whether motivated by religious or other concerns. Consequently, neither the Act nor the exemption is, in my opinion, ultra vires the province.
79. I therefore agree with the Ontario Court of Appeal that the Retail Business Holidays Act is within provincial legislative competence under s. 92 of the Constitution Act, 1867 . The first constitutional question ought to be answered in the affirmative.
VI
Freedom of Conscience and Religion Under s. 2(a)
80. The constitutional guarantee of freedom of conscience and religion is found in s. 2( a ) of the Canadian Charter of Rights and Freedoms , which reads:
2. Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion
Section 27 is relevant to the interpretation of the above provision:
27. This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.
81. What I have said above regarding the legislative purpose of the Retail Business Holidays Act and the distinction between historical origins and legislative purposes applies as well to the Charter as it does to the distribution of powers. The Act has a secular purpose which is not offensive to the Charter guarantee of freedom of conscience and religion.
82. The Court held, in the Big M Drug Mart Ltd. case, at pp. 331‑34, that both the purposes and effects of legislation are relevant to determining its constitutionality. Even if a law has a valid purpose, it is still open to a litigant to argue that it interferes by its effects with a right or freedom guaranteed by the Charter . It will therefore be necessary to consider in some detail the impact of the Retail Business Holidays Act. Before doing so, however, it is useful to articulate the applicable constitutional principles.
(A) The Constitutional Protection from State‑Imposed Burdens on Religious Practices and Religious Non‑Conformity
83. In Big M Drug Mart Ltd. the Court had occasion to review the pre‑Charter Canadian jurisprudence and some of the American cases concerning the constitutional validity of Sunday‑closing laws. I wish to avoid a substantial repetition of what was said in the Big M Drug Mart Ltd. case, but some renewed scrutiny of the cases and issues particularly germane to the different considerations involved in the present appeals will, I hope, be helpful.
84. The only Canadian case to which I wish to refer is Robertson and Rosetanni. It was contended in that appeal that the Lord’s Day Act conflicted with s. 1(c) of the Canadian Bill of Rights and was thereby rendered inoperative. The majority in Robertson and Rosetanni considered the effects of the Lord’s Day Act on the freedom to practice religion and concluded that these effects were purely secular in nature. At pages 657‑58, Ritchie J. wrote:
... I can see nothing in that statute which in any way affects the liberty of religious thought and practice of any citizen of this country. Nor is the "untrammelled affirmations of religious belief and its propagation" in any way curtailed.
The practical result of this law on those whose religion requires them to observe a day of rest other than Sunday, is a purely secular and financial one in that they are required to refrain from carrying on or conducting their business on Sunday as well as on their own day of rest. In some cases this is no doubt a business inconvenience, but it is neither an abrogation nor an abridgment nor an infringement of religious freedom ....
Since there is no further discussion on this point, one can only infer that Ritchie J.'s conclusion in this respect was premised upon the indirectness of the effects of mandatory Sunday closing on the practice of religion by Saturday‑observing retailers.
85. The American authorities particularly relevant to the present appeals consist of four cases, simultaneously decided in 1961 by the United States Supreme Court, involving the constitutionality of Sunday‑closing laws. I have already made reference to McGowan v. Maryland and Braunfeld v. Brown. The others were: Two Guys from Harrison‑Allentown, Inc. v. McGinley, 366 U.S. 582 (1961), and Gallagher v. Crown Kosher Super Market of Massachusetts, Inc., 366 U.S. 617 (1961). In considering these cases it is important to bear in mind the differences between the Canadian and American constitutions, not just in respect of the wording of the provisions relating to religion, but also regarding the absence of a provision such as s. 1 of the Canadian Charter in the American instrument. It was argued in these cases that various State laws requiring Sunday closing were contrary to the "establishment clause" and the "free exercise clause" of the First Amendment to the American Constitution, which provides in material part:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; ...
All of these challenges were rejected by a majority of the Court in each case, notwithstanding that the laws there in issue, unlike the Retail Business Holidays Act, were undoubtedly intended, at the time of their passage, to enforce Sunday observance in the religious sense and even retained references to the "Lord's Day" and, in some cases, "desecration of the Sabbath".
86. In Big M Drug Mart Ltd. the Court noted the use by the majority of the United States Supreme Court of a concept of "shifting legislative purpose", whereby the purpose underlying the laws was seen to have shifted from religious to secular concerns. The majority of the U.S. Supreme Court thereby sustained the legislation from attack under the "establishment clause", which prohibits state sponsorship of religion. This Court declined to import the "shifting purpose" doctrine into Canadian jurisprudence and the purpose of the Lord’s Day Act was consequently held, in Big M Drug Mart Ltd., to infringe the right to be free from conforming to religious dogma.
87. Of particular interest to the present appeals, however, is the United States Supreme Court's discussion of the "free exercise clause" of the First Amendment. In Braunfeld v. Brown, the appellants were Orthodox Jews engaged in the retail business. They contended that a Pennsylvania statute prohibiting retail sales on Sundays, which did not contain any exemption designed to reduce the adverse religious effects of the legislation, compelled them either to forego their Sabbath or suffer a substantial economic loss, to the benefit of non‑Sabbatarian competitors.
88. The opinion of Warren C.J., writing for himself and three other judges, was that the law operated "so as to make the practice of their religious beliefs more expensive": p. 605. All of the other justices agreed with this conclusion. According to the majority, however, it did not necessarily follow that the laws were unconstitutional. The Chief Justice wrote at pp. 606‑07:
If the purpose or effect of a law is to impede the observance of one or all religions or is to discriminate invidiously between religions, that law is constitutionally invalid even though the burden may be characterized as being only indirect. But if the State regulates conduct by enacting a general law within its power, the purpose and effect of which is to advance the State's secular goals, the statute is valid despite its indirect burden on religious observance unless the State may accomplish its purpose by means which do not impose such a burden.
89. Applying this test, the Chief Justice affirmed the validity of the objective of providing a general day of rest, and assessed the alternative means by which the State's objectives might be achieved without the imposition of such a burden. He was not satisfied with any of the alternatives, including the possibility of a Sabbatarian exemption, and accordingly upheld the legislation.
90. Frankfurter J. wrote a separate concurring judgment (which is contained in the report of the McGowan v. Maryland case), in which Harlan J. concurred. At page 521, he too concluded that the burden on Saturday‑observing retailers was "an incident of the only feasible means" to achieve the legislative objective.
91. Brennan J. dissented. He characterized the issue as whether a State may put an individual to a choice between his business and his religion. In his view, the State's interest in having everyone share a common day of rest was not sufficiently compelling to justify the "substantial, though indirect, limitation" on the freedom of religion of Sabbatarian retailers in the absence of a Sabbatarian exemption: p. 614. Stewart J. concurred in the dissent of Brennan J.
92. Douglas J. also dissented, but on a different basis. (Like Frankfurter J., he wrote a single opinion for all four cases which may be found in the report of Maryland v. McGowan.) He was the only one of the Justices to find that the laws retained their original religious purpose. He held the "free exercise clause" to be offended for the same reasons which guided this Court in Big M Drug Mart Ltd. At pages 576‑77, he said:
There is an interference with the "free exercise" of religion if what in conscience one can do or omit doing is required because of the religious scruples of the community.
His judgment continued, at p. 577, noting that the economic penalty on Saturday‑observers accentuated the unconstitutionality of the laws. It is of considerable interest, however, to record that Douglas J. departed from his colleagues in asserting that First Amendment rights were absolute, that is, not subject to the sort of balancing which is undeniably required in Canada under s. 1 of the Charter . At pages 575‑76, he said:
The Court balances the need of the people for rest, recreation, late sleeping, family visiting and the like against the command of the First Amendment that no one need bow to the religious beliefs of another. There is in this realm no room for balancing. I see no place for it in the constitutional scheme .... Any other reading imports, I fear, an element common in other societies but foreign to us. Thus Nigeria in Article 23 of her Constitution, after guaranteeing religious freedom, adds, "Nothing in this section shall invalidate any law that is reasonably justified in a democratic society in the interest of defence, public safety, public order, public morality, or public health." And see Article 25 of the Indian Constitution.
93. In summary, then, all nine members of the Court held that Sunday‑closing laws imposed an indirect economic burden on Saturday‑observing retailers. Six of the justices regarded this burden as a necessary incident of achieving a valid legislative objective. Two of the justices would have required a Sabbatarian exemption. The remaining judge considered the absence of a "reasonable limits" clause in the American Constitution to be determinative. I agree with Douglas J.'s assessment that the majority was engaged in a balancing process which, under a constitution like Canada's, would properly be dealt with under a justificatory provision such as s. 1.
94. I now turn to this Court's decision in Big M Drug Mart Ltd. for a definition of freedom of religion under the Canadian Charter of Rights and Freedoms . At pages 336‑37, the majority adopted the following words:
A truly free society is one which can accommodate a wide variety of beliefs, diversity of tastes and pursuits, customs and codes of conduct. A free society is one which aims at equality with respect to the employment of fundamental freedoms and I say this without any reliance upon s. 15 of the Charter . Freedom must surely be founded in respect for the inherent dignity and the inviolable rights of the human person. The essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination. But the concept means more than that.
Freedom can primarily be characterized by the absence of coercion or constraint. If a person is compelled by the state or the will of another to a course of action or inaction which he would not otherwise have chosen, he is not acting of his own volition and he cannot be said to be truly free. One of the major purposes of the Charter is to protect, within reason, from compulsion or restraint. Coercion includes not only such blatant forms of compulsion as direct commands to act or refrain from acting on pain of sanction, coercion includes indirect forms of control which determine or limit alternative courses of conduct available to others. 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 rights and freedoms of others, no one is to be forced to act in any way contrary to his beliefs or his conscience.
(Emphasis added.)
95. The Court was concerned in that case with a direct command, on pain of sanction, to conform to a particular religious precept. The appeals with which we are now concerned are alleged to involve two forms of coercion. First, it is argued that the Retail Business Holidays Act makes it more expensive for retailers and consumers who observe a weekly day of rest other than Sunday to practise their religious tenets. In this manner, it is said, the Act indirectly coerces these persons to forego the practice of a religious belief. Second, it is submitted that the Act has the direct effect of compelling non‑believers to conform to majoritarian religious dogma, by requiring retailers to close their stores on Sunday.
96. The first question is whether indirect burdens on religious practice are prohibited by the constitutional guarantee of freedom of religion. In my opinion indirect coercion by the state is comprehended within the evils from which s. 2(a) may afford protection. The Court said as much in the Big M Drug Mart Ltd. case and any more restrictive interpretation would, in my opinion, be inconsistent with the Court's obligation under s. 27 to preserve and enhance the multicultural heritage of Canadians. Although the Court apparently reached a different conclusion in Robertson and Rosetanni in respect of the protection afforded under the Canadian Bill of Rights, I would follow Big M Drug Mart Ltd. in declining to be bound by jurisprudence interpreting an instrument which purported only to reaffirm pre‑existing rights and freedoms. It matters not, I believe, whether a coercive burden is direct or indirect, intentional or unintentional, foreseeable or unforeseeable. All coercive burdens on the exercise of religious beliefs are potentially within the ambit of s. 2(a).
97. This does not mean, however, that every burden on religious practices is offensive to the constitutional guarantee of freedom of religion. It means only that indirect or unintentional burdens will not be held to be outside the scope of Charter protection on that account alone. Section 2(a) does not require the legislatures to eliminate every miniscule state‑imposed cost associated with the practice of religion. Otherwise the Charter would offer protection from innocuous secular legislation such as a taxation act that imposed a modest sales tax extending to all products, including those used in the course of religious worship. In my opinion, it is unnecessary to turn to s. 1 in order to justify legislation of that sort. The purpose of s. 2(a) is to ensure that society does not interfere with profoundly personal beliefs that govern one's perception of oneself, humankind, nature, and, in some cases, a higher or different order of being. These beliefs, in turn, govern one's conduct and practices. The Constitution shelters individuals and groups only to the extent that religious beliefs or conduct might reasonably or actually be threatened. For a state‑imposed cost or burden to be proscribed by s. 2(a) it must be capable of interfering with religious belief or practice. In short, 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: see, on this point, R. v. Jones, [1986] 2 S.C.R. 284, per Wilson J. at p. 314.
98. I propose, shortly, to apply the above principles to the legislation under review. First, however, I wish to consider the second form of religious coercion allegedly flowing from the Act. It is of a different nature entirely since it involves not the freedom affirmatively to practise one's religious beliefs, but rather the freedom to abstain from the religious practices of others. The Retail Business Holidays Act prevents some retailers from selling their products on Sundays. Longo Brothers submits that these effects are identical to those which flow from any other form of Sunday closing legislation, including the Lord’s Day Act, and submits that the Act thereby requires retailers to conform to the religious practices of dominant Christian sects.
99. In Big M Drug Mart Ltd. this Court acknowledged that freedom of conscience and religion included the freedom to express and manifest religious non‑belief and the freedom to refuse to participate in religious practice: p. 347. These freedoms, which may compendiously be referred to as the freedom from conformity to religious dogma, are governed by somewhat different considerations than the freedom to manifest one's own religious beliefs. Religious freedom is inevitably abridged by legislation which has the effect of impeding conduct integral to the practice of a person's religion. But it is not necessarily impaired by legislation which requires conduct consistent with the religious beliefs of another person. One is not being compelled to engage in religious practices merely because a statutory obligation coincides with the dictates of a particular religion. I cannot accept, for example, that a legislative prohibition of criminal conduct such as theft and murder is a state‑enforced compulsion to conform to religious practices, merely because some religions enjoin their members not to steal or kill. Reasonable citizens do not perceive the legislation as requiring them to pay homage to religious doctrine. As Tarnopolsky J.A. stated at p. 422:
While freedom of conscience necessarily includes the right not to have a religious basis for one's conduct, it does not follow that one can rely upon the Charter protection of freedom of conscience to object to an enforced holiday simply because it happens to coincide with someone else's sabbath.
100. The majority judgment of the Court in Big M Drug Mart Ltd. was careful, in defining the freedom from conformity to religious dogma, to restrict its applicability to circumstances when the impugned legislation was motivated by a religious purpose:
What may appear good and true to a majoritarian religious group, or to the state acting at their behest, may not, for religious reasons, be imposed upon citizens who take a contrary view. [p. 337]
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. It seems to me that any law purely religious in purpose, which denies me that right, must surely infringe my religious freedom. [p. 338]
For the present case it is sufficient in my opinion to say that 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. [p. 347]
In my view, the guarantee of freedom of conscience and religion prevents the government from compelling individuals to perform or abstain from performing otherwise harmless acts because of the religious significance of those acts to others. [p. 350]
(Emphasis added.)
101. In my view, legislation with a secular inspiration does not abridge the freedom from conformity to religious dogma merely because statutory provisions coincide with the tenets of a religion. I leave open the possibility, however, that such legislation might limit the freedom of conscience and religion of persons whose conduct is governed by an intention to express or manifest his or her non‑conformity with religious doctrine. None of the retail stores involved in the present appeals has established that it was open on Sunday for any purpose other than to make money. Accordingly, there is no evidentiary foundation to substantiate the contention of some of the retailers that their freedom from conforming to religious doctrine has been abridged. The second form of coercion allegedly flowing from the Retail Business Holidays Act has not been established in these appeals.
102. It therefore remains only to consider the impact of the Act with a view to determining whether it significantly impinges on the freedom to manifest or practise religious beliefs.
(B) The Impact of the Retail Business Holidays Act
103. The Act has a different impact on persons with different religious beliefs. Four classes of persons might be differently affected: those not observing any religious day of rest, those observing Sundays, those observing Saturdays, and those observing some other day of the week.
104. (i) Non‑Observers
105. Consider, first, the persons who do not subscribe as a matter of faith to a duty to refrain from working or shopping on any specified day of the week. Included in this group are agnostics, adherents to faiths which do not prescribe a weekly day of rest, and persons who, although belonging to religious groups whose teachings may include the observance of a day of rest, do not personally feel a moral compulsion to conform to this particular religious injunction. For convenience, I refer to this varied constituency as the "non‑observers".
106. The Act prevents non‑observing retailers who cannot fit themselves within one of the statutory exemptions from doing business on Sundays. In the absence of the Act, these retailers would be able to transact business on seven days of the week, and they would have a competitive advantage in this respect relative to retailers whose religious beliefs required closing on Saturdays, Sundays, or any other day of the week. The adverse effects of the Act on non‑observing retailers are not substantially reduced by s. 3(4): they must still close their businesses one day of each week.
107. For reasons which I have outlined above, however, the effects of the Act on non‑observing retailers are generally secular in nature and do not impair or abridge their freedom of conscience or religion, at least in the absence of convincing evidence that the desire to remain open is motivated by dissentient religious purposes rather than purely business considerations.
108. (ii) Sunday Observers
109. The Act has a favourable impact on Sunday observers. By requiring some other retailers to refrain from trade on a day of special religious significance to Sunday observers, the latter are relieved of a loss of market share to retailers who would have been open for business on Sunday in the absence of the Act. The cost of religious observance has been decreased for Sunday observers by the enactment of the legislation.
110. (iii) Saturday Observers
111. There is evidence in the record that it is a religious tenet of the Jewish and Seventh‑day Adventist faiths not to work or transact business on Saturdays. Other faiths may also observe Saturday as a religious day of rest, but for the purposes of the present appeals it is the effects on Jews and Seventh‑day Adventists that will be considered.
112. The Attorney General of Ontario submits that any disability suffered by Saturday‑observing retailers is a consequence of their religious beliefs, and not of the Act. Even in the absence of the Act, devout Jews and Seventh‑day Adventists would close on Saturdays. The effect of the Act is to require them and all other persons, subject to the exemptions but irrespective of religious persuasion, to close on Sundays. Consequently, it is argued, there is no nexus between the impugned law and the freedom of Saturday observers to exercise their religious beliefs. Professor Petter expressed the argument in the following way in his critique of the Ontario Court of Appeal's decision in the present cases, "Not `Never on a Sunday': R. v. Videoflicks Ltd. et al." (1984‑85), 49 Sask. Law Rev. 96, at pp. 98‑99:
It is not the legislation which causes the financial burden; it is the religion itself.
Consider the following example. Suppose that all Sunday closing legislation, provincial and federal, were repealed tomorrow. Would the repeal of this legislation eliminate the financial burden suffered by persons who observe a Friday or Saturday Sabbath? Clearly it would not: while persons who do not observe a Sabbath would be able to open their stores seven days a week, persons who observe a Friday or Saturday Sabbath would be able to open their stores only six days a week. What is the cause of this burden? Clearly the cause is the religious requirement that one abstain from work on one's Sabbath. To suggest otherwise would be to imply a positive obligation upon the state to protect persons from any economic hardship which might arise as a result of their religious practices. Yet this is an untenable position which goes far beyond even the broad definition of freedom of religion adopted by the Court of Appeal. It would mean that if just one person could demonstrate that her sincere religious beliefs required her to close her store for five days each week, the state would be required to compel all others to close their stores for five days each week.
Professor Petter then explains that the true effect of the Act is only to confer a benefit on Sunday observers.
113. In view of the characteristics of the retail industry described in the Report on Sunday Observance Legislation, I find myself unable to draw such a neat distinction between benefits accruing to Sunday‑observing retailers and burdens imposed on Saturday observers. The Report refers on numerous occasions to the highly competitive nature of the retail industry, such that an increase in sales by one individual retailer occasioned by that retailer's marketing practices tends to result in significant decreases in the sales of other retailers. It follows that if the Act confers an advantage on Sunday‑observing retailers relative to Saturday‑observing retailers, the latter are burdened by the legislation.
114. A careful comparison of the effects of Sunday closing legislation on different religious groups clearly demonstrates the manner in which the burden flows from the legislation. In the absence of legislative intervention, the Saturday observer and the Sunday observer would be on a roughly equal footing in competing for shares of the available consumer buying power. Both might operate for a maximum of six days each week. Both would be disadvantaged relative to non‑observing retailers who would have the option of a seven day week. On this account, however, they would have no complaint cognizable in law since the disability would be one flowing exclusively from their religious tenets: I agree with Professor Petter that the state is normally under no duty under s. 2(a) to take affirmative action to eliminate the natural costs of religious practices. But, exemptions aside, the Retail Business Holidays Act has the effect of leaving the Saturday observer at the same natural disadvantage relative to the non‑observer and adding the new, purely statutory disadvantage of being closed an extra day relative to the Sunday observer. Just as the Act makes it less costly for Sunday observers to practise their religious beliefs, it thereby makes it more expensive for some Jewish and Seventh‑day Adventist retailers to practise theirs.
115. It is apparent from the above analysis that the competitive disadvantage experienced by non‑exempt Saturday‑observing retailers as a result of the Act is at the hands of Sunday‑observing retailers. The Report on Sunday Observance Legislation, at p. 269, refers to persons attending church on Sundays as "a substantial minority of the population". On the only evidence before the Court, I therefore do not think that the competitive pressure on non‑exempt retailers to abandon the observance of a Saturday Sabbath can be characterized as insubstantial or trivial. It follows that their freedom of religion is abridged by the Act.
116. It is important to recognize, however, that not all Saturday‑observing retailers are detrimentally affected. The Act is not merely neutral in its impact on those Jewish and Seventh‑day Adventist retailers who can practically comply with the employee and square‑footage limits of s. 3(4). It confers a benefit by placing them on a roughly equal competitive footing with non‑observing retailers, who, in the absence of legislative intervention, would be free to transact business seven days per week. The effect of the Act, far from producing a systematic discriminatory burden on all retailers of a particular faith, is to benefit some while burdening others.
117. Finally, I note that the Act also imposes a burden on Saturday‑observing consumers. For single parent families or two‑parent families with both spouses working from Monday to Friday, the weekend is a time to do the things one did not have time to do during the week. The Act does not impair the ability of Sunday observers to go shopping or seek professional services on Saturdays, but it does circumscribe that of the Saturday observer on Sundays. Although there is no evidence before the Court of the degree to which shopping variety is restricted on Sundays, I am prepared to assume for the purposes of these appeals that the burden on Saturday‑observing consumers is substantial and constitutes an abridgment of their religious freedom. I note that the burden may be particularly onerous on Jewish consumers who rely on retailers such as Nortown Foods Ltd. to supply them with foodstuffs that conform to religious dietary laws, although, once again, I must observe that there is no evidence regarding the degree to which Kosher foods can be purchased from smaller retailers on Sundays.
118. (iv) Observers of Another Day of the Week
119. In the absence of cogent evidence regarding the nature of Hindu observance of Wednesdays or Moslem observance of Fridays, I am unwilling, and indeed unable, to assess the effects of the Act on members of those religious groups. The record includes only the testimony of Bhulesh Lodhia, the Hindu retailer who testified at the trial of Longo Brothers. Mr. Lodhia acknowledged that the Hindu religion did not have a Sabbath Day, but said that Wednesday was observed as "a day of prayer and that's the day we would prefer closing if given the choice". I infer from this evidence that there is no religious prohibition enjoining adherents from working on Wednesdays, but that there exists some moral obligation to pray on that day. It is unclear to me whether the entire day is to be spent in prayer or whether only a portion or portions of the day are to be set aside for that purpose. The degree to which the Act interferes with the religious practices of Hindus has not been established with sufficient precision to warrant a finding that the Act abridges the religious freedoms of Hindus, particularly in the context of the present cases in which none of the retailers is a member of that faith.
120. The evidence regarding the Islamic faith is even less adequate. It is contained in its entirety in the following exchange during Mr. Lodhia's examination‑in‑chief:
Q. ... You're a Hindu, what is, to your knowledge, the Sabbath of the Moslem Religion?
A. I believe it is Friday.
This is not a satisfactory foundation upon which to mount a constitutional challenge. Whether the Act infringes the freedom of religion of Hindus or Moslems is a question which accordingly ought not to be answered in the present appeals.
VII
Section 1 of the Charter
121. The reasons of the majority of this Court in R. v. Oakes, [1986] 1 S.C.R. 103, summarized and expanded upon the earlier cases (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, R. v. Big M Drug Mart Ltd.) in respect of the criteria which must be addressed by the proponent of a limitation on a right or freedom guaranteed by the Charter . It has been held that the onus of proof is on the party seeking the limitation, and the standard of proof is the civil standard, proof by a preponderance of probabilities.
122. Two requirements must be satisfied to establish that a limit is reasonable and demonstrably justified in a free and democratic society. First, the legislative objective which the limitation is designed to promote must be of sufficient importance to warrant overriding a constitutional right. It must bear on a "pressing and substantial concern". Second, the means chosen to attain those objectives must be proportional or appropriate to the ends. The proportionality requirement, in turn, normally has three aspects: the limiting measures must be carefully designed, or rationally connected, to the objective; they must impair the right as little as possible; and their effects must not so severely trench on individual or group rights that the legislative objective, albeit important, is nevertheless outweighed by the abridgment of rights. The Court stated that the nature of the proportionality test would vary depending on the circumstances. Both in articulating the standard of proof and in describing the criteria comprising the proportionality requirement the Court has been careful to avoid rigid and inflexible standards.
123. In the present appeals, the only evidence available to the Court which relates to s. 1 of the Charter is the Report on Sunday Observance Legislation (1970). It would have been preferable to have had more recent evidence, and, indeed, the Crown filed notice, less than a week before the hearing, of a motion to adduce additional evidence. Apparently this evidence included attitudinal surveys or public opinion polls, and also various submissions to a provincial task force looking into Sunday‑closing laws. Crown counsel conceded the evidence was not essential to her s. 1 submissions. Counsel for the retailers objected vigorously to the timing of the motion. The motion was denied in view of the possible prejudicial consequences of admitting it into evidence at the eleventh hour.
124. I am conscious of the possibility that some of the statistical evidence contained in the Report has been rendered less helpful by the passage of time. Nevertheless, it is the only evidence before the Court and I have considered the age of the materials in assessing its weight.
125. I will address, first, the importance of the legislative objectives underlying the Retail Business Holidays Act. The Ontario Law Reform Commission referred to the need for legislation enacting a uniform pause day in the following terms at p. 267:
Thus while our productive capacity and economic standard of living continue to increase in Ontario, our collective opportunity for the more intangible benefits of participation in leisure activities together [emphasis of the Report] with family, friends and others in society continues to decrease. It is in the light of this continuing erosion of statutory holidays and evening hours that we consider it absolutely essential [emphasis added] that the government now attempt to preserve at least one uniform day each week as a pause day, before it is too late.
126. The opinion of the Commissioners in reaching this conclusion was influenced by a number of studies summarized in Chapter 6 of the Report, but in my view it is unnecessary to resort to these studies in order to understand the importance of a common pause day. I regard as self‑evident 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. I reiterate the view expressed in Big M Drug Mart Ltd., at p. 353:
I accept the secular justification for a day of rest in a Canadian context and the reasonableness of a day of rest has been clearly enunciated by the courts in the United States of America.
A family visit to an uncle or a grandmother, the attendance of a parent at a child's sports tournament, a picnic, a swim, or a hike in the park on a summer day, or a family expedition to a zoo, circus, or exhibition ‑‑ these, and hundreds of other leisure activities with family and friends are amongst the simplest but most profound joys that any of us can know. The aim of protecting workers, families and communities from a diminution of opportunity to experience the fulfilment offered by these activities, and from the alienation of the individual from his or her closest social bonds, is not one which I regard as unimportant or trivial. In the context of the "fast‑growing trend toward wide‑scale store openings" (Report, p. 267), I am satisfied that the Act is aimed at a pressing and substantial concern. It therefore survives the first part of the inquiry under s. 1.
127. The requirement of rational connection calls for an assessment of how well the legislative garment has been tailored to suit its purpose. In the context of the Retail Business Holidays Act two questions are raised. First, is it acceptable for the legislature to have focused exclusively on the retail industry? Second, is the scheme of exemptions within the Act, as between types of retail business, justifiable?
128. I have already referred to the perception of the Law Reform Commission that the retail industry presented a particularly pressing problem. It was in this industry that the Report told of competitive pressures forcing individual operators to extend their hours of business, largely against their wishes. The Report also documented the characteristics of the retail trade's labour force, including its low level of unionization, its high proportion of women, and its generally heterogeneous composition: p. 103. The Commission's conclusion that this labour force was especially vulnerable to subtle and overt pressure from its employers amply justified on the evidence the legislature's decision to single out the retail industry for special and immediate attention.
129. The exemptions for various types of business are also justifiable. The Report describes at pp. 271‑72 the tensions between the two objectives of protecting as many employees as possible from having to work on Sundays and providing a "quality environment" permitting the fulfilment of family and community recreational pursuits:
For the most part, these two secular objectives are consistent with each other, i.e., to engage in leisure pursuits with family and friends on the pause day, a person must be free from work. Where the two conflict, however, is in respect of leisure activities which require substantial employment of people on the pause day in order to make leisure facilities available. Professional sports, libraries and symphony concerts are three cases in point. If we were to propose that the sole objective of Sunday laws was to free persons from work on that day, then this well might deprive thousands of people of any leisure activities whatsoever on Sundays.
With the exception of s. 3(4), the exemptions in ss. 3 and 4 closely parallel the recommendations of the Report. One has only to turn to the Table of Contents for Chapters 11 and 12, at pp. 6‑7, to see that each of the exempted businesses has been considered in some detail by the authors of the Report.
130. I might add that in regulating industry or business it is open to the legislature to restrict its legislative reforms to sectors in which there appear to be particularly urgent concerns or to constituencies that seem especially needy. In this context, I agree with the opinion expressed by the United States Supreme Court in Williamson v. Lee Optical of Oklahoma, 348 U.S. 483 (1955), at p. 489:
Evils in the same field may be of different dimensions and proportions, requiring different remedies. Or so the legislature may think .... Or the reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind .... The legislature may select one phase of one field and apply a remedy there, neglecting the others.
(Citations omitted.)
In drafting its statute, the legislature can, if it wishes, create categories of retail business which are exempted, even though some unexempted businesses may sell some of the same products. Legislative choices regarding alternative forms of business regulation do not generally impinge on the values and provisions of the Charter , and the resultant legislation need not be tuned with great precision in order to withstand judicial scrutiny. Simplicity and administrative convenience are legitimate concerns for the drafters of such legislation.
131. A more difficult question‑‑and one which goes to the heart of this litigation‑‑is whether the Retail Business Holidays Act abridges the freedom of religion of Saturday observers as little as is reasonably possible. Section 3(4) has the effect, and was intended to have the effect, of very substantially reducing the impact of the Act on those religious groups for whom Saturday is a Sabbath. What must be decided, however, is whether there is some reasonable alternative scheme which would allow the province to achieve its objective with fewer detrimental effects on religious freedom.
132. One suggestion was that the objective of protecting workers from involuntary Sunday labour could be achieved by legislation which focused on the employee rather than the employer. There could, for example, be an enactment conferring on workers a right to refuse Sunday work. But such a scheme would in my view fall far short of achieving the objectives of the Retail Business Holidays Act. It would fail to recognize the subtle coercive pressure which an employer can exert on an employee. The vulnerability of retail employees makes them an improbable group to resist such pressures. A scheme which requires an employee to assert his or her rights before a tribunal in order to obtain a Sunday holiday is an inadequate substitute for the regime selected by the Ontario legislature. Also a bilateral decision of individual retailers and employees to stay open and work on Sunday would pressure others to a similar decision and would, as the Report observes at p. 267, place increased demands on ancillary services required to keep the stores open, such as wholesalers, truckers and public transportation.
133. The other alternative would be to retain the basic format of the Retail Business Holidays Act, but to replace s. 3(4) with a complete exemption from s. 2 for those retailers who have a sincerely held religious belief requiring them to close their stores on a day other than Sunday. The Province of New Brunswick has such an exemption in s. 7(1) of its Days of Rest Act, S.N.B. 1985, c. D‑4.2. The New Brunswick exemption is administered by a Board which is authorized to issue permits exempting:
7(1) ...
(c) any person who is prohibited under this Act from working or operating a business or industry on the weekly day of rest and who wishes to work or operate a business or industry on that day because he could not work or operate a business or industry on one of the other days of the week due to the dictates of his conscience or religion, ...
134. Such an exemption has advantages and disadvantages relative to s. 3(4) of the Ontario Act. From the perspective of the Saturday‑observing consumer the New Brunswick exemption is more beneficial than Ontario's in including within its ambit large stores with more than seven employees or 5,000 square feet of floor space, but less beneficial in the restriction of its availability to retailers with a specified religious or conscientious belief. I am unable to say whether one scheme results in a greater availability of Sunday shopping services to the Jewish or Seventh‑day Adventist consumer than the other. In this context, I note that the Report on Sunday Observance Legislation (1970) at p. 98, Table V, discloses that only 8.1 percent of retail stores had 10 or more employees at the time of the previous Census in 1961. Since, subject to the square footage requirement, the exemption in s. 3(4) is available to any store provided that at any given time on Sunday the number of persons engaged in serving the public is fewer than eight, it appears that a very substantial variety of products, including specialty products such as Kosher foods, is available to Sunday shoppers, even if the proportion of large stores were to have doubled since 1961.
135. The most difficult questions stem from the different impacts of these exemptions on Saturday‑observing retailers. It is interesting to consider how the United States Supreme Court dealt with some of the same issues in its 1961 quartet of Sunday closing cases. I repeat that the legislation before that Court in Braunfeld v. Brown contained no exemption clause of any kind aimed at alleviating its deleterious impact on Saturday‑observing retailers. Nevertheless, the majority upheld the legislation. Warren C.J. considered, at pp. 608‑09, whether a Sabbatarian exemption ought to have been provided:
A number of States provide such an exemption, and this may well be the wiser solution to the problem. But our concern is not with the wisdom of legislation but with its constitutional limitation. Thus, reason and experience teach that to permit the exemption might well undermine the State's goal of providing a day that, as best possible, eliminates the atmosphere of commercial noise and activity. Although not dispositive of the issue, enforcement problems would be more difficult since there would be two or more days to police rather than one and it would be more difficult to observe whether violations were occurring.
Additional problems might also be presented by a regulation of this sort. To allow only people who rest on a day other than Sunday to keep their businesses open on that day might well provide these people with an economic advantage over their competitors who must remain closed on that day; this might cause the Sunday observers to complain that their religions are being discriminated against. With this competitive advantage existing, there could well be the temptation for some, in order to keep their businesses open on Sunday, to assert that they have religious convictions which compel them to close their businesses on what had formerly been their least profitable day. This might make necessary a state‑conducted inquiry into the sincerity of the individual's religious beliefs, a practice which a State might believe would itself run afoul of the spirit of constitutionally protected religious guarantees. Finally, in order to keep the disruption of the day at a minimum, exempted employers would probably have to hire employees who themselves qualified for the exemption because of their own religious beliefs, a practice which a State might feel to be opposed to its general policy prohibiting religious discrimination in hiring. For all of these reasons, we cannot say that the Pennsylvania statute before us is invalid, either on its face or as applied.
At pages 514‑20, Frankfurter J. expressed many of the same objections to a Sabbatarian exemption and concluded at p. 520:
A legislature might in reason find that the alternative of exempting Sabbatarians would impede the effective operation of the Sunday statutes, produce harmful collateral effects, and entail, itself, a not inconsiderable intrusion into matters of religious faith. However preferable, personally, one might deem such an exception, I cannot find that the Constitution compels it.
136. In his dissent, at p. 615, Brennan J. referred to these considerations as "more fanciful than real" and dealt with them specifically as follows:
Non‑Sunday observers might get an unfair advantage, it is said. A similar contention against the draft exemption for conscientious objectors (another example of the exemption technique) was rejected with the observation that "its unsoundness is too apparent to require" discussion. Selective Draft Law Cases, 245 U.S. 366, 390 (1918). However widespread the complaint, it is legally baseless, and the State's reliance upon it cannot withstand a First Amendment claim. We are told that an official inquiry into the good faith with which religious beliefs are held might be itself unconstitutional. But this Court indicated otherwise in United States v. Ballard, 322 U.S. 78 (1944). Such an inquiry is no more an infringement of religious freedom than the requirement imposed by the Court itself in McGowan v. Maryland, ante, p. 420, decided this day, that a plaintiff show that his good‑faith religious beliefs are hampered before he acquires standing to attack a statute under the Free‑Exercise Clause of the First Amendment. Finally, I find the Court's mention of a problem under state antidiscrimination statutes almost chimerical. Most such statutes provide that hiring may be made on a religious basis if religion is a bona fide occupational qualification. It happens, moreover, that Pennsylvania's statute has such a provision.
137. In my view, the enforcement problems which might be created by a full Sabbatarian exemption do not constitute a sufficiently compelling reason to reject it as an alternative to the Ontario scheme. Nor do I see merit to the contention that a Sabbatarian exemption would discriminate against retailers who do not observe Saturday as a religious day of rest. There is no evidence before this Court to suggest that Sunday is generally a preferable day for retailers to do business. Undoubtedly, some retailers selling particular products in particular areas would find Sundays more profitable than Saturdays, but other retailers would find the converse to be true. In the absence of convincing evidence to the contrary, the Court must presume that one day is on average as good as another. By its nature, legislation must, to some degree, cut across individual circumstances in order to establish general rules. Alleged discrimination flowing from one day of the weekend being more profitable for particular retailers than the other day of the weekend would be of an entirely different order of magnitude from the disadvantage experienced by retailers who cannot open their stores on a weekend at all.
138. I am impressed, however, with the concerns of the majority of the United States Supreme Court in two respects. The first relates to the balancing of an indirect burden on the religious freedom of a retail store owner against the interests of his or her perhaps sometimes numerous employees. The sec‑ ond relates to the undesirability of state‑sponsored inquiries into religious beliefs.
139. With respect to the first concern, I agree with the majority of the United States Supreme Court that it is legitimate for legislatures to be concerned with minimizing the disruptive effect of any exemption on the scope and quality of the pause day, and that it would be highly undesirable for such concern to find expression in a rule conditioning the availability of an exemption on the hiring by retailers of co‑religionists. Because of their substantial share of total sales volume (the Report at p. 98, Table V, indicates that stores with ten or more employees accounted for 53.3 percent of retail sales in Canada according to the Census of 1961) and their numerous employees, the operation of large retail outlets on Sundays would entail a substantial disruption of the quality of the pause day. It is, however, not so much the disruption of the quality of the pause day in terms of commercial activity that concerns me. What concerns me, rather, is the limitation of its scope in terms of the employees who would be denied the benefits which the Act was designed to provide them.
140. What cannot be forgotten is that the object of the legislation is to benefit retail employees by making available to them a weekly holiday which coincides with that enjoyed by most of the community. These employees do not constitute a powerful group in society. In this context it is worth reiter‑ ating some of the remarks of the Law Reform Commissioners:
The peculiar position of the retail employees deserves comment here because an open commercial Sunday would probably extract the highest toll from these people. It has already been shown that less than 10% of this total group are unionized, and this percentage would be even lower if food store employees were not included .... The retail work force is distinguished by the fact that the people are older, more likely to be female and more heterogeneous than other labour groups. [p. 103]
...
The concern, then, is mainly for low‑skilled, non‑union and poorly educated employees whose continued earnings are critical for family support, people who have the least mobility in terms of job alternatives and are least capable of expressing themselves to redress their grievances. Particularly in times of high unemployment, these people are susceptible to economic coercion and would unlikely be in any position to offer effective resistance to Sunday employment dictated by management, even though they were given a "legal choice" as to whether or not they wanted to work Sundays. [p. 104]
(Emphasis added.)
141. The economic position of these employees affords them few choices in respect of their conditions of employment. It would ignore the realities faced by these workers to suggest that they stand up to their employer or seek a job elsewhere if they wish to enjoy a common day of rest with their families and friends. Although I have acknowledged that the legislation under review burdens the freedoms of Saturday‑observing retailers, it must also be recognized that larger retailers have available to them options flowing from the resources at their disposal which are foreclosed to their employees. It is, perhaps, worth stating the obvious: a store with eight or more employees serving the public at any one time or with 5,000 square feet of retail space indeed constitutes a substantial retail operation. Such a store is not, by any stretch, a mere corner store staffed by the family. In interpreting and applying the Charter I believe that the courts must be cautious to ensure that it does not simply become an instrument of better situated individuals to roll back legislation which has as its object the improvement of the condition of less advantaged persons. When the interests of more than seven vulnerable employees in securing a Sunday holiday are weighed against the interests of their employer in transacting business on a Sunday, I cannot fault the Legislature for determining that the protection of the employees ought to prevail. This is not to say that the legislature is constitutionally obligated to give effect to employee interests in preference to the interests of the store owner for large retail operations, but only that it may do so if it wishes.
142. I turn now to the second factor which, in my opinion, contributes to the justification of the legislation under review. In discussing the possibility of a Sabbatarian exemption as a means of reducing the burdens of Sunday closing laws on religious freedom, the majority of the United States Supreme Court had occasion to express concern about state‑conducted inquiries into religious beliefs. The striking advantage of the Ontario Act is that it makes available an exemption to the small and mid‑size retailer without the indignity of having to submit to such an inquiry. In my view, state‑sponsored inquiries into any person's religion should be avoided wherever reasonably possible, since they expose an individual's most personal and private beliefs to public airing and testing in a judicial or quasi‑judicial setting. The inquiry is all the worse when it is demanded only of members of a non‑majoritarian faith, who may have good reason for reluctance about so exposing and articulating their non‑conformity.
143. I do not mean to suggest that a judicial inquiry into the sincerity of religious beliefs is unconstitutional. To so hold would mean that the courts could never grant constitutional exemptions from legislation which impinged on the free exercise of religious beliefs. Judicial inquiries into religious beliefs are largely unavoidable if the constitutional freedoms guaranteed by s. 2(a) are to be asserted before the courts. We must live with the reality that such an inquiry is necessary in order for the same values to be given effect by the judicial system. Inquiries which are genuinely designed as a means of giving effect to religious freedoms will not therefore generally be unconstitutional. There will, however, be occasions when a substantial measure of religious freedom can be achieved without mandating a state‑conducted inquiry into personal religious convictions and the legislatures ought to be encouraged to do so, if a fair balance is struck.
144. I do not, of course, suggest that to a person whose religious freedom would otherwise be impaired, a voluntary inquiry into religion is worse than the original impairment of freedom of religion. Clearly that is not the case, since the person need not submit to the inquiry. It is worth reiterating, however, that the evidence indicates that the overwhelming majority of Saturday‑observing retailers is capable of complying with the requirements of s. 3(4). It is these retailers who benefit from the adoption of a scheme such as that selected by the Ontario Legislature in preference to a scheme involving an inquiry into religious beliefs. In my view, there exists to some degree a trade‑off between a scheme which provides complete relief from burdens on religious freedom to most Saturday‑observing retailers by avoiding a distasteful inquiry, and, on the other hand, an alternative scheme which provides substantial relief from burdens on religious freedom to all Saturday‑observing retailers. Both schemes provide incomplete relief for the class of Saturday‑observing retailers as a whole, but the incompleteness is a necessary consequence of ensuring that as many employees as possible will realize the benefits of the common pause day legislation. Both schemes represent genuine and serious attempts to minimize the adverse effects of pause day legislation on Saturday observers. It is far from clear that one scheme is intrinsically better than the other.
145. In this context, I note that freedom of religion, perhaps unlike freedom of conscience, has both individual and collective aspects. Legislatures are justified in being conscious of the effects of legislation on religious groups as a whole, as well as on individuals. In some circumstances, it is open to balance the religious freedoms of the many members of any particular religious group against those of the few when differential treatment is based on a criterion, such as the size of one's retail business, which is not in itself offensive to constitutional provisions, principles, and purposes.
146. Nevertheless, while the number of detrimentally affected retailers may be small, no legislature in Canada is entitled to do away with any of the religious freedoms to which these or any other individuals are entitled without strong reason. In my view, the balancing of the interests of more than seven employees to a common pause day against the freedom of religion of those affected constitutes justification for the exemption scheme selected by the Province of Ontario, at least in a context wherein any satisfactory alternative scheme involves an inquiry into religious beliefs.
147. I might add that I do not believe there is any magic in the number seven as distinct from, say, five, ten, or fifteen employees as the cut‑off point for eligibility for the exemption. In balancing the interests of retail employees to a holiday in common with their family and friends against the s. 2(a) interests of those affected the Legislature engaged in the process envisaged by s. 1 of the Charter . A "reasonable limit" is one which, having regard to the principles enunciated in Oakes, it was reasonable for the legislature to impose. The courts are not called upon to substitute judicial opinions for legislative ones as to the place at which to draw a precise line.
148. Having said this, however, I do not share the views of the majority of the United States Supreme Court that no legislative effort need be made to accommodate the interests of any Saturday‑observing retailers. In particular, I would be hard pressed to conceive of any justification for insisting that a small, family store which operates without any employees remain closed on Sundays when the tenets of the retailer's religion requires closing on Saturdays. In my view, the principles articulated in Oakes make it incumbent on a legislature which enacts Sunday closing laws to attempt very seriously to alleviate the effects of those laws on Saturday observers. The exemption in s. 3(4) of the Act under review in these appeals represents a satisfactory effort on the part of the Legislature of Ontario to that end and is, accordingly, permissible.
149. Arguably, the Legislature might have retained the desirable qualities of s. 3(4) and added thereto a special exemption for those with sincerely held Sabbatarian beliefs who cannot bring themselves within paras. (b) and (c) of subs. 3(4). In my view, there was no constitutional duty on the Ontario Legislature to do so. To insist that the only acceptable scheme of exemptions would have the attributes of s. 3(4) in respect of small to mid‑size employers, but the attributes of s. 7(1) of the New Brunswick Act in respect of larger employers, would be to impose an excessively high standard on the legislators in view of the nature and extent of the abridgment of rights and the complexity of balancing against one another the constitutional and statutory interests of consumers, retailers and employees. Such a hybrid scheme would entail a greater disruption of the pause day than either scheme standing on its own. It would, in any event, fail to recognize that there is a point at which the size of retail business makes permissible a legislative decision to favour the employees' interests over those of the store owner.
150. I should emphasize that it is not the role of this Court to devise legislation that is constitutionally valid, or to pass on the validity of schemes which are not directly before it, or to consider what legislation might be the most desirable. The discussion of alternative legislative schemes that I have undertaken is directed to one end only, that is, to address the issue whether the existing scheme meets the requirements of the second limb of the test for the application of s. 1 of the Charter as set down in Oakes.
151. In view of the extent and quality of the abridgment of rights flowing from the legislation, I have little difficulty in applying the third element of the proportionality test. The infringement is not disproportionate to the legislative objectives. A serious effort has been made 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. It follows that I would uphold the Act under s. 1.
VIII
Remedial Issues
152. In Big M Drug Mart Ltd. at p. 315, the majority of the Court left open the possibility that in certain circumstances a "constitutional exemption" might be granted from otherwise valid legislation to particular individuals whose religious freedom was adversely affected by the legislation. Such a remedy would, of course, not be available where the limitation of those individuals' religious freedom had been addressed by the Legislature by means of a statutory exemption and was held to be reasonable and demonstrably justified. Section 3(4) of the legislation under review in these appeals demonstrates that the Ontario Legislature has carefully considered the effects of the Act on Jewish retailers such as the owners of Nortown Foods Ltd. The Legislature consciously chose to alleviate the burdens on those Jewish retailers who can comply with the requirement that seven or fewer employees serve the public at any given time on Sundays. At the same time, however, it chose to subordinate the interests of larger retailers to the interests of their employees. As I have concluded that the Legislature's decision in this respect was permissible under s. 1, there is no basis upon which to grant a constitutional exemption to Nortown Foods Ltd. which was operating with nine rather than seven employees serving the public on January 16, 1983.
153. In view of the above conclusions, it is unnecessary to decide on the remedial issues presented by this case. I note, however, that if I had reached a different conclusion under s. 1 regarding the justifiability of the limitation on the freedom of religion of large Saturday‑observing retailers, a number of issues would arise:
(1) Would the inadequacy of the exemption result in a declaration that s. 2 (or alternatively s. 3(4)(b) and (c)) of the Act was universally of no force or effect, or, on the contrary, would the Act be rendered ineffective or inapplicable with respect to a limited class of persons?
(2) If a remedy ought to be granted to a limited class of persons, such as observers of a day of rest other than Sunday, should such a remedy flow from s. 24 or s. 52 of the Constitution Act, 1982 ?
(3) If a remedy ought to be granted to a limited class of persons, is the respondent Nortown Foods Ltd. within that class having regard to the question whether (and if so, in what circumstances) a corporation can be attributed religious beliefs, or alternatively can be given standing to seek a constitutional exemption from legislation which abridges the freedom of religion of the corporation's principals? I have no hesitation in remarking that a business corporation cannot possess religious beliefs: see, in this respect Andrew Petter, "Not ‘Never on a Sunday’: R. v. Videoflicks Ltd. et al.", at p. 101 and Wallace Rozéfort, "Are Corporations Entitled to Freedom of Religion Under the Canadian Charter of Rights and Freedoms ?" (1986), 15 Man. L.J. 199. A more difficult question is whether a corporate entity ought to be deemed in certain circumstances to possess the religious values of specified natural persons. If so, should the religion of the directors or shareholders or even employees be adopted as the appropriate test? What if there is a divergence of religious beliefs within the corporation?
The remedy granted to Nortown Foods Ltd. by the Ontario Court of Appeal implies answers to the above questions upon which I wish to express no further opinion in the present appeals.
IX
Section 7 of the Charter
154. In disposing of the contention that the Act infringes s. 7, I am content to adopt the following passage from the decision of the Ontario Court of Appeal at pp. 432‑33:
... counsel for the appellant Paul Magder submitted that the Act is so fundamentally discriminatory within its own framework that it ought to be struck down as contravening s. 7 of the Charter , which provides:
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
I do not agree. As concluded earlier with respect to s. 2( b ) of the Charter , I do not see differences by way of mere regulation of time and place as having such adverse impact as to constitute discrimination. Even if such adverse impact were proved, it would be more appropriate to consider the matter in the context of s. 15 of the Charter .
155. Counsel for Paul Magder argued that the statutory obligation to close his business on Sundays deprived him of "liberty". In my opinion "liberty" in s. 7 of the Charter is not synonymous with unconstrained freedom. In Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at p. 524, Wilson J. observed:
Indeed, all regulatory offences impose some restriction on liberty broadly construed. But I think it would trivialize the Charter to sweep all those offences into s. 7 as violations of the right to life, liberty and security of the person even if they can be sustained under s. 1.
Whatever the precise contours of "liberty" in s. 7, I cannot accept that it extends to an unconstrained right to transact business whenever one wishes.
156. Accordingly, the s. 7 argument advanced by Paul Magder is without merit.
X
Section 15 of the Charter
157. No cogent argument was advanced in support of the availability of s. 15 to challenge the conviction of the retailers in the present cases. Section 32(2) is clear:
32. ...
(2) Notwithstanding subsection (1), section 15 shall not have effect until three years after this section comes into force.
The retailers in the present appeals opened their stores, were charged and were convicted at a time when the Charter did not confer a right to equality before and under the law. Even if it could be said that the Retail Business Holidays Act has abridged the retailers' s. 15 rights since April 17, 1985, I cannot see how this might have any bearing on the legality of their convictions or of the Act prior to that time. The proceedings began and continued through the courts as quasi‑criminal proceedings. This is not a reference nor even a series of applications for declaratory relief. Accordingly, no answer ought to be given to the second constitutional question in respect of s. 15.
XI
Conclusions
158. The appeals of Edwards Books and Art Ltd., Longo Brothers et al., and Paul Magder ought to be dismissed without costs. The Crown appeal in the Nortown Foods Ltd. case ought to be allowed without costs and the respondent convicted.
159. The constitutional questions should be answered as follows:
1. Question: 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 ?
Answer: Yes.
2. Question: 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?
Answer: In respect of s. 2(a), the freedom of religion of Saturday‑observing retailers is infringed by s. 2 of the Retail Business Holidays Act. No determination need be reached in the present appeal regarding the freedom of religion of Hindus, Moslems or other religious groups. In respect of s. 7, there is no infringement. No answer should be given in respect of s. 15.
3. Question: 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 ?
Answer: The infringement of the freedom of religion of Saturday‑observing retailers under the Retail Business Holidays Act is justifiable under s. 1.
The reasons of Beetz and McIntyre JJ. were delivered by
160. Beetz J.‑‑I have had the advantage of reading the reasons for judgment written by the Chief Justice, as well as the reasons written by Wilson and La Forest JJ.
161. I refer to and rely upon the reasons of the Chief Justice with respect to the statement of the constitutional questions, the scheme of the impugned legislation in the Retail Business Holidays Act, R.S.O. 1980, c. 453, and the summary of the facts and the judgments below.
162. I agree with the Chief Justice that the first constitutional question should receive an affirmative answer for the reasons he gave under the heading "The Distribution of Powers Under ss. 9l‑92 of the Constitution Act, 1867 ".
163. I also agree with the Chief Justice that the impugned legislation does not contravene s. 7 of the Canadian Charter of Rights and Freedoms and that s. 15 of the Charter is not applicable since it did not have effect during the relevant period of time.
164. However, in my respectful opinion, the impugned legislation does not violate the freedom of conscience and religion guaranteed by s. 2( a ) of the Charter and, accordingly, is of full force and effect without any need to rely on s. 1 of the Charter .
165. The main argument advanced by the retail store owners for the proposition that their freedom of conscience and religion was violated by the Retail Business Holidays Act was set out in the reasons of the Court of Appeal sub nom. R. v. Videoflicks Ltd. (1984), 48 O.R. (2d) 395, at p. 423:
As discussed previously, a law which prohibits certain practices which are an essential part of one's religion must be considered an abridgement or infringement of freedom of religion. This is so even though the impact on religion occurs, as here, in an indirect sense. While the Act does not require that one work on one's sabbath, it nevertheless constitutes a major inducement to do so. For those who observe a sabbath other than Sunday, being forced to close on both days of a week‑end or, for that matter, any two days in a week, when one's competitors can remain open for six days, makes observance of one's sabbath financially onerous.
(Emphasis added.)
166. In other words, the impugned legislation puts the retail store owners who are Saturday observers in an untenable position: they must either renounce the tenets of their religion or close their store on Saturday while their competitors remain open and enjoy the advantages of doing business six days a week instead of five.
167. In my respectful opinion, this reasoning is flawed as it postulates that the economic burden imposed upon Saturday observers is the effect of the impugned legislation. That this is not the case is made clear when one looks at the situation which would prevail should all Sunday observance laws be repealed. A devout Saturday observer would close shop on Saturdays whereas most of his competitors would remain open all week. A Saturday observer would have to face the same dilemma in the absence of any Sunday observance law: he would have to choose between the observance of his religion and the opening of his business in order to meet competition.
168. The economic harm suffered by a Saturday observer who closes shop on Saturdays is not caused by the Retail Business Holidays Act. It is independent from this Act. It results from the deliberate choice of a tradesman who gives priority to the tenets of his religion over his financial benefit. It is accordingly erroneous to suggest that the effect of the Act is to induce a Saturday observer to choose between his religion and the requirements of business competition. As was correctly said by Professor A. Petter in the comment he wrote upon the judgment of the Court of Appeal in "Not ‘Never on a Sunday’ R. v. Videoflicks Ltd. et al." (1984‑85), 49 Sask. Law Rev. 96, at pp. 98 and 99:
Where the Court errs is in its assumption that the financial burden incurred by those who observe a Sabbath other than Sunday is an effect of the legislation. It is not the legislation which causes the financial burden: it is the religion itself.
169. The appellants other than Her Majesty The Queen and the respondent Nortown Foods Limited can accordingly not plead the unconstitutionality of the impugned statute on the basis of a coercion or constraint which is derived from their religion. In a judgment delivered after that of the Court of Appeal, R. v. Big M Drug Mart Ltd., [1985] l S.C.R. 295, this Court has made it clear that in order to constitute a violation of the freedom of conscience and religion guaranteed by the Charter , the coercion must come from the state. At pp. 336 and 347, Dickson J., as he then was, speaking for the majority, wrote as follows:
Freedom can primarily be characterized by the absence of coercion or constraint. If a person is compelled by the state or the will of another to a course of action or inaction which he would not otherwise have chosen, he is not acting of his own volition and he cannot be said to be truly free.
...
It may perhaps be that freedom of conscience and religion extends beyond these principles to prohibit other sorts of governmental involvement in matters having to do with religion. For the present case it is sufficient in my opinion to say that 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. I leave to another case the degree, if any, to which the government may, to achieve a vital interest or objective, engage in coercive action which s. 2(a) might otherwise prohibit.
170. It may well be that the true reason why the constitutionality of the Retail Business Holidays Act was challenged is the apparent advantage that it may confer upon Sunday observers whose Sabbath coincides with the common pause day prescribed by the Act. If this be the case, the challenge would then be based on s. 15 of the Charter and not on s. 2. Professor Petter suggests as much in his comment on the Court of Appeal judgment (see also Peter W. Hogg, Constitutional Law of Canada (1985), p. 711). But, as I have already indicated, s. 15 did not have effect at the relevant time and I abstain from expressing any view on the merits of a challenge based on this provision.
171. The preceding addresses the freedom of religion of shop owners which was the main object of the argument. However, consumers and employees have also been referred to and I wish to make very brief comments concerning these two groups.
172. It has been argued for instance that the impugned legislation infringes the freedom of religion of consumers who are Saturday observers in that it makes shopping and food buying more difficult for some or many of them. The evidence on this point however is so tenuous as to be almost non‑existent and, in my view, it is quite insufficient to establish even a prima facie violation of consumers' freedom of religion.
173. There is no evidence either on the religion of employees and on the possible impact of the legislation upon their freedom of religion. It may be that the above‑discussed principles relating to shop owners apply also to their employees. What has been mainly discussed with respect to employees is not their freedom of religion but the advantage they would be deprived of without a common pause day.
174. The appeals of Edwards Books and Art Limited, Longo Brothers et al. and Paul Magder ought to be dismissed without costs. The Crown appeal in the Nortown Foods Limited case should be allowed without costs, the judgment of the Court of Appeal in this case should be set aside and the respondent's conviction restored.
175. The constitutional questions should be answered as follows:
1. Question: 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 ?
Answer: Yes.
2. Question: 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?
Answer: In respect of s. 2( a ) and s. 7 of the Charter , there is no infringement. No answer should be given in respect of s. 15.
3. Question: 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 ?
Answer: Given the answer to question 2, this question does not call for an answer.
The following are the reasons delivered by
176. La Forest J.‑‑I have had the advantage of reading the judgment of the Chief Justice and while I agree with his disposition of the case and with most of his supporting reasons, we have significant differences of views regarding the Sabbatarian exemption that impel me to write a separate judgment. Essentially, what we differ about is whether the Legislature is by s. 2( a ) of the Canadian Charter of Rights and Freedoms constitutionally required to provide a Sabbatarian exemption in order to relieve those who worship on Saturday from the economic burden they may suffer because of the existence of the Act.
177. I should at the outset say that I fully agree with the Chief Justice that the freedom of religion guaranteed by s. 2(a) not only serves to protect the individual against direct legislative coercion but against indirect legislative coercion as well. This was made clear by R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295. I am also prepared to assume that some retailers who look upon a day other than Sunday as their day of worship, or who observe religious holidays other than the holidays set forth in the Act, suffer economic disadvantages because of the existence of the Act. It is also reasonable to assume that for some the indirect economic burden resulting from the Act is sufficiently onerous to constitute an infringement of their freedom of religion. However, while this may well be the case, I think it would require evidence to warrant the conclusion that the burden on Saturday‑observing retailers is sufficiently substantial as to constitute an abridgment of their religious freedom.
178. But even if the operation of the Act may have some adverse effect on the freedom of religion of those who worship on a day other than Sunday, it may nonetheless be held valid under s. 1 of the Charter . For under that provision freedom of religion, like other rights and freedoms guaranteed by the Charter , is subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. The Chief Justice concludes, and I agree with him, that the legislative objective involved here is of sufficient importance to warrant intrusion on the constitutional freedom set forth in s. 2(a). As he notes, the Act is aimed at a pressing and substantial concern. It is directed at preserving a uniform weekly day of rest and recreation, and other holidays, a goal the Chief Justice's judgment amply demonstrates is justified in a free and democratic society. The atmosphere of community repose and relaxation traditionally associated with Sunday and its resultant recuperative effects is a goal the Legislature may reasonably believe is necessary for the public welfare. A similar view has been adopted in the United States; see McGowan v. Maryland, 366 U.S. 420 (1961).
179. In several cases decided by the Court, however, in particular, R. v. Oakes, [1986] 1 S.C.R. 103, this Court has expressed the view that the means chosen by the legislature must be proportionate to the ends sought to be achieved. Having examined and disposed of other possible courses that might have been taken to provide a weekly day of rest, the Chief Justice concludes that the means adopted by the Legislature meets the test of proportionality, but that it would not if a Sabbatarian exemption had not been provided. Section 3(4) of the Act in effect exempts any retail establishment that was closed on Saturday if the number of people working in the establishment on Sunday does not at any time exceed seven and the total area used by it on Sunday does not exceed 5,000 square feet.
180. As already mentioned, it is at this point that the Chief Justice and I part company. The Act, in my view, would be valid even if it did not contain this exemption. Indeed, as I will attempt to demonstrate, the exemption may be subject to constitutional weaknesses, though I do not think these jeopardize the validity of the Act itself. Our difference of opinion is important. A determination that such an exemption is necessary may raise serious issues regarding the constitutionality of Sunday closing laws in several provinces, among them those of British Columbia, Holiday Shopping Regulation Act, S.B.C. 1980, c. 17, Newfoundland, The Shops Closing Act, S.N. 1977, c. 107, Nova Scotia, Retail Business Uniform Closing Day Act, S.N.S. 1985, c. 6, Quebec, Commercial Establishments Business Hours Act, R.S.Q., c. H‑2, s. 5.3, Sunday Observance Act, R.S.Q. 1977, c. O‑1, and Saskatchewan, The Urban Municipality Act, 1984, S.S. 1983‑84, c. U‑11, s. 121, as. am.
181. Let me first underline what is mentioned in the Chief Justice's judgment, that in describing the criteria comprising the proportionality requirement, the Court has been careful to avoid rigid and inflexible standards. That seems to me to be essential. Given that the objective is of pressing and substantial concern, the Legislature must be allowed adequate scope to achieve that objective. It must be remembered that the business of government is a practical one. The Constitution must be applied on a realistic basis having regard to the nature of the particular area sought to be regulated and not on an abstract theoretical plane. In interpreting the Constitution, courts must be sensitive to what Frankfurter J. in McGowan, supra, at p. 524 calls "the practical living facts" to which a legislature must respond. That is especially so in a field of so many competing pressures as the one here in question.
182. By the foregoing, I do not mean to suggest that this Court should, as a general rule, defer to legislative judgments when those judgments trench upon rights considered fundamental in a free and democratic society. Quite the contrary, I would have thought the Charter established the opposite regime. On the other hand, having accepted the importance of the legislative objective, one must in the present context recognize that if the legislative goal is to be achieved, it will inevitably be achieved to the detriment of some. Moreover, attempts to protect the rights of one group will also inevitably impose burdens on the rights of other groups. There is no perfect scenario in which the rights of all can be equally protected.
183. In seeking to achieve a goal that is demonstrably justified in a free and democratic society, therefore, a legislature must be given reasonable room to manoeuvre to meet these conflicting pressures. Of course, what is reasonable will vary with the context. Regard must be had to the nature of the interest infringed and to the legislative scheme sought to be implemented. In a case like the present, it seems to me, the Legislature is caught between having to let the legislation place a burden on people who observe a day of worship other than Sunday or create exemptions which in their practical workings may substantially interfere with the goal the Legislature seeks to advance and which themselves result in imposing burdens on Sunday observers and possibly on others as well. That being so, it seems to me that the choice of having or not having an exemption for those who observe a day other than Sunday must remain, in essence, a legislative choice. That, barring equality considerations, is true as well of the compromises that must be made in creating religious exemptions. These choices require an in‑depth knowledge of all the circumstances. They are choices a court is not in a position to make.
184. To begin with, a Sabbatarian exemption always involves defining the nature of the day of rest. The extent to which it does so depends on the kind of day of rest the Legislature seeks to achieve and the breadth of the exemption. Here the Legislature has sought to have, as much as possible, a uniform weekly day of rest and recreation with only such exemptions as it, on sufficient grounds, considers essential. All exempted activities tend to disturb the relaxed atmosphere sought to be achieved by a uniform weekly day of rest. In addition to the disruption from the exempted activities themselves, these activities inevitably result in others, such as increased traffic and the like, that further disturb the atmosphere sought to be achieved. They also create competitive pressures on others to remain open, which makes enforcement more difficult and, indeed, can ultimately threaten the viability of the legislative goal; see in this context the debate regarding the British Shops (Sunday Trading Restriction) Act, 1936, 26 Geo. 5 & 1 Edw. 8, c. 53, referred to by Frankfurter J. in McGowan v. State of Maryland, supra, pp. 480 et seq.
185. Through the operation of sociological and economic forces, an exemption of this kind also puts pressure on Sunday observers to work on Sunday. The Ontario Law Reform Commission's Report, pp. 103‑04 referred to the special vulnerability of retail workers to such pressures. As it stated at p. 104:
Perhaps the major concern here, which again tends to emphasize sociological as opposed to economic issues, is the possibility of subtle pressure being applied to push reluctant employees into accepting regular Sunday work or even occasional Sunday work. The concern, then, is mainly for low‑skilled, non‑union and poorly educated employees whose continued earnings are critical for family support, people who have the least mobility in terms of job alternatives and are least capable of expressing themselves to redress their grievances. Particularly in times of high unemployment, these people are susceptible to economic coercion and would unlikely be in any position to offer effective resistance to Sunday employment dictated by management, even though they were given a "legal choice" as to whether or not they wanted to work Sundays.
Sunday observers, no less than other people in that group, would tend to respond to those pressures. Thus a legislative attempt to avoid economic coercion of one religious group may result in economic coercion of another religious group. How is a court able to second‑guess the Legislature on such issues? Of course, employers might seek to avoid infringing other people's religious beliefs by hiring only their co‑religionists but this, too, is a result a legislature might not wish to encourage.
186. The Legislature in this case has attempted to avoid obvious differentiation on religious grounds by making the Sabbatarian exemption open to anyone falling within the requirements regarding the number of employees and the amount of space mentioned in s. 3(4) of the Act. This exemption could, of course, interfere with the atmosphere of repose and recreation it seeks to create, and impose an economic burden on some Sunday observers. That is, of course, a legislative choice, but I simply refer to it to underline that such choices inevitably define the nature of the day of rest sought to be created and detrimentally affect other religious groups. What is more, the provision hardly disguises the fact that differentiation is being made on the ground of religion. For my part, I do not think it is much of an improvement over being expressly exempted on the ground of religion. In any event, the choice is one that another legislature might reasonably wish to avoid.
187. Many of these considerations were expressed better than I can by Frankfurter J. (Harlan J. concurring) in McGowan v. Maryland, supra, at pp. 515‑16:
There are tenable reasons why a legislature might choose not to make such an exception. To whatever extent persons who come within the exception are present in a community, their activity would disturb the atmosphere of general repose and reintroduce into Sunday the business tempos of the week. Administration would be more difficult, with violations less evident and, in effect, two or more days to police instead of one. If it is assumed that the retail demand for consumer items is approximately equivalent on Saturday and on Sunday, the Sabbatarian, in proportion as he is less numerous, and hence the competition less severe, might incur through the exception a competitive advantage over the non‑Sabbatarian, who would then be in a position, presumably, to complain of discrimination against his religion. Employers who wished to avail themselves of the exception would have to employ only their co‑religionists, and there might be introduced into private employment practices an element of religious differentiation which a legislature could regard as undesirable.
Finally, a relevant consideration which might cause a State's lawmakers to reject exception for observers of another day than Sunday is that administration of such a provision may require judicial inquiry into religious belief.
At pages 519‑20, he added:
Surely, in light of the delicate enforcement problems to which these provisions bear witness, the legislative choice of a blanket Sunday ban applicable to observers of all faiths cannot be held unreasonable. A legislature might in reason find that the alternative of exempting Sabbatarians would impede the effective operation of the Sunday statutes, produce harmful collateral effects, and entail, itself, a not inconsiderable intrusion into matters of religious faith. However preferable, personally, one might deem such an exception, I cannot find that the Constitution compels it.
188. Similar views were expressed by Warren C.J., speaking for himself and Black, Clark and Whittaker JJ., in the companion case of Braunfeld v. Brown, 366 U.S. 599 (1961), at pp. 608‑09. Indeed, it is interesting that at the time of these judgments, every appellate court in the United States before which the question had ever been raised (save one which subsequently overruled the decision) had found Sunday legislation valid, and this despite the fact that many of the Acts concerned did not contain a Sabbatarian exemption; see Frankfurter J. in McGowan v. Maryland, at pp. 507‑08. This Court, of course, is free to take a different path, but I think the consistent views of courts similarly placed over a period of several generations is not a negligible factor in assessing the soundness of the approach.
189. It should also be underlined that the ultimate aim of the Ontario Law Reform Commission was to secure a uniform and general day of rest, a purpose which given the general correlation of the Act with the Report can be attributed to the Legislature. It was because of the special vulnerability of retail workers to possible pressure from their employers to work on Sunday that legislation was considered necessary. The need for a quiet Sunday was felt to be sufficiently protected in other areas by the normal operation of economic and social forces, in particular the power of trade unions to secure Sunday as a uniform day of rest in other aspects of work. It should also be underlined that the Lord’s Day Act, R.S.C. 1970, c. L‑13, was in effect at the time of the enactment of the Ontario legislation and served to preserve Sunday as a day of rest in other areas. Since Big M Drug Mart Ltd., supra, has now declared the Lord’s Day Act invalid, the province may find it necessary or expedient to move into other areas, particularly if economic forces become insufficient to achieve the legislative will.
190. All of this is to show the place of the Act in the scheme of things. Sabbatarian exemptions in many other areas of activity would likely be unworkable, so the possible exemptions from an effective scheme for a quiet Sunday must of necessity be of too narrow and insufficient scope to protect in any great measure non‑Sunday observers. And as we have seen, whatever exemptions are made not only pose problems regarding the attainment of the statutory objectives but themselves tend to impose pressure on the freedom of religion of others. All of this leads me to the view that the competing pressures inevitably require numerous choices and compromises specifically attuned to the particular situation in which the legislation must operate. This, as I see it, requires that the Legislature be left with considerable flexibility in making these choices. The following remarks of Frankfurter J. in dealing with other exceptions in the McGowan case, at p. 526 have relevance here as well:
Moreover, the variation from activity to activity in the degree of disturbance which Sunday operation entails, and the similar variation in degrees of temptation to flout the law, and in degrees of ability to absorb and ignore various legal penalties, make exceedingly difficult the devising of effective, yet comprehensively fair, schemes of sanctions.
191. My conclusion may also be supported by a close consideration of how a Sabbatarian exemption must be framed. If such exemptions are to operate without placing the whole Sunday closing scheme in jeopardy, judgments have to be made in context about the kinds of establishments that may be excepted, whether in terms of numbers of employees or the spatial dimensions of these establishments or otherwise. For this type of decision one must necessarily rely on legislative judgment. In terms of intrusion on religion, there can be no difference, as Wilson J. demonstrates, between the owner of a large or small establishment. Indeed, the owner of the larger establishment is likely to suffer a greater economic loss than the owner of the smaller one.
192. As I mentioned, decisions of this kind call for informed legislative judgment. Judges do not have the specific information necessary to decide where the line is to be drawn. Thus can we say, by the mere fact that Ontario exempts establishments having up to seven workers at a time and up to 5,000 square feet of space, that Quebec's Sabbatarian exception for retail establishments, limited as it is to establishments that are operated by no more than three persons at any one time (and then only subject to Ministerial approval and conditions), is insufficient to pass constitutional muster? See Commercial Establishments Business Hours Act, supra, s. 5.3. The Quebec Sunday Observance Act, supra, which prohibits industrial work in any business or calling, as well as retail sales, contains no Sabbatarian exemption, a fact that indicates that the Legislature perceives different requirements in different contexts. (I leave out of consideration the general provision in these Acts restricting the application of the Charter .)
193. What is more are both the Ontario and Quebec Acts to be measured against the broad exemptions present in the Manitoba Act (The Retail Businesses Holiday Closing Act, S.M. 1977, c. 26) and the Prince Edward Island Act (the Day of Rest Act, S.P.E.I. 1985, c. 12, s. 4(3)) which are not qualified by the size of the establishment or the number of persons employed? The New Brunswick Act (the Days of Rest Act, S.N.B., 1985, c. D‑4.2, s. 7(1)(c)) also contains a similar broad exemption but it is subject to specific approval by a Board, which may attach conditions to an exemption. The Alberta Act, Municipal Government Amendment Act, S.A. 1985, c. 43, s. 31 (enacting s. 241), contains enabling provisions whose practical workings cannot be determined in the abstract. The simple fact is that what may work effectively in one province (or in a part of it) may simply not work in another without unduly interfering with the legislative scheme. And a compromise adopted at a particular time may not be possible at another; one cannot be bound constitutionally to facts found to exist when the studies preparatory to legislation were made.
194. The foregoing is sufficient to dispose of the issue with which I am particularly concerned but I would draw attention to the fact that the New Brunswick and Prince Edward Island statutes raise a further dimension which tends to show how difficult the legislative task of framing adequate religious exemptions may be. The religious exemptions in those statutes are not limited to those who worship on Saturday, but are open to anyone who worships on any other day of the week.
195. It is true that the evidence presented to the Court regarding other religious groups was scanty and that relating to Hindus, unsatisfactory. But counsel during argument freely discussed other days of worship by other groups. Besides, I do not accept that in dealing with broad social and economic facts such as those involved here the Court is necessarily bound to rely solely on those presented by counsel. The admonition in Oakes and other cases to present evidence in Charter cases does not remove from the courts the power, where it deems it expedient, to take judicial notice of broad social and economic facts and to take the necessary steps to inform itself about them. Examples of cases where this has been done in this Court include Reference re Alberta Statutes, [1938] S.C.R. 100 especially at p. 128, and as affd. sub nom. Attorney‑General for Alberta v. Attorney‑General for Canada, [1939] A.C. 117, at pp. 130‑32; Curr v. The Queen, [1972] S.C.R. 889, at pp. 902‑03; see also R. v. Jones, [1986] 2 S.C.R. 284; for discussions, see B. Strayer, The Canadian Constitution and The Courts, at pp. 252‑56; S.A. Schiff, Evidence in the Litigation Process, vol. 2, c. 11, pp. 682‑84, 712‑13. The United States Supreme Court does the same. A classic case in this context is the well‑known abortion case, Roe v. Wade, 410 U.S. 113 (1973); see Lempert and Saltzburg, A Modern Approach to Evidence, pp. 920‑22.
196. There are, of course, dangers to judicial notice, but the alternatives in a case like this are to make an assumption without facts or to make a decision dependent on the evidence counsel has chosen to present. But as Marshall C.J. long ago reminded us, it is a Constitution we are interpreting. It is undesirable that an Act be found constitutional today and unconstitutional tomorrow simply on the basis of the particular evidence of broad social and economic facts that happens to have been presented by counsel. We should avoid this possibility when reasonably possible, particularly in these early days of Charter litigation when all are feeling their way regarding the manner in which Charter litigation is to be conducted. Having said this, however, I would not wish to be taken as in any way departing from the proposition that the onus of establishing a limitation under s. 1 of the Charter is on the party seeking to do so, or relieving that party of the duty to present evidence in support of the limitation. The presumption is in favour of the right, not the limitation.
197. In any event, evidence was not altogether lacking that one religious group, the Moslems, look upon Friday as their special day of worship. The Ontario Law Reform Commission Report makes reference to this fact at p. 90; see also The New Encyclopedia Britannica, vol. 22, esp. at p. 13. Moslems, like Jews, have found the necessity of observing Sunday as a day of rest sufficiently burdensome to raise the issue of the constitutional validity of Sunday closing laws in the United States; see State v. Gates, 141 S.E.2d 369 (W. Va. 1965).
198. Assuming numbers make a difference, Moslems in this country are not a disproportionately small group as compared to Jews and other Saturday observers. While some 90% (or over 21½ million) of Canada's people are affiliated with some Christian church, Jews constitute 1.2% of the population (or 296,425 people). Moslems are about a third as numerous (98,165) or 0.4% of the Canadian population, i.e. a proportion of roughly 3 to 1; see Canada Year Book, 1985, p. 60 (1981 Census). For Ontario, the proportion of Moslems (0.6%) to Jews (1.7%) is somewhat higher; see The Canadian Encyclopedia, vol. 3, p. 1566. Even if one added other Saturday worshipers like Seventh‑day Adventists, the relative proportion would probably not be fundamentally changed. Given present day immigration policies, the Moslem population in Canada is likely to rise; see ibid., vol. 2, pp. 864, 906, and while efforts are being made to change the pattern of residence, it is likely that Ontario will continue to get a larger proportion of immigrants than the other provinces; see ibid., vol. 2, pp. 864‑65. Given these circumstances, it is not at first sight easy to see why an exemption is not constitutionally required for Moslems, if it is required for Jews and other Saturday observers. The provision of the Charter , s. 27 , favouring multiculturalism would reinforce this way of looking at things.
199. Indeed, the more serious long‑term question may be whether an exemption restricted to Saturday can meet the demands of the equality provision, s. 15, rather than whether the Act is valid without that exemption; see Cihlar, Cook, Martori, Jr. and Meyer, "Church‑State ‑‑ State‑Religious Institutions and Values: A Legal Survey ‑‑ 1964‑66," 41 Notre Dame Lawyer 681 (1966), at pp. 739 et seq.; R. A. Spellman, "A New Look at Sunday Closing Legislation", 45 Nebraska Law Rev. 775 (1966). Section 15, however, was not in force at the time the offences charged here took place and I need not enter further into the matter.
200. I have not mentioned other religious groups, many of which, I gather, do not have a specific weekly holy day as opposed to periodic religious holidays, though some have quite a number of these and may be subject to varying pressures from the requirements of Sunday closing laws. What exemptions are to be made for these groups, and what are the implications of such exemptions for the requirements of equality and the viability of the legislative scheme? From some laws it is possible to make exemptions on the ground of religion, without undermining the legislative scheme or affecting the religious and other rights of others. But this is not possible for other laws. Sunday closing laws appear to me to fall within the latter category.
201. The likelihood is that the burden on minority religious groups results less from Sunday closing than from other laws and social customs; see The Canadian Encyclopedia, vol. 2, p. 907. Though an effort must be made to avoid imposing majority views on minority groups so far as this is reasonably possible, in the end in the particular area with which we are concerned here, Sunday closing laws, the nature of the choices and compromises to be made are matters that must be left to the legislatures. There has, in fact, been a growing legislative recognition of the desirability of making accommodations for minority religious groups in this area. When the Ontario Law Reform Commission Report was published in 1970 (see p. 350), there were no religious exemptions in any province of Canada. Today four of the provinces have enacted such exemptions. A similar pattern has prevailed in the United States. Of the thirty‑four more or less comprehensive State Sunday closing laws in force when McGowan, was decided, twenty‑one had some form of Sabbatarian exemption, supra at pp. 496, 517. While, like the Chief Justice, I favour the making of whatever exemptions are possible to accommodate minority groups, I am of the view that the nature of the choices and compromises that must be made in relation to Sunday closing are essentially legislative in nature. In the absence of unreasonableness or discrimination, courts are simply not in a position to substitute their judgment for that of the Legislature.
202. I would reply to the constitutional questions as follows:
1. Question: 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 ?
Answer: Yes
2. Question: 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?
Answer: In respect of s. 2(a), the freedom of religion of Saturday observing retailers is infringed by s. 2 of the Retail Business Holidays Act. No answer should be given in respect of others. No answer should be given in respect of s. 15.
3. Question: 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 ?
Answer: The infringement of the freedom of religion of Saturday observing retailers under the Retail Business Holidays Act is justifiable under s. 1.
The following are the reasons delivered by
203. Wilson J. (dissenting in part)‑‑I agree with Dickson C.J. that the Retail Business Holidays Act, R.S.O. 1980, c. 453, is intra vires the Province of Ontario because its purpose is to establish a common pause day for those employed in retail business. I also agree with the Chief Justice that s. 2 of the statute infringes the freedom of religion of those who close on Saturdays for religious reasons because it attaches an economic penalty to their religious observance. It requires them to be closed two days in the week instead of one.
204. I part company with the Chief Justice, however, on the application of s. 1 of the Charter to the "Saturday exemption" contained in s. 3(4) of the Act. It seems to me that once it is accepted that s. 2 infringes the freedom of religion of those who close on Saturdays for religious reasons, the question becomes whether that infringement can be justified under s. 1 in order that a common pause day be established for retail workers. The Chief Justice finds that it can be justified in the case of large retailers but not in the case of small. He does so, as I understand his reasons, by reference to the number of persons the larger retailer employs, on the basis that a decision made by that retailer to stay open on Sundays would deprive a larger number of employees of their common pause day than would the same decision made by a smaller retailer. The Chief Justice finds that this disparate treatment of the members of the group whose religious freedom has been infringed can be justified on the basis that they are being differentiated on the ground of size which is not a prohibited ground of discrimination.
205. With respect, I do not think that 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 can be reasonable and justified in a free and democratic society. The effect of the disparate treatment, characterized by the Chief Justice as being based on size, is that the religious freedom of some is respected by the legislation and the religious freedom of others is not. It is this effect which, in my view, makes the legislation vulnerable to attack on constitutional grounds.
206. In his commentary on the Canadian Charter of Rights and Freedoms Professor Tarnopolsky (as he then was) points out that the Charter protects group rights as well as individual rights. He distinguishes between individual and group rights on the basis that the assertion of an individual right emphasises the proposition that everyone is to be treated the same regardless of his or her membership in a particular identifiable group whereas the assertion of a group right is based on the claim of an individual or group of individuals because of membership in a particular identifiable group: see "The Equality Rights", in The Canadian Charter of Rights and Freedoms : Commentary (1982), at p. 437.
207. It seems to me that s. 3(4) of the Retail Business Holidays Act purports to recognize a group right, namely the right of those who close on Saturdays on religious grounds to stay open on Sundays because otherwise their s. 2(a) right would be violated. But it does not recognize the group right of all members of the group, only of some. Accordingly, the violation of the s. 2(a) right of the others has legislative sanction. Yet it seems to me that when the Charter protects group rights such as freedom of religion, it protects the rights of all members of the group. It does not make fish of some and fowl of the others. For, quite apart from considerations of equality, to do so is to introduce an invidious distinction into the group and sever the religious and cultural tie that binds them together. It is, in my opinion, an interpretation of the Charter expressly precluded by s. 27 which requires the Charter to be interpreted "in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians". Can it then be a reasonable limit under s. 1? In my opinion, it can not.
208. To approach the matter from a different vantage point, I think that what the legislature has attempted to do in the Retail Business Holidays Act is effect a compromise between the government's objective of a common pause day and the freedom of religion of those who close on Saturdays for religious reasons. The problem is that the compromise it has effected is, in Professor Dworkin's terms, an "internal compromise": see Ronald Dworkin, Law’s Empire (1986), c. 6 "Integrity", pp. 178 et seq. Dworkin believes that a legal system must be animated by "integrity". Accordingly, when a government legislates on an issue on which people hold widely divergent views, it must do so on the basis of principle. Dworkin states at p. 179:
If there must be compromise because people are divided about justice, then the compromise must be external, not internal; it must be compromise about which scheme of justice to adopt rather than a compromised scheme of justice.
Applying that to the present case, the legislature must decide whether to subordinate freedom of religion to the objective of a common pause day, one scheme of justice, or subordinate the common pause day to freedom of religion, the competing scheme of justice, and, having decided which scheme of justice to adopt, it must then apply it in all cases. It cannot decide to subordinate the freedom of religion of some members of the group to the objective of a common pause day and subordinate the common pause day to the freedom of religion of other members of the same group. Yet this is the effect of the distinction between the large and small retailer adopted by the legislature in this legislation. It is, in my view, "a compromised scheme of justice". It does not affirm a principle which is applicable to all. It reflects rather a failure on the part of the legislature to make up its mind which scheme of justice to adopt. The result is, in my opinion, what Professor Dworkin refers to as "checkerboard" legislation.
209. It follows from what I have said that, in my view, s. 3(4) cannot constitute a reasonable limit under s. 1 of the Charter or be justified in a free and democratic society. However, if I am wrong in this and disparate treatment of this kind can be justified under s. 1, it would, in my view, require much more compelling evidence than was adduced by the Crown in order to establish that the government objective of a common pause day required it. The Crown adduced no evidence to establish that permitting all retailers who close on Saturdays on religious grounds to stay open on Sundays would cause a substantial disruption of the common pause day. Nor was it established that retailers who were not motivated to close on Saturdays by religious considerations would elect under s. 3(4)( a ) to close on Saturdays for the sole purpose of being open on Sundays. Economic considerations may well make such a choice unlikely. We simply do not know. I agree, therefore, with Tarnopolsky J. that the Crown failed totally to discharge its burden under s. 1 of the Charter .
210. The fault with s. 3(4) is, I believe, that it does not go far enough. It does not protect the freedom of religion of all those who close on Saturdays for religious reasons. Section 3(4)(a) standing by itself is, in my view, a perfectly valid exemption from the operation of s. 2 of the Act because it recognizes and accommodates the s. 2(a) right protected by the Charter but paras. (b) and (c) of subs. (4) impose a limit on that exemption (and therefore on the freedom of religion of those who close on Saturdays on religious grounds) which is neither reasonable nor justified in a free and democratic society. These paragraphs are accordingly not saved by s. 1. However, they seem to me to be clearly severable from s. (4)(a). I would accordingly hold them to be of no force and effect under s. 52(1) of the Constitution Act, 1982 .
211. If authority is needed for the application of the doctrine of severance to these paragraphs I would rely on the classic test set out in Attorney‑General for Alberta v. Attorney‑General for Canada (Reference re Alberta Bill of Rights), [1947] A.C. 503, at p. 518, as follows:
The real question is whether what remains is so inextricably bound up with the part declared invalid that what remains cannot independently survive or, as it has sometimes been put, whether on a fair review of the whole matter it can be assumed that the legislature would have enacted what survives without enacting the part that is ultra vires at all.
In my view, s. 3(4)(a) meets that test and can survive on its own without paras. (b) and (c). It protects freedom of religion which was clearly the legislature's dominant intention in enacting s. 3(4) but it protects it for all those who close on a Saturday for religious reasons and not just for some.
212. I would rely also on the wording of s. 52(1) itself which renders a law which is inconsistent with the provisions of the Constitution of no force and effect "to the extent of the inconsistency". This language seems to me to expressly authorize severance in a case such as the present. I take no issue with the course followed by Tarnopolsky J. in granting a s. 24(1) remedy to the appellant Nortown Foods Limited on the basis that s. 2 of the Act is of no force and effect vis‑à‑vis it. It appears to me, however, that where the impugned legislation is capable of severance, severance is the preferable route to follow. It avoids isolating the remedy to the particular litigant and provides relief to all those adversely affected by the unconstitutional provision. In a word, it preserves rather than fractures the integrity of the group.
213. I have one or two comments to add. The first is that when the court is called upon to balance under s. l of the Charter a fundamental value such as freedom of religion against the admittedly desirable legislative objective of a common pause day, it has to keep in mind that the legislature, inasmuch as it has provided the common pause day for only a small proportion of the populace, namely certain classes of retail workers, and has not seen fit to provide a common pause day for the great masses of people involved in industry, has put its own value on the common pause day. It has not made it generally available to workers in the Province. I express no view as to whether this is a good thing or a bad thing‑‑that is not the Court's business‑‑I simply say that it is some evidence of the importance attached to the concept of a common pause day by the legislators themselves.
214. The second comment I would make addresses the concern expressed by the Chief Justice that the effect of extending the exemption to all Saturday observers would be that some Sunday observers might be compelled to work on Sundays if they are employed by employers who close on Saturdays for religious reasons. This Court held in Ontario Human Rights Commission and O'Malley v. Simpsons‑Sears Ltd., [1985] 2 S.C.R. 536, that under the Ontario Human Rights Code employers were under a duty to accommodate employees who found themselves in this position. If an employee objects on religious grounds to working on a particular day, the employer must take reasonable steps, short of undue hardship, to make alternate arrangements for that employee. The Sunday‑observing employee is therefore not without a remedy although the remedy is not provided in this legislation but in the Ontario Human Rights Code.
215. One final observation. As cases such as O'Malley illustrate so well, respect for human rights cannot be achieved in a pluralist society without a spirit of co‑operation and goodwill on the part of all the citizens but especially on the part of the majority. As the Chief Justice stated in R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at p. 336:
A truly free society is one which can accommodate a wide variety of beliefs, diversity of tastes and pursuits, customs and codes of conduct. A free society is one which aims at equality with respect to the enjoyment of fundamental freedoms and I say this without any reliance upon s. 15 of the Charter . Freedom must surely be founded in respect for the inherent dignity and the inviolable rights of the human person.
Disposition
216. Since none of Edwards Books and Art Limited, Longo Brothers Fruit Markets Limited or Paul Magder were closed on the Saturday preceding the laying of the charges against them, their appeals must be dismissed. They do not qualify for an exemption under s. 3(4)(a) of the Act. Nortown Foods Limited does, however, qualify for the exemption under s. 3(4)(a) and the appeal of the Crown must therefore be dismissed with costs. I would not award costs against the three unsuccessful appellants.
217. I would answer the constitutional questions as follows:
1. Question: 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 ?
Answer: Yes.
2. Question: 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?
Answer: Section 2 of the Retail Business Holidays Act infringes the freedom of religion protected by s. 2(a) of the Charter of those retailers who close their stores on Saturdays for religious reasons and who cannot qualify for exemption under s. 3(4) of the Act.
3. Question: 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 ?
Answer: The limits on freedom of religion imposed in paras. (b) and (c) of s. 3(4) of the Act cannot be justified under s. 1 of the Charter and such paragraphs must therefore be declared of no force and effect under s. 52(1).
218. I express no view on whether or not the Retail Business Holidays Act violates the freedom of religion of Hindus or Moslems. I agree with the Chief Justice that no evidentiary foundation was laid to support a constitutional challenge by members of those religious persuasions.
Appeal (Edwards Books and Art Limited v. The Queen) dismissed.
Appeal (The Queen v. Nortown Foods Limited) 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) dismissed.
Appeal (Magder v. The Queen) dismissed.
Solicitors for the appellant Edwards Books and Art Limited: Blake, Cassels and Graydon, Toronto.
Solicitors for the appellants Longo Brothers Fruit Markets Limited, Thomas Longo, Joseph Longo, carrying on business as Longo Brothers Fruit Market: Goodman and Goodman, Toronto.
Solicitors for the appellant Paul Magder: Lobl, Recht, Freedman & Danson, Toronto.
Solicitor for the appellant‑respondent Her Majesty The Queen: Ministry of the Attorney General, Toronto.
Solicitors for the respondent Nortown Foods Limited: McCarthy & McCarthy, Toronto.
Solicitor for the intervener the Attorney General of Canada: Frank Iacobucci, Ottawa.
Solicitor for the intervener the Attorney General of Quebec: Attorney General of Quebec, Ste‑Foy.
Solicitor for the intervener the Attorney General of Nova Scotia: Attorney General of Nova Scotia, Halifax.
Solicitor for the intervener the Attorney General for New Brunswick: Attorney General for New Brunswick, Fredericton.
Solicitor for the intervener the Attorney General of Manitoba: Attorney General of Manitoba, Winnipeg.
Solicitor for the intervener the Attorney General of British Columbia: Attorney General of British Columbia, Victoria.
Solicitor for the intervener the Attorney General for Saskatchewan: Attorney General for Saskatchewan, Regina.
Solicitor for the intervener the Attorney General for Alberta: Attorney General for Alberta, Edmonton.
Solicitor for the intervener the Attorney General of Newfoundland: Attorney General of Newfoundland, St. John’s.
Solicitor for the intervener the Ontario Conference Corporation of the Seventh‑day Adventist Church: David Thomas, Oshawa.
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