On Sunday, May 30, 1982, police officers of the City of Calgary attended at premises owned by Big M and open to the public. They witnessed several transactions including the sale of groceries, plastic cups and a bicycle lock. Big M was charged with a violation of s. 4 of the Lord’s Day Act.
What a crime! It is hard to believe that thirty years ago you could become a criminal in Canada for operating a business on a Sunday. The law was overturned in “R. v. Big M Drug Mart Ltd.” It was the first major interpretation of the new Canadian Charter of Rights and Freedoms and it struck down the Lord’s Day Act as a violation of religious freedom.
The case, penned by universally revered and respected Chief Justice Brian Dickson, held that a religious purpose is not a legitimate purpose for Canadian legislation and that a law enacted for a purely religious purpose violates our Constitution and cannot be saved for any reason.
The law in question said:
4. It is not lawful for any person on the Lord’s Day, except as provided herein, or in any provincial Act or law in force on or after the 1st day of March 1907, to sell or offer for sale or purchase any goods, chattels, or other personal property, or any real estate, or to carry on or transact any business of his ordinary calling, or in connection with such calling, or for gain to do, or employ any other person to do, on that day, any work, business, or labour.
As in any Charter case, the Court had to examine the purpose and effect of the legislation In doing so, it recognized that there were two possible purposes for such a law, “one religious, namely securing public observance of the Christian institution of the Sabbath and the other secular, namely providing a uniform day of rest from labour.” Contrary to how almost identical laws in the United States were interpreted, the Canadian Supreme Court held that this law had a religious purpose. To understand why, we need to look at the division of powers between the federal and provincial governments.
The Court looked back at the history of laws promoting Sunday observance, dating all the way back to the King of Wessex in the 7th Century, if you can believe it. Early on in Canadian jurisprudence, provinces attempted prohibit Sunday work under the powers afforded them by the “property and civil rights”, and “merely local or private nature” provisions of the Constitution. These decisions rejected these laws, finding that they were criminal prohibitions under the exclusive jurisdiction of the Federal Parliament. The Federal Legislature then enacted a criminal law, “The Lord’s Day Act” in 1906, prohibiting work on Sunday and allowing the provinces to ban it as well.
Had the provincial laws been enacted for the purpose of giving people the same day off, they would have survived the division of powers challenge as having a “property and civil rights” purpose. Since they did not, the 1906 criminal law challenged by Big M was clearly not for the purpose of giving people the same day off. Therefore, there had to be some other purpose, and the court held that it was definitely a religious purpose. Justice Dickson wrote “Its religious purpose, in compelling sabbatical observance, has been long‑established and consistently maintained by the courts of this country.”
This is in stark contrast to how the cases played out in the United States, where similar legislation was indeed held to be for the purpose of a day of rest, according to Dickson J, “in order not to run afoul of the religion clauses of the First Amendment”. Since we have no explicit separation of church and state in Canada, there may have been little fear of these laws being quashed for establishing a religion, particularly back in 1906. But then we enacted the Canadian Charter of Rights and Freedoms.
Justice Dickson did not mince words in killing the law:
To the extent that it binds all to a sectarian Christian ideal, the Lord’s Day Act works a form of coercion inimical to the spirit of the Charter and the dignity of all non‑Christians. In proclaiming the standards of the Christian faith, the Act creates a climate hostile to, and gives the appearance of discrimination against, non‑Christian Canadians. It takes religious values rooted in Christian morality and, using the force of the state, translates them into a positive law binding on believers and non‑believers alike. The theological content of the legislation remains as a subtle and constant reminder to religious minorities within the country of their differences with, and alienation from, the dominant religious culture. Non‑Christians are prohibited for religious reasons from carrying out activities which are otherwise lawful, moral and normal. The arm of the state requires all to remember the Lord’s day of the Christians and to keep it holy. The protection of one religion and the concomitant non‑protection of others imports disparate impact destructive of the religious freedom of the collectivity.
The Court held that a religious purpose is never a valid legislative purpose in Canada. It did so indirectly by rejecting the argument that irrespective of original purpose, the effect of the legislation was secular, to give a day of rest:
Once the purpose has been classified as offensive, then the legislation cannot be saved by permissible effect. As a result it is unnecessary to determine whether the secular effect here in issue is sufficient, or whether a secular effect could ever be relevant, once a finding has been made that the legislation is invalid by reason of an impermissible purpose.
This is important to keep in mind when considering whether Canada has the separation of church and state or is secular. The Canadian constitution prevents the legislature from ever having a religious purpose in its laws. Any religious purpose invalidates the law, even if it doesn’t prevent or compel a religious practice directly.
Another interesting element of the case, of particular note given the recent “Hobby Lobby” decision, is that the “person” here asserting a violation of Freedom of Religion was a corporation. This is because it was the corporation that was charged criminally as a legal “person”. Accordingly, there was no issue of standing for Big M to advance its argument. To avoid conviction the corporation was able to advance a challenge that the law violated the Charter. The Court held that the fact that it was a corporation was irrelevant, as was its inability to hold religious beliefs. “An accused atheist would be equally entitled to resist a charge under the Act.”
In Canada, we can become troubled by the fact that our Constitution allows for state funding of religious education and that the Charter itself proclaims the supremacy of God. It is refreshing to look back at a case like Big M and remind ourselves that our government is secular and cannot make laws for religious purposes.