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

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

1 110/7/2014 R v. Big M Drug Mart [1985]

2 10/7/20142 Judgment per Dickson, C.J. First SCC decision on Charter guarantee of freedom of religion First SCC decision on Charter guarantee of freedom of religion Lord’s Day Act, R.S.C required businesses to close on Sunday Lord’s Day Act, R.S.C required businesses to close on Sunday Origin of such laws: desire to maintain Christian Sabbath as a holy day Origin of such laws: desire to maintain Christian Sabbath as a holy day Main Question: Does the Lord’s Day Act, R.S.C infringe Section 2(a) of the Charter which guarantees “freedom of conscience and religion” Main Question: Does the Lord’s Day Act, R.S.C infringe Section 2(a) of the Charter which guarantees “freedom of conscience and religion”

3 10/7/20143 Preliminary Question: Preliminary Question: What is the “purpose” of Lord’s Day legislation? Two possibilities: Two possibilities: 1. “securing public observance of the Christian institution of the Sabbath” (53) – religious 2. “providing for uniform day of rest from labour” (53) – secular

4 10/7/20144 Division of Powers If 1., then falls within constitutional jurisdiction of federal Parliament to “use the criminal sanctions at its disposal to achieve a religious purpose” (58) If 1., then falls within constitutional jurisdiction of federal Parliament to “use the criminal sanctions at its disposal to achieve a religious purpose” (58) If 2., then falls within jurisdiction of provincial legislatures to legislate with respect to business and labour relations If 2., then falls within jurisdiction of provincial legislatures to legislate with respect to business and labour relations “Historically, there seems little doubt that it was religious purpose which underlay the enactment of…Lord’s Day legislation [in Canada and the Commonwealth] (53) “Historically, there seems little doubt that it was religious purpose which underlay the enactment of…Lord’s Day legislation [in Canada and the Commonwealth] (53)

5 10/7/20145 “A finding that the Lord’s Day Act has a secular purpose is…simply not possible. It’s religious purpose, in compelling sabbatical observance, has long been established and consistently maintained by the courts of this country.” (54) “A finding that the Lord’s Day Act has a secular purpose is…simply not possible. It’s religious purpose, in compelling sabbatical observance, has long been established and consistently maintained by the courts of this country.” (54) AG Alta. claims purpose irrelevant; only effects relevant to constitutionality AG Alta. claims purpose irrelevant; only effects relevant to constitutionality

6 10/7/20146 SCC: “both purpose and effect are relevant in determining constitutionality; either an unconstitutional purpose or an unconstitutional effect can invalidate legislation.” (54) SCC: “both purpose and effect are relevant in determining constitutionality; either an unconstitutional purpose or an unconstitutional effect can invalidate legislation.” (54) “Intended and actual effects have often been looked to for guidance in assessing legislation’s object and thus, its validity.” (54) “Intended and actual effects have often been looked to for guidance in assessing legislation’s object and thus, its validity.” (54)

7 10/7/20147 “…the effects test will only be necessary to defeat legislation with a valid purpose; effects can never be relied upon to save legislation with an invalid purpose.” (55) “…the effects test will only be necessary to defeat legislation with a valid purpose; effects can never be relied upon to save legislation with an invalid purpose.” (55) So cannot argue that, despite invalid purpose (sabbatical observance), the effects of Lord’s Day Act (common day of rest) enough to save Act So cannot argue that, despite invalid purpose (sabbatical observance), the effects of Lord’s Day Act (common day of rest) enough to save Act

8 10/7/20148 Shifting Purpose Doctrine AG of Saskatchewan: “the purpose of legislation may shift, or be transformed over time by changing social conditions…” (55) AG of Saskatchewan: “the purpose of legislation may shift, or be transformed over time by changing social conditions…” (55) Purpose originally religious; currently secular (common day of rest) Purpose originally religious; currently secular (common day of rest)

9 10/7/20149 Shifting purpose doctrine rejected: 1.Creates uncertainty 2.Encourages re-litigation (as purpose shifts) 3.“…stands in contrast to fundamental notions developed in our law concerning the nature of “Parliamentary intention.” (55) 4.“Purpose is a function of the intent of those who drafted and enacted the legislation at the time, and not of any shifting variable.” (55)

10 10/7/ “In result, therefore, the Lord’s Day Act must be characterized as it has always been, a law the primary purpose of which is the compulsion of sabbatical observance.” (55)

11 10/7/ Therefore, Lord’s Day Act : 1.Falls under Federal jurisdiction – not ultra vires 2.engages Sec 2(a)’s “freedom of conscience and religion”

12 10/7/ Interpreting Charter Rights: The Purposive Approach New Question: Does an Act of Parliament with the purpose of compelling observance of Christian Sabbath infringe freedom of conscience and religion guaranteed by Sec. 2(a) of Charter? New Question: Does an Act of Parliament with the purpose of compelling observance of Christian Sabbath infringe freedom of conscience and religion guaranteed by Sec. 2(a) of Charter? Preliminary Question: How to interpret Charter rights and freedoms? Preliminary Question: How to interpret Charter rights and freedoms?

13 10/7/ Interpreting Charter Rights: The Purposive Approach, cont’d “The meaning of a right or freedom guaranteed by the Charter [is] to be ascertained by an analysis of the purpose of such a guarantee; it [is] to be understood…in light of the interests it was meant to protect.” (56) “The meaning of a right or freedom guaranteed by the Charter [is] to be ascertained by an analysis of the purpose of such a guarantee; it [is] to be understood…in light of the interests it was meant to protect.” (56)

14 10/7/ Interpreting Charter Rights: The Purposive Approach, cont’d Purpose of a right or freedom “is to be sought by reference to”… 1.“the larger objects of Charter itself” (various interests meant to be protected) 2.“the language chosen to articulate the specific right or freedom” 3.“the historical origin of concepts enshrined” 4.Where applicable, the meaning and purpose of other rights associated with it in text

15 10/7/ Interpreting Charter Rights: The Purposive Approach, cont’d Interpretation should be: 1.“a generous rather than a legalistic one” 2.“aimed at fulfilling the purpose of the guarantee” and 3.“securing for individuals the full benefit of the Charter’s provisions’ 4.“placed in its proper linguistic, philosophic and historical contexts.” (56-7)

16 10/7/ Section 2(a) Specific Questions re: Meaning of Sec 2(a): 1.What does “freedom” mean? 2.Does legislation the purpose of which is to compel sabbatical observance violate the freedom of religion of non-Christian Canadians?

17 10/7/ Freedom: Freedom: –“founded in respect for the inherent dignity and inviolable rights of the human person” (55) –“Freedom can primarily be characterized by the absence of coercion or constraint.” (55, emphasis added)

18 10/7/ “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 freedoms of others, no one is to be forced to act in a way contrary to his beliefs or his conscience.” (55, emphasis added) “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 freedoms of others, no one is to be forced to act in a way contrary to his beliefs or his conscience.” (55, emphasis added) –1. Not prevented from doing X –2. Not compelled to do Y “the tyranny of the majority” (55) “the tyranny of the majority” (55) [de Tocqueville & J.S. Mill]

19 10/7/ “Non-Christians are prohibited for religious reasons from carrying out activities which are otherwise lawful, moral and normal.” (55-6) “Non-Christians are prohibited for religious reasons from carrying out activities which are otherwise lawful, moral and normal.” (55-6) “…disparate impact destructive of the religious freedom of the collectivity.” (56) “…disparate impact destructive of the religious freedom of the collectivity.” (56) “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...any law purely religious in purpose, which denies me that right, must surely infringe my religious freedom.” (56) “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...any law purely religious in purpose, which denies me that right, must surely infringe my religious freedom.” (56)

20 10/7/ “…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.” (57) “…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.” (57) “…it is non-action rather than action that is being decreed, but…compulsion is nevertheless what it amounts to.” 957) “…it is non-action rather than action that is being decreed, but…compulsion is nevertheless what it amounts to.” 957)

21 10/7/ First Main Conclusion “The state shall not use the criminal sanctions at its disposal to achieve a religious purpose, namely, the uniform observance of the day chosen by the Christian religion as its day of rest.” (58) “The state shall not use the criminal sanctions at its disposal to achieve a religious purpose, namely, the uniform observance of the day chosen by the Christian religion as its day of rest.” (58) “…the true purpose of the Lord’s Day Act is to compel the observance of the Christian Sabbath and I find that the Act…infringes upon the freedom of conscience and religion guaranteed in s. 2(a) of the Charter…” (58) “…the true purpose of the Lord’s Day Act is to compel the observance of the Christian Sabbath and I find that the Act…infringes upon the freedom of conscience and religion guaranteed in s. 2(a) of the Charter…” (58)

22 10/7/ New Question: Sec 1 Justification Lord’s Day Act shown to infringe freedom of conscience and religion of non- Christians Lord’s Day Act shown to infringe freedom of conscience and religion of non- Christians New Question: Can the infringement nevertheless be justified because it’s among those “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society?” (sec. 1) New Question: Can the infringement nevertheless be justified because it’s among those “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society?” (sec. 1)

23 10/7/ Reasonable Limit? Reasons given: 1.Convenience: Choice of day of rest adhered to by Christian majority most practical 2.“Everyone accepts the need and value of a universal day of rest from all work, business and labour and it may as well be the day traditionally observed in our society” (58)

24 10/7/ Dickson’s response: Dickson’s response: –Reason 1: “an argument of convenience and expediency…fundamentally repugnant…” –Rights should not be infringed for reasons of convenience

25 10/7/ –Reason 2 imputes a secular objective which (a) violates separation of powers; (a) violates separation of powers; (b) is not the objective of the Act; (b) is not the objective of the Act; (c) “it seems disingenuous to say that the legislation is valid criminal law and offends s. 2(a) because it compels the observance of a Christian religious duty, yet it is still a reasonable limit, demonstrably justifiable because it achieves a secular purpose the legislators presumably did not intend” (58) … nor should have intended as per (a) above? (c) “it seems disingenuous to say that the legislation is valid criminal law and offends s. 2(a) because it compels the observance of a Christian religious duty, yet it is still a reasonable limit, demonstrably justifiable because it achieves a secular purpose the legislators presumably did not intend” (58) … nor should have intended as per (a) above?

26 10/7/ Wilson J.’s Concurring Opinion Agrees with Dickson as to result; differs on reasons Agrees with Dickson as to result; differs on reasons Charter is “first and foremost an effects-oriented document” Charter is “first and foremost an effects-oriented document” Lord’s Day Act has the effect of: Lord’s Day Act has the effect of: –Requiring all to observe Christian Sabbath –Protecting one religion at expense of others, thus leading to… –“disparate impact destructive of the religious freedom of the collectivity.” (59)

27 10/7/ The Act “infringes on the freedom of conscience and religion guaranteed in s. 2(a) of the Charter. This is not, however, because the statute was enacted for this purpose but because it has this effect. In my view, so long as a statute has such an actual or potential effect on an entrenched right, it does not matter what the purpose behind the enactment was…” (59) The Act “infringes on the freedom of conscience and religion guaranteed in s. 2(a) of the Charter. This is not, however, because the statute was enacted for this purpose but because it has this effect. In my view, so long as a statute has such an actual or potential effect on an entrenched right, it does not matter what the purpose behind the enactment was…” (59)

28 10/7/ Questions 1 Is prohibiting non-Christians from working on Sunday forcing them: a.to “affirm a specific religious belief” b.to “manifest a specific religious practice?, or only c.to refrain from working when they would otherwise have the right to do so? Are non-Christians who are compelled not to work, affirming a religious belief – or just not working? Are non-Christians who are compelled not to work, manifesting a religious practice? Can one affirm or manifest a religious practice without intending to do so – without seeing oneself as doing so?

29 Questions, cont’d 2. Is it relevant that observant Jews and Muslims prohibited (in one case by law, in other by religious duty) from working on two Sabbaths but Christians only one? (disparate impact) 10/7/201429

30 Questions, cont’d Would compelled “Sunday observance” be a reasonable limit on religious freedom if non-Christians entitled, by law, not to work on own Sabbath/day of rest? Would compelled “Sunday observance” be a reasonable limit on religious freedom if non-Christians entitled, by law, not to work on own Sabbath/day of rest? “reasonable accommodation” “reasonable accommodation” 10/7/201430


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