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Case Summary
R. v. Edwards Books and Art Ltd.

R. v. Edwards Books and Art Ltd.
[1986] 2 S.C.R. 713

Four Ontario retailers were charged in 1983 for selling goods by retail on a Sunday, contrary to s. 2 of the Retail Business Holidays Act. All four retailers admitted that their store was open for business on a Sunday. The four retailers were Edwards Books and Art Ltd. (Edwards), Longo Brothers Fruit Markets Ltd. (Longo), Paul Magder, and Nortown Foods Ltd. (Nortown).

While all of the retailers opened on Sunday for economic reasons, i.e. making money, Nortown differed from the others in that it was a sincere Jewish business serving primarily Jewish clientele. None of the other retailers claimed to sincerely hold a particular religious faith.

Furthermore, under the exemption section of the Act, those who observed a day of rest on Saturday because of religious tenets (such as the Jewish community) did not have to close on Sundays. However, this exemption only applied to small businesses (of a certain floor space and number of employees) and not to large businesses. As such, Nortown was charged under the Act because it had too many employees working that particular Sunday.

Provincial Offences Court

In Provincial Offences Court all four retailers were tried separately.

1. Edwards: The charges against Edwards were dismissed. The Court held that although it was permissible for the Ontario government to select Sunday as a day of pause, the Act did not make adequate provisions for those wished to be exempt from it.
2. Longo: The charges against Longo were dismissed. The Court held that the Act infringed upon the rights of persons of the Jewish faith under ss. 2(a) and 27 of the Charter of Rights and Freedoms.
3. Paul Magder: The charges against Madger were dismissed. The Court held that the Act had religious underpinnings (focusing on Sunday as opposed to other days of the week) and, as such, the Act was unenforceable as it was outside of provincial jurisdiction.
4. Nortown: Nortown was convicted at trial. The Court held that the Act did not infringe upon freedom of religion, as the Act placed no greater burden upon Jewish individuals as other individuals in society.

Provincial Offences Court of Appeal

In the Provincial Offences Court of Appeal all four appeals were heard separately.

1. Edwards: The Court allowed the Crown’s appeal and convicted Edwards. The Court held that the purpose of the Act was secular. As such, it was within the jurisdiction of the province and did not infringe upon freedom of religion.
2. Longo: The Court allowed the Crown’s appeal and convicted Longo. The Court held that the inconvenience to consumers and possible economic detriment to retails did not represent an infringement of freedom of religion. Furthermore, that the Act represented a reasonable limit under s. 1 of the Charter.
3. Paul Magder: The Court allowed the Crown’s appeal and convicted Magder. The Court held that the Act was within provincial jurisdiction. As such, the Act did not intrude upon federal legislative jurisdiction over the profanation of the Sabbath, implying that there was no infringement of freedom of religion.
4. Nortown: The Court dismissed Nortwon’s appeal without written reasons.

Ontario Court of Appeal

In the Ontario Court of Appeal all four appeals were heard concurrently (with the addition of four other cases). The Court held that only Nortown was eligible for constitutional relief from the Act and, as such, upheld the convictions of Edwards, Longo and Magder. Central to the Courts ruling was its interpretation of the legislation. The Court found that the purpose of Act was secular, however, that the effect of the Act was to place an additional burden upon those who close their business on other days in accordance with religious tenets. As such, because Nortown was a Jewish establishment with Jewish clientele (who respected Saturday as a day of rest), it was eligible for constitutional relief under s. 2(a).

Three issues were considered by the Supreme Court:

1. Whether the Retail Business Holidays Act was within provincial jurisdiction pursuant to the Constitutional Act, 1867.
2. Whether the Retail Business Holidays Act violated ss. 2(a), 7 and/or 15 of the Charter.
3. If so, whether the violation was justifiable under s. 1 of the Charter.

The Supreme Court ruled that the appeals of Edwards, Longo and Magder be dismissed, and that the appeal of the Crown against Nortown should be allowed and the respondent convicted (Wilson dissenting in part).

Dickson gave the reasons of the majority. He concluded the following:

1. The Act was within provincial jurisdiction.
2. The Act infringed on s. 2(a).
3. The Act did not infringe upon ss. 7 or 15.
4. The infringement of s. 2(a) was justifiable under s. 1.

La Forest wrote a separate concurrence. He qualified Dickson’s application of s. 1.

Beetz (writing for himself and McIntyre) agreed with the results of Dickson, however, for different reasons. He concluded the following:

1. The Act was within provincial jurisdiction.
2. The Act did not infringe upon ss. 2(a), 7 and/or 15.

Wilson dissented in part. She concluded the following:

1. The Act was within provincial jurisdiction.
2. The Act did infringe upon s. 2(a).
3. The Act did not infringe upon ss. 7 and/or 15.
4. The infringement of s. 2(a) was not justifiable under s. 1.

Provincial Jurisdiction

Dickson concluded that Act was within provincial legislative jurisdiction under s. 92 of the Constitutional Act, 1867. Of concern here was the nature of the Act. If it was of a religious nature, then the Act would be outside of provincial legislative competence and, as such, unenforceable. However, for Dickson, the nature of the Act was not religious but secular. In supporting this conclusion, he advanced four arguments.

First, that the Act was not concerned with advancing a particular religious ideology or set of public morals. Instead, it was primarily concerned with the civil and property rights of employees to enjoy a common day of rest, leisure and recreation: a secular goal. Second, that while the day of pause chosen, Sunday, has historical significance in the Christian faith, this significance is not enough to give the Act a religious nature. Third, that many non-Christian countries also practice a uniform day of rest on Sunday: specifically, the Soviet Union, Japan and Yugoslavia. This shows that the choice of Sunday as a day of rest may have a basis in secular not religious reasons. Finally, the fact that the Act contains exemptions for Jewish employers under s. 3(4) does not make the Act religious. For Dickson, in the pursuit of secular goals, the government must make efforts to accommodate human rights, such as freedom of religion.

Section 2(a)

Dickson concluded that the Act infringed upon religious freedom in a qualified manner. For those who did not sincerely hold and practice religious beliefs the Act did not represent an infringement upon s. 2(a). However, for those who did in fact sincerely hold and practice religious beliefs, the Act did represent an infringement. As a result, only Nortown, had a legitimate claim of s. 2(a) violation.

Dickson supported this conclusion by asserting that s. 2(a) was inclusive of indirect violations of the freedom of religion. He defined indirect violations as the placement of indirect burdens upon individuals and groups that had the effect of degrading one’s ability to practice the tenets of their religion. However, he qualified this definition by excluding “innocuous secular legislation.”

With s. 2(a) understood in these terms, Dickson found that the freedom of religion of Nortown was violated by the Act. Nortown, as a sincere Jewish business, already honoured Saturdays as a day of pause in accordance with the Jewish religion. To force it to close for the additional day of Sunday would place it at competitive disadvantage in regards to non-Jewish competitors (who remained open on Saturdays). Thus, Nortown was placed in an untenable position: it could close its store and place itself at a disadvantage or it could remain open and renounce tenets of its faith. For Dickson, such a situation represented the placement of a burden and an indirect violation of s. 2(a).

Section 1

Dickson concluded that the violation was justifiable under s. 1 of the Charter. Using the Oakes test, he asserted that the challenged legislation passed both the objective and proportionality components.

Importance of the objective

Dickson concluded that the purpose of the Act, specifically a common day of rest, represented an important legislative objective. The general well-being of employees is increased with the ability to take a common day of leisure and rest with their families and friends. The legislation has additional importance in that it targeted the retail industry, an industry in which workers are more vulnerable to employer demands.

Proportionality test

Dickson concluded that the requirements under the proportionality test were satisfied. To begin, the means within the Act (the decree that retailers shall not sell goods on Sunday) demonstrated a direct connection with its legislative objective (a common day of rest). Furthermore, for Dickson, the Act attempts to impair the right of freedom of religion as little as possible. This can be seen with the various exemptions, pertaining to Jewish groups and otherwise, within the Act.

Sections 7 and 15

In regards to s. 7, Dickson concluded that regulations pertaining to the time and place of business did not have an adverse impact upon individual’s liberties. Furthermore, Dickson concluded that the retailers had no claim to constitutional relief under s. 15. This was so because (1) no arguments in regards to s. 15 were advanced and (2) the legal status of s. 15 was not yet settled at the time of the retailers’ charges and convictions.

Outcome

Dickson concluded that the Act should be upheld and that the retailers should be charged. In sum, he asserted that the Act was within provincial jurisdiction and therefore enforceable. Furthermore, while the Act did violate s. 2(a) in a qualified manner, specifically in the case of Nortown, this violation was constitutional under s. 1 of the Charter.

La Forest agreed with Dickson that the Act was within provincial jurisdiction and that it did not violate ss. 7 or 15. Furthermore, La Forest agreed with Dickson that the Act did violate s. 2(a) in an indirect manner and that this violation was justifiable under s. 1. However, La Forest disagreed with Dickson on the application of s. 1.

Section 1

La Forest concluded that Dickson was correct in asserting that the purpose of the Act was an important legislative objective. However, he argued that Dickson exaggerated the importance of the proportionality test in regards to the particularities of the case at hand. For La Forest, the government must be given greater leeway and independence in its capacity to pursue an important objective. In the particularities of this appeal, there should be no requirement that the government go out of its way to make exemptions to the Act for non-Sunday observers.

SEPARATE CONCURRING REASONS
Beetz (with McIntyre)

Beetz agreed with Dickson that the Act was within provincial jurisdiction. Furthermore, he agreed with Dickson that s. 7 was not violated and that s. 15 was not in effect at the time of the charges and convictions. However, Beetz disagreed with Dickson’s application of s. 2(a) in the particularities of the case, concluding that the Act did not violate freedom of religion.

Section 2(a)

As stated above, Dickson found that the Act placed Nortown in an untenable position: they must either place themselves in an unfavourable position vis-a-vis their competition by closing on Saturday, or they must renounce their religion and remain open. For Dickson, such a position represented an indirect violation of s. 2(a). Beetz found this line of reasoning to be flawed.

For Beetz, the economic harm suffered by Saturday observers such as Nortown was not the result of the Act, but was independent of it. To illustrated this, Beetz cited a situation in which no day of rest was observed. In such a situation, the Saturday observer would be open six days of the week (closed for Sabbath on Saturday) while the non-observer would be open through the whole week. As such, the Saturday observer would still be at a disadvantage competitively. For Beetz, this implies that the economic harm was the result of the religion itself, not the legislation. As such, s. 2(a) was not violated and the need to apply s. 1 was unnecessary.

Wilson agreed with Dickson that the Act was within provincial jurisdiction and that the Act violated s. 2(a). However, Wilson disagreed with Dickson’s application of s. 1.

Section 1

Central to Wilson’s disagreement was Dickson’s application of the proportionality test. For Dickson, the proportionality test was satisfied as the Act made accommodations for minorities through its various exemption clauses. However, for Wilson, these accommodations were not enough to satisfy the test.

The exemption only applied to small (of a certain floor space and number of employees) not large retailers. For Wilson, by doing so, the Act did two things. First, it treated members of the offended group differently. For Wilson, this is contrary to the spirit of the Charter. As she states, “it seems to me that when the Charter protects group rights such as the 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.” Second, it excludes important individuals from the exemption. As such, the qualifying portions of the exemption section of the Act fail the proportionality test (specifically requirement b and c) and cannot be deemed enforceable under s. 1.

Outcome

Wilson concluded that the appeals of Edwards, Longo and Magder should be dismissed. Furthermore, the Crown’s appeal in regards to Nortown should be dismissed. In sum, the Act violates Nortown’s freedom of religion under s. 2(a). Furthermore, this violation is not justifiable under s. 1 as it fails to pass the proportionality test.