On Tuesday, June 7, 1988, Freedom Party Action Director Marc Emery became the first person to serve a jail sentence under Ontario's Retail Business Holidays Act (RHBA), an act that prohibits retail stores from opening on Sundays, and which controls the manner of operation of those retail businesses which are exempted from forced closings.

As owner and operator of one of the most unique used-book stores anywhere, City Lights Bookshop, Emery has become widely recognized as a leading opponent of Sunday shopping laws --- not because he defied them, but because he was willing to risk going to jail to defend his right to operate his store as he best saw fit. It is a tragic irony indeed that he was forced to serve his sentence in the Elgin-Middlesex Detention Centre alongside others who were being held for crimes like car theft, property damage, assault, break and enter, etc. --- people who were in jail for doing to others the very thing that the Ontario government was doing to Emery --- violating someone's private property rights.

But Emery's road to jail was a rocky and uncertain one, punctuated with frustrations, failures and victories along the way. Most importantly, his experience offers all of us a concrete example of how arbitrary laws that violate a person's dignity and property reflect upon our justice system and those who administer it --- and of the power of a principled and uncompromised stance against this glaring injustice.

It all began on Sunday December 7, 1986 when Emery, like hundreds of other retailers around Ontario, opened his store in direct defiance of the RBHA, under the expectation that the Supreme Court of Canada was about to strike it down as being a violation of freedom of religion. As it happened, the law was found to be a violation of freedom of religion --- but that didn't matter. It was "justifiable" under Canada's "democratic" Constitution.

Unlike most retailers who justified their flouting of the law on shallow pragmatic grounds (i.e., "there's money to be made by being open Sundays"; "The customer wants Sunday shopping"; "either everybody should be closed or we should all be allowed to open", etc.), Emery made it clear that he was opening his store on principle. It was his store, and nobody else had any right to it.

"The reason I decided to challenge this bad law was because I was tired of listening to retailers justify their actions on exclusively pragmatic grounds, namely, that there was money to be made by opening Sundays," said Emery. "The public was beginning to get the idea that that was the only basis for Sunday openings and this became counterproductive to the whole issue."

"As long as the debate centered on money, and not on the principle at stake, the public and retailers alike were advancing the destruction of their own individual freedoms," said Emery. "No one was seeing the connection between a retailer being allowed the private control and ownership of his business --- or the homeowner being allowed the same right to his house, car, TV set --- whatever. That's what private property rights are all about!"

Perhaps police were too busy laying charges against retailers who had the means to pay the kind of fines the government was really after, but even despite Emery's advertised "Lawbreaker Specials" sandwich board in front of his store, no one came to lay any charges against him. So the following week (December 14, 1986), Emery made a point of having one of his press releases announcing his intentions to open illegally delivered directly to police headquarters in London.

It worked. Police showed up at his store to lay charges. Emery, however, was not in his store at the time. He was out campaigning with Freedom Party members and supporters who were stationed at illegally-opened grocery stores handing out pamphlets defending freedom of choice in Sunday shopping. In his absence, police laid charges against both Emery and his store clerk Lili Cummins for violating the RBHA. (Charges were later dropped against Ms. Cummins, despite her willingness to work on that Sunday.)

For Emery, this was the break he was looking for. Taking advantage of his high local profile, he immediately became a leading business spokesman on the issue, giving him the opportunity to address the issue on a moral and philosophic basis.

Four days later (December 18, 1986) came the tragic Supreme Court decision: the RBHA's violation of freedom of religion in Ontario was "justifiable" under Canada's "democratic" Constitution. There was still one Sunday left to open before Christmas (December 21), but few retailers, in light of the Supreme Court decision, displayed the courage necessary to continue the battle. With the support of the Supreme Court behind them, authorities were in a position to hand out some pretty stiff fines --- as high as $10,000 per offence if they so decided.

At this point, even Emery felt it wise to proceed with caution. But having already publicly vowed to open his store again on the next Sunday, how could he do it without risking dire consequences --- and still follow through on his commitment?

Simple. Just play Santa Claus.

On Sunday, December 21, 1986, Emery opened his store to the public, but this time he would not permit any sales to take place. Instead, he would give away books free! Having checked with the police in advance, he was told this would be allright. After all, the law clearly stated that goods must be offered for sale.

When he opened his store on the last Sunday before Christmas, Emery gave away over $1,500 worth of books, (at used-book prices, that's a lot of books), limited to two books per person. Freedom Party's Vice-president Lloyd Walker set up and manned an information booth in the store, and a collection box was set up to accept political donations to the cause.

But the police reneged on their word. Just as Emery was closing his store for the day, he was called by police and informed that even though no sales were conducted in his store that day, charges would still be laid. This was an unprecedented event and resulted in giving Emery a media profile that he could not possibly have anticipated.

Before he knew what hit him, his case was featured on the front-pages of newspapers right across the country. From Halifax to Vancouver, Canadians were hearing about one man's fight against an unjust law.

With his charges now pending before the courts, it was no longer necessary for Emery to open in defiance of the law. After each inevitable conviction, Emery reasoned, he could break the law once more, all that was necessary to keep his case before the courts --- and the issue before the public. Little did he realize that the wheels of injustice seem to turn every bit as slowly as the wheels of justice.

By March 1987, Emery still had not had his day in court, but provincial politicians once more amended the RBHA to allow for the legal opening of smaller bookstores on a Sunday. Which included Emery's store. Emery took advantage of the government-granted privilege and since March 1987 has been opening his store every Sunday --- legally.

By August 1987, Emery still did not have his day in court, but remained disturbed by the idea that the RBHA could dictate how many people he was allowed to employ in his store on a Sunday. So once again, in direct defiance of that law, Emery made a point of letting the media and police know that he would have "too many" people serve his customers. In addition to his three Sunday employees (the "legal" limit at the time), Emery himself would be on hand to serve customers that day.

He was charged, and even though he still had not come to court to face his original 1986 charges, in February 1988 went to court to face the August 1987 charge of having "too many people" serve his customers on a Sunday. Emery did not employ the services of a lawyer, fully aware that legal fees were far more prohibitive than any fines he faced.

The verdict? Guilty.

When the judge asked Emery what fine he considered "appropriate" (A judge will ask what the prosecution is seeking; then ask what the defence thinks is reasonable), Emery refused to respond on the grounds that negotiating his fine would amount to sanctioning his own guilty verdict. In response, the judge imposed the maximum fine sought by the prosecution: $500.

This created an interesting legal paradox: had Emery not entered his own place of business that Sunday, no law would have been broken. In other words, Emery served his jail sentence simply for being caught on his own property.

Emery vowed that he would not pay the fine, announcing to the media that he could not do so with a clear conscience. He would allow the fine's due date to pass, and upon issuance of his arrest warrant, turn himself in to police. In the meantime, he set up a "Pennies for Principles" collection jar in his store, through which customers contributed $380 towards the cost of his fine.

Three weeks before his arrest warrant was issued, a remarkable event occurred: Emery finally was to have his day in court on the original 1986 charge of opening his store illegally and giving books away free. The Crown had already delayed proceedings four times, but on this, the fifth time, the Crown finally presented its case.

As on the other charge, Emery represented himself without the assistance of a lawyer. He had fully prepared an argument denouncing a law that would dare to punish individuals for the peaceful use of their own property. After the Crown had presented its case, Emery rose to give his defence but was immediately cut short by the judge who adjourned the court for a ten minute recess.

When the judge and prosecuting attorney returned, Emery was not permitted to speak. Upon "reflection", according to the judge, the Crown had not conclusively determined that Emery was the owner of his store, City Lights Bookshop. Emery was declared not guilty before he even had a chance to utter a word in his defence!

Most remarkable was the fact that "ownership" was not a criteria for being charged under the RBHA. One does not have to be an owner of an establishment to be charged under the law; managers, employees, and owners are all subject to the law. Not only that, but it was a well-known fact that Emery was owner of City Lights Bookshop, and that he had continually referred to it as "my store" throughout the entire proceedings --- and in his press releases issued to police.

Even worse, since Emery had already been convicted of the other charge of employing "too many people" in his store, how could such an argument possibly be applied? Since the crown did not determine such ownership as criteria for his previous conviction, why was it not overturned?

Like all laws that are arbitrary and not based on sound principles, the interpretation and enforcement of such laws is equally arbitrary.

Despite his victory however, Emery's problems were still not over.

Upon learning of the issuance of his arrest warrant, Emery planned to turn himself in to London police on June 2, 1988 and issued press releases announcing the fact. But much to his embarrassment, police wouldn't arrest him --- the proper paperwork had not been filled out.

"I couldn't forsee this kind of bureaucracy," Emery told the media. "When I called yesterday, I was told the warrant was on the computer, in effect immediately."

Emery's setback however, was short lived. By June 7, the necessary paperwork was completed and police arrived at his store to arrest him. He spent four days and three nights in the Elgin-Middlesex Detention Centre at which point he voluntarily paid the balance of his fine owing (as was his original intention), which had now been reduced to $373, appoximately the amount contributed to his cause by his customers.

For Emery, the entire experience represented proof of what he had been trying to illustrate about the nature of Ontario's Sunday shopping laws: that the government would go to any extreme length to impose its authority over a private individual's right to his own private property --- contrary to the repeated claims of those who insisted that no one would ever go to jail for a Sunday shopping violation.

Despite Emery's best efforts at trying to relay this message to the public, two myths were still being perpetuated by those who refused to understand the significance of his jail sentence: (1) that Emery "wanted" to go to jail, (2) that Emery served his sentence not for disobeying the RBHA, but for "refusing to pay a fine."

So let's make the point perfectly clear; let there be no misunderstanding: Emery went to jail not because he "wanted" to, nor because of any refusal to pay a fine. He was arrested and jailed for standing up for his right to his own property.

To suggest otherwise is to evade the truth --- and to evade justice itself.

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Page last updated on April 28, 2002