Indexed as:
Peel (Regional Municipality) v.
Great Atlantic & Pacific Co. of Canada Ltd.
Regional Municipality of Peel and Attorney General of Ontario
v. Great Atlantic & Pacific Co. of Canada Ltd., Loblaws
Supermarkets Ltd., Steinberg Inc. (c.o.b. Miracle Food Mart)
and Oshawa Group Ltd.; Hudson's Bay Co. and People for Sunday
Association of Canada, Interveners
[1991] O.J. No. 378
2 O.R. (3d) 65
78 D.L.R. (4th) 333
44 O.A.C. 179
91 CLLC 12098
91 CLLC para.14,013 at 12098
5 C.R.R. (2d) 204
4 M.P.L.R. (2d) 113
26 A.C.W.S. (3d) 197
Action Nos. 455/90, 530/90, 531/90, 532/90, 533/90, 35/90
and 536/90
Court of Appeal for Ontario
Dubin C.J.O., Morden A.C.J.O.,
Finlayson, Krever and Griffiths JJ.A.
March 20, 1991
Counsel:
Elizabeth C. Goldberg and Hart Schwartz, for Attorney General of Ontario, appellant.
Harold F. Caley and Douglas J. Wray, for People for Sunday Association of Canada, appellant intervener.
John B. Laskin, Mary Eberts and Kent E. Thomson, for Oshawa Group Ltd., respondent.
Robert J. Arcand, for Steinberg Inc. (c.o.b. Miracle Food Mart), respondent.
R.S. Russell and Freya J. Kristjanson, for Loblaws Supermarkets Ltd., respondent.
F.J. Kovach, D.C. Hodson, and Angus T. McKinnon, for Hudson's Bay Co., respondent intervener.
Timothy S.B. Danson and Julian N. Falconer for Great Atlantic & Pacific Co. of Canada Ltd., respondent.
DUBIN C.J.O. (MORDEN A.C.J.O., KREVER and GRIFFITHS JJ.A.
1 concurring):-- I have had the advantage of reading the reasons for judgment of my colleague, Mr. Justice Finlayson. Although I agree with the result arrived at by him, I take a somewhat different approach to the issues raised in this appeal and arrive at my conclusions for somewhat different reasons.
2 In my respectful opinion, Southey J. erred in holding the Act, as amended, to be unconstitutional and, like Finlayson J.A., I would allow the appeal and hold that the Act does not violate the guaranteed freedom of religion provided for in the Canadian Charter of Rights and Freedoms.
3 Before giving my reasons for arriving at that conclusion, I wish to make clear something that is not always understood. The court is concerned solely with the constitutionality of the Act in issue. In resolving such an issue, it is not for the court to pass judgment whether the Act is a wise Act or an unwise Act, or, indeed, whether it conforms to the private preference of any member of the court. The wisdom of legislation and its underlying policy considerations are for the legislative body which has the jurisdiction assigned to it by the distribution of powers in the Constitution to determine. The constitutionality of such legislation, and only the constitutionality, is for the court to determine.
INTRODUCTION
4 The issues on this appeal arise by reason of amendments to the Retail Business Holidays Act, R.S.O. 1980, c. 453 (the Act), in February of 1989 by the Retail Business Holidays Amendment Act, 1989, S.O. 1989, c. 3, s. 1. The constitutionality of the Act as it appeared before the amendments had been challenged twice previously in this court and once in the Supreme Court of Canada as being in contravention of the Canadian Charter of Rights and Freedoms.
5 In the first case, R. v. Videoflicks Ltd. (1984), 48 O.R. (2d) 395, 9 C.R.R. 193, 15 C.C.C. (3d) 353, 14 D.L.R. (4th) 10, 5 O.A.C. 1, 34 R.P.R. 97 (C.A.) [varied infra], the Act was challenged in this court as contravening the constitutional guarantee of freedom of religion as provided for in the Charter. The constitutionality of the Act was upheld, but the court held that 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 of compliance with the Act.
6 Leave to appeal from that judgment was granted by the Supreme Court of Canada and its reasons are to be found in R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713, 58 O.R. (2d) 442 (note), 28 C.R.R. 1, 30 C.C.C. (3d) 385, 87 C.L.L.C. Paragraph14,001, 55 C.R. (3d) 193, 35 D.L.R. (4th) 1, 71 N.R. 161, 19 O.A.C. 239 sub nom. R. v. Videoflicks Ltd. The majority of the court held that the Act infringed the freedom of religion of those retailers who observe the Sabbath on a day other than Sunday and who could not take advantage of the exemption then in place for Saturday observers. For the purpose of the appeal, the majority of the Supreme Court of Canada assumed that the Act limited the freedom of religion of Saturday-observing consumers. The constitutionality of the Act was, however, upheld as being a reasonable limit on freedom of religion, demonstrably justifiable in a free and democratic society pursuant to s. 1 of the Charter, and the majority held that there should be no exemption from compliance with the Act. Two members of the court were of the opinion that the Act did not infringe freedom of religion of either retailers or consumers and that the Act was constitutional without resort to s. 1 of the Charter.
7 Following the judgment in Edwards Books, supra, the constitutionality of the Act was again challenged in this court in R. v. Paul Magder Furs Ltd. (1989), 69 O.R. (2d) 172, 45 C.R.R. 344, 49 C.C.C. (3d) 267, 33 O.A.C. 81 sub nom. R. v. Magder (Paul) Furs Ltd. In that appeal, the constitutionality of the Act was challenged as being discriminatory contrary to the provisions of s. 15 of the Charter. Once again the constitutionality of the Act was upheld. Leave to appeal the judgment of this court was refused in the Supreme Court of Canada [(1989), 45 C.R.R. 344n].
8 In the instant case, Mr. Justice Southey held that, by reason of the 1989 amendments to the Act, the statute was unconstitutional. He concluded that, notwithstanding an amendment designed to meet the objection that the Act interfered with religious freedom in the manner found by the Supreme Court of Canada, the Act, as amended, continued to violate the freedom of religion of retailers and consumers who observe the Sabbath on a day other than a Sunday. He also held that the Act limited the freedom of religion of employees who observe the Sabbath on a day other than a Sunday.
9 In his opinion, the limit on freedom of religion previously held to be justifiable was no longer justified under s. 1 of the Charter. He declared the Act to be unconstitutional, not because the Act imposed any unreasonable limits on freedom of religion, but because in his opinion, by reason of an amendment to the previously existing municipal option, the Act no longer reflected a matter of a pressing and substantial concern. It is from that decision [now reported (1990), 73 O.R. (2d) 289, 90 C.L.L.C. Paragraph14,023, 71 D.L.R. (4th) 293 (H.C.J.)] that this appeal is brought by the Attorney General of Ontario.
THE LEGISLATIVE PURPOSE OF
THE RETAIL BUSINESS HOLIDAYS ACT
10 Before addressing the issue whether the Retail Business Holidays Act, as amended, violates the guarantee of freedom of conscience and religion in the manner found by Southey J., it is necessary to determine the legislative purpose of the statute being challenged. In Edwards Books, one of the constitutional challenges to the Act was that, quite aside from any Charter violation, the statute was beyond the power of the legislature of Ontario to enact by reason of the distribution of powers under ss. 91 and 92 of the Constitution Act, 1867, and thus ultra vires in that constitutional sense.
11 However, as Chief Justice Dickson pointed out in Edwards Books at p. 737 S.C.R., p. 17 C.R.R.:
Many of the arguments propounded ... 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.
12 The Supreme Court of Canada held that the statute was secular and not designed to promote or prefer certain Christian faiths. The following excerpts from the judgment of Chief Justice Dickson, at pp. 740-41 S.C.R., p. 20 C.R.R., are germane for my purposes:
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.
and at p. 744 S.C.R., p. 22 C.R.R.:
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.
and at p. 747 S.C.R., p. 25 C.R.R. [quoting from the Ontario Law Reform Commission's Report on Sunday Observance Legislation, infra, at p. 295]:
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.
and at p. 752 S.C.R., p. 28 C.R.R.:
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.
. . . . .
The Act has a secular purpose which is not offensive to the Charter guarantee of freedom of conscience and religion.
13 Although on this appeal it is conceded that, apart from the Charter argument, the legislation in issue is constitutional, the fact that the purpose of the Act is secular and not for the purpose of preferring the religious observance of any one or more groups is the necessary starting point in light of the conclusion of Southey J. that the Act nevertheless contravenes the constitutional guarantee of freedom of religion.
14 It is now well established that even if the law has a valid purpose, it is still open to a litigant to argue that by its effects it interferes with the rights or freedoms guaranteed by the Charter. The distinction between the purpose and effects of a law is important from an evidentiary point of view. Before a statute enacted for a valid purpose can be successfully challenged on the basis that it has the effect of interfering with a constitutionally guaranteed right, there must be a proper factual foundation. It is for those seeking relief to prove on the balance of probabilities, on the basis of legally admissible evidence, that the effect of the statute limits a guaranteed right or freedom.
15 In MacKay v. Manitoba, [1989] 2 S.C.R. 357, 43 C.R.R. 1, 61 D.L.R. (4th) 385, 61 Man. R. (2d) 270, 99 N.R. 116, [1989] 6 W.W.R. 351 Cory J. stated at pp. 361-62 S.C.R., p. 5 C.R.R.:
Charter decisions should not and must not be made in a factual vacuum. To attempt to do so would trivialize the Charter and inevitably result in ill-considered opinions. The presentation of facts is not, as stated by the respondent, a mere technicality; rather, it is essential to a proper consideration of Charter issues. A respondent cannot, by simply consenting to dispense with the factual background, require or expect a court to deal with an issue such as this in a factual void. Charter decisions cannot be based upon the unsupported hypotheses of enthusiastic counsel.
16 Of more recent date in Danson v. Ontario (Attorney General), a judgment of the Supreme Court of Canada (Lamer C.J.C., Wilson, Sopinka, Cory and McLachlin JJ.), released October 4, 1990 [now reported [1990] 2 S.C.R. 1086, 74 O.R. (2d) 763 (note), 50 C.R.R. 59, 73 D.L.R. (4th) 686 sub nom. R. v. Danson, 112 N.R. 362], Sopinka J., speaking for the court, said at pp. 13-14 [of the reasons; p. 1099 S.C.R., pp. 68-69 C.R.R.]:
This Court has been vigilant to ensure that a proper factual foundation exists before measuring legislation against the provisions of the Charter, particularly where the effects of impugned legislation are the subject of the attack.
. . . . .
It is necessary to draw a distinction at the outset between two categories of facts in constitutional litigation: "adjudicative facts" and "legislative facts". These terms derive from Davis, Administrative Law Treatise (1958), Vol. 2, para. 15.03, p. 353. (See also Morgan, "Proof of Facts in Charter Litigation", in Sharpe, ed., Charter Litigation (1987).) Adjudicative facts are those that concern the immediate parties: in Davis's words, "who did what, where, when, how and with what motive or intent . ..." Such facts are specific, and must be proved by admissible evidence. Legislative facts are those that establish the purpose and background of legislation, including its social, economic and cultural context. Such facts are of a more general nature, and are subject to less stringent admissibility requirements: see e.g., Re Anti-Inflation Act, [1976] 2 S.C.R. 373, per Laskin C.J., at p. 391; Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714, per Dickson J. (as he then was), at p. 723; and Reference re Upper Churchill Water Rights Reversion Act, [1984] 1 S.C.R. 297, per McIntyre J. at p. 318.
17 I will return to the legislative purpose or objective of the Act later in these reasons.
FREEDOM OF CONSCIENCE AND RELIGION
18 The constitutional guarantee of freedom of conscience and religion is found in s. 2(a) of the Charter, which reads as follows:
2. Everyone has the following fundamental freedoms:
freedom of conscience and religion ...
19 In the interpretation of that provision of the Charter, s. 27 is also relevant and reads as follows:
27. This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.
20 Although the Act has a secular purpose which is not offensive to the Charter guarantee of freedom of conscience and religion, it is submitted in this appeal, and so held by Southey J., that by its effects it indirectly interferes with that guarantee of freedom of religion. On this issue, Chief Justice Dickson in Edwards Books stated at pp. 758-59 S.C.R., pp. 33-34 C.R.R.:
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).
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 minuscule state-imposed cost associated with the practice of religion. ... 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. ...
(Emphasis added)
THE IMPACT OF THE RETAIL BUSINESS HOLIDAYS ACT
ON FREEDOM OF RELIGION
21 It is now necessary to consider whether the respondents have proved by a balance of probabilities on legally admissible evidence that the impact of the Act is to increase the cost of practising or otherwise manifesting religious beliefs to retailers, consumers and employees who observe the Sabbath on a day other than a Sunday in a manner that is more than trivial or insubstantial.
Effect on retailers
22 In Edwards Books, the majority of the Supreme Court of Canada held that the Act abridged the freedom of religion of large retailers who observe a Sabbath other than Sunday and who were unable to take advantage of the existing Saturday-closing/ Sunday-opening exemption under the Act as it read before the amendments. These observing retailers were required to close their stores on Saturday because of their religion, and on Sunday because their stores were too large to satisfy the square footage and employee limits of the previous exemption. This put such retailers at a competitive disadvantage and placed a competitive pressure on them to abandon the observance of a Saturday Sabbath in a manner which could not be considered insubstantial or trivial.
23 The exemption referred to is to be found in s. 3(4) of the Act before the amendments [s. 3(4) rep. & sub. 1989, c. 3, s. 3(2)] and read:
(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.
On this issue, Chief Justice Dickson stated in Edwards Books at p. 763 S.C.R., p. 37 C.R.R.:
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.
and at pp. 765-66 S.C.R., pp. 38-39 C.R.R.:
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.
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.
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.
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.
(Emphasis added)
24 In apparent response to the abridgement of the freedom of religion of those retailers who were not able to take advantage of the exemption referred to above, the Act was amended. Section 5 [rep. & sub. 1989, c. 3, s. 4] of the amended Act reads, in part, as follows:
5.(1) Despite any other provision of this or any other Act or the by-laws or regulations under this or any other Act, a retail business may be carried on in a retail business establishment on a Sunday if the retail business establishment is always closed to the public throughout another day of the week by reason of the religion of the owner of the retail business.
(2) For the purpose of subsection (1), "religion of the owner" means,
(a) in the case of a sole proprietorship, the religion of the sole proprietor;
(b) in the case of a partnership, the religion named in a written agreement between the partners which is the religion of one of the partners;
(c) in the case of a corporation, the religion named in the by-laws of the corporation.
25 It is to be noted that the exemption is no longer limited to Saturday observers but also is available to any retailer who closes its place of business on any day other than Sunday by reason of the religion of the owner of the business.
26 The previous limitation with respect to square footage and the number of employees was repealed. Thus, any retailer closed on a day other than Sunday by reason of the religion of the owner now may open on Sundays, offering the full services normally available, and no longer be at any competitive disadvantage. Indeed, as was the case of the retailers who could qualify under the previous exemption, there may be a competitive advantage for those retailers who are now eligible to be open on Sundays under the new exemption. This eliminates, in my view, the competitive pressure found by the Supreme Court of Canada to be a substantial interference with the freedom of religion of retailers who, by reason of their faith, close their place of business on a day other than Sunday. As I read his reasons, Southey J. was apparently of the same view.
27 The prior exemption did not make specific reference to one's religion, although as stated in Edwards Books, at p. 749 S.C.R., p. 26 C.R.R.:
... 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.
However, s. 5 now provides an exemption for those retail business establishments closed to the public on a day other than Sunday by reason of the religion of the owner.
28 Section 5 of the amended Act now also defines the term "religion of the owner". It was submitted that this renders the Act unconstitutional as being an abridgement of the religious freedom of a retailer closed on a day other than Sunday for religious reasons in that the owner may be obliged to declare his or her religion if questioned by the authorities as to why he or she is open on Sunday.
29 In comparing the advantages or disadvantages of a Sabbatarian exemption, as reflected in s. 5 of the amended Act with its predecessor provision, it is useful to consider Chief Justice Dickson's discussion of the Act prior to amendment, in Edwards Books at pp. 779-80 S.C.R., pp. 48-49 C.R.R.:
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.
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.
(Emphasis added)
30 In my opinion, it can hardly be said that the religious freedom of a retailer, who seeks to take the benefit of a provision of an Act expressly designed to accommodate such retailer for his or her religious beliefs, is significantly infringed if that retailer is required, if called upon, to state why he or she is entitled to the exemption. It is to be noted that there is no requirement for a prior public declaration in order to qualify for the exemption. In any event, it would be apparent to any customer of a retailer whose business was regularly closed on a day other than Sunday that it was by reason of the religious belief of that retailer.
31 In this respect, I agree with Southey J. when, on this issue, he concluded at pp. 305-06 O.R.:
I accept the submission of Ms. Goldberg that, if the choice of a rest day other than Sunday was left entirely to the discretion of the owners of retail establishments, the pause day would no longer be a common one. The "common" feature is important, and should be relinquished only if required by another important consideration, such as religion.
The previous exemption accommodated Saturday observers only, which would have included Jews and Seventh Day Adventists, but was of no benefit to Hindus, Muslims, or groups observing days of the week other than Saturday or Sunday. I am satisfied that the Legislature was doing no more than was necessary to ensure the achievement of its objective, when it imposed the restriction of an actual religious requirement as the price of broadening the sabbatarian exemption to all days of the week, so that all religious minorities could be accommodated.
The possibility inherent in the 1989 sabbatarian exemption that the owner of a business may be obliged to declare his religion is an undesirable feature. But it seems clear from the reasons of Dickson C.J.C. in Edwards Books at pp. 779-83 S.C.R., pp. 48-51 C.R.R., that this aspect of the legislation is not of itself sufficient to render it unconstitutional. He concluded at p. 780 S.C.R., p. 49 C.R.R.:
Inquiries which are genuinely designed as a means of giving effect to religious freedoms will not therefore generally be unconstitutional.
In my opinion, the new sabbatarian exemption reflects a reasonable trade-off between different possible schemes, and is not unconstitutional.
New Year's Day, Good Friday, Christmas Day and December 26
32 In the Act, as amended, the above-mentioned days are included in the definition of "holiday". It was on this basis alone that Southey J. held that the Act limited the freedom of religion of non-Christian retailers be reason of being compelled to close on those days. In this respect, he concluded at p. 297 O.R.:
Finally, the amendment does not alleviate in any way the burden on non-Christian retailers of being compelled to remain closed on the Christian religious holidays of Christmas Day and Good Friday, as well as on their own holy days. Similar considerations apply to the compulsory closing under the Act on December 26, which is related to the celebration of Christmas, and on New Year's Day, which has counterparts in non-Christian religions on days other than January 1. I am not persuaded that the burden of closing on four additional days each year is trivial or insubstantial.
33 On appeal, the respondents sought to uphold the decision of Southey J. with respect only to Christmas Day and Good Friday.
34 It is first to be observed that "New Year's Day", "Good Friday" and "Christmas Day" were also included in the definition of "holiday" under the Act before amendment, and "December 26" has now been substituted for what was described as "Boxing Day" in the unamended Act. It is not without significance that the inclusion of these days in the Act was not held to be an abridgement of the guarantee of freedom of religion of Saturday non-Christian observers when the constitutionality of the Act was considered in the Videoflicks, Edwards Books and Paul Magder Furs cases.
35 In concluding that the Act was secular and not intended to enforce or encourage religious observance, Chief Justice Dickson in Edwards Books stated as follows at pp. 742-44 S.C.R., pp. 21-22 C.R.R.:
... 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.
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.
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.
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 Business 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.
36 With respect, I think Southey J. erred in defining Good Friday and Christmas Day, as well as the others, as religious holidays in the context of the Retail Business Holidays Act. Although admittedly Good Friday and Christmas Day are also observed for religious reasons, in modern society they must be viewed as secular common pause days. The fact that a day selected for a common pause day coincides with a day which is a religious holiday for some does not, in my opinion, render that selection unconstitutional.
37 As I emphasized above [quoting from Edwards Books, p. 759 S.C.R., p. 34 C.R.R.]:
Section 2(a) does not require the legislatures to eliminate every minuscule state-imposed cost associated with the practice of religion.
38 In my opinion, if the selection of Good Friday and Christmas Day as two of the common pause days limits the freedom of religion of those retailers who do not observe those days as their religious holidays, such limit would be trivial and insubstantial and would not be protected by s. 2(a) of the Charter.
39 It is also to be observed that the retailers who are parties to these proceedings are corporations which cannot hold any religious beliefs, and there is no evidence from any retailer that the Act, as amended, has a coercive impact on his or her freedom of religion.
Effect on consumers
40 Southey J. held that the Act, even with its amendment, interfered with the religious freedom of non-Sunday observing consumers. He stated at p. 295 O.R.:
... the new sabbatarian exemption does not alleviate the burden of Sunday closing on non-Sunday observing consumers. The existence of that burden was recognized by Dickson C.J.C. in Edwards Books at p. 766 S.C.R., p. 39 C.R.R.:
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.
There was evidence of that burden in the record before me.
41 Southey J. did not identify any of the evidence that he relied upon which would support such a finding.
42 It is also to be noted that in the paragraph taken from the judgment of Chief Justice Dickson, set forth above, the Chief Justice went on to note as follows at pp. 766-67 S.C.R., p. 39 C.R.R.:
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.
43 The assumption made by Chief Justice Dickson that the burden on Saturday-observing consumers was substantial and constituted an abridgement of their religious freedom was, I think, based on the premise that those Saturday-observing retailers who were not eligible for an exemption under the Act before the amendment would not have been open on Sundays. On that premise there would have been a limitation on the variety of goods available to a consumer who normally shopped at a retail store closed on Saturdays and not open on Sundays. Such consumers would have been able to shop only at the premises of those smaller retailers who were eligible to be open on Sundays and where the variety of goods was probably limited.
44 However, pursuant to the amendment which I have already discussed, retailers such as Nortown Foods Ltd. are now eligible for an exemption and are able to offer their full variety of goods and services six days of the week. Thus, Saturday-observing consumers who normally shop at retailers closed on Saturdays and eligible to be open on Sundays are still able to purchase the full variety of goods available at those retailers six days of the week. In my opinion, the new sabbatarian clause reduces, if it does not eliminate, the onerous burden on the Jewish consumers referred to in Edwards Books.
45 There was also evidence in this record, unlike in Edwards Books, that there is a multitude of small retailers open on Sundays who offer a wide variety of kosher foods. The most that can be said is that there may be some instances in some areas where Jewish consumers may enjoy slightly less variety in the selection when shopping on Sunday than they would on other days of the week. That would not be by reason of the Act, but because large retailers eligible to open on Sundays may choose not to do so.
46 It is particularly important to note that there is no evidence from any consumers in this province that the Act, as amended, increases the cost of practising or otherwise manifesting their religious beliefs, or that they have any difficulty in obtaining a wide variety of goods and services on Sunday at the exempt stores.
47 The respondents clearly have failed to prove on a balance of probabilities that there is any limitation of the religious freedom of consumers that is more than trivial or insubstantial.
Effect on employees
48 With respect to employees whose religion requires them to observe a day other than one on which their employer's business is required to be closed, Southey J. stated at p. 296 O.R.:
It is apparent that the new sabbatarian exemption provides no protection for employees whose religion requires them to observe a day other than one on which their employer's business is required to be closed under the Act. For example, a Jewish employee observing Saturday, who is employed by a corporation that declines to name a religion in its by-laws, would have the opportunity of working on only five days in each week because of the Act, whereas a Christian employee of such corporation could work on six days.
49 With respect, in my opinion this does not address the question. The issue is whether the impact of the Act is to increase the cost to employees of practising or otherwise manifesting their religious beliefs, in a manner that is more than trivial or insubstantial.
50 It is first to be observed that a declaration that the Act is unconstitutional would not guarantee that those retailers presently closed on Sunday would open for business on that day. Such an employer may choose for many reasons to be closed on Sunday. Thus, a Jewish employee who observes Saturday and who is employed by an employer closed on Sundays would not be guaranteed the opportunity of working six days a week even in the absence of the current legislation. The same could be said if the common pause day selected was a day other than a Sunday. Indeed, even if retailers were open seven days a week, the religious employee would be at a competitive disadvantage to the non-observer since the former employee would have the opportunity of working only six days a week and the latter seven days. In its present form, the Act does not create an advantage for one religious group over another.
51 Furthermore, the religious employee is protected under the Human Rights Code, 1981, S.O. 1981, c. 53, from having to work on a day reserved for religious observance. In this respect, the following reference in the judgment of Wilson J. in Edwards Books, at p. 812 S.C.R., pp. 72-73 C.R.R., is germane:
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.
52 Thus, the religious employee is not without a remedy, although that remedy is not provided for in the Act but in the Human Rights Code, 1981, rather than the Act.
53 If retailers were free to be open seven days a week, the non- observer would receive no protection under the Human Rights Code, 1981 or the Act.
54 The sabbatarian exemption, to which Southey J. refers, is less intrusive on the religious freedom of employees, as well as retailers and consumers, than was the case under the Act before the amendment. Employees, for example, who work for retailers such as Nortown Foods, which could not take advantage of the prior exemption, may now have the opportunity of working six days a week without any interference with their religious practices, as is the case with most other employees.
55 It should not be overlooked that in the cases previously referred to, where the constitutionality of the Act had been considered, there was no finding that the Act infringed the guaranteed freedom of religion of those employees referred to by Southey J., although the same objection could have been made.
56 On the contrary, in the previous cases, the concern was more with the employee who would experience subtle coercion to work seven days a week in the absence of a legislated common pause day. Indeed, as was pointed out in Edwards Books, legislation designed to provide for a pause day by putting the onus on employees to refuse work would be unsatisfactory. In Edwards Books, while considering alternative means of legislating a pause day, Chief Justice Dickson made the following observations at p. 773 S.C.R., pp. 43-44 C.R.R.:
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.
57 Furthermore, as counsel for the Attorney General submitted, the evidence disclosed that some retail operations are open in excess of 80 hours per week, with many retail stores keeping late hours and almost all stores opening six days of the week. The collective agreements under which the respondents operate state that full time employees are to receive 36 to 38 hours of work per week. The evidence, therefore, established that a full time religious employee is still capable of working a full work week during the other hours that the store is open. Accordingly, such a person would not be subject to any pressure to forgo Sabbath observance.
58 Religious part-time employees who want employment for 20 hours a week can still obtain these hours over five days. The only difference between such an employee and the non-observing employee is that the latter can spread 20 hours over six days. There is no evidence to suggest that this places any pressure on religious employees to forgo their Sabbath observance.
59 As I have quoted above [from Edwards Books, at p. 759 S.C.R., p. 34 C.R.R.]:
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 ...
60 Again, as was the case with retailers and consumers, there was no evidence from any employees that the impact of the Act was to increase their cost of practising their religious beliefs, or that they were under any pressure by reason of the Act to forgo their religious practice. The only evidence relating to employees who desired a day off from work for religious observance was that they were accommodated by their employers.
61 The employees who are parties to the proceedings and who testified merely indicated that, consistent with their own lifestyle, they would prefer open Sundays in this province.
62 There was no evidence that the Act imposes a significant burden, if any, on the freedom of religion of employees or one which could pressure religious employees to forgo their Sabbath observance.
Summary
63 I agree with the conclusion of Finlayson J.A. that, because the evidence falls far short of proving on a balance of probabilities that the impact of the Act on the guaranteed freedom of religion of retailers, consumers and employees, if any, is more than trivial or insubstantial, the Act, as amended, is not proscribed by s. 2 of the Charter.
JUSTIFICATION
64 Even if the operation of the Act, in its impact, impinges on the freedom of religion of those who worship on a day other than a Sunday, it may nevertheless be held valid under s. 1 of the Charter. The guarantee of freedom of religion found in s. 2(a) of the Charter, 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.
65 In light of my conclusion that the Act in its present form is not proscribed by s. 2(a) of the Charter, it is unnecessary for me to resort to s. 1. However, assuming that the impact of the Act is to infringe freedom of religion in the manner found by Southey J., in my opinion, the Act would be justified under s. 1 of the Charter. Section 1 reads:
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
66 In Edwards Books, Chief Justice Dickson set forth the requirements for the determination of this issue. On this issue, the onus of proof is on the party seeking the limitation and the standard of proof is proof by a preponderance of probabilities. At pp. 768-69 S.C.R., pp. 40-41 C.R.R., Chief Justice Dickson stated:
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 (in R. v. Oakes, [1986] 1 S.C.R. 103) 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.
(Emphasis added)
67 In Edwards Books, as has been noted, the majority of the court held that there was an infringement of the religious freedom of those retailers who observe a Sabbath other than on a Sunday and who were not eligible to be open on Sunday pursuant to the exemption then in place. As has been noted, the court also assumed, for the purposes of the appeal, that the same could be said for some consumers. Nevertheless, these limits on religious freedom were held to be justified pursuant to s. 1 of the Charter and the Act held to be constitutional.
68 In Videoflicks and Paul Magder Furs, the constitutionality of the Act before amendment was also upheld by resort to s. 1 of the Charter.
69 In the present case, however, Southey J. held that the limits he found to exist on religious freedom could not be justified under s. 1 of the Charter. In this respect, Southey J. concluded at pp. 308-09 O.R. as follows:
The effect of the new municipal exemption, in my judgment, is that the infringement on freedom of religion of owners, employees and consumers resulting from s. 2 of the Act cannot meet either of the requirements in the rules in Edwards Books for justification under s. 1 of the Charter. As to the first requirement, it is apparent that the Legislature did not regard the objective of a common pause day for retail workers as bearing on a pressing and substantial concern sufficient to warrant overriding a constitutional right, because it gave the municipalities the power to nullify the objective completely. As to the second requirement of proportionality, I can see no careful design or rational connection to the objective in a scheme which leaves it to individual municipalities to determine the criteria to be applied in granting exemptions or requiring closings, or to proceed without establishing any criteria. I agree with Mr. Leal's observation that the municipalities have been given a carte blanche.
Conclusion as to justification
For the foregoing reasons, Peel and the Attorney General have not satisfied me, on the balance of probabilities, that the infringement of the freedom of religion of owners, employees and consumers resulting from s. 2 of the Act is justified under s. 1 of the Charter. My decision is based primarily on the municipal option, but derives some support from the new evidence to which I have referred.
70 Southey J. did not identify the new evidence which would support his conclusion and, with respect, I did not find in any of the evidence to which he has referred any such support. In his reference to Mr. Leal's testimony, he concluded at p. 302 O.R.:
I did not take Mr. Leal to mean that the objective of the Act was not a common pause day, but rather that it has not sufficiently achieved that objective. His forthright expressions of opinion on this and other aspects of the matter command respect, but require legislative action to be of much significance to the issue before me.
71 With respect, I think Southey J. erred in holding that, even assuming there was an infringement of religious freedom, the limits of such freedom were not justified pursuant to s. 1 of the Charter.
THE LEGISLATIVE OBJECTIVE -- A MATTER OF A PRESSING
AND SUBSTANTIAL CONCERN
72 In addressing s. 1 of the Charter, the first matter to be considered is whether the legislative objective, which the limit on religious freedom is designed to promote, is of sufficient importance to override that constitutional right. Does it bear on a pressing and substantial concern?
73 In Edwards Books, Chief Justice Dickson stated at pp. 769-70 S.C.R., pp. 41-42 C.R.R.:
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.
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.
(Emphasis added)
74 Chief Justice Dickson went on to hold that the Act also met the proportionality test enumerated above and upheld the constitutionality of the Act under s. 1.
75 I have previously said that the purpose of the Act is for the protection of employees. This was emphasized by Chief Justice Dickson in Edwards Books at p. 778 S.C.R., pp. 47-48 C.R.R.:
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 reiterating 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.)
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.
76 In his reasons, at p. 298 O.R., Southey J. stated that he was "quite satisfied that the objective of the amended Act is the secular one of providing retail workers with a pause day in common with others, as was accepted in Edwards Books and Paul Magder Furs".
77 It is also apparent from the reasons of Southey J. that the need to protect employees in the retail sector and owner- operators of small retail stores still exists today and for the same reasons advanced by Chief Justice Dickson in Edwards Books. On that issue, Southey J. concluded as follows at pp. 304-05 O.R.:
I find on the evidence before me that there are many retail employees in Ontario who would like to be able to work on Sunday, and many who do not want to work on Sunday. The members of the former group are in favour of relaxing the laws against Sunday shopping, while many members of the latter group oppose such relaxation. It is obvious that despite the amendments to the Employment Standards Act and the protestations of the store operators that Sunday work would be voluntary that the employees opposed to relaxation of the laws fear that they will be obliged to work on Sunday to maintain their positions with their employers. No attempt was made in the evidence to determine the relative sizes of the groups of employees favouring and opposing relaxation of the Sunday shopping laws. It may be that no such determination could be made with any degree of reliability. But, even if it could have been made, I do not think that it would have been determinative of the issue of justification under s. 1 of the Charter, unless there was an overwhelming majority one way or the other. As mentioned above, the responsibility of balancing the conflicting interests of different groups is that of the Legislature, not the courts. The result probably should not depend solely on the relative sizes of the opposing groups.
The evidence as to a number of the conclusions reached in 1970 by the Ontario Law Reform Commission was that the situation remained substantially unchanged in 1989:
1. There is no question that the retail sector remains highly competitive, so that an individual retailer would have little choice but to open on Sundays if his competitors did so;
2. There is still a low rate of unionization among retail workers as compared with the overall rate for all industries; namely, not more than 11.8 per cent as against at least 32 per cent. The unions are opposed to Sunday retailing. I accept the evidence that unionized employees are in a better position to stand up to their employers than are non-union employees.
3. Workers in the retail industry earn substantially less than those in industry generally.
4. Despite evidence of exceptions, such as bakers and meat cutters, and the advantages of retaining dependable employees who relate well to customers, I am satisfied that a large proportion of retail employees are unskilled, or require only easily learned skills, so that they are easily replaceable by their employers.
5. Despite the evidence in the affidavits filed by the stores that Sunday work is entirely voluntary in Western Canada, and at locations in Ontario where now permitted, and the absence of any evidence from an employee of overt coercion, it would be unrealistic, in my opinion, to conclude that employees are no longer subject to subtle coercive pressure from their employers, as stated by Dickson C.J.C. in Edwards Books at p. 773 S.C.R., p. 44 C.R.R. If evidence of such subtle coercion is necessary, it can be found in the affidavits of the union representatives filed by the Attorney General.
For the foregoing reasons, I find that the additional evidence does not by itself provide a basis for concluding that the findings of justification under s. 1 of the Charter in Edwards Books and Paul Magder Furs are no longer valid.
78 Having acknowledged that the purpose of the Act was to provide a common pause day for employees in the retail sector, and it being apparent on the basis of his findings that the protection of employees in the retail sector as well as of owner-operated retailers from the coercive pressure of a seven-day work week is still a matter of a pressing and substantial concern for the same reasons as was held in Videoflicks, Edwards Books and Paul Magder Furs, Southey J. nevertheless declared the Act to be unconstitutional. He did so, not because the Act imposed unreasonable limits on the guaranteed right of freedom of religion, but because, in his opinion, by reason of the amended municipal option, the objective of the Act was no longer a matter of a pressing and substantial concern.
79 It has already been authoritatively determined that the purpose of the Act -- to promote a common pause day -- is secular, and it is of sufficient importance to warrant overriding a constitutional right. The same reasons pertain today as is evident in the very findings of Southey J., as set forth above.
80 There are many exemptions in the amended Act, as was the case before its amendment. These exemptions do not derogate from the purpose of the legislation. The significance of the exemptions is relevant in determining whether the limits on the guaranteed right of freedom of religion are reasonable.
81 An absolute prohibition of Sunday shopping without exemptions, although apparently constitutional in the United States, would be held to be unreasonable in Canada. The fact that there are exemptions is no basis for holding that the legislative objective does not bear on a pressing and substantial concern.
82 It is also appropriate, I think, to refer to the words of caution in the judgment of La Forest J. in Edwards Books where he stated at p. 803 S.C.R., p. 66 C.R.R.:
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.
The former municipal option
83 In the Act under consideration in Videoflicks, Edwards Books and Paul Magder Furs, there was a municipal option which was referred to as a tourist exemption. That exemption was to be found in s. 4 of the Act before amendment [rep. & sub. 1989, c. 3, s. 4] and read as follows:
4.(1) In this section, "municipality" means a local municipality and includes a regional, district or metropolitan municipality but does not include the area municipalities thereof.
(2) Where it is essential for the maintenance or development of a tourist industry, the council of a municipality may by by-law provide that section 2 does not apply to any class of retail business establishment in respect of the sale by retail of such goods or services on such holidays, for such periods of time, in such parts of the municipality and under such conditions as are specified in the by-law.
(3) The Lieutenant Governor in Council may make regulations providing that section 2 does not apply to any class of retail business establishment in territory without municipal organization or any part thereof in respect of the sale by retail of such goods or services on such holidays for such periods of time and under such conditions as are specified in the regulations.
(4) A by-law or regulation made under this section may classify retail business establishments by size, number of persons employed, character of business, location or any other criterion.
84 At the time that the constitutionality of the Act was considered in the three cases cited above, it was apparent that the tourist exemption in Ontario was very much abused. Southey J. acknowledged this when he stated at p. 308 O.R.:
The reason for the new municipal exemption was that the previous one, which was limited by the Act to instances where an exemption from Sunday closing was essential for the maintenance or development of a tourist industry, had been abused. Some councils simply exempted the entire municipality from the prohibitions contained in the Act. Others exempted single stores or areas or classes of stores that had apparently no more connection with tourism than other stores in the same municipality that were not exempted. Some exemptions were said to depend on local politicking.
85 It is significant that there was no reliance on the tourist exemption in challenging the constitutionality of the Act in the three cases referred to earlier.
The new municipal option
86 Among the many amendments to the Act in 1989 was the new municipal option which replaced the tourist exemption referred to above. It reads:
4.(1) Despite sections 2 and 3, the council of a municipality may by by-law permit retail business establishments to be open on any holiday or may require that retail business establishments be closed on any holiday.
(2) Before passing a by-law under subsection (1), the council of a municipality,
(a) shall hold a public meeting in respect of the proposed by-law;
(b) shall publish notice of the public meeting in a newspaper having general circulation in the municipality at least thirty days before the meeting is to be held; and
(c) shall permit any person who attends the public meeting the opportunity to make representations in respect of the proposed by-law.
(3) The Lieutenant Governor in Council may by regulation, in respect of retail business establishments in territory without municipal organization, exercise the same powers that a council of a municipality may by by-law exercise under subsection (1).
(4) A by-law or regulation under this section does not apply so as to prevent the sale or offering for sale of goods and services exempted under subsection 3(5) or (7) from the operation of section 2.
(5) A by-law or regulation under this section may be restricted to one or more retail business establishments or to any class or classes of retail business establishment as specified in the by-law or regulation.
A by-law or regulation under this section,
(a) may apply to any part or parts of the municipality or territory;
(b) may limit the opening of retail business establishments on holidays to specific times or to a certain number of hours;
(c) may permit the opening or require the closing of retail business establishments on certain holidays and not on others;
(d) may restrict the opening of retail business establishments on holidays to specific periods of the year or require the closing of retail business establishments on holidays during specific periods of the year;
(e) may classify retail business establishments by size, number of persons employed, character of business, geographic location or any other criteria.
(7) The council may establish a plan setting out the criteria to be considered by it in determining whether a by- law should be passed under subsection (1).
(8) If the council adopts a plan, it shall ensure that the plan is made available to the public by publishing it in a newspaper having general circulation in the municipality.
87 It is to be noted that this new provision authorizes the council of a municipality by by-law to permit retail business establishments to be open on any holiday or, alternatively, require that retail business establishments be closed on any holiday subject to certain exemptions, including the new sabbatarian clause. Further, the option provides for a specific procedure to be followed before the enactment of such a by-law and, in particular, requires public participation.
88 At the same time, the legislature, by other amendments, increased the penalties for violation of the Act and provided for new enforcement procedures. Other provisions of the Act were fine-tuned.
89 It was the authority granted to municipalities to permit retail business establishments to be open on Sunday that formed the basis of the attack on the constitutionality of the Act.
90 As stated in the factum filed on behalf of the Attorney General of Ontario, the amendments were as a result of studies by a legislative committee. The factum outlined the nature and the purpose of the new municipal option as follows:
The Legislature of Ontario had before it sociological and economic information demonstrating the continued need for a common pause day for retail workers. It also had before it information demonstrating the need to accommodate different cultural, geographic and tourism concerns throughout the province. In mediating between these claims the legislature chose to adopt a provincial framework which retained the common pause day, and a procedure for municipal alteration of that provincial framework involving public hearings and public scrutiny.
. . . . .
Section 4 of the Retail Business Holidays Act allows for regional municipalities to modify or alter some of the exemptions in the legislation to address local concerns. For example, tourism may be of critical importance to the community at Niagara Falls. The regional municipality may wish to expand the types of stores that could be exempt under the Act for a specific part of the community. The presence of a large number of religious Jews in a section of Thornhill, or of a significant Asian community in downtown Toronto, may be a matter of a local cultural, as opposed to a tourism, concern. A municipality may wish to accommodate such persons by allowing certain stores on a particular street to remain open on holidays. Another municipality may wish to tighten the square footage restriction on drug stores, particularly if there are "Supermarket Drug Stores" in their municipality that employ a large number of people, or to close down garden centres or convenience stores, which would otherwise be allowed to open. In each instance, s. 4 of the Act allows for the upper tier or regional level of government if it chooses to do so, to fashion a regime that is best suited to meet its local needs and conditions.
91 Employees who have the benefit of a common pause day usually enjoy such a day with their families in the municipality in which they reside and, in that sense, it is a matter of local concern.
92 Finlayson J.A. has referred at length to the widespread practice in this province of conferring upon municipal councils powers of self-government within their jurisdictions on matters of local concern. It is to be noted that in the many cases referred to by him, such a delegation has never been viewed as derogating from the objective of an Act that includes such delegated power.
93 In Metropolitan Toronto (Municipality) v. Paul Magder Furs Ltd. (1990), 72 O.R. (2d) 155, 47 M.P.L.R. 225 (C.A.), this court commented at pp. 158-59 O.R.:
The legal regime contemplated by ss. 2, 3 and 4 of the Act is such that we do not think it can be called exclusively provincial or exclusively municipal. Municipalities which do not enact by-laws under s. 4(1) may be taken to have accepted, within their confines, the regime of the Act. If they enact by-laws these may have the effect of modifying the Act to some extent but not completely supplanting it.
94 It is perhaps not without significance that on the material before us, no municipality exercised its delegated authority pursuant to s. 4 of the amended Act.
95 In Edwards Books, Chief Justice Dickson noted as follows, at p. 772 S.C.R., p. 43 C.R.R.:
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.
. . . . .
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.
96 I also think the following comment by La Forest J. in Edwards Books, at p. 806 S.C.R., p. 68 C.R.R., is germane to this matter:
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 unreasonablenss or discrimination, courts are simply not in a position to substitute their judgment for that of the Legislature.
97 I am satisfied that the purpose of the Act, as amended, to promote a common pause day, is still, as it has been in the past, a matter of a pressing and substantial concern and is no less so by reason of the municipal option.
Proportionality
98 In order to satisfy the requirements of s. 1, once it has been determined that the legislative objective is of sufficient importance to warrant overriding the constitutional right, it must also be shown that the means chosen to obtain that objective are proportional or appropriate to the ends.
99 But the proportionality requirement relates to those measures which limit the guaranteed right. As quoted above [from Edwards Books, at p. 768 S.C.R., pp. 40-41 C.R.R.]:
... 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.
(Emphasis added)
100 Southey J. held that, by reason of the municipal option, the Act did not satisfy the proportionality test because municipalities could permit Sunday shopping. With respect, I think he erred in so holding. The delegated power to permit Sunday shopping is not a limit on religious freedom. On the contrary, invoking it would eliminate rather than create such a limitation.
101 In Edwards Books, as in Videoflicks and Paul Magder Furs, it was held that although the Act before the amendment did limit freedom of religion, the limits were reasonable and met the proportionality test. Even assuming that the Act, as amended, still limits religious freedom, it is clear that if it does, it is less intrusive on that freedom now than before the amendment.
102 I am satisfied that the reasons advanced in Edwards Books, Videoflicks and Paul Magder Furs for upholding the constitutionality of the unamended Act pursuant to s. 1, which are fully set forth in those judgments and need not be repeated, are equally applicable here.
Summary
103 Even assuming that the Act, as amended, infringes religious freedom in the manner as found by Southey J., I am satisfied that any such limit is justified pursuant to s. 1 of the Charter.
THE CONDUCT OF THE PROCEEDINGS
104 Although I share some of the reservations expressed by Finlayson J.A. as to the manner in which these proceedings were conducted, the issue was not put squarely before us. Therefore, I would defer a consideration of this issue until a more appropriate time.
MISCELLANEOUS
105 I agree with the manner in which Finlayson J.A. disposed of the issues raised in his judgment under the heading, "Miscellaneous", save for a comment with respect to s. 15(1) -- equality rights.
106 In my opinion, the only relevant provision of that section relates to discrimination on the basis of religion and, since there is no infringement of s. 2(a) of the Charter, s. 15(1) has no application to the case under appeal.
CONCLUSIONS
107 For the reasons set forth above, I am satisfied that the Act, as amended, is constitutional.
108 Before concluding, I should state that I sense an aura of unreality about these proceedings. After the amendments were enacted, the Municipality of Peel established a special Sunday- opening/closing committee to review the many options available to the municipality pursuant to the Act. Several public meetings were held during which three of the respondent supermarkets appeared seeking to have the municipality exercise its authority to permit seven-day shopping. After extensive consideration, the municipality decided to maintain the status quo and operate within the provincial framework. It was after that determination that the four respondent supermarkets decided to stay open on Sundays, having previously announced their intention to do so.
109 Proceedings were commenced by the Municipality of Peel and the Attorney General for an order in the Supreme Court of Ontario to compel them to close pursuant to the statute. The municipality invoked the new section of the Act which empowered it to seek such an order. The respondents countered by seeking a declaration that the Act was unconstitutional.
110 The decision by the respondent corporations to open for business on Sundays was purely for economic reasons and not on the basis that the Act infringed their religious freedom, it being axiomatic that corporations have no religion. But there being no unconstrained right to transact business whenever one wishes, the attack on the constitutionality of the Act was mounted on the allegation that it infringed religious freedom. No witnesses were called by the respondents to explain how the Act abridged anyone's religious freedom. In the end, the Act was held to infringe religious freedom. However, as I see it, the Act effectively was declared unconstitutional, not because it imposed unreasonable limits on freedom of religion, but because, by reason of the municipal option, municipalities could permit Sunday shopping and thus eliminate any alleged abridgement of freedom of religion.
111 I agree with what is stated by Finlayson J.A. when he observes [p. 119 infra]:
It is paradoxical indeed that a statute that the Supreme Court of Canada has held is a justifiable abridgement of a constitutional right notwithstanding the burden it places on non-majoritarian religious observers, should now be held unconstitutional because it places in the hands of municipalities the power to lift that burden altogether.
112 In the result, like Finlayson J.A., I would allow the appeal and set aside the judgments of Southey J. I would dismiss the applications of the respondents for a declaration that the Act, as amended, is unconstitutional. The application of the Attorney General for injunctive relief against the corporate respondents should be remitted to the court of first instance to be disposed of on its merits. I would entertain submissions as to costs.
113 FINLAYSON J.A.:-- This is an appeal by the Attorney General of Ontario (Attorney General) from a judgment of Southey J. ((1990), 73 O.R. (2d) 289, 90 C.L.L.C. Paragraph14,023, 71 D.L.R. (4th) 293 (H.C.J.)) declaring the Retail Business Holidays Act, R.S.O. 1980, c. 453 (the Act), as amended, constitutionally invalid and of no force and effect.
HISTORY OF PROCEEDINGS
114 The Regional Municipality of Peel (Peel) applied under s. 8(1) [en. 1989, c. 3, s. 6] of the Act as amended for an order that the stores of the four respondent supermarkets within the Region of Peel close on Sundays in compliance with the Act. The Attorney General was added as a party applicant by order of Saunders J. The Hudson's Bay Company (Hudson's Bay) was added as a party intervener in that application by order of Southey J. The respondent supermarkets, Hudson's Bay and a group of individual employees of the respondent Great Atlantic & Pacific Company of Canada Limited (A & P) brought applications for declarations that the Act was constitutionally invalid. All of the applications were heard together.
115 The judgment of Southey J. dismissed the application of Peel and the Attorney General for a compliance order, and granted the declaration sought by all of the respondents that the Act is constitutionally invalid and of no force and effect. The Attorney General alone appeals the judgments disposing of the eight applications. People for Sunday Association of Canada (the Association) was added as an intervener in support of the appeal by the Attorney General by order of Dubin C.J.O.
116 Some background to this litigation is instructive. The Retail Business Holidays Act, 1975 (2nd Session), S.O. 1975 (2nd Session), c. 9, was enacted in 1975 to establish a common pause day for retail workers. The statute embodied many of the recommendations set out in the 1970 Ontario Law Reform Commission's Report on Sunday Observance Legislation (Toronto: Department of Justice) which advocated a common pause day because of the continuing erosion of statutory holidays by the activities of wide-scale store openings. It wanted to encourage "our collective opportunity for the more intangible benefits of participation in leisure activities together with family, friends and others in society" (p. 267).
117 In 1983, four retailers, Edwards Books & Art Limited (Edwards Books), Longo Brothers Fruit Market Limited (Longo), Nortown Foods Limited (Nortown) and Paul Magder (Magder) were charged with violations of the Act. The four cases were heard together in the Supreme Court of Canada (R. v. Edwards Books & Art Ltd., [1986] 2 S.C.R. 713, 58 O.R. (2d) 442 (note), 28 C.R.R. 1, 30 C.C.C. (3d) 385, 87 C.L.L.C. Paragraph14,001, 55 C.R. (3d) 193, 35 D.L.R. (4th) 1, 71 N.R. 161, 19 O.A.C. 239 sub nom. R. v. Videoflicks Ltd.) and three constitutional questions were raised:
whether or not the Act was within the province's legislative competence;
whether or not ss. 2 (freedom of religion), 7 (liberty of the person), and/or 15 (equality rights) of the Canadian Charter of Rights and Freedoms had been violated;
the extent to which an infringement of these rights could be justified by s. 1 of the Charter.
118 The court was unanimous in answering the first question affirmatively. To the second question, the majority stated that freedom of religion of Saturday-observing retailers was infringed. No determination was to be made as to the degree, if any, that the Act infringed the freedom of religion of Hindus, Muslims or other religious groups. In respect of s. 7 there was no infringement. All members of the court stated that no answer should be given in respect of s. 15. To the third question, a majority of the court said that the infringement of religion of Saturday-observing retailers was justified under s. 1 of the Charter.
119 With respect to the impact of the Act on freedom of religion, I deduce the following propositions from the reasons of the Chief Justice in Edwards Books:
The Retail Business Holidays Act has as its objectives the establishment of a secular common pause day (p. 744 S.C.R.).
If the primary purpose of the legislation is the establishment of a common pause day, then the fact that it imposes a burden upon particular religious practitioners that is trivial or insubstantial is not offensive to the constitutional guarantee of freedom of religion (pp. 740, 741, 759 S.C.R.).
If the burden is more than trivial or insubstantial, then resort must be had to s. 1 of the Charter to justify the infringement of religious freedom (p. 759 S.C.R.).
Exemptions to Sunday closings, including sabbatarian exemptions, are constitutional (p. 751 S.C.R.).
The Act imposed no burden on the religious practices of retailers who were non-observers or Sunday observers or Saturday observers who could comply with the small business exemption in the Act (pp. 762, 763, 764, 765 S.C.R.).
Retailers who were Saturday observers and could not comply with the small business exemption were placed at a statutory disadvantage of being closed an extra day and their religious freedom was abridged by the Act (pp. 765-66 S.C.R.).
The Chief Justice was prepared to assume for the purposes of the four appeals before him that the burden on Saturday- observing consumers was substantial and constituted an abridgement of their religious freedom (p. 766 S.C.R.).
To the extent that the Act under review constituted an abridgement of freedom of religion and conscience, it was justified under s. 1 of the Charter through the application of the Oakes test (R. v. Oakes, [1986] 1 S.C.R. 103, 53 O.R. (2d) 719 (note), 19 C.R.R. 308, 24 C.C.C. (3d) 321, 50 C.R. (3d) 1, 26 D.L.R. (4th) 200, 65 N.R. 87, 14 O.A.C. 335) (pp. 768-783 S.C.R.).
THE ISSUE
120 While all parties to the appeal attempted to deal with the Act as amended in relation to the Charter, it is my respectful view that a more appropriate approach is to place the Act as amended beside the Act as declared constitutionally valid by the Supreme Court of Canada, to see if the amendments render invalid that which was heretofore valid.
CONDUCT OF THE TRIAL
121 It is not our function to re-hear Edwards Books in the light of subsequently acquired evidence, and yet this, in part, was what was attempted before Southey J. For instance, as found by Southey J., much of the evidence adduced before him was directed to the question of whether the comments regarding the greater vulnerability of the retail work force contained in the 1970 report of the Ontario Law Reform Commission and relied upon by Dickson C.J.C. in Edwards Books, were still valid in 1990 (pp. 302-03 O.R.). As it turned out, he found that the evidence as to a number of the conclusions reached in 1970 by the Commission was that the situation remained substantially unchanged in 1989 (p. 304 O.R.). But this is threshing old straw.
122 This is an example of what, in my respectful view, is basically wrong with many of the arguments advanced by the respondents in this case. They are structured to cast doubt on the validity of the Supreme Court of Canada's decision in Edwards Books. Mr. Danson, for A & P, went so far as to say that if the material before us had been part of the record before the Supreme Court of Canada, Edwards Books would have been decided differently. This is a reprise of what he attempted in the second Paul Magder Fur case (R. v. Paul Magder Furs Ltd. (1989), 69 O.R. (2d) 172, 45 C.R.R. 344, 49 C.C.C. (3d) 267, 33 O.A.C. 81 sub nom. R. v. Magder (Paul) Furs Ltd. (C.A.) [leave to appeal to S.C.C. refused (1989), 45 C.R.R. 344n]) when he based his Charter challenge on s. 15 (equality rights), and what he submitted to be new and additional evidence relating to s. 2(a) (freedom of religion) and the justification of an infringement under s. 1 of the Charter.
123 Southey J. made the following significant findings on this point at p. 292 O.R.:
In the Paul Magder Furs case, the Court of Appeal affirmed or restored convictions for offences under the Act of a number of retailers on the ground that any infringement of religious freedom under s. 2(a) or equality rights under s. 15 of the Charter was justified under s. 1 of the Charter. The court agreed with the conclusions reached in the lower courts that new evidence advanced by Mr. Danson, who was also one of the counsel in the case at bar, was not a great deal different from the evidence before the Supreme Court of Canada in Edwards Books. It appears that the new evidence led by Mr. Danson in the Paul Magder Furs case dealt with many of the subjects canvassed in the extensive written and oral evidence placed before me.
124 In short, it is my view that the respondents are taking advantage of amendments to the Act, made in the light of the Edwards Books decision, to attempt to re-open the Edwards Books record. This is contrary to the principle enunciated by La Forest J. in Edwards Books at p. 803 S.C.R., p. 66 C.R.R., p. 457 C.C.C., and quoted by this court in the second Paul Magder Furs case at p. 185 O.R., p. 358 C.R.R.:
In addition, we note that the Supreme Court of Canada decided the issue with respect to s. 2(a) of the Charter only two years ago and we do not think that it should be relitigated at this time. In this regard, we refer to the following passage in the reasons for judgment of La Forest J. in Edwards Books at p. 457 [C.C.C.]:
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.
125 In the case under appeal, Southey J. presided over a 14-day hearing in which evidence of doubtful value was heard. By re- mounting a constitutional challenge to the amended legislation under the banner of ss. 2(a), 7, and 15 of the Charter, the respondents made it difficult for Southey J. to decline to hear evidence which, once assessed, proved to be of very little assistance.
126 The judge admitted the evidence of Martin Goldfarb of Goldfarb Consultants, a marketing and behavioural research consulting firm as to a survey of the percentage of residents in Ontario who are in favour of Sunday shopping. He also considered evidence of significant opposition to Sunday shopping by certain groups. He heard the testimony of H. Allan Leal, chairman of the Ontario Law Reform Commission in 1970, the Honourable Gregory Sobara, Minister of Labour in 1989 when amendments to the Employment Standards Act, R.S.O. 1980, c. 137, were introduced, and the Honourable Joan Smith, the Solicitor General who introduced the amendments to the Act into the legislature. He heard oral evidence of nine retail employees who explained why they preferred to work on Sunday. There were affidavits in support and in opposition to this preference.
127 The learned judge discussed this evidence in detail and commented on it. He concluded at p. 305 O.R.:
For the foregoing reasons, I find that the additional evidence does not by itself provide a basis for concluding that the findings of justification under s. 1 of the Charter in Edwards Books and Paul Magder Furs are no longer valid.
FINDINGS OF THE TRIAL JUDGE
128 However, Southey J. did not accept the submission of counsel for the Attorney General that the amended Act now contains no abridgement of freedom of religion and it is now unnecessary to consider the question of justification under s. 1 of the Charter. He gave as his reasons at pp. 295-97 O.R.:
"First, the new sabbatarian exemption does not alleviate the burden of Sunday closing on non-Sunday observing consumers." (p. 295 O.R.)
After quoting from Edwards Books at p. 766 S.C.R., p. 39 C.R.R., with respect to the burden that Dickson C.J.C. found to be imposed on Saturday-observing consumers, he stated (at p. 295 O.R.): "There was evidence of that burden in the record before me".
"Next, the new sabbatarian exemption removes the burden only from the owner of a business and the persons engaged in the business who have the same religious beliefs as the owner." (p. 295 O.R.; emphasis original)
"It is apparent that the new sabbatarian exemption provides no protection for employees whose religion requires them to observe a day other than one in which their employer's business is required to be closed under the Act." (p. 296 O.R.)
"Finally, the amendment does not alleviate in any way the burden on non-Christian retailers of being compelled to remain closed on the Christian religious holidays of Christmas Day and Good Friday, as well as on their own holy days. Similar considerations apply to the compulsory closing under the Act on December 26, which is related to the celebration of Christmas, and on New Year's Day, which has counterparts in non-Christian religions on days other than January 1. I am not persuaded that the burden of closing on four additional days each year is trivial or insubstantial". (p. 297 O.R.)
129 He found that the Act, as amended, does infringe freedom of conscience and religion (p. 297 O.R.) and turned to consider s. 1 justification.
130 It is to be noted that all of the objections referred to above by Southey J. were outstanding in Edwards Books when the Supreme Court of Canada found s. 1 justification without the benefit of a true sabbatarian clause. Indeed, in apparent recognition of this, the respondents in the case on appeal urged Southey J. to arrive at a different conclusion regarding the justification under s. 1 on three new matters (p. 299 O.R.):
the extensive new evidence placed before me regarding public opinion and the preferences and lack of vulnerability of retail employees,
the amended sabbatarian exemption; and
the amended municipal exemption.
131 As noted above, Southey J. was not much impressed with the evidence referred to in (1) above. I have considered his findings as to infringements of freedom of religion and make the following comments:
The burden on non-Sunday observing consumers
132 This was articulated by Dickson C.J.C. The evidence of this burden before Southey J. was as to inconvenience only (see testimony of Rabbi Witty as an example). If one's religion prohibited shopping on Saturday and the law limited the shopping available on Sunday, then that person had only five days of unrestricted shopping available to him. But, as Mr. Laskin for the Oshawa Group Limited (Oshawa Group) conceded, this was a consequence of selecting any day of the week except Saturday as a compulsory pause day. The effect of choosing Sunday is that it probably inconveniences fewer people than selecting any other day of the week. Any Charter argument here relates more to s. 15 and equality than to s. 2(a) and religion. If Dickson C.J.C. made his assumption of a burden on consumers in the expectation that evidence of such a burden was available, he would have been disappointed on the record before us.
and (c) The burden on employees
133 The sabbatarian clause protects only the owner of the business as opposed to the owner's employees. There was a great deal of discussion before us as to the position of employees whose sabbath was other than Sunday, but we were referred to no evidence that any employee suffered the loss of a day's work because his religion was other than Christian. Indeed, the only evidence that we were referred to of employees who stated to their employers that they could not work on Saturday because of their religion was that their requests to be excused on that day were accommodated. There is no evidence that they were unable to fulfil the hours of a normal work week (see affidavit Karen Valko).
134 There is nothing in the Act that we are concerned with that forces an employee to work on his holy days. There was speculation but no evidence before the court that persons who observe non-Christian holy days are discriminated against in their employment. The bulk of the evidence goes only to preference as to work days for employees and shopping days for consumers. A lot of people want to work on Sunday, just as they want to shop on Sunday. But the selection of Sunday as the pause day is not the problem. These people do not want a pause day at all; some because they want to observe their own holy day and have the remaining six days of the week available for work or shopping or recreation, others because they want the whole seven days available to them for whatever purpose they choose.
Four Christian holy days other than Sunday
135 These four days were in the Act that Dickson C.J.C. considered and he made the point that the selection of a Christian holiday as a pause day does not make it any less a secular pause day. In our court, an attempt was made to uphold Southey J. with respect only to Christmas Day and Good Friday. Christmas is certainly a Christian holy day but, in my view, it has become so commercialized in recent years that its observance as a secular holiday is taken for granted. The same can be said to a lesser extent of Good Friday in that the Easter weekend is now recognized as the first of the long holiday weekends in the calendar year.
136 In any event, once the finding is made that the legislation is designed to achieve a common pause day as opposed to enforcing observance of Christian holidays, the selection of the particular days takes on a reduced significance. The four days enumerated have been traditional holidays in what admittedly has been a predominantly Christian society, but they are holidays which the majority has accepted for a variety of reasons, not all because of religious beliefs (see quotation from Edwards Books at pp. 742-43 S.C.R., pp. 21-22 C.R.R., infra). It is up to the legislature to decide if it is worth the dislocation involved in selecting other days as holidays. Southey J. spoke of the cost to retailers of closing an additional four days for those who observed different holy days, but as Dickson C.J.C. put it in Edwards at p. 759 S.C.R., p. 34 C.R.R.:
Section 2(a) does not require the legislatures to eliminate every minuscule state-imposed cost associated with the practice of religion.
137 There is something unrealistic about treating the named holidays in the Act as Christian religious holidays. It presupposes that the majority of the population are adherents to this religion and confine their activities on these days to religious observance and nothing else. You must accept this as a premise before you can set against it the circumstances of minoritarian non-Sunday observers who, in addition to being forbidden by their religion from shopping on their holy days, are prevented by the Act from shopping on the Christian holidays. In order to show that one is being treated differently, one must establish in relation to whom one receives different treatment. Otherwise there is no relative discrimination. The non-Christians cannot contend that they suffer discrimination under the Act by reason of their religion unless there is some significant advantage to Christians, amounting to more than convenience, in having their sabbath and the pause day coincide. But nowhere in the record is there any evidence as to the number of Christians who do not shop on Sunday because of their religious beliefs. Indeed the section of the Report on Sunday Observance Legislation dealing with examples of present-day formalized religious doctrines respecting Sunday followed by various Christian churches in Canada show that they stress religious observance and a day of rest from labour, but they also encourage recreation. There is no prohibition against secular activities such as shopping (Report, pp. 80-84).
138 In my opinion, on the evidence before us, the choice of pause days in the Act cannot be elevated to a religious issue. I do not regard these remarks as anything more than an extension, justified on a fuller record, of what was said by Dickson C.J.C. in Edwards Books, at pp. 742-43 S.C.R., pp. 21-22 C.R.R.:
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.
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.
139 If we accept that a pause day is a worthy legislative objective, the choice of any particular day may indirectly favour a certain religious group. The majority of our population is indisputably made up of a combination of Christian sects and those who adhere casually to a recognized religion or are adherents to none at all. That being so, does it not make more sense to choose a pause day that conveniences the majority, rather than strive to select a day that, in religious terms, is neutral to all and convenient to none?
AMENDMENTS TO THE ACT
140 While Southey J. did not feel that the evidence he heard merited a constitutional review of the Act, he did think that what he referred to as the substantial amendments made to the Act after the offence which gave rise to the Paul Magder Furs case justified re-litigating this issue.
141 The changes in the Act fall into three broad categories, all of which are modifications to exemptions in the Act.
Categorical exemptions
142 This section exempts the sale of the same articles of merchandise as the former section, sold in what might be described loosely as small retail businesses, but adds a restriction on the size of pharmacies.
Sabbatarian exemption
143 Southey J. found expressly that this was a response to Edwards Books (p. 295 O.R.). There was not a sabbatarian exemption as such in the Act at the time of Edwards Books because the Sunday exemption was not based on religion. It simply provided that stores of a limited floor size with not more than seven employees could open on Sunday if they were closed on the preceding Saturday. However, Dickson C.J.C. noted that the Sunday exemption "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" (p. 772 S.C.R., p. 43 C.R.R.).
144 The amendment introduces s. 5(1) [rep. & sub. 1989, c. 3, s. 4] that permits a Sunday opening if the retail business establishment "is always closed to the public throughout another day of the week by reason of the religion of the owner of the retail business". Provision is made for partnerships and corporations naming a religion in the partnership agreement or corporate by-laws as the case may be. There are no restrictions on the size of the retail outlet or the number of employees, but in the case of a chain of stores, the religious option must be exercised on behalf of all of the stores in the chain.
145 This exemption would now be available to Nortown Foods referred to in Edwards Books. It is a retail business owned by two brothers who are of the Jewish faith. It was too large to qualify for the exemption in the Act before amendment. In addition, to the extent that the incorporation of a business may appear to cloak the religion of its owners, the Act permits the owners to attribute their religion to the business. It also accommodates Hindus and Muslims whose problems were left unaddressed in Edwards Books.
146 The sabbatarian exemption also appears to respond to a remark of Dickson C.J.C. about consumers. He said at pp. 766-67 S.C.R., p. 39 C.R.R.:
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.
Companies such as Nortown can now stay open on Sunday and sell foodstuffs at large in addition to catering to those who wish to have kosher food. On this change, Southey J. stated at p. 306 O.R.:
In my opinion, the new sabbatarian exemption reflects a reasonable trade-off between different possible schemes, and is not unconstitutional.
Municipal Option
147 The Act permitted a municipality to provide by by-law that the Sunday opening prohibition does not apply to any class of retail business establishment for such periods of time and in such parts of the municipality and under such conditions as are specified in this by-law "[w]here it is essential for the maintenance or development of a tourist industry" [s. 4(2) prior to amendment].
148 The amendment is much broader. A municipality may by by-law permit retail business establishments to open on any holiday or may require that they close on any holiday. "Holiday" includes Sunday. There are a number of procedures mandated before such a by-law can be passed, but the authority is broad enough to permit regulation of the type of business, the number, the location, the size and hours of business. While the by-law can be more restrictive than the strictures of the Act itself, it cannot interfere with the goods and services offered in establishments licensed under the Liquor Licence Act, R.S.O. 1980, c. 244, the Tourism Act, R.S.O. 1980, c. 507, and with accommodation and services covered by s. 3(7). Most important, it cannot interfere with the sabbatarian clause.
149 As to this exemption, Southey J. had the following to say at pp. 308-09 O.R.:
The effect of the new municipal exemption, in my judgment, is that the infringement on freedom of religion of owners, employees and consumers resulting from s. 2 of the Act cannot meet either of the requirements in the rules in Edwards Books for justification under s. 1 of the Charter. As to the first requirement, it is apparent that the Legislature did not regard the objective of a common pause day for retail workers as bearing on a pressing and substantial concern sufficient to warrant overriding a constitutional right, because it gave the municipalities the power to nullify the objective completely. As to the second requirement of proportionality, I can see no careful design or rational connection to the objective in a scheme which leaves it to individual municipalities to determine the criteria to be applied in granting exemptions or requiring closings, or to proceed without establishing any criteria. I agree with Mr. Leal's observation that the municipalities have been given a carte blanche.
Conclusion as to justification
For the foregoing reasons, Peel and the Attorney General have not satisfied me, on the balance of probabilities, that the infringement of the freedom of religion of owners, employees and consumers resulting from s. 2 of the Act is justified under s. 1 of the Charter. My decision is based primarily on the municipal option, but derives some support from the new evidence to which I have referred.
150 This latter finding appears to override his earlier finding as to the overall objective of the amended Act. There, in addressing the s. 1 justification, he introduced the subject by quoting the Oakes test as repeated by Dickson C.J.C. in Edwards Books at p. 768 S.C.R., pp. 40-41 C.R.R., and made the following significant finding at p. 298 O.R.:
I am quite satisfied that the objective of the amended Act is the secular one of providing retail workers with a pause day in common with others, as was accepted in Edwards Books and Paul Magder Furs.
151 In concluding, Southey J. found that the Act does not violate the right to liberty under s. 7 of the Charter on the authority of Edwards Books (p. 309 O.R.) and found that s. 15 of the Charter was only engaged to the extent that there was a discrimination against members of a minority on the grounds of religion (p. 310 O.R.).
DISCUSSION
152 What I read from this judgment is that the learned judge was of the opinion that the "substantial" amendments introduced into the legislature in February of 1989 justified re-visiting the Retail Business Holidays Act to see if it could still withstand a Charter challenge under s. 2(a) dealing with freedom of religion and conscience. He was not concerned in the end with ss. 7 and 15. The two amendments that are substantial are the sabbatarian clause and the municipal option clause.
BREACHES OF THE CHARTER (EVIDENCE)
153 The judge did find intrusions on religious freedom in contravention of s. 2(a) of the Charter. I have analyzed the evidence supporting his findings and find it wanting. The only finding in Edwards Books respecting retailers was that a limited number of them suffered a burden. In my opinion this has been addressed by amendments to the Act and religious discrimination against retailers is no longer an issue. The burdens on consumers and employees found by Southey J. are not supported by evidence that makes the religious intrusions more than trivial or insubstantial.
154 Since the purpose of the Act does not offend the Charter, I am confining my remarks now to the evidence of the effect of the Act on the religious practices of various groups. The need for a factual basis for the intrusive effects of legislation has been re-emphasized by the Supreme Court of Canada in Danson v. Ontario (Attorney General), Lamer C.J.C., Wilson, Sopinka, Cory and McLachlin JJ., October 4, 1990, released following the hearing of this appeal [now reported [1990] 2 S.C.R. 1086, 74 O.R. (2d) 763 (note), 50 C.R.R. 59, 73 D.L.R. (4th) 686 sub nom. R. v. Danson, 112 N.R. 362. Sopinka J., delivering the unanimous judgment of the court, said at pp. 13-14 [of the reasons; p. 1099 S.C.R., pp. 68-69 C.R.R.]:
The Need for Facts
This Court has been vigilant to ensure that a proper factual foundation exists before measuring legislation against the provisions of the Charter, particularly where the effects of impugned legislation are the subject of the attack. For example, in R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713, at pp. 767-68, this Court declined to hold that the Retail Business Holidays Act, R.S.O. 1980, c. 453, infringed the s. 2(a) Charter rights of Hindus or Moslems in the absence of evidence about the details of their respective religious observance. Similarly, in Rio Hotel Ltd. v. New Brunswick (Liquor Licensing Board), [1987] 2 S.C.R. 59, at p. 83, this Court declined to consider a s. 2(b) Charter challenge to certain provisions of the Liquor Control Act, R.S.N.B. 1973, c. L-10, in the absence of evidence on the nature of the conduct that was claimed to constitute "expression" within the meaning of s. 2(b).
It is necessary to draw a distinction at the outset between two categories of facts in constitutional litigation: "adjudicative facts" and "legislative facts". These terms derive from Davis, Administrative Law Treatise (1958), vol. 2, para. 15.03, p. 353. (See also Morgan, "Proof of Facts in Charter Litigation", in Sharpe, ed., Charter Litigation (1987).) Adjudicative facts are those that concern the immediate parties: in Davis's words, "who did what, where, when, how and with what motive or intent . ..." Such facts are specific, and must be proved by admissible evidence. Legislative facts are those that establish the purpose and background of legislation, including its social, economic and cultural context. Such facts are of a more general nature, and are subject to less stringent admissibility requirements: see e.g., Re Anti-Inflation Act, [1976] 2 S.C.R. 373, per Laskin C.J., at p. 391; Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714, per Dickson J. (as he then was), at p. 723; and Reference re Upper Churchill Water Rights Reversion Act, [1984] 1 S.C.R. 297, per McIntyre J. at p. 318.
155 It is perhaps prudent to refer back to what McIntyre J. said in Re Upper Churchill Water Rights Reversion Act, [1984] 1 S.C.R. 297, 8 D.L.R. (4th) 1, 47 Nfld. & P.E.I.R. 125, 139 A.P.R. 125, 53 N.R. 268, at p. 318 S.C.R.:
It will therefore be open to the Court in a proper case to receive and consider extrinsic evidence on the operation and effect of the legislation. In view of the positions of the parties, particularly the appellants' contention that the Reversion Act has extraprovincial effect, this is, in my opinion, such a case.
I agree with the Court of Appeal in the present case that extrinsic evidence is admissible to show the background against which the legislation was enacted. I also agree that such evidence is not receivable as an aid to construction of the statute. However, I am also of the view that in constitutional cases, particularly where there are allegations of colourability, extrinsic evidence may be considered to ascertain not only the operation and effect of the impugned legislation but its true object and purpose as well. This was also the view of Dickson J. in the Reference re Residential Tenancies Act, 1979, supra, at p. 721, where he said:
In my view a court may, in a proper case, require to be informed as to what the effect of the legislation will be. The object or purpose of the Act in question may also call for consideration though, generally speaking, speeches made in the Legislature at the time of enactment of the measure are inadmissible as having little evidential weight.
(Emphasis original)
156 The admissibility of evidence did not appear to be of much concern to the parties in these applications. At trial, Southey J. questioned whether oral testimony should take the place of written material and what weight, if any, he should give to it in any event. Admissibility does not appear to have been raised. Certainly no objection to admissibility was taken in our court where the argument centred on relevance and weight with respect to all of the extrinsic evidence. However, the "adjudicative evidence" that relates to the effect of the Act, as opposed to its purpose, establishes nothing more than unquantified inconvenience to the shopping practices of consumers who observe a Sabbath other than Sunday. There is no proper factual basis for finding discrimination on religious grounds for retailers or employees. In my opinion, the legislature, through its amendments, has remedied the one objection Edwards Books enunciated as to retailers. The evidence before Southey J. as to consumers and employees falls far short of demonstrating on a balance of probabilities that there is a burden upon either that is more than trivial or insubstantial. The Act as amended does not contravene s. 2(a) of the Charter.
SECTION 1 JUSTIFICATION (EVIDENCE)
157 Having made the finding that there is no violation of the Charter, it is unnecessary to resort to s. 1. However, out of respect to Southey J., I feel that I should deal with his treatment of the municipal option which he found fatal to s. 1 justification. It is true that Southey J. concluded [p. 309 O.R.], "My decision is based primarily on the municipal option, but derives some support from the new evidence to which I have referred" (emphasis added), but from the foregoing analysis it is obvious that the only substantial provisions of the amended Act that were not before Dickson C.J.C. are the sabbatarian exemption, which Southey J. accepts, and the municipal exemption. As to the reference to "new evidence", I can only take it from a reading of the entire judgment that the evidence he was referring to was that of Mr. Leal, and to a lesser extent that of the Solicitor General given in testimony before him. I return, then, to my criticisms of the evidence before him.
158 Under what would have to be considered "legislative evidence", the respondents led testimony of Ministers of the Crown as to the purpose and effect of the amendments to the Act and the Employment Standards Act. In my opinion, it was improper to subpoena Ministers of the Crown to give testimony at a hearing such as this. It is a usurpation of the legislative process to call as witnesses the Ministers who introduced the amendments to these statutes into the legislature and have government legislation stand or fall on their testimony. These Ministers are not the legislature. The respondents appear to have thought that they were entitled to treat both Mrs. Smith and Mr. Sorbara as if they were officers of a corporation involved in private litigation. This was apparent in our court where they attempted to exploit even minor discrepancies and contradictions in their testimony and public utterances.
159 Mr. Leal was in a different position. He was called as the former chairman of the Law Reform Commission to explain what material the Commission had before it when it gave its Report in 1970. He gave as his opinion (as reported by the learned judge) that he did not feel that the present legislation accomplished in any material way the objective of the common pause day enunciated in the 1970 Report. He specifically disagreed with the municipal option, which he described as a "carte blanche" (p. 302 O.R.).
160 I question the admissibility of this evidence because it is directed to an interpretation of the legislation itself. I appreciate that Mr. Leal has a high degree of expertise in advising on and in drafting legislation, but in my respectful view there is no place for this type of opinion evidence in a case such as this. The court can determine the object and purpose of legislation from the legislation itself, and if it cannot, the limits of extrinsic evidence so far accepted by the Supreme Court of Canada do not include asking someone else for an opinion. In this case, Southey J. expressly found that the objective was a common pause day. To the extent that he relied on Mr. Leal's opinion as to the effect of the municipal option on this objective, he was in error.
THE MUNICIPAL OPTION
161 In my opinion, the court should concentrate on what was held in Edwards Books and has been found here: that the objective of the legislation is to create a common pause day and is not a colourable attempt to enforce or encourage religious observance. That being so, how does the utilization of the well accepted device of the municipal option detract from that objective? On the face of it, it does not, but what is argued against the Attorney General is that the municipal option dilutes the objective to the point of nullifying it. It is submitted that the option demonstrates that a common pause day is not a pressing and substantial concern of the legislature sufficient to warrant overriding a constitutional right. Again, it is said that it destroys the careful design or rational connection of the legislation to the objective. In my view, these arguments ignore the legislative role that municipalities can play in carrying out government policy.
162 While no issue was raised in this appeal as to the constitutional right of the province to enact secular pause day legislation, I think I must return to the constitutional points discussed in Edwards Books under the separation of powers argument to properly focus on what the Supreme Court has held to be the objectives of the Act. I start with the following statements of Dickson C.J.C. at pp. 740-41 S.C.R., pp. 19-20 C.R.R.:
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. ... 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.
and again at p. 742 S.C.R., p. 21 C.R.R.:
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.
163 The fact that this Act has been characterized as having a secular common pause day as its object and purpose and is valid provincial, as opposed to federal, legislation, may not end the debate as far as its scrutiny for Charter purposes is concerned, but in the case on appeal, the finding does make it clear that the purpose of the Act is constitutionally valid on any test. In my opinion, pre-Charter cases can be useful in determining the purpose of legislation for s. 1 Charter purposes. They are of little assistance when considering the effect. I believe I am supported in this by Professor Finkelstein in his article, "The Relevance of Pre-Charter Case Law for Post-Charter Adjudication" (1982), 4 Supreme Court L.R. 267. The author stated (at pp. 269 and 273):
Characterization of the "Matter" -- Whether a Guaranteed Right is Infringed
Pre-Charter cases can be very useful at the characterization stage. If a past case characterized a particular type of legislation as being in relation to speech rather than property, or property rather than religion, and so on, that case will be relevant here.
. . . . .
Balancing the Competing Interests -- Demonstrable Justifications
. . . . .
The pre-Charter cases will not be that useful at this second stage. The courts have not previously had to weigh legislation on the merits by reference to the substantive values of acceptability in a democratic society, and the government has not had the heavy onus of justifying its legislation on those grounds.
[Footnotes omitted]
164 In R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, 13 C.R.R. 64, 37 Alta. L.R. (2d) 97, 60 A.R. 161, 18 C.C.C. (3d) 385, 85 C.L.L.C. Paragraph14,023, 18 D.L.R. (4th) 321, 58 N.R. 81, [1985] 3 W.W.R. 481, the court considered the constitutionality of the Lord's Day Act, R.S.C. 1970, c. L-13. This Act had been declared constitutional before as being validly enacted by Parliament pursuant to the criminal law power under s. 91 Paragraph27 of the Constitution Act, 1867. This conclusion depended upon the identification of the purpose of the Act as compelling observance of Sunday by virtue of its religious significance. However, with the enactment of the Charter, this valid federal purpose of providing for compulsory observance of the religious institution of Sabbath (Sunday) infringed on the guarantee of freedom of conscience and religion in s. 2(a) of the Charter. Its purpose thus destroyed its constitutionality under the Charter and there was no need to look at its effect. The matter was put this way by Dickson C.J.C. in Big M at p. 334 S.C.R., p. 95 C.R.R.:
In short, I agree with the respondent that the legislation's purpose is the initial test of constitutional validity and its effects are to be considered when the law under review has passed or, at least, has purportedly passed the purpose test. If the legislation fails the purpose test, there is no need to consider further its effects, since it has already been demonstrated to be invalid. Thus, if a law with a valid purpose interferes by its impact, with rights or freedoms, a litigant could still argue the effects of the legislation as a means to defeat its applicability and possibly its validity. In short, 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.
165 Purpose and effect are not unrelated, and one is entitled to look at the effect of legislation if one is in doubt about the purpose. Dickson C.J.C., again in Big M, stated the following at p. 331 S.C.R., p. 93 C.R.R.:
All legislation is animated by an object the legislature intends to achieve. This object is realized through the impact produced by the operation and application of the legislation. Purpose and effect respectively, in the sense of the legislation's object and its ultimate impact, are clearly linked, if not indivisible. Intended and actual effects have often been looked to for guidance in assessing the legislation's object and thus, its validity.
166 However, in addressing this problem of identifying the purpose of legislation, we cannot go back and forth indefinitely. It is a two-step process. Identify the purpose. If it is valid, proceed to ascertain the effect. But we do not change our mind about the purpose because of what we perceive the effect to be. In other words, once we have looked at the legislation, including what we perceive to be its effect, and decided what its purpose is, that purpose remains the same for separation of power examination and Charter scrutiny.
167 In all events we must remember that the examination is done for constitutional purposes and our findings respecting both purpose and effect under Charter scrutiny must be related to the violation of a Charter-protected right before the legislation is in jeopardy and resort must be had to justification under s. 1 of the Charter. The failure to achieve the "objective" because of exemptions which could have the effect of nullifying the objective does not violate the Charter necessarily. I have considerable difficulty in relating the use of the municipal option to either purpose or effect so far as the Charter is concerned.
168 The municipal option or exemption has been employed historically as a legislative instrument whereby both the federal and provincial governments make use of municipalities to carry out their purposes. As is said in The Law of Canadian Municipal Corporations, 2nd. ed. by Ian MacFee Rogers, Q.C. (Toronto: Carswell, 1971), at p. 2:
In Canada as in the United States municipal institutions are organized not only to legislate in respect of local affairs but also to act as agents of the provincial governments in so far as they discharge duties pertaining to the administration of civil government, so that a municipality can also be described as a "public corporation created by the government for political purposes and having subordinate or local powers of legislation". In their governmental aspect it has been said that "municipal corporations are merely instrumentalities of the State for the more convenient administration of local government".
169 An example of a municipality initiating government policy on a local scale can be found in Karry v. Chatham (City) (1910), 21 O.L.R. 566 (C.A.) where the court considered a by-law passed under s. 583(34) of the Municipal Act, R.S.O. 1897, c. 223, prohibiting the operation of eating establishments between 2:00 p.m. and 5:00 p.m. on Sundays and from 7:30 p.m. on Sunday until 5:00 a.m. on Monday. The issue before the court was whether the prohibition in the by-law was a "regulation" as authorized by the statute. The by-law was upheld and the reasoning of Maclaren J.A. is relevant to the objections that have been raised in this case. He stated at p. 569 O.R.:
The Legislature probably refrained from making any uniform regulations for the Province on this head, because it is essentially one that can be best determined by the authorities in each locality. What may be the best for one municipality may, under altered circumstances and conditions, become a source of disorder and a nuisance in another. The matter seems to be one pre-eminently proper to be dealt with by the local authorities, who have the best means of ascertaining the wants of the local and the travelling public.
In considering the by-law's relationship to the enforcement of Sunday observance legislation, Maclaren J.A. said at p. 570 O.R.:
Under this head we were urged to set aside the by-law on the ground that, among the motives influencing those who promoted the by-law, was that of aiding in the enforcement of Sunday legislation. In reality it is a question of power rather than of motive. The later authorities shew that the Courts should be slow in setting aside the by-laws of public representative bodies, clothed with ample authority, on the ground of supposed unreasonableness. As said by Lord Russell, C.J., in Kruse v. Johnson, [1898] 2 K.B. 91, at p. 99, such by-laws "ought to be supported if possible. They ought to be, as has been said, 'benevolently' interpreted, and credit ought to be given to those who have to administer them that they will be reasonably administered." And again, on p. 100: "A by-law is not unreasonable merely because particular Judges may think that it goes further than is prudent or necessary or convenient, or because it is not accompanied by a qualification or an exception which some Judges may think ought to be there. Surely it is not too much to say that in matters which directly and mainly concern the people of the county, who have the right to choose those whom they think best fitted to represent them in their local government bodies, such representatives may be trusted to understand their own requirements better than Judges."
170 Cases decided under both the Lord's Day Act, R.S.C. 1952, c. 171, and the Canada Temperance Act, R.S.C. 1952, c. 30, have never disputed the legitimacy of the use of local options to better reflect local conditions. In both statutes, the Parliament of Canada has deferred to the provinces and the municipalities within the provinces to soften the effect of Canada-wide prohibitions. In Lord's Day Alliance v. British Columbia (Attorney General), [1959] S.C.R. 497, 123 C.C.C. 81, 30 C.R. 193, 19 D.L.R. (2d) 97, the British Columbia legislature amended the charter of the City of Vancouver to authorize City Council to pass a by-law specifying that public games might be played in the city on Sunday within certain hours "which but for this Section would be unlawful under ... The Lord's Day Act (Canada)" [p. 500 S.C.R.]. The submission was made that this action could not be justified under s. 6 of the Lord's Day Act which stated in part:
6.(1) It is not lawful for any person, on the Lord's Day, except as provided in any provincial Act or law now or hereafter in force, to engage in any public game ...
In holding the legislation intra vires, Rand J. first addressed the division of powers argument and emphasized that "in a federal system distinctions must be made arising from the true object, purpose, nature or character of each particular enactment" (p. 509 S.C.R.). He then dealt with a subsidiary argument that, assuming the Lord's Day Act to be a valid exercise of the criminal law-making power, that power could not be delegated. In answering this, he stated at pp. 509-10 S.C.R.:
It was argued finally that the effect of the exception in s. 6 was to create a delegation of dominion power to the province contrary to the holding of this Court in Attorney General for Nova Scotia v. Attorney General for Canada, [1951] S.C.R. 31, [1950] 4 D.L.R. 369. The idea of delegation arises from a misconception of the operation of s. 6. The legislative efficacy in prohibiting the activity named is that solely of Parliament; the effect of the exception is to declare that in the presence of a provincial enactment of the appropriate character the scope of s. 6 automatically ceases to extend to the provincial area covered by that enactment. The latter is a condition of fact in relation to which Parliament itself has provided a limitation for its own legislative act. That Parliament can so limit the operation of its own legislation and that it may do so upon any such event or condition is not open to serious debate.
(Emphasis added)
171 Earlier, Rand J. had stated that this "language of exception" in s. 6 was designed so that "local attitudes so expressed were to prevail" (p. 506 S.C.R.). He then quoted with approval from Lord Blanesburgh of the Privy Council in The Lord's Day Alliance of Canada v. Manitoba (Attorney General), [1925] A.C. 384, 94 L.J.P.C. 84, 41 T.L.R. 225, 43 C.C.C. 185, [1925] 1 D.L.R. 561, [1925] 1 W.W.R. 296 (P.C.), at p. 391 A.C.:
The Act is laying down for the whole of Canada regulations for the observance of Sunday. Some things on that day are everywhere prohibited; others are everywhere allowed. But there is an intermediate class of activities -- Sunday excursions are amongst them -- with reference to which the Act recognizes that differing views may prevail in the respective Provinces of the Dominion, so varying in these Provinces are the circumstances, usages and predominant religious beliefs of the people. The Act proceeds to provide accordingly, putting it generally, that with reference to these matters, Provincial views shall within a Province prevail. As Anglin J. observed in Ouimet v. Bazin, 46 Can. S.C.R. 502, 530, this course was no doubt adopted "to enable local bodies to deal with the peculiar requirements of localities with which they would presumably be more familiar and perhaps more in sympathy".
172 The Canada Temperance Act proceeded on a different basis. The statute provided in Part II for a detailed prohibition against trafficking in liquor and set out penalties for contraventions. Proceedings for the bringing of Part II into force in any county or city were commenced by petition addressed to the Secretary of State and signed by electors of the county or city, to the effect that the signers desired that the votes of all such electors be taken for and against the adoption of the petition (Part I). The local municipal structure had the responsibility of invoking the prohibitions based on a vote of the local electorate.
173 If such a delegation from Parliament to provincial legislature to municipality can be accepted as a legitimate legislative device in both these Acts of Parliament, I do not see why it should be questioned here. In any event, I do not think that this choice of legislative instrument has anything to do with the scrutiny of legislation to see if there is s. 1 justification. We should not be examining the legislative vehicle when applying the Oakes test but should be concerned with its objectives and with the means employed to achieve those objectives.
APPLICATION OF THE OAKES TEST
174 To begin with, while I do not place much stress on this point, it appears to me that Southey J. has not accurately applied the Oakes test. As is said in Oakes by Dickson C.J.C. (at pp. 138-39 S.C.R., pp. 336-37 C.R.R.), two central criteria must be satisfied:
First, the objective, which the measures responsible for a limit on a Charter right or freedom are designed to serve, must be "of sufficient importance to warrant overriding a constitutionally protected right or freedom" ... It is necessary, at a minimum, that an objective relate to concerns which are pressing and substantial in a free and democratic society before it can be characterized as sufficiently important.
175 But a common pause day has been held to be such an objective by Dickson C.J.C. in Big M at p. 353 S.C.R., p. 110 C.R.R., and again by Dickson C.J.C. in Edwards Books at p. 770 S.C.R., pp. 41-42 C.R.R. The finding by Southey J. that the Act as amended has such an objective subsumes the minimum requirement that the concerns are pressing and substantial. Accordingly, there is a conflict between the finding that the objective of the Act was a common pause day and the finding that such an objective was not a pressing and substantial concern.
176 The Oakes test continues at p. 139 S.C.R.:
Second, once a sufficiently significant objective is recognized, then the party invoking s. 1 must show that the means chosen are reasonable and demonstrably justified. This involves "a form of proportionality test" ...
177 Under the proportionality test the court considers three things (Oakes, at p. 139 S.C.R.):
"the measures adopted must be carefully designed to achieve the objective in question . ... they must be rationally connected to the objective";
"the means, even if rationally connected to the objective in this first sense, should impair "as little as possible" the right or freedom in question";
"there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of "sufficient importance".
(Emphasis original)
178 I do not think that it can be questioned that the objective of the Act is the secular one of a common pause day. We then look to the measures adopted to achieve that objective, to see, not if they fail to achieve the objective, but if, in achieving the objective, they are overly intrusive to the constitutionally protected right.
179 The fact that a statute makes provision for exceptions to its objectives and delegates the power to subordinate bodies to implement or refuse to implement those objectives on a local scale does not take away from the objectives. It may make them difficult or even impossible to achieve, but it is no function of the court to counsel the legislature on the effectiveness of its legislative measures. "The legislative efficacy in prohibiting the activity named is that solely of" the legislature, to repeat Rand J. in Lord's Day Alliance v. British Columbia (Attorney General), supra, at p. 509 S.C.R.
180 In my view, the true objection to the exercise of municipal options is that they result in differentiation of treatment of retailers based on geographical location. The discrimination alleged has nothing to do with religion. It is a s. 15(1) argument, but the Supreme Court of Canada has rejected this approach in R. v. Turpin, [1989] 1 S.C.R. 1296, 39 C.R.R. 306, 48 C.C.C. (3d) 8, 69 C.R. (3d) 97, 96 N.R. 115, 34 O.A.C. 115 and R. v. S. (S.), [1990] 2 S.C.R. 254, 49 C.R.R. 79, 57 C.C.C. (3d) 115, 77 C.R. (3d) 273, 110 N.R. 321, 41 O.A.C. 81. Geographical distinctions are not "personal characteristics" and are a recognized part of our federal system of government. As Dickson C.J.C. put it in R. v. S. (S.) at p. 288 S.C.R., p. 105 C.R.R., p. 139 C.C.C.:
Obviously, the federal system of government itself demands that the values underlying s. 15(1) cannot be given unlimited scope. The division of powers not only permits differential treatment based upon province of residence, it mandates and encourages geographical distinction. There can be no question, then, that unequal treatment which stems solely from the exercise, by provincial legislators, of their legitimate jurisdictional powers cannot be the subject of a s. 15(1) challenge on the basis only that it creates distinctions based upon province of residence.
I will deal later with s. 15(1), but intrude this observation here to make the point that the statement has equal force when applied to the subdivision of Ontario into municipal and regional governments.
181 The court in applying the second part of the Oakes test is concerned only that the means used are reasonable and demonstrably justified having regard to the constitutionally protected right, not that they will not work. If they do not work, they will not intrude on the protected right. We want to be sure that the legislature has not mistaken the bludgeon for the rapier in carrying out its valid objectives. It is paradoxical indeed that a statute that the Supreme Court of Canada has held is a justifiable abridgement of a constitutional right, notwithstanding the burden it places on non-majoritarian religious observers, should now be held unconstitutional because it places in the hands of municipalities the power to lift that burden altogether.
182 In my opinion, the respondents are confusing purpose with effectiveness; objective with implementation; intent with resolve. As they put it themselves, the legislature is giving with one hand and taking away with the other. The argument is that the common pause day objective is destroyed by ineffective implementation which could result in the pause day having a checkerboard application throughout the province. In the first place, we do not know that that is so. We cannot assume that regional municipalities will be blind to the objective of the Act and rush to declare open Sundays throughout the province. We cannot assume that they will not do what they are expected to do and that is fine-tune or tailor the strictures of the Act to local requirements through the consultative process set up in the legislation. In the second place, the exercise of a local option by a municipality that is directed away from the maintenance of a common pause day (exercising "the power to nullify the objective") can only diminish the extent of the religious intrusion in that municipality.
183 Short of saying that the scheme of the Act is a charade, and one cannot say that on this record, I do not think that fear about how the municipal option might be abused is sufficient to conclude that the legislature is not sincere in its objective of a common secular pause day. The fear might have some validity if the exercise of the municipal option could in some way increase the burden on minority religious observers; could render more colourable the statute as enforcing or encouraging religious observance; but that is not the case here. To destroy the objective, i.e., a common pause day, the municipality would have to "open up" Sunday, not "close it down". Such a result could hardly place a burden on Saturday and other non-Sunday observers.
184 Returning to my quotations above from Dickson C.J.C. in Big M about how we can look to the effects of legislation to determine its purpose, and forgetting for the moment that we have already established what its purpose is, what is the effect of the local option on the objective of a common pause day? If it nullifies it by permitting municipalities not to have a common pause day, then it has destroyed the objective. What does that mean? Certainly it means that in the municipalities that exercise the option, there are no burdens on the retailers, employees and consumers that Southey J. found to be affected. There is no pause day. The burden then must rest on the inhabitants of those municipalities who do not exercise the option. But this brings us back to what was said by Rand J. in the Lord's Day Alliance v. British Columbia (Attorney General) case. We are not concerned with "legislative efficacy" in carrying out the purpose. This issue is really one of alleged discrimination under s. 15(1) of the Charter because retailers and their employees could be treated differently in one locality as opposed to another. It is an issue that has been thrashed out in the United States.
AMERICAN AUTHORITY
185 To start with, it is significant that there was a local option in the Act considered in Edwards in the form of the tourist exemption, but no objection appears to have been taken to it. Certainly it was not discussed by the court. However, the leading American case on this point, McGowan v. State of Maryland, 81 S.Ct. 1101 (1961), was referred to by both Dickson C.J.C. and La Forest J. albeit in a different context.
186 In McGowan, the United States Supreme Court dealt with a Maryland Sunday closing by-law that included a municipal option. The first objection of those opposed to the legislation was that it violated First Amendment protection of freedom of religion. It was argued that Sunday is the sabbath day of the predominant Christian sects and the enforced stoppage of labour on that day is to encourage and facilitate church attendance by Christians and to induce people with no religion or marginal religious beliefs to join the predominant Christian sects. In rejecting this argument, Chief Justice Warren, speaking for the majority, stated at p. 1115 S.Ct.:
Sunday Closing Laws, like those before us, have become part and parcel of this great governmental concern wholly apart from their original purposes or connotations. The present purpose and effect of most of them is to provide a uniform day of rest for all citizens; the fact that this day is Sunday, a day of particular significance for the dominant Christian sects, does not bar the State from achieving its secular goals. 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.
187 The next argument was that apart from the religious infringement argument, there was a violation of due process because of the lack of uniformity of treatment under the statute throughout the state. It was held that classification within laws does not bring about denial of equal protection of laws. In speaking to this argument, Warren C.J. said at p. 1106 S.Ct.:
But we have held that the Equal Protection Clause relates to equality between persons as such, rather than between areas and that territorial uniformity is not a constitutional prerequisite. With particular reference to the State of Maryland, we have noted that the prescription of different substantive offenses in different counties is generally a matter for legislative discretion. We find no invidious discrimination here.
188 Frankfurter J., whom Harlan J. joined, gave a separate opinion, and it is he who was quoted in Edwards Books, although again not on this point. However, on the subject of municipal option Frankfurter J. stated the following at pp. 1191-92 S.Ct.:
Today, as Appendix II to this opinion, 366 U.S. 551, 81 S.Ct. 1201, shows, the general pattern in over half of the States and in England is similar. Broad general prohibitions are qualified by numerous precise exemptions, often with provision for local variation within a State, and are frequently bolstered by special provisions more heavily penalizing named activities. The regulations of Maryland, Massachusetts and Pennsylvania are not atypical in this regard, although they are undoubtedly among the more complex of the statutory patterns.
The degree of explicitness of these provisions in so many jurisdictions demonstrates the intricacy of the adjustments which they are designed to make.
and at p. 1192 S.Ct.:
Certainly, when relevant considerations of policy demand decisions and distinctions so fine, courts must accord to the legislature a wide range of power to classify and to delineate.
In a footnote at p. 1195 S.Ct.:
Many of the jurisdictions which have Sunday laws provide some form of local option procedure for the creation of exceptions. This is only to recognize the obvious fact that conditions of limited geographical range may be determinative in striking the balance of forbidden and permissible Sunday activity which best accords with popular habits and desires. In Maryland the State Legislature itself does the job of adapting the general state-wide law to local circumstances. This difference in method can scarcely entail different federal constitutional consequences.
189 McGowan appears to me to be persuasive authority. It is clear that the local option does not further intrude on religious freedom: if anything, it relieves against it. As I stated earlier, this local option argument is more relevant to a challenge under s. 15 (equality rights) than to s. 2(a) and freedom of religion. The real concern of the respondent supermarkets is directed to regional difference in the application of the Act which could place them at a competitive disadvantage. This has nothing to do with freedom of religion and as Warren C.J. in McGowan, supra, stated, "territorial uniformity has nothing to do with constitutionality".
CONCLUSION
190 In my opinion, the Act as amended does not infringe freedom of conscience and religion protected by s. 2(a) of the Charter. It is constitutionally valid. In the alternative, if I was forced to address arguments presented under s. 1 justification, I would hold that the Act as amended is less intrusive than the Act which was found to be justified in Edwards Books. For the reasons given, I would not accept the finding of Southey J. that the municipal option took away that justification.
MISCELLANEOUS
Section 7 -- the right to liberty
191 Southey J. held that the Act as amended does not violate the right to liberty under s. 7 of the Charter and relied on Edwards Books at pp. 785-86 S.C.R., pp. 53-54 C.R.R. I think a succession of cases makes it clear that the conduct prohibited by the Retail Business Holidays Act does not deprive individuals of the right to liberty or security of the person as contemplated by s. 7.
192 Edwards Books specifically rejected that s. 7 guaranteed "an unconstrained right to transact business whenever one wishes" (p. 786 S.C.R., p. 53 C.R.R.). The Chief Justice dealt extensively with the rights of consumers in his judgment as well. He held that there was no infringement of s. 7 in the former Act.
193 Other cases establish that property or economic rights of the nature we are concerned with under this Act are not covered under s. 7 of the Charter. See R. v. Videoflicks Ltd. (1984), 48 O.R. (2d) 395, 9 C.R.R. 193, 15 C.C.C. (3d) 353, 14 D.L.R. (4th) 10, 5 O.A.C. 1, 34 R.P.R. 97 (C.A.) at p. 433 O.R.: "The concept of life, liberty, and security of the person would appear to relate to one's physical or mental integrity and one's control over these, rather than some right to work whenever one wishes"; R. v. Quesnel (1985), 53 O.R. (2d) 338, 24 C.C.C. (3d) 78, 12 O.A.C. 165 (C.A.) [leave to appeal to S.C.C. refused [1986] 1 S.C.R. xiii, 55 O.R. (2d) 543n, 68 N.R. 160n, 16 O.A.C. 80n], at p. 346 O.R., p. 86 C.C.C. (s. 7 does not relate to employment); Charboneau v. College of Physicians and Surgeons of Ontario (1985), 52 O.R. (2d) 552, 20 C.R.R. 68, 22 D.L.R. (4th) 303 (H.C.J.) at pp. 557-58 O.R. (confidentiality of patient's records); Aluminum Co. of Canada v. Ontario (1986), 55 O.R. (2d) 522, 25 C.R.R. 50, 29 D.L.R. (4th) 583, 16 O.A.C. 14 (Div. Ct.) [leave to appeal to Ont. C.A. refused September 2, 1986], at pp. 529-30 O.R. (protection of economic rights); Malartic Hygrade Gold Mines (Canada) Ltd. v. Ontario Securities Commission (1986), 54 O.R. (2d) 544, 24 C.R.R. 1, 27 D.L.R. (4th) 112, 15 O.A.C. 124 (Div. Ct.) at pp. 549-50 O.R., pp. 117-18 D.L.R. (protection of economic, commercial or property rights).
194 I agree with the reasoning of Southey J. on this point, particularly his rejection of Wilson v. British Columbia (Medical Services Commission); Arnason v. British Columbia (Medical Services Commission) (1988), 41 C.R.R. 276, 30 B.C.L.R. (2d) 1 sub nom. Wilson v. Medical Services Commission of British Columbia, 53 D.L.R. (4th) 171, [1989] 2 W.W.R. 1 (C.A.) [leave to appeal to S.C.C. refused (1989), 36 B.C.L.R. (2d) xxxviii, 92 N.R. 400n] as being of application.
Section 15(1) -- equality rights
195 Southey J. found this section to be applicable only so far as it related to the discrimination he found with respect to religion. Section 15(1) by itself has no application to any of the persons affected by this Act. It is now clear that the discrimination contemplated by this section must be based on grounds that are personal and either enumerated in the section or analogous thereto. (Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, 36 C.R.R. 193, 34 B.C.L.R. (2d) 273, 25 C.C.E.L. 255, 10 C.H.R.R. D/5719, 56 D.L.R. (4th) 1, 91 N.R. 255, [1989] 2 W.W.R. 289, at pp. 174 and 182 S.C.R.). In Reference re Workers' Compensation Act, 1983 (Newfoundland), ss. 32 and 34, [1989] 1 S.C.R. 922, 40 C.R.R. 135, 56 D.L.R. (4th) 765, 96 N.R. 227, 76 Nfld. & P.E.I.R. 181, 235 A.P.R. 181, La Forest J., speaking for the court, held that workers were not a group within the scope of the Act. He said at p. 924 S.C.R., p. 136 C.R.R., p. 766 D.L.R.:
The situation of the workers and dependents here is in no way analogous to those listed in s. 15(1), as a majority in Andrews stated was required to permit recourse to s. 15(1).
196 Accordingly, I can see no basis for applying s. 15(1) to retailers, consumers or employees under this Act.
Employment Standards Act
197 In response to the contention of the Attorney General that a common pause day was necessary to prevent the exploitation of employees of retail businesses who would otherwise be compelled to work on Sundays, counsel for the respondents referred to s. 39(h) as enacted by S.O. 1989, c. 4, s. 2, of the Employment Standards Act, supra, and submitted that such protection already existed in law. But s. 39(h) is not a blanket protection. It provides only that "an employee may refuse any assignment of Sunday work that the employee considers unreasonable" (emphasis added). This requires the employee to take the initiative and provide a justification for his refusal. The Retail Business Holidays Act avoids any possibility of discrimination against the employee by closing down the retail business of the employer.
Fresh evidence
198 We were asked to admit certain evidence submitted by the Attorney General and some of the respondents as fresh evidence and reserved on the point. It is not fresh evidence in any traditional sense, but as Sopinka J. indicated in Danson, supra, the rules for admissibility are flexible when dealing with constitutional issues.
199 What we have been offered as fresh evidence is really nothing more than a partial upgrading of the evidence, admitted without objection by Southey J., to cover the period between trial and appeal. Because it is a continuum of the evidence that was before Southey J., the admissibility of which was not contested in this court, I would be prepared to admit it. However, I do not find it helpful and I have placed no reliance upon it in my reasons.
Status of the respondent supermarkets
200 Counsel for the Attorney General argued with vigour that the remedy of a declaration of invalidity is not available to any of the respondent corporations because none of them possess the rights or freedoms upon which the Charter claim is based. Because of my conclusion that the Act is constitutionally valid I do not find it necessary to deal with this issue.
DISPOSITION
201 For the reasons given I would allow the appeal and set aside the judgments encompassed by the appeal. In their place I would allow judgments dismissing the applications of the respondent supermarkets and the named employees of A & P. The application of the Attorney General for injunctive relief against the corporate respondents should be remitted to the court of first instance to be disposed of on its merits.
202 It was a condition of the order of Dubin C.J.O. that the intervener Association would not seek costs of this appeal. Peel was not a party to this appeal. If the Attorney General is seeking costs, the court should be spoken to.
Appeal allowed.