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Edward Books and Art v. The Queen, [1986] 2 SCR 713


Four Ontario retailers charged with failing to ensure no goods were sold on a holiday contrary to Retail Business Holidays Act. The provincial act established a common day of rest for retail workers. Exemption applied to smaller establishments to be open on Sunday. All four admitted they were open on a Sunday. Three were convicted and are claiming a violation of s.2(a).


Is 2(a) infringed?


The effects of legislation can coincide with a religious doctrine without being deleterious, and can be saved using a s.1 analysis. This case is a good example of judicial deference.


Majority – Dickson CJC:
*Intent: Providing uniform holidays to all workers - not an attempt to encourage worship
*Purpose: Purely secular, not in violation. Thus, effects analyzed for violation.
*Two arguments challenging effects of legislation:
**Makes more expensive for workers who observe a weekly day of rest other than Sunday to practice religious tenets
**Direct effect of forcing non-believers to conform to majoritarian religious dogma
*Coercion can be direct/indirect, intentional/unintentional, or foreseeable/unforeseeable
*Constitution shelters individuals/groups only to the extent that religious beliefs or conduct might reasonably or actually be threatened – not trivial/insubstantial
*A person is not compelled to engage in religious practices just because a statute coincides with the tenets of a religion
**The compulsion is indirect in the choices that you are forced to make
*Impact of Act
**Non-observers: No freedom of religion is abridged by the legislation
**Sunday observers: Consistent with their religious tenets, favourable impact
**Saturday observers: Jews/7th days burdened by legislation since Sunday-observing retailers are conferred an advantage by the Act
***Statutory disadvantaged of being forced to close an extra day
***Takes judicial notice of the fact smaller retailers are not disadvantaged
*Legislation or admin action increasing cost of practicing substantial belief is not prohibited if burden is trivial/insubstantial
*S.1 Analysis
**Pressing/substantial concern: SATISFIED
***Offering workers a protected day for family (secular)
**Rational Connection: SATISFIED
***Competitive pressure for retailers to extend hours of business
***Labour force especially vulnerable to subtle and overt pressure
***Legislative exemptions for various forms of business valid – reforms can be targeted to sectors with particularly urgent concerns
**Minimal Impairment: SATISFIED – no alternatives which impair the right less
***Could replace 3(4) with an exemption for retailers having a sincerely held religious belief requiring them to close store on day other than Sunday
***Operation of large retail outlets on Sundays would disrupt the quality of pause day
****Limitation of the scope in terms of employees denied benefits which the Act was designed to provide them
***Securing a Sunday holiday is still protecting the interests of vulnerable employees
***Granting the small business exemption means that small business owners are not brought before the State to justify religious practices
***Wrong to allow better situated individuals to roll back legislation that is intended to improve the positions of disadvantaged individuals
*Protecting the interests of 7+ employees is a “reasonably justified” limitation as balanced against the freedom of religion of those affected by the pause day
**Exemption in 3(4) - satisfactory effort to alleviate effects on Saturday observers
**Dickson showing significant legislative deference here
**No law is going to be perfect – giving legislature benefit of the doubt
Minority - Wilson J.:
*Rights apply to individuals regardless of personal characteristics
*Rights apply to groups because of certain characteristics
**You can’t draw lines in between members of the group – discrimination
**“Checkerboard” legislation: on the red square, you get the right. On the black square, no right.
*When the underlying issue is whether the infringement is justified, size of retailers is completely irrelevant
*Choosing between members of the group is an “unprincipled” approach

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