Nov 28, 2014

Facts:Big M charged with carrying on the sale of goods on Sunday, contrary to the Lord’s Day Act (federal criminal law). Big M challenges the constitutionality of the Act as infringing on the guarantee of freedom of religion.

Issue: What is religion under s. (2)(a)? Is this infringement of s. 2(a) saved under s. (1)?

Held: Lord’s Day Act struck down. It compelled observance of a religious practice. Not justified under s. 1

Ratio: A person should not be coerced or compelled by the state to observe a religious practice. An invalid purpose kills legislation, and a shifting purpose is not permitted. Freedom of religious entails:

1.Absence of coercion or constraint

2.The right to manifest beliefs and practices

This right is not absolute. It is limited by: public safety, order, health, morals, or the fundamental rights and freedoms of others


·Fails the pressing and substantial objective of Oakes (Step 2(A))

oPurpose: enforce traditional Christian Sunday Sabbath

oPurpose was illegitimate

·Shifting purpose is not allowed. Two ways to characterize the purpose of Lord’s Day Act

oReligious – Public observance of the Christian Sabbath

oSecular – Providing a uniform day of rest from labor

·Strong consequences by not following the fact (criminal law)

Note: Two ways someone’s freedom of religion can be infringed:

1.Direct and indirect forms of coercion (something that is directly targeted and has its intention to force some to do or not do something – this case is an example of this);

2.Law of general application that has its coerce or constraint effect on religious believers indirectly (i.e. could not have anything on the balcony, which was interfering with their succa).

a.The intention is not to persecute any religion but it indirectly does so with this rule, as they are only trying to improve the aesthetic look of the condo building.

3.Is the law putting the burden on the individual or is it the religious practice itself?

a.In Big M, it is the law putting the burden on the individual (but for the law)

4.Freedom FROM religion (as opposed to Freedom to practice religion Anselym)