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From: dave@lsuc.UUCP (David Sherman)
Newsgroups: net.legal,net.religion,net.politics
Subject: Re: Violation of separation church and state????
Message-ID: <649@lsuc.UUCP>
Date: Thu, 16-May-85 20:07:57 EDT
Article-I.D.: lsuc.649
Posted: Thu May 16 20:07:57 1985
Date-Received: Thu, 16-May-85 22:37:15 EDT
References: <1192@opus.UUCP> <188@dcdwest.UUCP>
Reply-To: dave@lsuc.UUCP (David Sherman)
Distribution: na
Organization: Law Society of Upper Canada, Toronto
Lines: 70
Summary: it's not necessarily a religious restriction

In article <188@dcdwest.UUCP> benson@dcdwest.UUCP (Peter benson) writes:
||
||The restriction against selling liquor on Sunday is a
||religious restriction. 

I wish it were so simple. As an observant Jew, I can't shop on
Saturdays before sundown, and with most stores closed Sunday I
have to shop during the week for many things.

Sunday-closing legislation can be based either on religion
("everyone should rest on Sunday") or on the "regulation for
the good of society" premise ("employees need a day off, and
it's most convenient to let everyone take the same day").

 In Canada, the federal Parliament has the right to legislate
in criminal matters, while the provincial legislatures can
legislate general licensing and trade matters. The federal
Lord's Day Act makes it a criminal offense to carry on certain
types of business on Sunday. This legislation was, quite
properly, struck down a few weeks ago by the Supreme Court
of Canada. The Court held that the legislation is in violation
of the Charter of Rights and Freedoms.

However, several provinces (including Ontario, where I live)
have provincial legislation, such as the Retail Business
Holidays Act. This legislation purports to say nothing about
religion. However, it regulates the days on which businesses
may be open. The argument is that if one supermarket or
department store can be open 7 days a week, every other store
will have to as well, in order to avoid losing market share.
This will lead to a large number of employees being forced to
work 7 days a week, which is considered undesirable. Therefore,
all stores must close on one day. Since there are (many) more
Christians than anything else in the province, that day is
Sunday. This also protects observant Christians from being forced
to work on Sunday by an employer who isn't willing or able to
hire part-time help for a single day. Note: I don't agree with
this logic; I'm just explaining it.

The Retail Business Holidays Act has been challenged in the courts
under the Charter of Rights. So far it has reached the Ontario Court of
Appeal; the Supreme Court of Canada will no doubt hear the cases
within a year or so. The argument presented by the defendants is
that the legislation contravenes the protection in the Charter
of every person's freedom of religion.

The Court's response to the two cases before it was interesting.
Nortown Foods, a store operated by Jews who are Sabbath-observant
and which is closed on Saturday, won its case. The Court held
that freedom of religion includes not only the right to practise
one's religion, but the right not to be financially penalised
as a result of doing so. Since the store cannot be open on Saturday,
forcing it to close on Sunday violates the Charter.

Paul Magder Furs, on the other hand, is open 7 days a week.
The Court of Appeal ruled that the provincial legislation's
purpose is regulatory rather than religious, and therefore
the conviction was upheld. (The store is still open every Sunday,
and Magder is dutifully charged every week by Metro Toronto police.)

Personally, I hope that the Supreme Court agrees with Paul Magder
that the basis of the Retail Business Holidays Act really is
religious. But the arguments for the other side can't be
discarded without some careful thought.

Dave Sherman
The Law Society of Upper Canada
Toronto
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