Edwards Books

Edwards Books and Art Ltd v The Queen [1986] 2 SCR 713, 35 DLR (4th) 1
(pp. 851-863 Canadian Constitutional Law, Fourth Ed.)

Ø  A number of stores in violation of the Ontario Retail Business Holidays Act brought a challenge that the Act infringed s. 2(a) of the Charter

Ø  Section 3(4) of the Act provided exemption from the closure of small retail stores (size specific) on Sundays if they were closed on Saturdays for religious purposes

Ø  There were some other size-related exemptions, that included employee base, which gave retailers the ability to stay open on Sundays

Issue: Did it infringe section 2(a)? Was it justified under section 1 analysis?

Dickson CJC

Ø  The majority looked first at purpose and then effect of the legislation

Ø  The purpose was found to be secular rather than religious intent and therefore constitutional

Ø  There was a violation of section 2(a) of the Charter because Saturday observers suffered a financial disadvantage. Saturday observers would have to choose between their business or faith. This violation was found not to be trivial or insubstantial.

Section 1

Ø  The action of the legislation is aimed at the pressing and substantial concern of protecting workers from “alienation…from his or her closest social bonds” (p. 856). Employers should not be able to use legislation to get ahead on the backs of the employees.

Ø  The rational connection was split up into two questions:

1. Is it okay that the act only applied to the retail industry?

§  Court ruled that it was justified because the industry presented a pressing problem that the labour force was vulnerable

2. Is the scheme of the exemptions justified?

§  The retail sector could have reforms that are restricted to particular vulnerable groups of people; it does not have to apply to everybody. In this case the vulnerable group was considered to be Saturday observers.

Ø  Does it minimally impair the rights of the Saturday observers?

o   Yes it does. Because of section 3(4) of the Act, the legislature has shown that they are exercising an effort to minimally impair these rights. The size of the business stipulated by the legislation is not necessarily a magic number to be followed; it is simply a legislative opinion. It is not up to the judiciary to alter this.

Ø  Proportionality

o   It was not disproportionate because the legislature made a serious effort to accommodate the Saturday observers. Dickson CJC considered whether there were reasonable alternatives to the scheme in question. Other alternatives that were explored by the court did not meet the objectives of the Act.

Ø  The violation was saved by a section 1 analysis

Beetz J (concurring)

Ø  Found no violation of section 2(a) so no section 1 analysis was necessary. The effects on the Saturday observers were based on their own choice and not on the part of the legislatures. The Saturday observers are down a day of business whether or not Sunday retail is allowable.

Wilson J (in dissent)

Ø  Finds that the violation cannot be reasonably justified because you cannot give religious freedoms to one group and not to another

Ø  Size restrictions in relation to religious freedoms should not be protected. Small retailers are not a recognized comparator group under the Charter. Employees of small retailers should not be guaranteed rights that those working for large retail operations do not receive. It was the effect of the legislation that “[made] it vulnerable to attack on constitutional grounds” (p. 861).

From Note 3 p 863

Dickson CJC’s approach to section 1 analysis in Edwards Books above developed the Oakes test in the minimal impairment branch to include consideration of reasonable alternatives; an expanded reasonableness standard. Perhaps this is a foreshadowing of the contextual approach articulated by Wilson J in Edmonton Journal

From Note 4 p 863

The Ontario Act in question in Edwards Books above was amended in 1989 to “permit any retail store, regardless of its size, to open on Sunday provided it was closed for religious reasons on another day”. This amendment reflects the dissenting opinion of Wilson J in Edwards Books above.