Dissension Around the Sunday
January 1, 1987 -
Instead of being a rest day, the Sunday is increasingly becoming a day of contention and division. Some, including the editorial writer of The Globe and Mail, argue that even Ontario's Retail Business Holidays Act, which restricts the operation of businesses on Sunday, is "a thinly-disguised sectarian document" allowing Christians to impose their prejudices on the rest of society. Consequently, many Christians have become very unsure of how or whether to mount a defence for the legal preservation of the Sunday as a common day of rest.
Until the passing of the Canadian Charter of Rights and Freedoms in 1982, the Lord's Day Act had withstood any court challenges. However, when the Supreme Court of Canada was asked in 1985 to rule on the validity of the Lord's Day Act in connection with a charge against Big M Drug Mart Limited, it had to consider Section 2 of the new Charter which states that everyone enjoys "the freedom of conscience and religion." In summary, the Court held that the purpose of the federal Lord's Day Act "was the compulsion of religious observance. The Act gives the appearance of discrimination against non-Christians and prohibits non-Christians for religious reasons from carrying on otherwise lawful, moral and normal activities." Chief Justice Dickson elaborated:
To the extent that it binds all to a sectarian Christian ideal, the Lord's Day Act works a form of coercion inimical to the spirit of the Charter and the dignity of all non-Christians. In proclaiming the standards of the Christian faith, the Act creates a climate hostile to, and gives the appearance of discrimination against, non-Christian Canadians . . . The protection of one religion and the concomitant non-protection of others imports disparate impact destructive of the religious freedom of the collectivity . . .
In my view, the guarantee of freedom of conscience and religion prevents the government from compelling individuals to perform or abstain from performing otherwise harmless acts because of the religious significance of those acts to others. The element of religious compulsion is perhaps somewhat more difficult to perceive (especially for those whose beliefs are being enforced) when, as here, it is non-action rather than action that is being decreed, but in my view compulsion is nevertheless what it amounts to.
Sunday Laws Are Not Repressive
Mr. Justice Dickson's judgment contrasts sharply with the dissenting opinion contained in a previous court decision (the Alberta Court of Appeal) of Mr. Justice Belzil, who argued that the Lord's Day Act does not compel Christians or non-Christians to observe a holy day. He stated that a distinction must be made between mere observance of Sunday as a day of rest and the observance of Sunday as a religious holy day. He also argued that the Canadian nation is part of Western civilization in which Christian values and traditions are deeply imbedded. He continued:
I do not believe that the political sponsors of the Charter intended to confer upon the courts the task of stripping away all vestiges of those values and traditions, and the courts should be most loathe to assume that role. With the Lord's Day Act eliminated, will not all reference in the statutes to Christmas, Easter, or Thanksgiving be next? What of the use of the Gregorian Calendar? Such interpretation would make of the Charter an instrument for the repression of the majority at the instance of every dissident and result in an amorphous, rootless and godless nation contrary to the recognition of the Supremacy of God declared in the preamble. The "living tree" will wither if planted in sterilized soil.
. . . What the Canadian Charter, the United Nations Covenant and the European Convention have in common is a guarantee that no person shall be subjected to oppression or repression on religious grounds, or be compelled to conform to religious cult, doctrine or belief. The Lord's Day Act does not offend that guarantee.
There is no doubt that the decision of Mr. Justice Dickson is more in harmony with the spirit of modernity than the dissenting opinion of Mr. Justice Belzil. At any rate, the law of the land, as interpreted by the Supreme Court of Canada, is the final authority. The next phase in the fight over the Sunday is now occurring in all the separate provincial jurisdictions. Some provinces are moving towards a wide-open Sunday, while others are holding back.
The Next Phase
In Ontario, the Retail Business Holidays Act was passed to replace the old Lord's Day Act. Many stores in Ontario have begun to violate this Act by remaining open on Sunday. The Act has been upheld by the Ontario Court of Appeal, and on December 18 the Supreme Court of Canada ruled with a 6 to 1 majority that the Retail Business Holidays Act does not violate the Charter of Rights and Freedoms. Thus the Act, as it now stands, is the law of the province. But a number of vocal groups have vowed that the battle will now simply move over to the political arena. Expect therefore that provincial politicians will be bombarded with demands to change the law. That's why there is reason to be grateful for the Supreme Court decision, but no reason to imagine the struggle against the wide-open Sunday has been won. A Globe and Mail editorial on the day after the Supreme Court decision gave a good indication of what to expect: "The law should be obeyed until it is abolished, but it should be abolished. The contradictions within the Act, and the attempt to impose a pause day on an increasingly restless public, spell its eventual doom."
Thus the question still confronts Christians: Does restricting Sunday business via the law mean that Christians are imposing their prejudices on others? Judge Belzil's opinion, referred to above, is helpful. So is an article by Toronto lawyer Harry Underwood about the 1985 Supreme Court ruling in the Big M case, which declared the old Lord's Day Act invalid. According to Underwood, the Big M decision means that the courts are now "sweeping the laws away, as their newly-appointed duty. They do so not by any process of reasoning from legal principles, but in response to the prejudices of popular opinion."
Law and Freedom
Underwood pointed out that the Act today works no religious oppression and that while the Supreme Court decision therefore affirms nothing, it denies a certain value. "That value belongs to our history as a free people, and to the extent that the decision denies a part of our history, it diminishes a little of our freedom . . . Freedom of religion has long been accepted; but what is now proposed is freedom from religion, which not even the Charter recognizes, explicitly. Probably without realizing the implication, the Supreme Court has ruled that the only person whose interests are worth serving in our society is the atheist. What higher principle could justify so thoroughgoing a revision of the law?" Mr. Underwood concludes:
The Big M decision has left no one more free. To the extent that it devalues religion, it contributes to an atmosphere in which Jews and Moslems and Christians who do believe are pressured to conform to the prevailing secular outlook. Believers and unbelievers alike, we are all a little poorer. In the way that is too characteristically Canadian, the Court has pared away a bit of our history, denigrated our unwritten constitution, and weakened our understanding of the tradition that has fostered our rights. Imaginative lawyers will no doubt find ways to extend the damage. ("Sunday at the Supreme Court," The Idler, May 1986, pp. 33-37)
At least one Jewish spokesman agrees with Underwood. David Lewis Stein, Toronto Star columnist, wrote that he resented earlier attempts by Christians to impose their beliefs on others. But he does support the present Sunday legislation, and he believes that the attempt to eliminate it amounts to a victory for American-style commercialization. He writes:
The idea of one day of rest goes right back to the opening verses of Genesis. I think something deep inside the human soul cries out to have at least one day out of seven free from getting and spending. Given the diversity of religions in our society, there's no particular reason why it should be Sunday. For my own religious observance, I'd much prefer Saturday. And I suppose the day of rest could be any day of the week. But Sunday does have roots in our common history. I don't want to go back to the dark blue Sunday of the past. But I do want to keep at least a pale blue Sunday that is different from the rest of the week (Toronto Star, December l2, 1986).
While no one of us would want to return to the time that laws were enacted to impose religious observances, including church attendance and payment of tithes, neither should we welcome the new approach to law by which centuries of tradition are swept aside in favour of the religion of atheism. Some regulation of the hours of work is inevitable; it is now done for every day of the week. In view of the fact that there is considerable agreement among workers, unions, churches, and (especially small) shopkeepers on the value of a common day of rest, it makes no sense to eliminate it.
Is it not puzzling that the Charter is used to pass myriad laws for the protection of various minorities, and at the same time invoked to justify eliminating a law which protects large numbers of people from the ravages of a completely commercialized society? Could it be that there is a fundamental flaw in the thinking behind the Charter of Rights and Freedoms? And that to base rights and freedoms on a secular notion of human autonomy is a prescription for moral confusion and societal dissolution?