What is now a bustling 7-day-a-week ethnic supermarket in a shopping plaza in Calgary’s gritty Forest Lawn neighbourhood was once Big M Drug Mart. In the early 1980s Big M became the focus of a fight over religion, freedom and commerce. It was a fight led by two determined storeowners who took their case all the way to the Supreme Court of Canada.
On a Sunday afternoon on May 30, 1982 events were to unfold in Big M that would not only influence Canadian law, but also lead to a fundamental change in Canadian society. At issue was the 74-year-old Lord’s Day Act which severely restricted Sunday shopping and s. 2 (a) of the about-to-be-proclaimed Charter of Rights and Freedoms which guaranteed freedom of conscience and religion.
Under the law as it was then enforced, certain stores, such as pharmacies could be open on Sunday to provide necessities, drugs for example. But on that Sunday in Big M police, according to the facts of the case, “watched clerks sell groceries, plastic cups and a bicycle padlock” to customers. They charged the store under the 1906 Lord’s Day Act which provided that upon conviction a retailer could be fined $40. Some stores had been opening regularly on Sunday in Calgary and elsewhere and treating the fines as a cost of doing business. While the offence and the fine seem trivial, the mundane events in the store on Calgary’s drab 8th Avenue SE were to engage some of the brightest legal minds of the day. It led to one of the first times the Supreme Court would rely on the Charter to resolve a difficult controversy. In its judgment the Court struck down the Lord’s Day Act as being an unjustifiable infringement of the Charter’s guarantee of freedom of religion. In doing so it would remind the country that as then-Justice Minister John Crosbie told the Toronto Star “we have to play by the new rules”.
For generations the observance of the Christian Sabbath in Canada had sparked long, bitter debates and Sunday shopping was a particularly contentious part of that debate. Especially in the postwar period several commercial outlets went to court to try to crack the ban. One of the most determined efforts was in 1962, when two bowling alley operators in Hamilton, Walter Robertson and Fred Rosetanni opened their business in defiance of the law and fought the charge to the Supreme Court (Robertson and Rosetanni v. R. [1963] SCR 651). They relied largely on the guarantee of religious freedom found in s. 1 (c) of the Canadian Bill of Rights, the toothless predecessor of the Charter of Rights and Freedoms. The majority of the Court with Justice John Cartwright dissenting, was not persuaded and Robertson and Rosetanni lost their case even though one of their lawyers was J.J. Robinette Q.C. a giant of the Ontario bar.
Big M was owned by two mid-twenties business partners who came to Calgary from Montreal, Michael Lasrado and Nancy Lockhart. Their lawyer Timothy Boyle, who still practises in Calgary, says the pair decided to engage in a long and expensive legal battle because “they both felt strongly on the basis of principle…[that] it just wasn’t right…to use this archaic law to control commercial activity.” Today, Nancy Lockhart who has gone on to successful careers in both business and the public sector in Ontario, says the fight was indeed a matter of principle but also of business survival. “Sunday” she recalls “was our busiest day.” It was also a manifestation of youth. “Sometimes when you’re young,” she says, “you’re ready to give it a shot. What you don’t know, doesn’t stop you."
Boyle was a junior in his law firm when Lasrado and Lockhart decided to fight the Sunday restrictions. He remembers his first appearance on the matter before the provincial court along with other stores who faced similar charges. “Large chains, big companies,” he recalls in his downtown Calgary law office, “they all had their lawyers in three-piece suits and one by one they all cratered and pleaded guilty and paid the $40 fine. At the end only the Big M was left standing to carry the challenge." While the lower court acquitted Big M it did not rely much on the new Charter but rather on an established constitutional division of powers argument.
When the case went to the Alberta Court of Appeal Boyle had to decide, “are we going to defend the provincial court decision or are we going to take an entirely different tack?” In other words, should he rely on the brand new Charter? That is exactly what Boyle chose to do. He based his position before the appeal court explicitly on the Charter and the guarantee of freedom of religion. In accepting that argument Justice J.H. Laycraft wrote in the majority judgment “sectarian observances shall neither be enforced nor forbidden”.
The Crown appealed to the Supreme Court in what was now widely recognized as a crucially important case. Boyle remembers on the day of the Supreme Court hearing in Ottawa he had a cold and Ottawa was hit by “a terrible blizzard”. But while conditions outside were frightful things inside, if not quite delightful, went pretty well for Boyle. He remembers that afterward he “had a good feeling about it.” But he says preparing the case was difficult. It was one of the very first Charter cases to go before the Court and as a consequence “there was no jurisprudence. No decided cases. We started with a clean sheet." The Court unanimously found for Big M, though Justice Bertha Wilson wrote her own concurring judgment. In an 87-page majority judgment Chief Justice Brian Dickson memorably wrote: “If I am a Jew or a Sabbatarian or a Muslim, the practice of my religion at least implies my right to work on Sunday if I wish.”
The Supreme Court judgment did not immediately result in wide-open Sunday shopping across the country. However, incrementally the force of the judgment saw provincial, territorial and municipal laws evolve resulting in the widespread modification or outright removal of Sunday closing laws.
University of Calgary constitutional expert, Professor Jennifer Koshan says Big M “has as much importance today as it did 30 years ago."
Naturally, Timothy Boyle looks back with some satisfaction on Big M and his role in winning the case for his clients, but there was one part of the experience that was not a success for Boyle. In the Supreme Court Reports his walk on Canada’s legal stage is marred by a typographical error. In the counsel listings he appears not as Tim J Boyle, instead he is mistakenly recorded as Jim J Boyle. Today he says it is still annoys him, but he likes to think of it as the only mistake the Court made that day.
This is an update of a story that appeared originally in The Lawyers Weekly.
Geoff Ellwand is a Calgary criminal lawyer with an MA in history. A former CBC reporter, he continues to write about the law and history. Geoff is also a member of the CBA Alberta Editorial Committee, and has leant his many talents to guest-editing this edition of Law Matters.