Introduction
This paper analyzes the case R v. Big M. Drug Mart1 from the point of view of living
constitutionalism and constitutional interpretation, with a focus on the transformation of longstanding legislative traditions in response to evolving societal values and the protection of
individual rights. The Lord`s Day Act,
enacted in 1906 that had prohibited business
transactions from taking place on Sundays and being a part of legislative tradition which started
in the 17th century in England
became inimical to the spirit of the Charter in 1985,
unconstitutional and offensive towards freedom of religious of Non-Christians. I would like
to analyze how legislative is historically changing and how the Courts are nullifying centuries
of tradition on the basis that some Acts contravened freedom of religious for irreligious or NonChristians.
The layout of the paper is as follows:
In Part 1, I provide a brief summary of the case. Part 1 also contains a sub-heading that
discusses the significance of the case and the issue it addresses. In Part 2, I delve into the
historical aspects of blue laws and the historical background of the Lord's Day Act. I also
briefly discuss the "living tree" doctrine as a method of constitutional interpretation.
In Part 3, I explore the "living tree" doctrine, discussing the case where the doctrine was first
applied and the most recent case where the court further defined the doctrine.
Finally, in Part 4, I turn to scholars' opinions on this subject and the societal shift in favor of
Sunday closure.
Brief Summary of the case:
1
R v. Big M. Drug Mart [1985] 1 SCR 295
In 1982, the Big M Drug Mart store in Calgary faced charges for operating on a Sunday, which
was against the Lord's Day Act of 1906. The store was initially found not guilty in a trial, and
an appeal to the Alberta Court of Appeal upheld this decision. Supreme Court of Canada has
also dismissed the Appeal.
The Supreme Court determined that the statute infringed upon section 2 of the Canadian
Charter of Rights and Freedoms, concluding that it lacked a genuinely secular foundation and
essentially aimed to establish a state-imposed religious requirement, rendering it
unconstitutional. The victory of the drug store was made feasible through section 52 of the
Constitution Act, 1982, which enables the invalidation of unconstitutional laws, unlike section
24 of the Charter, which pertains to individuals whose rights are violated. Since a corporation
is not a natural person, it cannot possess a religion, and, therefore, the religious freedom of the
corporation was not compromised.
In this instance, Chief Justice Brian Dickson articulated that religious freedom encompasses
the right to hold and express chosen religious beliefs openly without fear of obstruction or
retaliation. It also encompasses the right to practice religious beliefs, engage in worship, or
teach and disseminate religious principles. Religious freedom precludes the imposition of
religious requirements.
Notably, the Lord's Day Act became the first law within Charter jurisprudence to be entirely
invalidated.
Significance of the case:
Over 38 years R v. Big M. Drug Mart still remains the most significant case under the Charter.
It is a constitutional case and has several important key factors.
First at all, it is upholding and defending religious freedom and contributing to the broader
comprehension of constitutional rights in Canada. Second, it created Charter Legal Precedent.
It laid the groundwork for how Charter rights is understood influencing the evolution of Charter
law in Canada. Third, the case played a role in clarifying the interpretation of Section 1 of the
Charter, which permits reasonable limitations on Charter rights. It set a high standard for any
government restrictions on fundamental freedoms. The case also clarified the division of
legislative powers between Canada's federal and provincial governments. It determined that
certain laws, such as the Lord's Day Act, did not constitute a valid exercise of federal criminal
law authority.
The ruling further upheld the concept of the "Living Tree Doctrine" in the interpretation of the
Canadian Constitution. It highlighted the importance of the Constitution being a dynamic and
adaptable instrument that accommodates current values and shifts in society. This fundamental
idea has continued to influence the development of Canadian constitutional law.
Issue:
The central legal questions revolved around whether the Lord's Day Act violated the freedom
of religion and conscience, whether it could be justified under the Charter's Section 1, and
whether it fell within Parliament's jurisdiction under Section 91(27) of the Constitution Act,
1867.
Part 2
Historical Analyst
To analyze the case from the perspective of living constitutionalism I think we need to examine
two crucial aspects of Canadian legislation: historical changes and societal adoption and
adjustment.
I would like to start with short historical review of Canadian legislation which had colonial
period, period of Confederation during of which Canada became a self-governing dominion
within the British Empire and the most modern period when the power became divided between
federal, provincial and municipal governments.
As foundation of Canadian Constitution is British North America Act, in contrast to the
American constitution, Canada never contemplated independence from Britain and the British
North America Act could only be changed by the Parliament of the United Kingdom. Not
surprise that we inherited so many legislative traditions and rules of British Empire. Some of
them started in the 17th century in England. One of these traditions became the central in the
R v. Big M. Drug Mart. The federal Lord's Day Act2 was important legislative tradition of
British Empire that was passed during the reign of Charles I. In Canada Lord`s day Act had
been in force since 1906. Before that we had An Act to Prevent the Profanation of the Lord’s
Day, commonly called Sunday under which all noisy game, gambling, horse races, swimming,
fishing, hunting, or shooting were prohibited. In other words, anything that was fun was
forbidden. There were some exceptions. If you were attacked by a wolf, you could shoot it.
One exemption was allowed – mail distribution but from time to time the church tried to
prohibit even mail distribution. Everyone must observe the Sabbath or face the consequences
– penalty. Only during the Second World War, Sunday restrictions eased slightly. Cinemas in
some cities opened on Sundays to provide entertainment for the troops.
Under the Act ”It is lawful for any person after 1.30 o'clock in the afternoon Sunday of the
Lord's Day to provide, engage in or be present at any concert, recital or other musical
performance of an artistic and lawful cultural nature produced by a non-profit organization at
which an admission fee is charged and which but for this Act would be unlawful under section
6 of the Lord's Day Act (Canada), to do or engage any other person to do any work, business
2
Lord`s Act Day, R.S.C. 1970, c.L-13
or labour in connection with any such concert, recital or other musical performance which but
for this Act would be unlawful under section 4 of the Lord's Day Act (Canada). 1960-61, c. 50,
s. 5.”
Lord`s day Act was very important legislature and anyone obeyed. Blue-law was part of the
culture but the Canadian legislative system, as part of any other social instrument has evolved
to reflect the changing needs and values of Canadian society, with an emphasis on preserving
rights and freedoms while accommodating cultural, regional, and global complexities. It clearly
shows that the country's legislative history continues to unfold as it faces new challenges and
opportunities. Still having Lord`s day Act would be frozen conception that would be
inconsistent with living tree principals. According to the professor Hogg, the “living tree”
doctrine refers to a method of constitutional interpretation that allows for Canada’s
Constitution to change and evolve over time while still acknowledging its original intentions.3
Emma C. Howes from McGill University describes the “living tree” doctrine as a “preferable
approach for Canadian courts to take when considering claims, as it can help courts move away
from the restrictive “frozen rights” approach.4 Canadian Living tree doctrine as comparative
model of evolutionary constitutional interpretation.5
Part 3
The Living Tree doctrine
The Living Tree doctrine was first conceived in a 1929 decision, Edwards vs. Canada, issued
by Canada’s highest court at the time, the Judicial Committee of the Privy Council in Britain.
The decision established the right of women to be appointed to the Senate. However, this
transformation did not happen suddenly. Initially, the Canadian Supreme Court decided that
3
Hogg, Constitutional Law of Canada, vol 2, 5th ed (Scarborough: Thomson, 2007) at 36.8(a)
Emma C Howes, "Living Tree Doctrines of the Canadian Constitution and Indigenous Law" (2022)
31 Dal J Leg Stud 31.
4
5
Canadian Living tree doctrine as a model of evolutionary constitutional interpretation,
Leonardo Pierdominici DOI: 10.1515/pof-2017-0021, Volum 9, issue 3, 2017
women were not “qualified persons” and were not intended to be Senators. Subsequently, this
decision was taken to the Privy Council, where the judges took a more flexible approach to the
BNA Act. The Privy Council ruled that the word “persons” in section 24 included women and
made them eligible to be appointed to the Senate of Canada.
The Supreme Court adopted the doctrine, thereby embracing a method of constitutional
interpretation that openly aims to allow Canada’s constitution to change and evolve over time
while still recognizing its original intentions within natural limits.
Had we not adopted the Living Tree doctrine, the constitution would have remained strictly
tied to the original intent of its drafters. We would still have a Canadian Criminal Code dating
back to the 1940s, making it illegal to possess, print, publish, or sell a comic book depicting
any criminal act. Nowadays, any superhero from a comic book would violate the letter of the
law. We would still be prohibited from eating ice cream or playing tennis or soccer on Sundays.
We would still have an “Act to Prevent the Employment of Female Labour in Certain
Capacities," enacted in 1912, and women might still not have been able to vote or hold office.
Times have changed, and so has constitutional interpretation.
Another modern example of the living tree doctrine is the Reference re Same-Sex Marriage,
which questioned the constitutional validity of same-sex marriage. In this case, the Court
introduced another metaphor, stating that the 'frozen concepts' reasoning runs contrary to one
of the most fundamental principles of Canadian constitutional interpretation, that our
Constitution is a living tree which, through progressive interpretation, accommodates and
addresses the realities of modern life. The Court allowed the term 'marriage' to adapt and grow
with contemporary times, including unions of same-sex couples.
The interpretation of the Canadian Charter of Rights and Freedoms also makes use of the living
tree doctrine. For example, in Re B.C. Motor Vehicle Act, the Court stated, 'If the newly
planted 'living tree' which is the Charter is to have the possibility of growth and adjustment
over time, care must be taken to ensure that historical materials, such as the Minutes of
Proceedings and Evidence of the Special Joint Committee, do not stunt its growth.'
The living tree doctrine was alluded to during the process of patriating the Canadian
constitution in 1982 and continues to influence a number of key cases, one of them being R v.
Big M. Drug Mart. While the case does not explicitly mention the 'living tree' doctrine, the
decision reflects this principle by prioritizing a contemporary and evolving interpretation of
constitutional rights. It rejected a rigid, historical interpretation and embraced a more dynamic
and modern view that aligns with current values and expectations of Canadian society. The
Court emphasized that the Charter's provisions should be interpreted flexibly and in line with
evolving societal values, which aligns with the living tree doctrine. The Court recognized
broader societal interests and found the Lord's Day Act unconstitutional.
A hundred years ago, we could not have imagined this because Sundays meant one thing –
going to church and very little else. The Court stated, 'To the extent that it binds all to a sectarian
Christian ideal, the Lord’s Day Act works as a form of coercion inimical to the spirit of the
Charter and the dignity of all non-Christians. It takes religious values rooted in Christian
morality and, using the force of the state, translates them into positive law binding on believers
and non-believers alike.”
R v. Big M. Drug Mart. is real example of the living tree doctrine in action. The case
demonstrated the Supreme Court of Canada's commitment to interpreting constitutional rights,
such as religious freedom, in a way that reflects the changing values and needs of Canadian
society, in line with the principles of the living tree doctrine. However, it does not happened
suddenly. The Act was passed in 1906 and stayed in effect until almost one hundred years, until
1985, when a series of Supreme Court rulings declared it to infringe on the Charter right to
freedom of religion. There had been attempts to challenge Lord's Day Act before 1985. For
example, in 1903, in hearing an appeal of a decision about the Sunday operations of the
Hamilton Street Railway, the Privy Council struck down all Canadian provincial Sunday
closing laws, on the grounds that these constituted criminal legislation, which by the BNA Act
belonged exclusively to the federal government. In response, the Protestant Churn and the
Roman Catholic Church persuaded the federal government to enact Lord's Day legislation and
Act was in place until R v. Big M Drug Mart.
Part 4
Scholars` opinion
The living tree doctrine is often described as a living organism by many scholars, allowing the
interpretation of the Constitution in accordance with the dynamics of modern life. Without the
ability to interpret it in this way, the Constitution would remain fixed, outdated, and irrelevant.
However, as mentioned earlier, the living tree doctrine is a continually changing organism, and
recently, societal opinion has begun to shift in favor of Sunday closure. This shift occurred
because Canadian workers lost the right to a day of rest and gained the right to a day of work
or consumption. Large shopping chains could open on Sundays and call in low-paid employees
for work, while small businesses unable to afford it slowly lost revenue. People gained the
freedom to buy, eat out, and enjoy entertainment, while those serving them, in many cases, lost
the freedom of a mandatory, once-a-week day off with their families.
Sohrab Ahmari resurrected the discussion on “blue laws” in his essential 2021 book, "The
Unbroken Thread: Discovering the Wisdom of Tradition in an Age of Chaos,"6 which contains
a chapter making a powerful case for the Sabbath being a day set apart. The author believes
that blue laws are very pro-worker and pro-family, and that unions should support them. People
don’t exist to serve markets. He states, “Sunday shopping laws were abolished in the name of
6
Sohrab Ahmari, “The Unbroken Thread: Discovering the Wisdom of Tradition in an Age of Chaos”, (2021)
Convergent Books.
freedom, but it turned out to be freedom for Jeff Bezos and other large employers. Not freedom
for workers or families.” In short, it is not a radical proposal to suggest that Sunday should be
a day of rest for all, Christians and non-Christians alike. The Walmart greeter at the door early
on Sunday morning likely doesn’t have much choice about when she works. She, like most
people, is assigned her hours. Would she rather be there making meager but necessary earnings
rather than spending her time with her family or loved ones? Maybe, but I doubt it. Large
corporations consider Sundays simply as another day in which revenue must be accumulated,
and thus people must show up for work. They do not have the same options as those who like
to spend a Sunday afternoon browsing the aisles”.
In the Big M Drug Mart case, the Supreme Court of Canada (SCC) struck down the Alberta
Lord’s Day Act, which required businesses to close on Sundays, for violating section 2(b) of
the Charter. However, given recent movements and calls to revive old traditions, it is possible
that the Lord's Day Act could undergo a new interpretation. It's important to note that while
"Lord" is a term that can be used in a broadly inclusive manner, the definition of “the Lord” in
relation to religion remains consistent across all religious traditions. In Christianity, "Lord" is
a title often used to refer to God or Jesus Christ. In Islam, "Lord" refers to Allah, and in
Hinduism, "Lord" is often used to refer to various deities, such as Lord Shiva, Lord Vishnu, or
Lord Krishna, etc.
Therefore, the Lord's Day Act might primarily infringe on the religious freedom of atheists, as
was the case in Saguenay, but it may not necessarily infringe on the freedom of religious
individuals. While laws based on religious reasons and favoring one denomination over others
are deemed unconstitutional, the situation with the Lord's Day Act is not exactly the same.
Just as the 'living tree' doctrine allows Canada's Constitution to change and evolve over time
while still respecting its original intentions, it is possible that the constitutional tree may grow
further when society concludes that blue laws should be reintroduced to protect workers' rights,
potentially in a more adaptive form that aligns with current societal values.
Big M Drug Mart clearly illustrates how living Tree Doctrine works and how the balance
between the constitutional predictability and flexibility is maintained. Another cornerstone
cases where the living tree doctrine has been applied is Edwards v Canada,7 Reference Re
Same-Sex Marriage8, Irwin Toy Ltd. v. Quebec9, Ford v. Quebec (Attorney General)10. In all
these cases, the Constitution is examined within the context of contemporary society and its
needs, which make our Constitution modern and alive.
However, some scholars argue that “living tree” doctrine is not good for our society because
it can justify any Constitutional interpretation without restriction. They argue that “natural
limits should be preserved and we must prevent the logic of a “living tree” from permitting
unruly Constitutional interpretation”.11 In the opinion of Bradley W. Miller from University
of Western Ontario, “it is unfortunately, the Canadian courts have continued to affirm living
tree constitutional doctrine and denounce originalism without providing much of an account
of either theory”12.
I agree that this is particularly true concerning freedom of religion. It is crucial to respect
differences in beliefs and practices. Applying a rigid, frozen approach to the constitutional
interpretation of religious freedom might infringe on the freedom of one group of people, while
an overly flexible interpretation based on the living tree approach could infringe on the freedom
of another group of people.
7
Edwards v Canada, 2001 SCC 80, [Edward]
Reference Re Same-Sex Marriage, 2004 SCC 79
9
Irwin Toy Ltd. v. Quebec, [1989] 1 SCR 927
10
Ford v. Quebec (Attorney General), [1988] 2 SCR 712
8
11
Religious Freedom: A Frozen Concept or a Living Tree?, 2014, CCCC, online:
https://www.cccc.org/news_blogs/intersection/2014/11/16/religious-freedom-a-frozen-concept-or-a-living-tree/
12
Bradley W. Miller, Beguiled by Metaphors: The 'Living Tree' and Originalist Constitutional Interpretation in
Canada, The Canadian Journal of Law and Jurisprudence, Vol. 22, p. 331, 2009
The fact that our society dramatically changed since 1987 does not need to be proved. These
changes in our daily life, need some form of government action, such as coordination,
regulation, guidance. This includes also challenges caused by technological advancements.
The drafters of the Constitution Act, 1867 didn't anticipate these societal changes brought by
new technology, so the Constitution didn't explicitly assign jurisdiction over them. In some
cases, we need progressive interpretation, while in others, a less progressive approach would
be more beneficial.
Another complicated changes that occurred in our society are moral values. They have been
changed dramatically since 1867. Kavanagh includes in this category “changes in common
beliefs about what counts as a ‘cruel’ punishment, about who should be allowed to participate
in the democratic system, whether gender or sexual orientation should be grounds for
discrimination in employment or whether there is a right to have an abortion under certain
circumstances.13 Kavanagh here draws a distinction between conventional morality (which she
says that judges must ignore) and fundamental morality. It is difficult to determine whether
religious beliefs are part of conventional values or fundamental. However, it is clear that cases
involving freedom of religion require caution, particularly when judges` interpretations are
influenced by changing moral values in society.
Some scholars suggest that the living tree doctrine is still not actual working doctrine in Canada
because the Supreme Court rarely apply the doctrine in any substantial way, despite it being a
favorite among legal academics. In some cases the Courts has endorsed the opposite of a living
tree approach. In fact, in Comeau14, the interprovincial beer case, while the Court mentioned
13
Kavanagh, The Idea of Living Constitution, Canadian Journal of Law and Jurisprudence 16 (1):55-89
(2003)
14
R. v. Comeau, 2018 SCC 15
the living tree doctrine, it was quick to point out that the metaphor is not an open invitation to
constitutionalize modern policy outcomes15. In opinion of Mark Mancini the courts are not
institutionally or normatively capable to determine which values should be granted the
imprimatur of constitutional protection and to provide answers on questions that are not
evidence-based or fact-based.
Conclusion
Although the concept of the living tree is significant in the term of constitutional interpretation,
during this research I encountered limited information on how the doctrine should effectively
function. It safe to say that as Canadian society changed and became more diverse, the Court
realized that constitutional law needed to change too to protect the rights of Canadians, which
is a positive aspect. However, it remains unclear whether the living tree doctrine should be
used to broaden the existing extent of rights or if it should solely be applied to new, previously
unconsidered applications? How do we decide which values should be constitutionally
protected? How do we know which societal change to include a certain value in the
Constitution? Most importantly, how do we know if this change is good or bad for our society
and whether it should be protected or not? These questions remain unanswered. In answering
these questions we have to rely on the judgment of nine judges and their moral compass.
Mark Mancini, The Empty Canard of the Living Tree “Doctrine”, March 21, 2019 online block
https://doubleaspect.blog/2019/03/21/the-empty-canard-of-the-living-tree-doctrine/
15