DATE: 20030109 DOCKET: M28389

COURT OF APPEAL FOR ONTARIO

GOUDGE J.A. (In Chambers)

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

• and -

HY AND ZEL’S INCORPORATED, DARREL J. BURKE, THE KITCHEN TABLE INC., THE WAREHOUSE DRUG STORE LTD., TITLE DISTRIBUTING LIMITED, JUDITH D. PERRIN, JAY ALAN CANTOR, ROLAND BIVENS, LARRY BOYD COLBORNE, TIMOTHY P. COLLINS, TINA DESLIPPE, FRANK DIGIOVANNI, MOHAMMED J. DIN, LARRY COLBORNE, KENNETH F. DOWLING, PATRICK FRANCIS, CLAUDE FRAPPIER, HERBIE’S DRUG WAREHOUSE LTD., HERBIES DRUG WAREHOUSE LIMITED, DAVID HERMAN, ROMEO JOSEPH, RICK JAMIESON, MELODY ANNE KAINE, PAUL MACKEY, PAUL D. MAGINNIS, JEFF MARQUETTE, BRIAN NEUFELD, JUDITH D. PERRIN, GERARD RICHER, JUSTICE R. SAUVE, MOHSIN VIRJEE, 988288 ONTARIO LIMITED

Applicants

Timothy S.B. Danson for the appellant

Hart Schwartz and Sean Hanley for the respondent

Heard: November 21 and December 4, 2002

GOUDGE J.A.:

[1] This is a motion seeking leave to appeal to this court pursuant to the provisions of s. 131 of the Provincial Offences Act, R.S.O. 1990, c. P.33 (the POA).

[2] The applicants are corporate retailers who carry on two drug store operations (known as Hy & Zel's and Herbies) and a food convenience operation (known as The Kitchen Table) and 25 retail employees.

[3] They were all charged with carrying on business on a proscribed holiday contrary to the provisions of the Retail Business Holidays Act, S.O. 1990, c. R.30, as amended (the RBHA).

[4] By agreement, the various charges were consolidated and tried together. At trial defence counsel conceded that the retail businesses were in fact open on the dates alleged, in violation of the RBHA. The only issue was the constitutional validity of the RBHA as it stood following major amendments in 1993 and a smaller amendment in 1996.

[5] At trial, Silverman J. heard considerable oral testimony and received a great deal of affidavit evidence. In reasons which can most positively be described as cryptic, he found that the RBHA contravened the Charter of Rights and Freedoms and as a result he stayed all charges.

[6] The Crown appealed and McCombs J. found that the trial judge was required by binding authority to uphold the constitutionality of the RBHA. He therefore allowed the appeal and, since it was conceded that the applicants disputed no other issues, he found them guilty as charged, and imposed fines on the corporate applicants but stayed the sentences against the individual applicants.

[7] The applicants seek leave to appeal both the finding of guilt and sentence. Section 131 of the POA permits leave to be granted on a question of law alone or as to sentence, provided it is considered essential in the public interest or for the due administration of justice that leave be granted.

[8] Turning first to the finding of guilt, whether the RBHA as amended, violates the Charter of Rights and Freedoms is clearly a question of law. The applicants' challenge focuses on s. 2(8) and s. 15, and to a much lesser extent s.7.

[9] Whether leave is required in the public interest or for the due administration of justice is a more difficult question.

[10] The Crown argues that the constitutionality of the RBHA has been tested so often that the result of this challenge will be a forgone conclusion.

[11] The history of these challenges is well known. The first culminated in R. v. Edwards Books (1986), 1986 12 (SCC), 2 S.C.R. 713. At that time the RBHA provided for 60 designated holidays namely every Sunday and eight other specified days. It also had a narrow Sabatarian exemption. The challenge failed because the Supreme Court of Canada held that the legislation did not violate s. 7 and that although it did violate s. 2(a), the narrow Sabatarian exemption was enough to save it under s. 1.

[12] In R. v. Paul Magder (1989), 16 O.R. (2d) 172 (Ont. C.A.) the same iteration of the RBHA was found not to violate s. 15. Leave to appeal to the Supreme Court of Canada was denied.

[13] In Peel (Regional Municipality) v. Greater Atlantic and Pacific Co. of Canada Ltd. (1991), 1991 7068 (ON CA), 2 O.R. (3d) 65 a second iteration of the RBHA was tested. There had been a number of changes to the legislation since Edwards Books, but primary among them was the Sabatarian exemption, which had been significantly broadened. The Crown successfully argued in this court that as a result of these amendments the RBHA was less threatening to freedom of religion and there was now no breach of s. 2(a). Equally, the challenge to this iteration of the RBHA based on s. 7 and s. 15 failed.

[14] Leave to appeal was granted by the Supreme Court of Canada. The case proceeded to that court styled as Hy and Zel's Inc. v. Ontario (A.G.) with constitutional questions were stated by the court addressing the alleged violations of s. 2(a) and s. 15, but not s. 7. However, the ultimate decision reported at [1993] 2 S.C.R. 675 did not address these questions. Rather it dismissed the appeal because the appellants lacked standing. In the course of doing so Major J. writing for the majority said this at paragraph 14:

The validity of holiday shopping legislation has been challenged on many occasions. In Edwards Books, the Act was held to violate s. 2(a) of the Charter but was a reasonable limit under s. 1. The present action challenges amendments intended to eliminate the s 2(a) violation found. For the purposes of these reasons only, I am prepared to assume that the numerous amendments have sufficiently altered the Act in the seven years since Edward Books so that the Act's validity is no longer a foregone conclusion.

[15] A third iteration of the RBHA was created by amendments in 1993 and 1996, which remove all Sundays except Easter Sunday and Boxing Day as designated holidays. I will refer to this as the 1993 version. The Crown argues that as a result of these amendments the RBHA is now even more benign in relation to freedom of religion. In other words, the Crown says that the constitutionality of the 1993 version is axiomatic.

[16] While there would seem to be considerable force in this argument, there are a number of considerations that, in my view, make it important in the public interest and for the due administration of justice that this question of law be answered by this Court.

[17] First, while the second iteration of the RBHA was validated by this court in Peel, supra, the challenge to the constitutionality of the amendments creating this iteration raised issues of sufficient public importance that the Supreme Court of Canada granted leave to appeal. Despite upholding the first iteration in Edwards Books and Madger Furs, supra, the Supreme Court of Canada stated constitutional questions asking whether the RBHA as changed by these amendments violated sections 2(a) and 15 of the Charter. In disposing of that appeal Major J. was prepared to assume for the purposes of his reasons that these numerous amendments sufficiently altered the RBHA that even though they were intended to increase compliance with the Charter the Act's validity was no longer a forgone conclusion. Ultimately, however, the Supreme Court of Canada did not answer the constitutional questions posed. Moreover, these amendments, particularly the new Sabatarian exemption, all remain in the 1993 version. This history leaves something of an unresolved constitutional question mark surrounding those amendments in the face of the applicant's attack, based as it is on ss. 2(a) and 15, the same sections which underpinned the unanswered questions in Hy and Zel's.

[18] Second, not since 1991 in Peel, supra, has the RBHA been tested against s. 15 of the Charter. As I have said, the Supreme Court of Canada granted leave on this issue but did not decide it. Moreover, although it may not be relevant to the s. 15 argument, the 1993 version is quite different from the second iteration scrutinized in Peel. Most important however the equality analysis required by s. 15 has evolved significantly over the years. As the Supreme Court of Canada said in Law v. Canada, 1999 675 (SCC), [1999] 1 S.C.R. 497 at 508:

Indeed, in the brief history of this Court's interpretation of s. 15(1) of the Charter, there have been several important substantive developments in equality law, relating to, among other things, the meaning of adverse effects discrimination, the role of context in identifying discrimination more generally, and the indicia of an analogous ground.

[19] This evolution in equality law adds another question mark to the constitutional validity of the 1993 version of the RBHA in the face of the applicant's s. 15 challenge.

[20] Third, while the difference in the quality of their reasons is palpable, the two judges who have given their views in this case have come to opposite conclusions on the constitutional issue presented by this case.

[21] Fourth, as the appeal judge made clear in his reasons for sentence, he rejected the Crown's submission that this case should not be treated as a test case. Had it begun as an application for a declaration of unconstitutionality, as test cases often do, the applicants would have had the right to a decision of a panel of this court on the ultimate question not just the view of a single judge of this court on a leave application. Given that this is a test case about the constitutionality of legislation, the applicant's ability to have a full panel adjudicate the question should not be significantly affected by the route the case has taken to get to this court.

[22] In summary, the unique history of this legislation arguably leaves some uncertainty surrounding the validity of the 1993 version of the RBHA when tested against s. 2(a) and s. 15 of the Charter. The same cannot be said for the challenge based on s. 7 where nothing has arisen to disturb the finality of the decision in Peel, supra.

[23] Ultimately, I think that in light of this history, the circumstances of this particular case and the underlying importance of assuring the constitutionality of legislation, any uncertainties surrounding the validity of the RBHA as amended should be resolved head on by a panel of this court not by a single judge on a leave application.

[24] I conclude therefore that it is essential in the public interest and for the due administration of justice that leave to appeal from conviction be granted on the question of whether the RBHA as amended infringes s. 2(a) or s. 15 of the Charter and if so, whether it can be saved pursuant to s. 1.

[25] However, I can see no similar imperative behind the request to appeal sentence. Indeed, this issue was not pressed in argument by the applicants. Nevertheless, since the matter is proceeding as a test case, I would suspend the sentences until the appeal is disposed of.

Released: January 9, 2003 "STG"

"S.T. Goudge J.A."