The Charter, freedom and a drugstore
Brian Bird and Derek Ross
Last Friday was the 38th birthday of the Canadian Charter of Rights and Freedoms. The Charter’s adoption in 1982 was a transformative moment for Canada. But what has made the Charter live and breathe is how, over the decades, it has been treated by the courts – especially the Supreme Court. In that regard, another important anniversary occurs today: the 35th birthday of R v. Big M Drug Mart, the first decision of the Court to interpret one of the Charter’s “fundamental freedoms”.
The case concerned the Lord’s Day Act, a federal law that penalized commercial activity on Sunday, the day of rest for most Christian denominations. In May of 1982, only weeks after the Charter’s adoption, Big M Drug Mart in Calgary was fined under that law for selling “groceries, plastic cups and a bicycle padlock.” The store owners successfully challenged the law as unconstitutional for unjustifiably infringing “freedom of conscience and religion” in section 2(a) of the Charter. The Supreme Court found that the law effectively imposed a particular religion on all Canadians and thereby violated this freedom.
Big M unveiled concepts that are now fixtures of our constitutional law. It introduced the idea of a “proportionality test” to scrutinize limits on Charter rights, unpacked the notion that the content of Charter rights flows from the interests that they protect, identified the "essence" of religious freedom, and declared that the Charter shields Canadians from the "tyranny of the majority".
Perhaps Big M’s greatest – and yet most under-appreciated – contribution to how we understand the Charter, however, is its discussion of freedom itself. Chief Justice Dickson noted that a "truly free society is one which can accommodate a wide variety of beliefs, diversity of tastes and pursuits, customs and codes of conduct.” Freedom, he wrote, “must surely be founded in respect for the inherent dignity and the inviolable rights of the human person” – it can “primarily be characterized by the absence of coercion or constraint”. In short, Chief Justice Dickson held that “no one is to be forced to act in a way contrary to his beliefs or his conscience” unless there is a compelling justification.
The robust view of freedom introduced in Big M has largely not been advanced or examined further by Canadian courts. Our constitutional law requires a much deeper understanding of what freedom is, and is not. Freedom is the key concept that unifies and grounds the Charter’s fundamental freedoms in section 2 such as freedom of expression, association, peaceful assembly, and others. Freedom also forms part of the standard against which limits on Charter rights must be justified. Section 1 of the Charter says that limits must be “demonstrably justifiable in a free and democratic society”.
35 years after Big M, is Canada a “truly free society”? Do we “accommodate a wide variety of beliefs, diversity of tastes and pursuits, customs and codes of conduct” as Big M insisted? Or do we tolerate only those which, to borrow from Big M, “appear good and true” to the majority? How willing are we, for example, to accommodate religious minorities who wear symbols to manifest their religious beliefs? What about individuals who hold traditional views on marriage? How do we treat people who are unable, for moral or religious reasons, to support the government of the day’s position on abortion or who cannot participate in euthanasia? Where freedom in Canada is limited, is it done for principled reasons or have we given in at times to the temptation to suppress beliefs that are, for one reason or another, unpopular? Tolerance and diversity mean more than making room for views that we reject but which do not challenge our core beliefs, and nothing less than a public square that welcomes dissent on even the most contentious issues.
As we celebrate the Charter’s accomplishments, we must not forget that the Charter protects all from state coercion and enhances everyone’s participation in society, not just those whose worldview aligns with majoritarian norms. The Charter is, for good reason, especially concerned with protecting persons who fall outside of the mainstream. As the Supreme Court once put it, the majority’s view “has no need of constitutional protection; it is tolerated in any event.” The story of Big M is emblematic of this principle.
The owners of that Calgary drugstore likely never imagined their case would reach the Supreme Court, let alone become a landmark decision with a blueprint for building a free and democratic Canada. 35 years later, we have certainly made good strides toward that goal – but there is still much more work to do.
Brian Bird is a postdoctoral research fellow in the James Madison Program at Princeton University. Derek Ross is the Executive Director and General Counsel of Christian Legal Fellowship.
This article was originally published by The Lawyer’s Daily (www.thelawyersdaily.ca), part of LexisNexis Canada Inc.