LAW

Never on a Sunday

MALCOLM GRAY December 29 1986
LAW

Never on a Sunday

MALCOLM GRAY December 29 1986

Never on a Sunday

LAW

The Supreme Court of Canada has ruled against unrestricted shopping, but the decision did not end a bitter dispute in many parts of Canada. Indeed, Toronto furrier Paul Magder vowed last week to remain open for business on Sundays—as he has since he began defying Ontario’s Sunday closing law eight years ago. Since then Magder has spent $100,000 in his battle against the province’s Retail Business Holidays Act. Last week’s ruling, sparked by Magder’s repeated violations of the law, confirmed the right of all provinces to restrict Sunday shopping. Even though the court upheld convictions against Magder and three other Toronto-area merchants, those infractions occurred before the April, 1985, proclamation of equality provisions in the Charter of Rights and Freedoms. But the court decided that they could not be applied retroactively. As a result, Magder’s lawyers could not use this crucial charter argument against a law that bars their client from selling fur coats— while permitting other merchants to sell goods ranging from cigarettes to flowers and magazines on Sundays.

At the same time, Chief Justice Brian Dickson, who wrote the majority report in the 6-to-l decision, acknowledged that the Ontario law infringed on the rights of Jews and other religious groups who observed the Sabbath on Saturday. Dickson said that this was a reasonable abridgment in order to achieve a common day of rest. But Justice Bertha Wilson disagreed. In a dissenting opinion she argued that the Ontario law respected some groups’ religious freedom “while others continued to be violated.” Still, until the court considers a challenge based on the charter’s equality provisions, last week’s decision clearly strengthened the provinces’ right to govern Sunday shopping.

The ruling will have its greatest effect in jurisdictions with laws similar to the Ontario statute—in Manitoba, New Brunswick and Nova Scotia. Officials in those provinces promised swift enforcement of Sunday closing laws in the wake of the decision. At the same time, spokesmen for several Ontario supermarket chains which had previously defied the closing law, said that they would no longer open stores on

Sunday. Only two weeks before the decision, other major retailers, including Zeller’s and The Bay department stores, had announced plans to defy the provincial act. Now, Barry Agnew, a vice-president for the Hudson’s Bay Co., urged Ontario officals to enforce the law. He argued that the firm’s 31 stores were already losing business to stores that open illegally on Sundays. Declared Agnew: “We will not tolerate a situation where there is unfair economic advantage.”

In response to such concerns, Ontario Attorney General Ian Scott introduced new legislation within hours of the Supreme Court decision. Under its provisions the province would obtain court injunctions against stores—and violations of those restraining orders could lead to jail sentences. In addition, Scott declared that the province would prosecute 4,000 charges already laid under the provincial act. They include more than 250 outstanding charges against Magder, with potential fines totalling a staggering $2.5 million if he were to be convicted of all alleged violations.

Certainly, last week’s court decision pleased labor representatives, many religious leaders and small businessmen—all of whom have formed a loose, countrywide alliance to restrict Sunday business operations. Winnipeg has been one focus for their concern. There, competition between supermarket chains prompted the Manitoba government to obtain a Dec. 5 court injunction prohibiting locally based Westfair Foods Ltd. from opening five stores on Sunday.

Still, the ruling will have little effect on shopping patterns in British Columbia and Alberta, where closing laws are a municipal responsibility, and there are few restrictions on retail outlets’ hours of operation. And although the other four provinces and two territories have laws similar to the Ontario act, a recent Gallup poll showed that 53 per cent of Canadians favor Sunday shopping—a four-percentage-points increase over a similar survey conducted three years ago. Ontario government officials are aware of those polls. For one thing, they have balanced their promise to enforce the Sunday shopping law with a commitment to create an all-party committee to study ways of satisfying that demand. Despite that hint of change, Premier David Peterson suggested in an interview following the Supreme Court decision that Sunday shopping rebel Paul Magder can expect more charges if he continues to test the newly strengthened law.

MALCOLM GRAY

MICHAEL ROSE