It was a seemingly minor moment that led to a foundational legal decision.
It was a Sunday in 1982, and Big M Drug Mart in southeast Calgary was open for business. Housed in an old Safeway store, the 20,000-square-foot establishment was as much a general store as it was a drugstore, selling everything from prescriptions to party decorations.
One wouldn’t blink an eye today should such a store open its doors on a Sunday. But things were different in 1982.
On that day, police officers with the City of Calgary were in the shop, on duty, keeping watchful eye. They watched as several transactions were completed: the sale of groceries. Plastic cups. A bicycle lock. They moved into action.
Soon, Big M would be charged with violating the Lord’s Day Act, a federal law that traced back to 1906. Under it, Sundays were legally considered a day of rest. It was part of a legislative tradition rooted in Christian morality, going all the way back to the Romans and medieval kings.
Scofflaws would only face a small fine, but Nancy Lockhart was fed up.
Lockhart was co-owner of Big M Drug Mart, alongside her partner Michael Lasrado. Originally from Montreal, they had opened Big M with very little money, buying used fixtures and cash registers at auction.
Like other retailers at the time, they soon recognized that, despite the law, Sunday was good for business.
“Families came in together after church. You know, the Lord’s Day Act gives you the idea that it shouldn’t be open, because everybody’s at church, praying all day,” Lockhart recalled.
“In fact, it didn’t stop people from going to church. But it was a family activity.”
Big M Drug Mart wasn’t the only store in Alberta flouting Sunday shopping rules at the time. Most just paid the small fines of around $15 as a cost of doing business.
But soon, the practice began to fall under the microscope of the government and the press. The fines started getting bigger.
“And at that time, we decided that rather than just continuing to pay the fines, that we would challenge the law,” Lockhart said.
The Charter challenge
At that time, Tim Boyle was a young lawyer who had only been practicing law for about three years at a small firm when the Big M Drug Mart case came across his desk.
“The Lord’s Day Act was ostensibly a piece of legislation which took a commission from on high, and imposed the will of the Almighty upon the merchants of Alberta. They thought that to be highly improper,” Boyle said.
Big M Drug Mart had been charged in May of 1982. The Canadian Charter of Rights and Freedoms came into force just a month prior.
Suddenly, there was a novel way to defend against the charge.
“You couldn’t do it on the evidence, because they were clearly engaged in merchandising that wasn’t permitted by the statute,” Boyle said. “But now they had the ability to take on the law itself. That was something new.”
As a relatively new lawyer, Boyle didn’t have a deep knowledge of constitutional law. He took on a straightforward core argument: that Canada’s Charter of Rights guarantees freedom of religion, and thus a law enforcing religious practices was unconstitutional.
“I remember working very hard to get ahold of all the issues, spending a long time in the library, doing a lot of research. I didn’t have a research assistant, so I had to do that all on my own. I also remember being pestered a lot by your types, wanting to know what was happening,” Boyle said, referring to the frequent media attention tied to the case.
“It was a busy time. It was a heady time. It was an exciting time.”
As the public debate raged, the Big M Drug Mart case wound its way through the courts for a couple of years. A provincial court judge acquitted Big M, and the Crown appealed. The Court of Appeal dismissed the appeal and the case was sent to the Supreme Court.
Boyle made the trip to Ottawa for the Supreme Court hearing. He recalled the day being very cold, with one of the worst blizzards in years. He came ill-prepared, inadequately clothed with no boots or gloves. He recalled fending off a head cold at the same time.
“In the end, there was a feeling of, let’s just get this over with,” he said.
That wish took some time to materialize, as the court took more than a year before issuing its decision. Boyle felt as though the court was being very careful.
“That’s really the first case as to whether or not the Charter was going to work. Work in the sense of, could it actually defeat another piece of legislation?” he said. “No one really knew the answer to that question.”
When the decision eventually did land, it was a lengthy one. Boyle recalled receiving it just a few seconds before his phone began to ring off the hook with media inquiries, seeking comment. He pawed through the decision eagerly, hoping to understand it at length so that he could answer queries intelligently.
It was a victory. Not only had they won, the case had resulted in the Lord’s Day Act being struck down. The court ruled it violated religious freedoms.
Looking back, Boyle feels pride at this victory at an early stage in his career, even if some colleagues will playfully refer to him as “the Grinch that stole Sundays.”
“It made clear that religious freedom wasn’t just about the freedom to the free exercise of your religion in order to go to church, to pray, to wear different vestments,” he said. “It also meant the freedom from religious dogma being imposed on you by the secular powers.
“We have a full understanding, or a full application of the freedom of religion in Canada as a result of the Big M.”
A common day of rest
Forty years later, the Big M Case needs no introduction to students of the Canadian legal system. When students come to law school, they’ll inevitably read about the case, usually in their first year, as one of the defining cases of the Charter era, said Eric Adams, a professor of law at the University of Alberta’s faculty of law.
Still, in the 1980s, were one to ask people on the street if there should be a “pause” day on Sundays, many would have agreed, Adams said.
“It’s the way they grew up. Either they might have a Christian background themselves, or it was certainly a widespread part of Canadian ways of doing business,” Adams said.
“But Canada was a changing society, was becoming more multicultural, more multi faith, and people were themselves becoming less religious and less tied to those practices when they were based in a particular religious ideal.”
The critical distinction was that the ruling determined that having a rest day for a religious purpose was now not sustainable in a society in which everyone’s rights and freedoms to be religious and to not be religious were in place, Adams said.
“All of this had to be taken into account in a society that was committed to freedom, and that the state would not be in a position to be able to coerce or even indirectly coerce people into following Christian religious principles,” he said.
The Big M Drug Mart case did not end the Sunday shopping debate. It continued in provincial courts and at municipal council meetings for years. But the ruling was the first major decision the Supreme Court made on religious freedom under the Charter.
For Lockhart, finding out about the Supreme Court decision brought an immediate sense of elation, and a little bit of disbelief that it was their small company that could bring such a sweeping change to bear.
The Big M Drug Mart is no longer in operation. The business expanded to a second location just before an economic slump hit and it ended up getting sold off.
Lockhart would go on to join Shopper’s Drug Mart as an executive in Toronto, and worked with the company for many years. Later, she joined the Loblaw board of directors, prior to that firm’s acquisition of Shopper’s Drug Mart.
She sometimes finds herself reflecting on how the country has changed since the time of the Big M case.
“Some days, I think maybe we’d be better off without Sunday shopping. But given the pressures of everyday life for modern families, I think it’s just absolutely the right thing,” she said.
“I think, and I continue to believe, that the government shouldn’t be controlling to that degree.”
All provinces dropped their Sunday closing legislation throughout the 1990s.
