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A Defence lawyer's perspective on issues in criminal law

Please be aware that all commentary in my blog is designed to promote discourse on a variety of topics.  Though I certainly do some research on the topics discussed and often offer my "two-cents", please keep in mind that nothing I say in this blog is meant to be taken as authoritative on any subject.  My comments are really just me exercising my freedom of expression for the purpose of offering some insight on topics related to the practice of criminal law. As with all topics of discussion, it is important for you to be critical.  If you need a defence lawyer, please call 403.452.8018 for a free telephone consultation or consult with an experienced Calgary criminal lawyer. Happy reading!  Happy watching!

 


Happy Holidays! Christmas and New Year Holiday 101

Tagged Criminal Defence Blog

December 26, 2019

happy holidays

The Holiday Season encapsulating Christmas and New Year is a time when Government offices and many businesses in Alberta and across Canada close – some of them for an extended period. 

For many, “Christmas” is a religious holiday celebrating the birth of Jesus Christ.  On Christmas day many of the Christian faith gather in mass or Communion while a large number of non-Christians enjoy the holiday with family and friends.  As “Christmas” has a religious connotation it is worth recognizing the interplay between “Christmas”, section 2 of the Canadian Charter of Rights and Freedoms, the constitutionally invalid Lord's Day Act and the Employment Standards Code of Alberta

Before I begin my discussion on this subject, I wish to highlight that I am doing this only for the purpose of providing a brief legal overview of these holidays – after all, this is a law blog. However, please understand, I am a criminal defence lawyer in Calgary, not an employment lawyer or a general practice lawyer. As such, this information should be used only to titillate your interest on the subject and hopefully provide some basic insights into the Holiday Season.  

With that I say Happy Holidays.  

THE CHARTER

To begin with, section 2 of the Canadian Charter of Rights and Freedoms (the Charter) reads:

 2. Everyone has the following fundamental freedoms:

  • (a) freedom of conscience and religion;
  • (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
  • (c) freedom of peaceful assembly; and
  • (d) freedom of association.

As you can see, section 2(a) of the Charter enshrines “freedom of conscience and religion”.  Section 2(b)-(d) enshrines some related rights, such as freedom of thought, belief, peaceful assembly and association.  What is very important to understand about the Charter is that it only restricts government; it imposes no restrictions or obligations on non-government actors. For example, the Charter restricts the actions of the Federal and Provincial Government but has no jurisdiction over the actions of private parties or private industry, such as mom-and-pop businesses acting in your community. 

BIG M. DRUG MART

Now, I mentioned as a matter of interest the old Lord’s Day Act. This now constitutionally invalid legislation is interesting for a couple of reasons, the main one being that it was struck down by the Supreme Court of Canada in R. v. Big M. Drug Mart, [1983] 1 S.C.R. 295 on grounds that freedom of religion is interpreted to include “freedom from religion”. As the Lord’s Day Act forced private businesses to close on Sundays it violated section 2 of the Charter. 

The other interesting fact about the Lord’s Day Act and the Big M. Drug Mart case is it originated out of Calgary, Alberta, where it was first declared to be constitutionally invalid by former Assistant Chief Judge of the Provincial Court, Brian Stevenson. Thirty-six years later, Judge Stevenson continues to sit supernumerary in Calgary Provincial Court. Though it is the Supreme Court case that is most often cited for the proposition that any Provincial Court Judge has the power and jurisdiction to determine the constitutionality of law, much of the judicial analysis relied upon by the majority of the Supreme Court can be credited to Judge Stevenson. 

EMPLOYMENT STANDARDS CODE

For the purpose of this discussion, the importance of Big M. and the Charter is to highlight that Government cannot force private businesses to close on religious grounds. Also, the Charter does not apply to private businesses who may choose to stay open on religious holidays (such as Christmas and Good Friday), though other legislation may play a role. For example, section 25 of the Employment Standards Code of Alberta defines “general holidays” in the Province.  Section 25 reads as follows:

The following days are general holidays in Alberta: 

(a)  New Year’s Day, 

b)  Alberta Family Day, 

(c)  Good Friday, 

(d)  Victoria Day, 

(e)  Canada Day, 

(f)  Labour Day, 

(g)  Thanksgiving Day, 

(h)  Remembrance Day, 

(i)  Christmas Day, 

(j)  any other day designated, by regulation, as a general holiday by the Lieutenant Governor in Council, and 

(k)  any other day designated as a general holiday under an agreement between an employer and employees, or otherwise designated as a general holiday by an employer.

Notice, section 25 of the Employment Standards Code of Alberta does not recognize holidays on religious grounds; rather, religious holidays such as Christmas and Good Friday are recognized as “general holidays”. 

Like Christmas, New Year’s Day is a general holiday in Alberta.  Though the Government cannot force a private business to close for either day, the legislation provides that some employees may be eligible for “general holiday pay” in addition to regular pay. This is not a subject that I intend to explore further.

For the purpose of this article, the takeaway is that though the Christmas holiday is one that may serve a religious purpose, it is not a holiday legislated in Canada specifically on religious grounds.  For the purpose of Employment Standards, the Christmas holiday, Good Friday and other holidays, such as New Year’s Day are all statutorily recognized general holidays. 

CONCLUSION

For those of us practicing in criminal law in Alberta, the Holiday Season is nice for those of us practicing law in the Criminal Law Courts. Many Calgary criminal lawyers are enjoying the lengthy holidays spurred by extended Government Office and Court closures, while Prosecutors and Judges are hopefully enjoying what is for many of them, a much deserved break. 

For others, this time of year is very challenging. By way of example, there may be people languishing in custody awaiting the re-opening of Provincial Court for a bail hearing or the Court of Queen's Bench for a bail review.  Many charged with domestic violence offences may be separated from their family over the Holiday Season.  Many may be anxiously awaiting the return of their defence counsel of choice from holidays.  Whatever the case, I wish to acknowledge those experiencing these challenges. 

In the end, however, my final comment is to hope that everybody had a Merry Christmas and to wish everybody a very Happy New Year.

Thank you for reading.

 

David G. Chow

Calgary Criminal Lawyer


This entry was tagged Criminal Defence Blog and posted on December 26, 2019


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