O’REGAN J and SACHS J
therefore be looked at not through the lens of certain popular conceptions of morality, but
through that of constitutionally articulated values, more particularly those that concern the
entitlement of all citizens to live in a state in which gender equality is increasingly made a
reality. In answering the first question then, it is clear that our constitutional framework, not
only permits, but requires the Legislature to enact laws which foster morality, but that morality
must be one which is founded on our constitutional values.
[106] The question that next arises for consideration is whether the provisions of the Sexual
Offences Act under review, have as their purpose the engendering of constitutional values.
Ordinarily the purpose of legislation is relevant at the second stage of constitutional analysis to
determine whether a provision which limits constitutional rights is justifiable. There may be
times when a statute is manifestly in breach of constitutional rights, where the purpose of the
statute is to foster a constitutionally invalid purpose. Such a case arose in Canada. In Big M
Drug Mart,62 the statute in question was referred to as the Lord’s Day Act. It declared its
purpose in the most resolute and unambiguous of terms. As Chaskalson P said in Lawrence:63
“The Big M Drug Mart case concerned the provisions of the Canadian Lord’s Day Act.
Its name proclaimed its purpose as did its provisions. It appears from the judgment in
that case that the Act prohibited any work or commercial activity on the ‘Lord’s Day’ –
Sunday – as well as any games or performances where an admission was charged, any
transportation for pleasure where a fee was charged, any advertisement of anything
prohibited by the Act, the shooting of firearms and the sale or distribution of foreign
newspapers.
62
R v Big M Drug Mart Ltd (1985) 13 CRR 64.
63
Above n 17 at para 88.
72
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