( Disponible en anglais seulement )
Overview
The Supreme Court of Canada confirmed that corporations are not protected from cruel or unusual punishment by section 12 of the Canadian Charter of Rights and Freedoms [Charter] in the recent decision of Québec (Attorney General) v 9147-0732 Québec inc.[1] The Court split[2] over the proper approach to constitutional interpretation, and the majority decision may lead to changes to how courts consider international and comparative law when interpreting Charter rights.
This case arose from a $30,843.00 fine imposed on 9147-0732 Québec inc. (the “Company”) after it was found to have breached Québec’s Building Act.[3] The Company challenged the constitutionality of the provision of the Building Act which permitted the fine, arguing that it offended its right to be protected against cruel and unusual punishment under section 12 of the Charter.
The Company was unsuccessful with its constitutional challenge before the Québec Court and the Québec Superior Court. However, a majority of the Québec Court of Appeal found that section 12 of the Charter was capable of applying to corporations.[4] Chamberland J.A. dissented from the majority decision, writing that that the inclusion of the word “cruel” in section 12 strongly suggests that the provision only applies to human beings.[5] As he put it, a building about to be demolished by explosives could not complain that it was being treated cruelly.[6]
When considering this case, the Supreme Court agreed on a conclusion, but split over how to best reach it. While the Court was unanimous that Chamberland J.A.’s dissenting opinion should be adopted, the majority and minority disagreed on each other’s approach to the interpretation of section 12 of the Charter.
Relevance of Plain Words in Constitutional Interpretation
The majority emphasized that the analysis must begin by considering the text of the provision. As support, it looked to British Columbia (Attorney General) v Canada (Attorney General) and cited the following: “[a]lthough constitutional terms must be capable of growth, constitutional interpretation must nonetheless begin with the language of the constitutional law or provision in question”.[7]
The minority raised concerns about the danger of overemphasizing the plain text of the Charter as, in their view, this creates a risk that Charter rights will, over time, no longer represent the fundamental values of Canadian society and the purposes that they were meant to uphold.[8] The minority finds that constitutional interpretation should follow the “living tree” approach, and that several factors, including the text, can help inform the exercise.[9]
International and Comparative Law in Constitutional Interpretation
The majority and minority also disagreed over how courts should utilize international and comparative law. The majority finds that while the Court has traditionally recognized a role for international and comparative law when interpreting Charter rights, this role has been only to support or confirm an interpretation.[10]
The majority went on to find that not all sources of international law should carry the same persuasive weight, and distinguished between instruments that Canada has ratified, and are therefore binding, and those which remain non-binding on Canada.[11] While non-binding instruments can still be relevant and persuasive, they are not determinative.
The majority further notes a difference between instruments that pre-date and post-date the Charter. Instruments that pre-date the Charter can assist with a consideration of the historical origin of the provision at-issue since the drafters of the Charter drew from international conventions.[12] Instruments that post-date the Charter could still be of assistance to the general interpretation of the provision, but their weight depended upon whether they are binding or non-binding on Canada.[13]
Finally, the majority turned to decisions from foreign and international courts. While these decisions could play a role in Charter interpretation, the majority cautioned that the measures in effect in other countries say very little about the scope of Charter rights.[14] These decisions should only be treated as being persuasive, rather than binding.[15]
The minority agreed that certain international instruments and decisions are more important to the exercise of constitutional interpretation than others.[16] However, the minority (per Abella J.) characterized the majority’s system of categorization as a departure from past practice, and noted that the Court has never required use of a “confusing and multi-category chart” when deciding which sources are more relevant and persuasive than others.[17]
While obiter, the majority cautioned that courts must be careful with their treatment of international and comparative law.[18] The majority goes on to say that where international law is drawn upon for assistance with constitutional interpretation, the court should explain why a non-binding source is being considered, how it is being used, and the degree of persuasive weight assigned to it.[19]
While the majority notes that the more liberal approach that the minority takes to its use of international law was not determinative of the case-at-bar, it could have been under different circumstances.[20]
Constitutional Rights of Corporations
The jurisprudence indicates that the courts have generally been clear that corporations and natural persons are not to be treated the same in relation to Charter rights. Certain Charter rights have been held to be inapplicable to corporations, including those under section 7 (the right to life, liberty, and security of the person), section 9 (the right not to be arbitrarily detained or imprisoned), and sections 10(a) and 10(b) (the right to be promptly informed of the reasons for arrest or detention, and the right to retain and instruct counsel without delay).
The reasoning behind these decisions is not dissimilar to that in 9147-0732 Québec inc. Some Charter rights are framed in such a way that they only apply to natural persons. Corporations, for instance, cannot be detained, arrested, or imprisoned.
Having said that, corporations are permitted to assert certain Charter rights. In R v CIP Inc., for example, the Supreme Court was unanimous in finding that section 11(b) (the right to be tried within a reasonable time) did apply to the corporate appellant.[21] A corporation was similarly held to have a right to be presumed innocent in R v Wholesale Travel Group Inc.[22]
Key Takeaways
While courts have always needed to consider the persuasive weight assigned to non-binding law under consideration, the majority seems to demand further transparency regarding the court’s thought process. Lawyers and judges alike may want to carefully consider this direction from the court, and add some analysis as to how a certain piece of non-binding international law is being utilized in their overall analysis of a Charter right.
The Supreme Court’s determination that section 12 of the Charter does not apply to corporations continues the trend of treating corporations and natural persons differently in the application of Charter rights. Corporate parties considering asserting Charter rights should carry out an analysis of whether the particular right is drafted in such a way that it could only apply to natural persons.
However, it is also clear that corporations can and have been granted standing to raise Charter concerns on behalf of natural persons in appropriate circumstances.[23] In some cases, the only way a particular provision might be challenged is if a corporate party brings it forward due to practical realities surrounding the case, and the vulnerability of the natural persons who could otherwise bring the challenge.[24]
Therefore, in our view, corporations are likely to still serve important roles in advancing Charter litigation.
[1] 2020 SCC 32, 2020 CarswellQue 10837 (WL) [9147-0732 Québec inc.] .
[2] Majority: Wagner C.J., Moldaver, Côté, Brown, and Rowe JJ., reasons written by Brown and Rowe JJ.; Minority: Abella, Karakatsanis, and Martin JJ., reasons written by Abella J.; Concurring Decision: Kasirer J. agreed with the result, but did not comment further on the proper approach to constitutional interpretation, or on the use of international and comparative law in that approach.
[3] CQLR, c B-1.1.
[4] 9147-0732 Québec inc. c Directeur des poursuites criminelles et pénales, 2019 QCCA 373 at paras 137-140, 2019 CarswellQue 1425 (WL).
[5] Ibid. at para 60.
[6] Ibid. at para 56.
[7] [1994] 2 SCR 41. The majority further relies on R v Grant, 2009 SCC 32, [2009] 2 SCR 353; and R v Poulin, 2019 SCC 47, 379 CCC (3d) 513.
[8] 9147-0732 at para 76.
[9] Ibid. at paras 76 and 80.
[10] Ibid. at para 28.
[11] Ibid. at paras 31-32, 35.
[12] Ibid. at para 41.
[13] Ibid. at para 42.
[14] Ibid. at para 43.
[15] Ibid.
[16] Ibid. at para 102.
[17] Ibid. at para 104.
[18] Ibid. at para 47.
[19] Ibid.
[20] Ibid.
[21] [1992] 1 SCR 843.
[22] [1991] 3 SCR 154.
[23] Energy Probe v Canada (Attorney General) [1989], 68 OR (2d) 449 (CA): “The issue is rather whether a genuine interest in the validity of legislation can be shown. Mr. Borowski had no direct or future contingent interest in the abortion issue other than as a citizen with an interest in constitutional behaviour. Would his status have been differently considered if he had presented himself in the role of « Borowski Inc. », a non-profit organization devoted to issues related to abortion laws? I think not […]”; also see Canadian Council of Churches v Canada (Minister of Employment and Immigration), [1992] 1 SCR 236; and Canada (Attorney General) v Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, [2012] 2 SCR 524.
[24] See Eastside Sex Workers, supra note 22.