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SCC rules the protection against cruel and unusual treatment or punishment under s. 12 of the Charter for humans, not corporations.

Friday, November 13, 2020 - Filed in: Courts
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A corporation was found guilty of carrying out construction work as a contractor without holding a current license for that purpose, an offence under s. 46 of Quebec’s Building Act. Pursuant to s. 197.1 of that Act, the penalty for an offence under s. 46 is a mandatory minimum fine which varies depending on whether the offender is an individual or a corporation. Applying this provision, the Court of Québec imposed the then minimum fine for corporations of $30,843. The corporation challenged the constitutionality of the mandatory minimum fine on the basis that it offended its right to be protected against cruel and unusual treatment or punishment under s. 12 of the Charter . The Court of Québec dismissed the challenge, concluding that expanding the protection of rights intrinsically linked to individuals to include corporate rights would trivialize the protection granted by s. 12 . On appeal by the corporation, the Quebec Superior Court similarly held that corporations were not covered by s. 12 , as the provision’s purpose was the protection of human dignity, a notion meant exclusively for natural persons. A majority at the Quebec Court of Appeal, however, allowed the corporation’s appeal, concluding that since corporations could face cruel treatment or punishment through harsh or severe fines, s. 12 could apply to them. The dissenting judge was of the view that s. 12 does not apply to corporations."

The SCC (with two separate sets of concurring reasons) allowed the appeal and set aside the Court of Appeal judgment.

Justices Brown and Rowe wrote as follows (at paras. 1, 3-5):

"This appeal requires this Court to decide whether s. 12 of the Canadian Charter of Rights and Freedoms protects corporations from cruel and unusual treatment or punishment. Like our colleagues, we conclude that it does not, because corporations lie beyond s. 12 ’s protective scope. Simply put, the text “cruel and unusual” denotes protection that “only human beings can enjoy”: Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, at p. 1004. The protective scope of s. 12 is thus limited to human beings.

...

Despite our agreement in the result, we find it necessary to write separately in order to assert the proper place in constitutional interpretation of foreign and international sources such as those upon which our colleague Abella J. relies in her analysis. If these sources are to be accorded a persuasive character, it must be done by way of a coherent and consistent methodology. Coherence and consistency in a court’s reasons are important, because they are critical means by which it may account to the public for the manner in which it exercises its powers. This is particularly so on a matter so fundamental as constitutional interpretation. As Professor Stéphane Beaulac notes, a consistently defined methodology of interpretation is a means of promoting the rule of law, notably through legal predictability: “‘Texture ouverte’, droit international et interprétation de la Charte canadienne ” (2013), 61 S.C.L.R. (2d) 191, at pp. 192-93.

We also make a preliminary and more general point on constitutional interpretation. Our colleague Abella J. applies the primacy of constitutional text and considerations of purpose in accordance with the purposive approach adopted in R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at p. 344, recently affirmed in R. v. Poulin, 2019 SCC 47, at para. 32. In doing so, however, she makes several remarks which risk minimizing the primordial significance assigned by this Court’s jurisprudence to constitutional text in undertaking purposive interpretation.

Having regard to the decision under appeal, that of the Quebec Court of Appeal, we find Justice Chamberland’s dissenting reasons difficult to improve upon. His analysis belies any perceived need to dispose of this matter by referring extensively to international and comparative law. And his textual analysis ⸺ notably on the meaning of “cruel” ⸺ is compelling. As he put it, [translation] “[i]t would completely distort the ordinary meaning of the words . . . to say that it is possible to be cruel to a corporate entity”: 2019 QCCA 373, at para. 53 (CanLII). His discussion of the other Big M Drug Mart factors was also in keeping with this Court’s direction on the proper methodology of Charter interpretation."

Note: The summary and body are drawn from Eugene Meehan’s SupremeAdvocacy Weekly Updates for the Law Community.