Protection from Cruel and Unusual Punishment Does Not Apply to Corporations, rules Québec (AG) v 9147-0732 Québec Inc

In recent years, mandatory minimum sentencing legislation for people convicted of criminal offences has often been ruled unconstitutional as cruel and unusual punishment contrary to Section 12 of the Canadian Charter of Rights and Freedoms [Charter] (R v Nur, 2015 SCC 15; R v Loyd, 2016 SCC 13; R v Boudreault, 2018 SCC 58). However, at issue in Québec (Attorney General) v 9147-0732 Québec Inc, 2020 SCC 32 [Québec Inc] are mandatory minimum fines imposed on a corporation for a regulatory offence—and whether Section 12 applies to corporations in the first place. In November, the Supreme Court of Canada (“SCC” or the “Court”) unanimously ruled that the Section 12 right to not be subjected to cruel and unusual punishment did not apply to corporations. To be protected by a Charter right, the party must have a particular interest that falls within its scope. The Court determined that the main interest of Section 12—of preserving human dignity—is not something that corporations possessed. Accordingly, the SCC ruled that corporations could not seek the Section 12 protection, making this the first SCC case to define the right’s scope.    

However, much of the decision focused on the method of Charter interpretation, particularly on the relative significance of the text and the role of international and comparative law sources. The majority’s decision, written by Justices Brown and Rowe, emphasized a textual approach and created a narrower framework for how to use international legal instruments. Justice Abella, in her concurring judgement, warned us of the pitfalls of a textual approach and argued that a contextual and compelling use of international and comparative law is integral to Canada’s constitutional structure.

Facts and Procedural History

The numbered company, 9147-0732 Québec Inc., is a sub-contractor that carried out construction work without obtaining a proper license as per Section 46 of Québec’s Building Act, CQLR c. B-1.1. Accordingly, they were fined the mandatory minimum for a corporation as per section 197.1 for $30,843. The company challenged the constitutionality of the fine as violating Section 12 of the Charter, which the Court of Québec and Québec Superior Court rejected. The Québec Court of Appeal (“QCA”) reversed the lower court’s decision and determined that, since other Charter rights applied to corporations, Section 12 could apply as well, and that the Section 12 protection conferred a tangible benefit to them. Justice Chamberlain disagreed with the decision and approach in his dissenting opinion at the QCA—his dissent was greatly cited by the recent SCC decision.

Textual vs Contextual  

Section 12 of the Charter states that:

12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment (Charter of Rights and Freedoms).

Charter interpretation must be grounded in a purposive analysis, as instructed by R v Big M Drug Mart Ltd, [1985] 1 SCR 295 [Big M], which cites the following factors to be considered: the interests meant to be protected, the character and larger objects of the Charter as a whole, the language used, the historical origins, and the meaning and purpose of other relevant Charter rights. The majority and Justice Abella’s concurring opinion cited the necessity of both: beginning the purposive inquiry with the text as well as considering context through a large and liberal interpretation. They both agreed that the English and French versions of Section 12 can be reconciled to capture the same concept of cruel punishment against human dignity, and that the section’s historical origins marked a departure from the English Bill of Rights, [1688] Chapter 2 [Bill of Rights] to not include excessive fines within Section 12’s protection. Excessive fines can be protected by Section 12—not corporations—if they “outrage the standards of decency” and are “grossly disproportionate” (Québec Inc, para 63). The justices also referenced Irwin Toy Ltd v Quebec (Attorney General), [1989] 1 SCR 927 which rejected the application of Section 7 of the Charter to corporations, since corporations did not possess the ability to enjoy life, liberty and security of the person.  

Justices Brown and Rowe emphasized the “primordial significance” of the text to constrain the interpretation and not overshoot the actual purpose (Québec Inc, para 4). Justice Abella, however, cautioned against the majority’s prioritization of the text over other factors. Justices Brown and Rowe argued that they are not undertaking a purely textual interpretation as Justice Abella alleges. Yet, apart from other points of agreement, the majority goes on to primarily discuss the plain text meaning of the word “cruel” in their analysis—referring to its meaning of human physical and mental suffering—to the point of excluding other contextual factors brought up by Justice Abella.

By contrast, Justice Abella held the principles and values underlying the Charter itself as the primary interpretive tools instead of treating the text as supreme. To underscore her point, Justice Abella contrasted the Canadian constitutional structure with the United States, reminding us of Canada’s use of the living tree principle as distinct from American textualist interpretations which allows their Second Amendment right to bear arms to be justified on the basis of a comma in its text.

For Justice Abella, the living tree principle extends to international and comparative instruments where relevant. Absent in Justices Brown and Rowe’s decision are these other factors considered by Justice Abella including the Charter’s objectives and, most notably, international and comparative law. Therefore, in addition to the relative role of the text, the contention between the two judgements was actually whether or not international and comparative law form an appropriate part of the purposive and contextual analysis of Charter rights and freedoms.

Role of International and Comparative Law

The majority created a new methodology by which to evaluate and use international law sources within when interpreting the Canadian constitution. Under their framework, the sources of most interpretative value are those that are binding to Canada—in other words, they have been ratified and trigger the presumption of conformity of international and domestic laws. Secondly, regardless of if they are binding, the majority rules that the pre-Charter international and comparative law sources are also of relevance since they form the historical context for the Charter, which is one of the factors to consider in constitutional interpretation. All other international sources used could be of persuasive value only, and non-binding international law could not define the scope of a right but only confirm its application, like it did in Big M. Lastly, the majority imposed a new requirement for decision-makers to justify their use of international sources according to their new approach, remarking that Justice Abella did not do this in her concurring opinion. Justices Brown and Rowe suggest that by methodically applying international law in this narrow way, the Court will protect the integrity of Canada’s constitutional structure from international influence.

In application, the majority considers two binding instruments and three pre­-Charter sources which do not extend protection from cruel punishment to corporations: the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, Can TS 1987 No 36 and the International Covenant on Civil and Political Rights, Can TS 1976 No 74; and the pre-Charter English Bill of Rights, United States’ Eight Amendment, US Cons VIII and Universal Declaration of Human Rights, GA Res 217 A (III), UN Doc A/810, at 71 (1948). To some other documents used by Justice Abella, the majority prescribes persuasive value only, while noting the need to explain use for others.

Justice Abella agreed that non-binding documents are of persuasive value only while maintaining that the SCC has never applied a “hierarchical sliding scale of persuasiveness” as proposed by the majority (Québec Inc, para 104). She condemned Justice Brown and Rowe’s narrow approach as a “disservice” to the SCC’s ability to selectively use the best and relevant international and comparative sources (Québec Inc, para 102). By contrasting with the United States again, she likened the majority’s approach to Justice Antonin Scalia’s particularized use of international law. Justice Abella demonstrated a keen awareness of drawing a line between the contextual Canadian constitutional structure as distinct from American insularism. She explained the international recognition of Canada’s Charter as a “living tree abroad,” where its branches are able to reach comparative sources and incorporate them within Canada’s contextual approach. Additionally, contrary to the majority’s claim that non-binding international law can only serve a confirmatory function, Justice Abella cites Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 which stressed the importance of international law in defining the scope of rights.

Justice Abella utilized more than the five main documents cited by the majority, including other United Nations and American documents, and constitutional documents from New Zealand and South Africa. She put these sources in conversation with Canadian constitutional jurisprudence demonstrating the comparative art of Canadian constitutional interpretation. She combined the documents’ importance with the history of the Charter and its larger objectives itself, citing binding and non-binding international human rights documents as born of the “same chrysalis of outrage as other countries around the world” post-World War II (Québec Inc, para 98). By placing the Charter within the plethora of human rights documents created in this era, many of which deal with a version of protecting from cruel and unusual punishment, Justice Abella raised their importance in accordance with the Charter’s contextual approach. Her wide-ranging comparative analysis including various countries’ constitutions, pre- and post-Charter, of which none extend protection to corporations from cruel and unusual punishment made her argument for non-application to corporations more compelling. Justice Abella reminded us of the importance of comparative analysis in constitutional interpretation and remarks the majority’s approach as reducing this robust and uniquely Canadian constitutional system of the living tree.

Personhood in Law

Despite the lengthy debate of interpretive methodologies within Québec Inc, it is important to take a step back and look at the significance of the SCC unanimously rejecting that corporations can be subject to cruel and unusual punishment. Ultimately it is the concept of human dignity and human ability to experience suffering that persuaded the SCC to rule that only humans can be protected from Section 12 of the Charter. Inanimate objects and legal entities were explicitly excluded from possessing personhood for the purpose of Section 12. The Court rejected that persons within the corporation can be subject to cruel and unusual punishment—an argument that allowed the Section 8 Charter right against unreasonable search and seizure to be applied to corporations—given the distinct ability for a corporation to be a legal person and protect itself by the corporate veil. The concept of corporate personhood has been widely critiqued with regard to a company’s ability to escape liability such as in the cases of subcontracting supply chains with shell companies or by declaring bankruptcy only to create another similar corporation. The corporation’s legal personhood is how domestic and transnational corporations and their directors often escape liability for labour, environmental, and human rights abuses.

The prioritizing of human characteristics is a good sign for future challenges about the scope of other Charter rights regarding corporations. However, while Québec Inc draws the line for how far corporate personhood can go to escape liability—in this case for violating building regulations—it by no means attacks the concept at its very core as a function of capitalism that values corporate profits over people. In line with Justice Abella’s comparisons with the United States constitution, it is important to note that corporate personhood in the United States is protected by the Fourteenth Amendment which was originally enacted to grant citizenship rights to former slaves; it was when Black people were granted legal personhood that corporations appropriated personhood as a device to serve their interests of capital as an artificial entity.

Emphasizing that Section 12 can only apply to natural persons seems to subvert the story of the Fourteenth Amendment, however, it may have unintended consequences to the contrary. Increasingly we are seeing international examples of extending the device of legal personhood to nature as a result of incorporating Indigenous law and environmental protection into common law to protect from colonial and corporate interests. In 2018, the New Zealand Supreme Court granted the Whanganui River legal personhood, grounded in Māori law. Last year, the Bangladeshi Supreme Court granted rivers the same legal status as humans to protect them from environmental degradation. The SCC’s current focus on only protecting natural persons possessing human dignity can affect a future in which it is the land, or rivers, or animals that require protection from cruel and unusual punishment. Given that this is only the first SCC case discussing the scope of Section 12 and the current limited state of constitutional law which has been used to deny Indigenous sovereignty claims and Aboriginal title (Ktunaxa Nation v British Columbia (Forests, Lands, and Natural Resource Operations), 2017 SCC 54), there is potential for novel use of Section 12 to protect the environment, animals, and Indigenous laws. Hopefully Québec Inc’s focus on human dignity does not limit the conception that nature and animals can experience pain and suffering just like us; that cruel and unusual punishment to the land is cruel and unusual punishment to its people.