Quebec (Attorney General) v. 9147-0732 Québec inc.

Quebec (Attorney General) v. 9147-0732 Québec inc.
Collection
Supreme Court Judgments
Date
2020-11-05
Neutral citation
2020 SCC 32
Case number
38613
Judges
Wagner, Richard; Abella, Rosalie Silberman; Moldaver, Michael J.; Karakatsanis, Andromache; Côté, Suzanne; Brown, Russell; Rowe, Malcolm; Martin, Sheilah; Kasirer, Nicholas
On appeal from
Quebec
Subjects
Constitutional law
Notes
Case in Brief
SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: Quebec (Attorney General) v. 9147-0732 Québec inc., 2020 SCC 32
Appeal Heard: January 22, 2020 Judgment Rendered: November 5, 2020 Docket: 38613
Between:
Attorney General of Quebec and Director of Criminal and Penal Prosecutions
Appellants
and
9147-0732 Québec inc.
Respondent
- and -
Director of Public Prosecutions, Attorney General of Ontario, Association des avocats de la défense de Montréal, British Columbia Civil Liberties Association, Canadian Civil Liberties Association and Canadian Constitution Foundation
Interveners
Official English Translation: Reasons of Kasirer J.
Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.
Joint Reasons for Judgment: (paras. 1 to 48)
Brown and Rowe JJ. (Wagner C.J. and Moldaver and Côté JJ. concurring)
Concurring Reasons: (paras. 49 to 137)
Abella J. (Karakatsanis and Martin JJ. concurring)
Concurring Reasons: (paras. 138 to 142)
Kasirer J.
Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.
quebec (a.g.) v. 9147-0732 québec inc.
Attorney General of Quebec and
Director of Criminal and Penal Prosecutions Appellants
v.
9147-0732 Québec inc. Respondent
and
Director of Public Prosecutions,
Attorney General of Ontario,
Association des avocats de la défense de Montréal,
British Columbia Civil Liberties Association,
Canadian Civil Liberties Association and
Canadian Constitution Foundation Interveners
Indexed as: Quebec (Attorney General) v. 9147-0732 Québec inc.
2020 SCC 32
File No.: 38613.
2020: January 22; 2020: November 5.
Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.
on appeal from the court of appeal for quebec
Constitutional law — Charter of Rights — Cruel and unusual treatment or punishment — Scope and purpose of guarantee — Whether s. 12 of Canadian Charter of Rights and Freedoms protects corporations from cruel and unusual treatment or punishment.
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.
Held: The appeal should be allowed and the judgment of the Court of Appeal set aside.
Per Wagner C.J. and Moldaver, Côté, Brown and Rowe JJ.: Section 12 of the Charter does not protect corporations from cruel and unusual treatment or punishment because the text “cruel and unusual” denotes protection that only human beings can enjoy. The protective scope of s. 12 is thus limited to human beings. The Court’s jurisprudence on s. 12 , in both its French and English versions, is marked by the concept of human dignity, and the existence of human beings behind the corporate veil is insufficient to ground a s. 12 claim of right on behalf of a corporate entity, in light of the corporation’s separate legal personality.
To claim protection under the Charter , a corporation must establish that it has an interest falling within the scope of the guarantee, and one which accords with the purpose of that provision. The court must seek to discern the scope and purpose of the right by way of a purposive interpretation, that is, by reference to the character and the larger objects of the Charter itself, to the language chosen to articulate the specific right or freedom, to the historical origins of the concepts enshrined, and where applicable, to the meaning and purpose of the other specific rights and freedoms with which it is associated within the text of the Charter . The approach is generous, purposive and contextual and should be done in a large and liberal manner. Within the purposive approach, the analysis must begin by considering the text of the provision. While constitutional norms are deliberately expressed in general terms, the words used remain the most primal constraint on judicial review and form the outer bounds of a purposive inquiry. Giving primacy to the text prevents an interpretation that overshoots (or undershoots) the actual purpose of the right. It is not the sole consideration, but treating it as the first indicator of purpose is constitutive of the principles of Charter interpretation.
The text of s. 12, particularly the inclusion of “cruel”, strongly suggests that the provision is limited to human beings. The ordinary meaning of the word “cruel” does not permit its application to inanimate objects or legal entities such as corporations. The words “cruel and unusual treatment or punishment” refer to human pain and suffering, both physical and mental. An examination of s. 12’s historical origins shows that the Charter took a different path from its predecessors, the English Bill of Rights and the Eighth Amendment of the United States Constitution, by carving off the right not to be denied reasonable bail without just cause from the right to be free from cruel and unusual punishment and by omitting the protection against excessive fines. The protection against cruel and unusual punishment under s. 12 therefore exists as a standalone guarantee. This is highly significant: excessive fines (which a corporation can sustain), without more, are not unconstitutional. For a fine to be unconstitutional, it must be so excessive as to outrage standards of decency and abhorrent or intolerable to society. This threshold is, in accordance with the purpose of s. 12, inextricably anchored in human dignity and cannot apply to treatments or punishments imposed on corporations.
There is agreement with Abella J.’s discussion of related Charter rights. However, there is disagreement with the prominence given to international and comparative law in the interpretive process. International and comparative sources play a limited role of providing support or confirmation for the result reached by way of purposive interpretation of Charter rights. Their weight and persuasiveness depends on the nature of the source and its relationship to the Charter . A principled framework and methodology for considering international and comparative sources in constitutional interpretation is necessary, both to properly recognize Canada’s international obligations and to provide consistent and clear guidance to courts and litigants.
The presumption of conformity is the firmly established interpretive principle that the Charter is presumed to provide protection at least as great as that afforded by similar provisions in international human rights documents which Canada has ratified. Binding international instruments carry more weight in the analysis than non‑binding instruments, which should be treated as relevant and persuasive but not determinative interpretive tools, and courts drawing from the latter should be careful to explain why they are drawing on a particular source and how it is being used. In this case, the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment and the International Covenant on Civil and Political Rights are both binding on Canada, thus triggering the presumption of conformity. However, neither extends protection from cruel and unusual punishment to corporations. While both the American Convention on Human Rights and the European Convention for the Protection of Human Rights and Fundamental Freedoms have also been found not to extend protection to corporations against cruel and unusual punishment, these instruments are merely persuasive here. International instruments that pre‑date the Charter can also clearly form part of the historical context of a Charter right regardless of whether Canada is a party to such instruments. In this case, the context of the English Bill of Rights and the Eighth Amendment is highly relevant as each contained similar but not identical protections as s. 12 . As for instruments that post‑date the Charter , those that do not bind Canada carry much less interpretive weight than those that do. Finally, decisions of foreign and international courts are included among those non‑binding sources that are relevant and may be persuasive. However, particular caution should be exercised as the measures in effect in other countries say little about the scope of the rights enshrined in the Canadian Charter .
Per Abella, Karakatsanis and Martin JJ.: The purpose of s. 12 of the Charter is to prevent the state from inflicting physical or mental pain and suffering through degrading and dehumanizing treatment or punishment. It is meant to protect human dignity and respect the inherent worth of individuals. Its intended beneficiaries are people, not corporations.
Determining the scope of s. 12 requires first determining the purpose of the right, which is to be sought by reference to the character and objectives of the Charter itself, to the language chosen to articulate the specific right or freedom, to the historical origins of the concepts enshrined, and to the principles and values underlying the right. Examining the text of the Charter is only the beginning of the interpretive exercise, which is fundamentally different from interpreting a statute. A generous, purposive and contextual approach should be applied so that Charter rights can grow and adapt to changing realities. Overemphasizing the plain text of Charter rights would make Canadian constitutional law more insular, and creates a risk that, over time, those rights will cease to represent the fundamental values of Canadian society and the purposes they were meant to protect. Purpose remains the central consideration in interpreting the scope and content of a Charter right. While several factors — including the text — can help inform the exercise, the Court has never endorsed a rigid hierarchy among these interpretative guides.
A review of the language used in the Court’s s. 12 jurisprudence shows that both the English and French versions capture the same concept, namely, that s. 12 prohibits treatment or punishment that is incompatible with human dignity. Dictionary definitions of “cruel”, “cruelty”, “cruel and unusual punishment” and “cruel” in French, reveal that the ordinary meaning of the words cruel and unusual treatment or punishment in s. 12 centers on human pain and suffering. The fact that the word “everyone” is found in the text of s. 12 cannot, by virtue of its literal meaning, expand the protection to corporations, without any regard for the purpose of the right as protecting human dignity.
The historical origins and values underlying s. 12 of the Charter can be traced back to art. 10 of the English Bill of Rights, which stipulated that excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. The provision was incorporated almost verbatim into the Eighth Amendment of the United States Constitution. In both the English and American contexts, protection for corporations was not contemplated. In the United States, the historical purpose of prohibiting cruel and unusual punishment was to protect the inherent worth and dignity of human beings. In Canada, similar language first appeared in s. 2(b) of the Canadian Bill of Rights. The wording of that provision and of s. 12 of the Charter are almost identical. Like the Canadian Bill of Rights, the enactment of the Charter was influenced by the events of the Second World War, WWII’s shocking indifference to human dignity and the devastating human rights abuses it tolerated resulted in responsive protections in international human rights instruments and in domestic rights guarantees like the Charter .
Since Canada’s rights protections emerged from the same chrysalis of outrage as other countries around the world, it is helpful to compare Canada’s s. 12 prohibition against cruel and unusual treatment with how courts have interpreted the numerous international instruments containing similar provisions. The Court has frequently relied on international and comparative law sources to assist in delineating the breadth and content of Charter rights; this is a standard and accepted practice. Both those sources which are binding and those which are not have proven to be indispensable in almost all areas of the law. The Court has never required that these sources be separately weighed, nor has it ever applied a hierarchical sliding scale of persuasiveness, segmenting non-binding international and comparative sources into categories worthy of more or less influence. Considering what and how laws and decisions have been applied on related questions by other countries and institutions is part not only of an ongoing global judicial conversation, but of the epistemological package constitutional courts routinely rely on. Narrowing our approach by putting unnecessary barriers in the way of access to international and comparative sources is a worrying setback.
While s. 12’s international siblings vary in language, a common meaning can be ascribed to their various formulations as the phrase “cruel and unusual” is a compendious expression of a norm. The criterion applied to determine whether a punishment is cruel and unusual is whether the punishment prescribed is so excessive as to outrage standards of decency. All of the relevant international sources lead to the irrefutable inference that the right to be free from cruel and unusual punishment is intended to protect human dignity by prohibiting degrading, inhuman, or dehumanizing treatment or punishment that causes physical or mental pain and suffering. None of them include protection for corporations. While this international consensus does not dictate the outcome, it provides compelling and relevant interpretive support. A review of foreign domestic law, while not determinative, also supports an interpretation of s. 12 of the Charter which excludes protection for corporations. Internationally, it is widely acknowledged that the right to be free from cruel and unusual punishment is intended to protect human dignity by prohibiting degrading, inhuman, or dehumanizing treatment or punishment that causes physical or mental pain and suffering.
Looking at the meaning and purpose of the other specific rights and freedoms with which s. 12 is associated, ss. 7 to 14 of the Charter are grouped under the heading “Legal Rights”. The broad purposes of these legal rights are to preserve the rights of detained individuals, by ensuring they are dealt with fairly and humanely, and to maintain the repute and integrity of the system of justice. Significantly, corporations have been found not to be included under both ss. 7 and 11( c ) .
The purpose of s. 12 is to confer protection on a singularly human level. It is meant to protect human dignity and respect the inherent worth of individuals. Just as corporations cannot experience human reactions such as stress or anxiety, neither can they experience suffering. It would strain the interpretation of cruel and unusual treatment or punishment under s. 12 if a corporation, an artificial entity, could be said to experience it. Since corporations do not fall within the purpose of s. 12, they do not fall within its protective scope.
Per Kasirer J.: There is agreement with Abella, Brown and Rowe JJ. that the protection offered by s. 12 of the Charter does not extend to corporations. Charter rights must be given a large, liberal and purposive interpretation. Starting from the language of s. 12, particularly the word “cruel”, the dissenting Court of Appeal judge correctly found that it would distort the ordinary meaning of the words to say that it is possible to be cruel to a corporate entity. Although the scope of s. 12 has been broadened over the years, its evolution is still concerned only with human beings. In his analysis, the dissenting judge relied on sources drawn from domestic, international and English law and on the Civil Code of Québec. In this case, it is unnecessary to consider questions relating to the proper approach to constitutional interpretation or the place of international law and comparative law in that approach any further.
Cases Cited
By Brown and Rowe JJ.
Applied: R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; considered: Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313; referred to: Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; R. v. Poulin, 2019 SCC 47; R. v. CIP Inc., [1992] 1 S.C.R. 843; R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353; Caron v. Alberta, 2015 SCC 56, [2015] 3 S.C.R. 511; British Columbia (Attorney General) v. Canada (Attorney General), [1994] 2 S.C.R. 41; R. v. Stillman, 2019 SCC 40; R. v. Blais, 2003 SCC 44, [2003] 2 S.C.R. 236; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Boudreault, 2018 SCC 58, [2018] 3 S.C.R. 599; Kazemi Estate v. Islamic Republic of Iran, 2014 SCC 62, [2014] 3 S.C.R. 176; Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54, [2017] 2 S.C.R. 386; India v. Badesha, 2017 SCC 44, [2017] 2 S.C.R. 127; Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4, [2015] 1 S.C.R. 245; Divito v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 47, [2013] 3 S.C.R. 157; Health Services and Support ⸺ Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391; United States v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; Frank v. Canada (Attorney General), 2019 SCC 1, [2019] 1 S.C.R. 3; Canadian Egg Marketing Agency v. Richardson, [1998] 3 S.C.R. 157; R. v. Oakes, [1986] 1 S.C.R. 103; R. v. Smith (Edward Dewey), [1987] 1 S.C.R. 1045; Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3.
By Abella J.
Applied: R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; referred to: R. v. Smith (Edward Dewey), [1987] 1 S.C.R. 1045; R. v. Lyons, [1987] 2 S.C.R. 309; R. v. Luxton, [1990] 2 S.C.R. 711; Steele v. Mountain Institution, [1990] 2 S.C.R. 1385; R. v. Goltz, [1991] 3 S.C.R. 485; R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90; R. v. Latimer, 2001 SCC 1, [2001] 1 S.C.R. 3; R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96; R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773; R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130; R. v. Boudreault, 2018 SCC 58, [2018] 3 S.C.R. 599; Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779; R. v. CIP Inc., [1992] 1 S.C.R. 843; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; Conseil scolaire francophone de la Colombie-Britannique v. British Columbia, 2020 SCC 13; Syndicat Northcrest v. Amselem, 2004 SCC 47, [2004] 2 S.C.R. 551; R. v. Oakes, [1986] 1 S.C.R. 103; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712; R. v. Keegstra, [1990] 3 S.C.R. 697; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; Eldridge v. British-Columbia (Attorney General), [1997] 3 S.C.R. 624; R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906; R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353; R. v. Stillman, 2019 SCC 40; R. v. Poulin, 2019 SCC 47; Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357; Reference re Prov. Electoral Boundaries (Sask.), [1991] 2 S.C.R. 158; District of Columbia v. Heller, 554 U.S. 570 (2008); Furman v. Georgia, 408 U.S. 238 (1972); R. v. Therens, [1985] 1 S.C.R. 613; Divito v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 47, [2013] 3 S.C.R. 157; United States v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; Canadian Egg Marketing Agency v. Richardson, [1998] 3 S.C.R. 157; Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3; Health Services and Support — Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391; Kazemi Estate v. Islamic Republic of Iran, 2014 SCC 62, [2014] 3 S.C.R. 176; Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4, [2015] 1 S.C.R. 245; Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54, [2017] 2 S.C.R. 386; Roper v. Simmons, 543 U.S. 551 (2005); Reyes v. The Queen, [2002] UKPC 11, [2002] 2 A.C. 235; S. v. Williams, 1995 (3) S.A. 632; A newspaper publishing company v. Trinidad and Tobago, Communication No. 360/1989, U.N. Doc. Supp. No. 40 (A/44/40); A publication and a printing company v. Trinidad and Tobago, Communication No. 361/1989, U.N. Doc. Supp. No. 40 (A/44/40); V.S. v. Belarus, Communication No. 1749/2008, U.N. Doc. CCPR/C/103/D (2011); Titularidad de Derechos de las Personas Jurídicas en el Sistema Interamericano de Derechos Humanos, Advisory Opinion OC-22/16, February 26, 2016; Kontakt-Information-Therapie v. Austria, Application No. 11921/86, October 12, 1988, D.R. 57, p. 81; Identoba v. Georgia, Application No. 73235/12, May 12, 2015 (HUDOC); S. v. Makwanyane, 1995 (3) S.A. 391; S. v. Dodo, 2001 (3) S.A. 382; Taunoa v. Attorney-General, [2007] NZSC 70, [2008] 1 N.Z.L.R. 429; R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483; R. v. Hebert, [1990] 2 S.C.R. 151; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425; R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154; Mills v. The Queen, [1986] 1 S.C.R. 863; R. v. Amway Corp., [1989] 1 S.C.R. 21.
By Kasirer J.
Referred to: Conseil scolaire francophone de la Colombie-Britannique v. British Columbia, 2020 SCC 13; R. v. Smith (Edward Dewey), [1987] 1 S.C.R. 1045.
Statutes and Regulations Cited
Bill of Rights (Eng.), 1688, 1 Will. & Mar. Sess. 2, c. 2, art. 10.
Building Act, CQLR, c. B-1.1, ss. 46, 197.1.
Canadian Bill of Rights , S.C. 1960, c. 44 , preamble, s. 2(b).
Canadian Charter of Rights and Freedoms , ss. 7 , 7 to 14 , 8 , 11( b ) , (c), (e), 12 .
Civil Code of Québec.
Constitution of South Africa, s. 12(1)(e).
Magna Carta (1215).
New Zealand Bill of Rights Act 1990, s. 9.
United States Constitution, Eighth Amendment.
Treaties and Other International Instruments
American Convention on Human Rights, 1144 U.N.T.S. 123, arts. 1(2), 5(2).
Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, Can. T.S. 1987 No. 36, preamble, arts. 1, 16(1).
Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 221, art. 3.
International Covenant on Civil and Political Rights, Can. T.S. 1976 No. 47, preamble, art. 7.
International Covenant on Economic, Social and Cultural Rights, Can. T.S. 1976 No. 46.
Universal Declaration of Human Rights, G.A. Res. 217 A (III), U.N. Doc. A/810, at 71 (1948), preamble, art. 5.
Authors Cited
Baer, Susanne. “Dignity, liberty, equality: A fundamental rights triangle of constitutionalism” (2009), 59 U.T.L.J. 417.
Barak, Aharon. “A Judge on Judging: The Role of a Supreme Court in a Democracy” (2002), 116 Harv. L. Rev. 19.
Bastarache, Michel. “How Internationalization of the Law has Materialized in Canada” (2009), 59 U.N.B.L.J. 190.
Beaulac, Stéphane. “Parliamentary Debates in Statutory Interpretation: A Question of Admissibility or of Weight?” (1998), 43 McGill L.J. 287.
Beaulac, Stéphane. “‘Texture ouverte’, droit international et interprétation de la Charte canadienne ” (2013), 61 S.C.L.R. (2d) 191.
Beaulac, Stéphane, et Frédéric Bérard. Précis d’interprétation législative, 2e éd. Montréal: LexisNexis, 2014.
Black, Ryan C., et al. “Upending a Global Debate: An Empirical Analysis of the U.S. Supreme Court’s Use of Transnational Law to Interpret Domestic Doctrine” (2014), 103 Geo. L.J. 1.
Black’s Law Dictionary, 11th ed. by Bryan A. Garner. St. Paul, Minn.: Thomson Reuters, 2019, “cruel and unusual punishment”, “cruelty”, “unusual”.
Brunnée, Jutta, and Stephen J. Toope. “A Hesitant Embrace: The Application of International Law by Canadian Courts” (2002), 40 Can. Y.B. Intl Law 3.
Buys, Cindy G. “Burying Our Constitution in the Sand? Evaluating the Ostrich Response to the Use of International and Foreign Law in U.S. Constitutional Interpretation” (2007), 21 B.Y.U. J. Pub. L. 1.
Canada. Federal-Provincial Conference of First Ministers on the Constitution. Ottawa, November 2 to 5, 1981.
Cornell, Angela B. “Inter-American Court Recognizes Elevated Status of Trade Unions, Rejects Standing of Corporations” (2017), 3 Intl Labor Rights Case L. 39.
Currie, John H. Public International Law, 2nd ed. Toronto: Irwin Law, 2008.
Dodek, Adam M. “The Protea and the Maple Leaf: The Impact of the Charter on South African Constitutionalism” (2004), 17 N.J.C.L. 353.
Dodek, Adam M. “Canada as Constitutional Exporter: The Rise of the ‘Canadian Model’ of Constitutionalism” (2007), 36 S.C.L.R. (2d) 309.
Dodek, Adam M. “Comparative Law at the Supreme Court of Canada in 2008: Limited Engagement and Missed Opportunities” (2009), 47 S.C.L.R. (2d) 445.
Doucet, Michel. “Le bilinguisme législatif”, dans Michel Bastarache et Michel Doucet, dir., Les droits linguistiques au Canada, 3e éd. Cowansville, Que.: Yvon Blais, 2013, 179.
Eltis, Karen. “Comparative Constitutional Law and the ‘Judicial Role in Times of Terror’” (2010-2011), 28 N.J.C.L. 61.
Grand Robert de la langue française, 2e éd. par Alain Rey, dir. Paris: Le Robert, 2001, “cruel”.
Grear, Anna. “Human Rights — Human Bodies? Some Reflections on Corporate Human Rights Distortion, the Legal Subject, Embodiment and Human Rights Theory” (2006), 17 Law Critique 171 (online: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1825128; archived version: https://www.scc-csc.ca/cso-dce/2020SCC-CSC32_1_eng.pdf).
Hirschl, Ran. “Going Global? Canada as Importer and Exporter of Constitutional Thought”, in Richard Albert and David R. Cameron, eds., Canada in the World: Comparative Perspectives on the Canadian Constitution. Cambridge: Cambridge University Press, 2018, 305.
Hogg, Peter W. Constitutional Law of Canada, 5th ed. Supp. Scarborough, Ont.: Thomson/Carswell, 2007 (updated 2019, release 1).
Juriansz, Russell G. “International Law and Canadian Courts: A Work in Progress” (2008), 25 N.J.C.L. 171.
Ku, Julian G. “The Limits of Corporate Rights Under International Law” (2012), 12 Chi. J. Int’l L. 729.
Landau, David. “Legal pragmatism and comparative constitutional law”, in Gary Jacobsohn and Miguel Schor, eds., Comparative Constitutional Theory. Cheltenham, U.K.: Edward Elgar, 2018, 208.
Max Planck Institute for Comparative Public Law and International Law. Who Turned Multinational Corporations into Bearers of Human Rights? On the Creation of Corporate “Human” Rights in International Law, by Silvia Steininger and Jochen von Bernstorff, September 25, 2018 (online: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3254823; archived version: https://www.scc-csc.ca/cso-dce/2020SCC-CSC32_2_eng.pdf).
Neudorf, Lorne. “Reassessing the Constitutional Foundation of Delegated Legislation in Canada” (2018), 41 Dal. L.J. 519.
Occhipinti, Brittany. “We the Militia of the United States of America: A Reanalysis of the Second Amendment” (2017), 53 Willamette L. Rev. 431.
Oliphant, Benjamin J. “Taking purposes seriously: The purposive scope and textual bounds of interpretation under the Canadian Charter of Rights and Freedoms ” (2015), 65 U.T.L.J. 239.
Oxford English Dictionary, 2nd ed. Oxford: Clarendon Press, 1989, “cruel”, “cruelty”.
Pearson, Lester B. “Federalism for the Future: A Statement of Policy by the Government of Canada” (1968), in Anne F. Bayefsky, Canada’s Constitution Act 1982 & Amendments: A Document History, vol. 1. Toronto: McGraw-Hill Ryerson, 1989, 61.
Rado, Klodian. “The use of non-domestic legal sources in Supreme Court of Canada judgments: Is this the judicial slowbalization of the court?” (2020), 16 Utrecht L. Rev. 57 (online: https://www.utrechtlawreview.org/articles/10.36633/ulr.584/; archived version: https://www.scc-csc.ca/cso-dce/2020SCC-CSC32_3_eng.pdf).
Scalia, Antonin. “Keynote Address: Foreign Legal Authority in the Federal Courts” (2004), 98 A.S.I.L. Proc. 305.
Sharpe, Robert J., and Kent Roach. The Charter of Rights and Freedoms, 6th ed. Toronto: Irwin Law, 2017.
Siegel, Jonathan R. “The Inexorable Radicalization of Textualism” (2009), 158 U. Pa. L. Rev. 117.
Tarnopolsky, Walter Surma. The Canadian Bill of Rights, 2nd rev. ed. Toronto: McClelland and Stewart, 1975.
Trudeau, Pierre Elliott. A Canadian Charter of Human Rights. Ottawa: Government of Canada, 1968.
United Nations. Human Rights Committee. General Comment No. 20: Article 7 (Prohibition of torture, or other cruel, inhuman or degrading treatment or punishment) (1992). U.N. Doc. HRI/GEN/1/Rev.9, vol. 1, p. 200 (2008).
United Nations. Human Rights Committee. General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant. U.N. Doc. CCPR/C/21/Rev.1/Add.13, May 26, 2004.
van Ert, Gib. Using International Law in Canadian Courts, 2nd ed. Toronto: Irwin Law, 2008.
Weinrib, Lorraine E. “A Primer on International Law and the Canadian Charter ” (2006), 21 N.J.C.L. 313.
APPEAL from a judgment of the Quebec Court of Appeal (Chamberland, Bélanger and Rancourt JJ.A.), 2019 QCCA 373, [2019] AZ-51573754, [2019] J.Q. no 1443 (QL), 2019 CarswellQue 1425 (WL Can.), setting aside a decision of Dionne J., 2017 QCCS 5240, [2017] AZ-51443312, [2017] J.Q. no 16310 (QL), 2017 CarswellQue 10451 (WL Can.), which affirmed a decision of Ratté J.C.Q., 2017 QCCQ 1632, [2017] AZ-51373092, [2017] J.Q. no 2085 (QL), 2017 CarswellQue 1930 (WL Can.). Appeal allowed.
Stéphanie Quirion-Cantin, Sylvain Leboeuf, Julie Dassylva and Anne-Sophie Blanchet-Gravel, for the appellant the Attorney General of Quebec.
Laura Élisabeth Trempe and Marie-Pier Champagne, for the appellant the Director of Criminal and Penal Prosecutions.
Martin Villa and Niki Galanopoulos, for the respondent.
François Lacasse and Mathieu Stanton, for the intervener the Director of Public Prosecutions.
Courtney Harris, Ellen Weis and Ravi Amarnath, for the intervener the Attorney General of Ontario.
Léon H. Moubayed, Sarah Gorguos and Guillaume Charlebois, for the intervener Association des avocats de la défense de Montréal.
Gib van Ert and Jessica Magonet, for the intervener the British Columbia Civil Liberties Association.
Alyssa Tomkins, Albert Brunet and Penelope Simons, for the intervener the Canadian Civil Liberties Association.
Brandon Kain, Adam Goldenberg and Sébastien Cusson, for the intervener the Canadian Constitution Foundation.
The judgment of Wagner C.J. and Moldaver, Côté, Brown and Rowe JJ. was delivered by
Brown and Rowe JJ. —
I. Overview
[1] 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.
[2] This Court’s jurisprudence on s. 12, in both its French and English versions, is marked by the concept of human dignity, as our colleagues have noted. And the existence of human beings behind the corporate veil is insufficient to ground a s. 12 claim of right on behalf of a corporate entity, in light of the corporation’s separate legal personality. Like our colleagues, and contrary to the majority at the Court of Appeal, we therefore reject the proposition that the effect of a corporation’s bankruptcy on its stakeholders should be considered in determining the scope of s. 12.
[3] 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.
[4] 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.
[5] 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.
II. Analysis
[6] A summary of relevant facts and judicial history is found in the reasons of Abella J., and we are content to rely on it.
[7] To claim protection under the Charter , a corporation ⸺ indeed, any claimant ⸺ must establish that “it has an interest falling within the scope of the guarantee, and one which accords with the purpose of that provision”: R. v. CIP Inc., [1992] 1 S.C.R. 843, at p. 852. In order to make that determination, the court must seek to discern the scope and purpose of the right by way of a purposive interpretation, that is, “by reference to the character and the larger objects of the Charter itself, to the language chosen to articulate the specific right or freedom, to the historical origins of the concepts enshrined, and where applicable, to the meaning and purpose of the other specific rights and freedoms with which it is associated within the text of the Charter ”: Big M Drug Mart, at p. 344; see also Poulin, at para. 32. The approach is “generous, purposive and contextual” and should be done in a “large and liberal manner”: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 15; Caron v. Alberta, 2015 SCC 56, [2015] 3 S.C.R. 511, at para. 35.
A. Preliminary Observations on Purposive Interpretation
[8] This Court has consistently emphasized that, within the purposive approach, the analysis must begin by considering the text of the provision. As this Court made clear in British Columbia (Attorney General) v. Canada (Attorney General), [1994] 2 S.C.R. 41 (“Vancouver Island Railway”), “[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”: p. 88. This was reiterated in Grant, where the Court stated that “[a]s for any constitutional provision, the starting point must be the language of the section”: para. 15 (emphasis added). Recently, in Poulin, the Court yet again affirmed that the first step to interpreting a Charter right is to analyze the text of the provision: para. 64.
[9] This is so because constitutional interpretation, being the interpretation of the text of the Constitution, must first and foremost have reference to, and be constrained by, that text. Indeed, while constitutional norms are deliberately expressed in general terms, the words used remain “the most primal constraint on judicial review” and form “the outer bounds of a purposive inquiry”: B. J. Oliphant, “Taking purposes seriously: The purposive scope and textual bounds of interpretation under the Canadian Charter of Rights and Freedoms ” (2015), 65 U.T.L.J. 239, at p. 243. The Constitution is not “an empty vessel to be filled with whatever meaning we might wish from time to time”: Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313 (“Re PSERA”), at p. 394; Caron, at para. 36. Significantly, in Caron, the Court reiterated this latter passage and reasserted “the primacy of the written text of the Constitution”: para. 36; see also para. 37.
[10] Moreover, while Charter rights are to be given a purposive interpretation, such interpretation must not overshoot (or, for that matter, undershoot) the actual purpose of the right: Poulin, at paras. 53 and 55; R. v. Stillman, 2019 SCC 40, at paras. 21 and 126; R. v. Blais, 2003 SCC 44, [2003] 2 S.C.R. 236, at paras. 17‑18 and 40; Big M Drug Mart, at p. 344. Giving primacy to the text — that is, respecting its established significance as the first factor to consider within the purposive approach — prevents such overshooting.
[11] While acknowledging, at para. 71, that language is part of the analysis, and that “the text of the Charter matters”, our colleague Abella J. stresses the direction in Hunter v. Southam Inc., [1984] 2 S.C.R. 145 that the task of interpreting a constitution is fundamentally different from interpreting a statute, and that courts ought “not to read the provisions of the Constitution like a last will and testament lest it become one”: p. 155. This felicitous phrase cannot, however, be taken as minimizing the primordial significance of constitutional text as it has since, and repeatedly, been recognized in this Court’s jurisprudence: