Supreme Court Says Corporations Not Protected Against Cruel And Unusual Punishment

• Published date: 10 February 2021
• Law Firm: Miller Thomson LLP
• Author: Mr Khurrum Awan and Nathanial Day

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 split² 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...