Supreme Court of Canada holds that the constitutional protection against cruel and unusual treatment or punishment does not extend to corporations

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On November 5, 2020, the Supreme Court of Canada gave judgment in Quebec (Attorney General) v. 9147-0732 Québec inc., 2020 SCC 32. The Court held that section 12 of the Canadian Charter of Rights and Freedoms, which guarantees the right not to be subjected to cruel and unusual treatment or punishment, does not protect corporations.

Summary of the judgment

9147-0732 Québec inc., a corporation, was found guilty of operating its construction company without the required licence and was sentenced by the Court of Québec to pay the mandatory minimum fine of $30,843 under Québec’s Building Act. 9147-0732 Québec inc. challenged the constitutionality of this fine, alleging that it was contrary to section 12 of the Charter.

The Supreme Court of Canada was asked to decide whether the protection against cruel and unusual treatment or punishment provided by section 12 extends to legal persons, such as 9147-0732 Québec inc., or whether it is limited to natural ones.

The Court held unanimously that the term “everyone” in section 12 of the Canadian Charter must be read as being limited to natural persons. A majority of the Court emphasized the Canadian Charter’s use of the term “cruel”. This, the majority concluded, strongly suggests that the scope of section 12’s protection is limited to human beings. According to the majority, the ordinary meaning of the word “cruel” would strictly refer to human pain and suffering and would not permit the provision’s application to inanimate objects or to legal entities such as corporations. The majority reasoned that section 12’s historical origins and the related Charter rights also confirmed this conclusion.

Key takeaways for constitutional interpretation

In deciding this case, the majority of the Court (in reasons by Justices Brown and Rowe) provided important guidance on the appropriate methodology for constitutional interpretation. Litigants and lawyers will need to bear this guidance in mind in litigating novel constitutional issues going forward.

First, the majority confirmed that, when considering novel questions of Charter interpretation, courts should follow the purposive approach endorsed in R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, and in R. v. Poulin, 2019 SCC 47. In undertaking purposive interpretation, however, the majority held that courts should not lose sight of the “primordial” importance of the constitutional text itself (at para. 4) – the analysis must begin by considering the text of the provision. Constitutional interpretation, wrote the majority, “must first and foremost have reference to, and be constrained by, that text” (at para. 9).

Second, the majority of the Court took issue with the minority’s reliance on foreign and international law sources in the interpretive exercise. According to the majority:

  • The Charter must primarily be interpreted with regard to Canadian law and history.
     
  • Courts can consider international norms as supporting or confirming the outcome of purposive interpretation. They are not bound by the content of these norms, however.
     
  • Courts should avoid overreliance on foreign and comparative sources, and should carefully consider the role and weight that should be assigned to each of them. The weight and persuasiveness of each international norm must be established in accordance with its nature and its relationship to Canada’s Constitution.
     
  • Courts should follow the methodology established in the majority reasons in 9147-0732 Québec inc. when considering international and comparative sources in constitutional interpretation.

Conclusion

The Court’s judgment offers important guidance that will apply in future cases that involve novel questions of constitutional interpretation. That the judges of the Court disagreed on the applicable methodology for constitutional interpretation arguably lends additional precedential weight to the majority’s detailed description of the rules and principles of constitutional interpretation. Whether this meta-issue will remain the subject of contestation in future constitutional cases remains to be seen.

McCarthy Tétrault represented the Canadian Constitution Foundation, a non-profit with the mission of defending the constitutional rights and freedoms of Canadians, as an intervener before the Supreme Court of Canada in this appeal.

Case Information

Quebec (Attorney General) v. 9147-0732 Québec inc., 2020 SCC 32

Docket: 38613

Date of Decision: November 5, 2020

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