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“I’ll believe corporations are people when Texas executes one.” — quote attributed to Bill Moyers (Former White House Press Secretary)

May 27, 2021 - Albert Brunet

The Supreme Court of Canada ruled in Quebec (Attorney General) v. 9147-0732 Québec inc., 2020 SCC 32 that corporations cannot avail themselves of the protection housed in section 12 of the Charter against cruel and unusual punishment. Overturning a decision of the Quebec Court of Appeal, the Court unanimously decided that the protective scope of section 12 is limited to human beings.

Caza Saikaley’s Alyssa Tomkins and Albert Brunet were privileged to act as co-counsel with Professor Penelope Simons of the University of Ottawa’s Faculty of Law for the Canadian Civil Liberties Association (“CCLA”) in its intervention before the Supreme Court. The CCLA argued that section 12 should not apply to corporations and that the Court should adopt a principled and purposive approach when determining the availability of Charter rights and freedoms to corporations. It further submitted that any application of Charter rights to corporations must be done in a principled manner that focuses on the embodied human beings that these rights are meant to protect.

Interestingly, although the judges were unanimous in finding that section 12 did not apply to corporations and allowed the appeal, they used the case as a proxy for an ongoing intellectual battle concerning the primacy of text in the interpretative process and the value of international and comparative law.

In the majority reasons, Brown and Rowe JJ. (Wagner C.J. and Moldaver and Côté JJ. concurring) wrote that the proper approach in a generous, purposive, and contextual interpretation of the constitution is to begin with the text of the provision at issue. By looking at the text of section 12, the majority found that “cruel and unusual treatment or punishment” clearly refers to human pain and suffering and cannot be applied to inanimate objects (such as corporations). The majority disagreed with the prominence that Abella J. gave in her concurring reasons to international and comparative law in the interpretive process. For the majority judges, the proper role of such law is to support or confirm an interpretation arrived at through the purposive approach developed in R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 SCR 295.

In her concurring reasons, Abella J. (Karakatsanis and Marin JJ. concurring) found that “purpose” should be the central consideration in interpreting Charter rights. She stated that the plain text of the provision at issue should not be overemphasized and should not be “a factor of special significance”. Turning to international and comparative sources, Abella J. argued that the majority’s approach narrows the significance of those sources and that they should not “only be used to confirm a pre-established interpretation”.

In a further set of concurring reasons, Kasirer J. stated his view that it was unnecessary to engage in the issues relating to constitutional interpretation or the proper place of international law in the interpretive process in this case. He found that all relevant factors leaned in the same direction and supported the finding that the protection offered by s. 12 does not extend to corporations.

While unanimity in the result of the case shows the judges of the Court agree that a corporation has “no soul to be damned, and no body to be kicked”, the academic debate that arose in this case is a likely indication of further disagreements between the judges on the value of the written text of constitutional provisions and the proper place of international and comparative law when interpreting Charter rights.