CCF to intervene in Supreme Court hearing on cruel and unusual punishment and corporations

In 2012, a privately owned Quebec company was issued a fine of $30,834 under the province’s Building Act for carrying out construction work as a contractor without holding the requisite licence for that purpose.

The corporation responded by challenging the constitutionality of the fine in court, arguing that it violated the corporation’s right to be protected against “any cruel and unusual treatment or punishment” under section 12 of the Canadian Charter of Rights and Freedoms.

The Court of Quebec decided it unnecessary to rule on the issue of whether section 12 of the Charter applied to corporations, because the fine was not sufficiently onerous to meet the legal standard of cruel and unusual treatment of punishment. The respondent was found guilty and the fine was imposed.

On appeal, the Quebec Superior Court affirmed that decision but added that legal persons, such as the private company, could not benefit from the protection of section 12 of the Charter.

A majority of the Quebec Court of Appeal overruled those decisions finding that section 12 indeed can apply to corporations.

One judge dissented.The appeal of the Quebec Court of Appeal decision will be heard by the Supreme Court of Canada (SCC) on January 22, 2020. This will be the first time in the history of the Charter that this issue has come to the SCC.

The Canadian Constitution Foundation (“CCF”) chose to intervene in this case because it could have a broad impact upon the development of section 12 jurisprudence. Our submissions will lend support to the conclusion that section 12 can protect corporations, as the Québec Court of Appeal held. We will also attempt to assuage any of the SCC judges’ concerns, founded or unfounded, that protecting corporations from cruel and unusual treatment or punishment will inevitably lead Canadian constitutional law towards American precedents like Citizens United (corporate speech) and Hobby Lobby (corporate religion).

To counteract those sorts of concerns, the CCF will provide the SCC with an alternative roadmap for dismissing this appeal without necessarily endorsing the broader recognition of corporate rights under the Charter, while not foreclosing the possibility of recognizing it in future cases.

You can read the CCF’s factum here.

Joanna Baron, Executive Director of the CCF, said:

How the Supreme Court of Canada addresses this issue is important for all Canadians in at least two ways. First, and most obviously, the Court will decide whether corporations, and their human stakeholders, are protected by the Charter when facing fines or other punishments and treatments that are grossly disproportionate or outrageously excessive. But second, and perhaps more significantly, in this case, the SCC will set the methodology to be used by future courts in addressing similar disputes from across the nation.

The CCF would like to thank Brandon Kain and Adam Goldenberg of McCarthy Tétrault LLP for their generous pro bono work on this case.

The original release can be found here.