Date Closed

November 5, 2020

Lead Office

Toronto

On November 5, 2020, the Supreme Court of Canada issued its 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.

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 by alleging that it was contrary to section 12 of the Charter.

The Supreme Court 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 decided that the term “everyone” in section 12 of the Canadian Charter must be read as being limited to natural persons. Thus, this constitutional right does not extend to legal persons such as corporations.

The Court’s decision is notably based on the inclusion of the term “cruel” which, the Court concluded strongly suggests that the scope of section 12’s protection is limited to human beings. According to the Court, the ordinary meaning of the word “cruel” would strictly refer to human pain and suffering and would not permit its application to inanimate objects or legal entities such as corporations. In so doing, the Court provided significant guidance on the role of constitutional text and the use of international and foreign law in the interpretation of the Canadian Charter.

The Canadian Constitution Foundation (the “CCF”), a non-profit with the mission of defending the constitutional rights and freedoms of Canadians, intervened in this appeal. In its submissions, the CCF proposed a methodology for constitutional interpretation that should be used to resolve novel questions of Charter interpretation such as the one issue in this case.

The CCF argued that courts should ground their analysis in the text and context of the constitutional provision at issue. While a provision’s purpose will ultimately control its interpretation, that purpose must be discerned through careful consideration of the provision’s text and context. The majority of the Court largely adopted the CCF’s proposed methodology and clearly affirmed that “within the purposive approach, the analysis must begin by considering the text of the provision. (…) 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”.

McCarthy Tétrault represented the CCF before the Supreme Court of Canada, with a team led by Brandon Kain that included Adam Goldenberg and Sébastien Cusson.