Rights for Us, or Limits on Them?

I blogged recently about whether, in Canadian constitutional law, corporations can challenge laws as violations of the freedom of religion. The answer, I said, is sometimes yes, and sometimes maybe, depending on the nature of the statute at issue, and maybe on other things too. But does that make sense in theory? A corporation itself has no religion, though its owners might. How can it assert such an intrinsically personal right?

The same question is often asked (perhaps more in the US than in Canada) about free speech. Occupy Wall Street (remember them?) claimed that one of the many things that were incorrigibly wrong with the universe is the recognition of the free speech rights of corporations. Again, there seems to be something puzzling about a purely legal entity, “a nexus of contracts,” with no mind or personality of its own, having ideas to share. And the same thing might be said about other rights too. Due process rights are often justified by reference to human dignity, but a corporation doesn’t have dignity; property rights are sometimes justified by the Lockean “sweat of the brow” theory, but a corporation has neither brow nor sweat glands.

I want to suggest a way of getting out of this metaphysical conundrum. My idea is very tentative, and maybe not as helpful (or as interesting) as I think it might be, but I’ll share it anyway. Perhaps we should simply stop thinking in terms of rights. Rather than rights, what we should be interested in are limits on government action. Instead of saying that a person has a right to X, we should be saying that the government cannot interfere with X. This eliminates the awkwardness of dealing with the question whether a person who claims the right to X is the sort of person who can in fact have or enjoy X. Of course, the two ways of saying it are really two sides of the same coin, so there would still be individuals bringing claims that the government disregarded the constitutional prohibition, much like they now bring claims that the government infringed their rights. But there seems to be less difficulty in accepting that a corporation can point to a government disregarding a prohibition than that it can claim a right.

This way of thinking is already familiar in Canadian constitutional law. As I noted in the post linked to above, in R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, Justice Dickson (as he then was) justified his conclusion that a corporation was entitled to challenge a law pursuant to which it was accused as infringing freedom of religion because “[i]t is the nature of the law, not the status of the accused, that is in issue.” And of course that is how we think of federalism disputes. We do not say that, say, legislation creating a federal securities regulator would infringe somebody’s right not to have Parliament regulate securities, and then ask ourselves who might actually be able to claim this right. We say that such legislation is ultra vires Parliament―that it is beyond its powers. What I am suggesting is that we think and speak in the same manner of disputes about what we usually refer to as rights.

Against that is the text of the Canadian Charter of Rights and Freedoms itself. Not only is it actually called a Charter of Rights, but most of its substantive provisions are specifically termed as rights, variously said to belong to “everyone” (ss. 2, 7-10, 12, 17), “every citizen of Canada” (ss. 3, 6(1)), “every citizen of Canada and every person who has the status of a permanent resident of Canada” (s. 6(2)), “every person charged with an offence” (s. 11), “every witness” (s. 13), “a party or witness” (s. 14), “every individual” (s. 15(1)), or “every member of the public in Canada” (s. 20). (By contrast, some provisions of the US Bill of Rights are formulated as prohibitions addressed to the government rather than as individual rights, including the First Amendment: “Congress shall make no law…”). But courts, so far as I know, never made much of these introductory clauses (which is as well―I fail to see what is to be gained by trying to figure out whether “everyone” is different from, say, “every member of the public).

In any case, my point is not so much about litigation as about clear thinking. As a matter of law, there is no doubt that corporations can in fact assert various rights under the Charter. Some of the foundational Charter cases involved corporations―not only Big M, but also Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927 (about freedom of expression), and Hunter v. Southam Inc., [1984] 2 S.C.R. 145 (about protection against unreasonable searches). But if we want to understand why this is not an aberration, thinking about limits on government rather than rights for individuals might help.

Author: Leonid Sirota

Law nerd. I teach public law at the University of Reading, in the United Kingdom. I studied law at McGill, clerked at the Federal Court of Canada, and did graduate work at the NYU School of Law. I then taught in New Zealand before taking up my current position at Reading.

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