Climb Out!

The Québec Court of Appeal errs in holding that corporations are protected against cruel and unusual punishment

In a case that has attracted some media attention, 9147-0732 Québec inc v Directeur des poursuites criminelles et pénales, 2019 QCCA 373 the Québec Court of Appeal recently ruled that a corporation is entitled to the protection of section 12 of the Canadian Charter of Rights and Freedoms, which provides that “[e]veryone has the right not to be subjected to any cruel and unusual treatment or punishment”. In my view, however, the majority is mistaken. Its analysis illustrates the perils of what I have been referring to as “constitutionalism from the cave” ― the belief that our constitution is only an imperfect reflection of the true constitutional justice to which the courts ought to give effect.

Justice Bélanger’s opinion for the majority (herself and Justice Rancourt) starts with a discussion of the place of organizations, a term that includes but is not limited to corporations, in contemporary criminal law. In Justice Bélanger’s view, since the constitution is an evolving “living tree”, its interpretation ought to be fitted to the context of a criminal law that imposes liability similar to that of corporations on unincorporated associations of individuals. In this context, seeking to maintain a sharp distinction between the rules applicable to individuals and corporations “would create more problems than it would solve”. [102; translation mine, here and throughout]

Justice Bélanger then rejects the argument that corporations cannot avail themselves of the protection of section 12 because this provision aims at upholding human dignity. She points out that other Charter guarantees ― the presumption of innocence and the right to be secure against unreasonable search and seizure ― have also been linked to human dignity, yet they apply to legal persons. Moreover, deprivations of economic resources can affect people, and while corporations have distinct legal personalities, not all organisations, as the criminal law uses the term, do. In any case, “a legal person can suffer from a cruel fine that is evidenced by its rigour, harshness, and a kind of hostility”. [122]

Turning to constitutional text, Justice Bélanger notes that the section 12 rights are guaranteed to “everyone”. In the context of various other rights (for example, the protection against unreasonable searches and seizures), “everyone” has been read as encompassing legal persons.

Justice Bélanger also argues that allowing the imposition of disproportionate fines on corporations is against the public interest, as well the normal purposes of criminal punishment. Indeed, she

do[es] not believe that Canadian society would find acceptable or in the natural order of things, in whatever circumstances, that a grossly disproportionate fine cause the bankruptcy of a legal person or organization, thus imperilling the rights of its creditors or requiring layoffs. [130; footnote omitted]

Justice Chamberland dissents, making two main arguments. Perhaps the more important one is based on the purpose of section 12 of the Charter, notably as defined by the Supreme Court. This purpose is to preserve human dignity. The Supreme Court says so in multiple decisions. The Canadian Bill of Rights and the International Covenant on Civil and Political Rights, to which Charter‘s legal rights, including those protected by section 12, can be traced, are “instruments that provide for protection of rights in connection with human dignity”. [57] Indeed, “[t]he assertion that no one is to be subject to cruel treatment or punishment cannot be dissociated from human dignity”. [58] While the scope of “treatments or punishments” that may potentially be regarded as cruel can evolve so as to extend to fines, the requirement that the dignity of an individual, not a legal person, be affected is fixed.

Justice Chamberland’s other argument is textual. He considers that, as a matter of plain meaning, the word “cruel” refers to the infliction of “suffering, torture, inhumanity, and barbarity, all words that are tied to living beings and cannot be related to a legal person”. [51] He adds that “[o]ne can be cruel to living beings, of flesh and blood, whether humans or animals. And not to corporations with share capital.” [54-55; paragraph break removed] Justice Chamberland adds that “[t]he English Bill of Rights 1688 and the Eighth Amendment to the United States Constitution specifically provide protection against excessive fines, which the Canadian Charter and the Canadian Bill of Rights do not incorporate”. [66]

In my view, Justice Chamberland comes to the right conclusion, essentially for the textual reasons that he gives, though they are worth elaborating on a bit. Take the historical or comparative context first. It is useful to start with the Magna Carta (to which Justice Bélanger, but not Justice Chamberland, alludes). The original, 1215, version of the Magna Carta (in English translation) stipulated that

For a trivial offence, a free man shall be fined only in proportion to the degree of his offence, and for a serious offence correspondingly, but not so heavily as to deprive him of his livelihood. In the same way, a merchant shall be spared his merchandise, and a villein the implements of his husbandry, if they fall upon the mercy of a royal court. None of these fines shall be imposed except by the assessment on oath of reputable men of the neighbourhood.

The Bill of Rights 1688 picks up on this idea of proportionality between offence and fine, but it joins it with two other guarantees: “That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted”. The Eighth Amendment repeats these exact words, only replacing “ought not to be” with “shall not be”. The Charter does things somewhat differently from its forbears. The right “not to be denied reasonable bail without just cause” is placed in a separate provision (section 11(e)) from the protection against cruel and unusual punishment (section 12). The proscription of “excessive fines”, meanwhile, has not been retained.

These drafting choices ought to matter. In particular, the Charter‘s text means that excessive fines are not, without more, unconstitutional. Now, in R v Boudreault, 2018 SCC 58, the Supreme Court held that a fine could be punishment for the purposes of section 12, which is fair enough. But of course that doesn’t remove the requirement that the fine, like any other punishment, must be “cruel and unusual” for it to be unconstitutional.

This brings me to the other part of Justice Chamberland’s textual argument: the meaning of the word “cruel”. It is remarkable, and telling, that Justice Bélanger does not directly engage with this question. Yet it is a crucial one. Both the French dictionaries to which Justice Chamberland refers and the OED define “cruel” in terms of the wilful infliction of pain and suffering or indifference to suffering. “Cruel” is not just a synonym for “excessive” or “grossly disproportionate”. Though disproportionality can be a useful indication of cruelty, it does not become cruelty unless it also causes or reflects indifference to suffering.

Now, perhaps this will always be the case with grossly disproportional punishment is inflicted on human beings. But in the case of personae fictae, the shortcut from disproportionality to cruelty is barred. As Justice Chamberland observes, legal persons cannot suffer or be pained. Justice Bélanger’s suggestion to the contrary, quoted above, strikes me as feeble. A corporation may certainly, in an objective sense, be the victim of harsh punishment and hostility. But it cannot subjectively suffer from these things.

Justice Bélanger’s main textual argument ― that section 12 protects “everyone”, and other provisions that do so apply to legal persons ― is also unpersuasive. Justice Bélanger is right that section 8 does apply to legal persons; she could also have pointed to section 2, at least some of whose guarantees (especially freedom of expression) clearly apply to corporations. But “everyone” also introduces section 7 of the Charter, whose protections, especially the right to life, can only apply to natural persons. The word “everyone”, it seems, is used ambiguously in the Charter, and we cannot rest very much on it.

Justice Bélanger’s point about human dignity being associated with rights that have been held to extend to corporations is better taken. But, by itself, it cannot clinch the argument for her position. Indeed, neither she nor Justice Chamberland should have gotten into a discussion of human dignity at all. The issue in this case can be resolved at the stage of interpretation ― of discerning the meaning the constitutional text ― without the need for construction in light of the purpose of the provision at issue. In some cases, construction is necessary to arrive at a workable way of applying a vague constitutional text. Here, by contrast, it only serves to muddy the waters.

Ultimately, Justice Bélanger decides the case the way she does because she thinks that it would be better if our constitution prevented Parliament and legislatures from imposing disproportionate fines that would cripple, and perhaps bankrupt, businesses. There is surely something to be said for this view as a normative matter. But what is “in the public interest” is not for the courts to decide. It is the politicians’ prerogative to, first, choose which limitations will be imposed on them and their successors, by framing constitutional provisions; and then by legislating within the boundaries of these provisions. It is arguable that the framers of the Charter made a mistake in failing to incorporate a protection against excessive ― and not only cruel ― fines. It is arguable that Québec’s legislature erred in imposing the minimum fine at issue in this case on a corporation guilty of a purely regulatory victimless offence (operating a construction business without a license). But it is not the Court of Appeal’s job to correct these errors.

As I have said before, it is a serious if all too common mistake to believe that the Charter’s text “is not so much a law that courts must apply as a sort of shadow in Plato’s cave, a vague reflection of true constitutional ideals that the judges must discover and explain to us cavemen”. The Charter, and the rest of the constitution, is binding law ― binding on the courts as well as on legislatures. “There can be”, I said, “no real constitutionalism in Plato’s cave. It’s time to climb out.” That includes the Québec Court of Appeal.

Author: Leonid Sirota

Law nerd. I teach constitutional law at the Auckland University of Technology Law School, in New Zealand. I studied law at McGill, clerked at the Federal Court of Canada, and then did graduate work at the NYU School of Law.

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