Tag: corporations

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.

Mammon & Co.

I have already blogged about the question whether corporations can assert religious rights, for example to ask for exemptions from generally applicable laws if these laws contradict their ― or their owners’ ― religious beliefs. In a decision issued this morning, Burwell v. Hobby Lobby Stores, which Eugene Volokh summarizes here, the Supreme Court of the United States answered that question in the affirmative. Because this case  has attracted a great deal of attention and commentary, it is a good occasion to come back to the question of “corporate religious freedom,” although, as usual, I do not express an opinion as to the correctness of the Court’s decision as a matter of U.S. law. My concern is with first principles.

According to Justice Samuel Alito, who wrote the majority opinion, recognizing and protecting corporations’ religious rights serves

to provide protection for human beings. A corporation is simply a form of organization used by human beings to achieve desired ends. An established body of law specifies the rights and obligations of the people (including shareholders, officers, and employees) who are associated with a corporation in one way or another. When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people. For example, extending Fourth Amendment  protection [against unreasonable searches and seizures] to corporations protects the privacy interests of employees and others associated with the company. Protecting corporations from government seizure of their property without just compensation protects all those who have a stake in the corporations’ financial well-being. (18)

And protecting corporations’ religious freedom “protects the religious liberty of the humans who own and control those companies.”

Indeed, the U.S. government was prepared to respect the religious beliefs of some corporations ― those whose mission was not primarily to make a profit for their owners. The issue of corporate religion in Hobby Lobby was thus not whether any corporations could have religious beliefs entitled to protection, but rather where, if anywhere, to draw the line between those who could have such beliefs and those which could not. The government (and the dissent) argued that the line should be drawn at the making of profit. The majority questioned why this should be so, pointing out that prior cases acknowledged the capacity of profit-making businesses (albeit not organized as corporations) to bring religious claims, and noting that

modern corporate law does not require for-profit corporations to pursue profit at the expense of everything else, and many do not do so. For-profit corporations, with ownership approval,support a wide variety of charitable causes, and it is not at all uncommon for such corporations to further humanitarian and other altruistic objectives. (23)

The majority opinion, however, suggests a line of its own, between “closely-held” and publicly traded corporations. At least, it purports only to consider the situation of closely-held corporations, suggesting that the question of corporate religious rights is very unlikely to arise in the case of “corporate giants” (29) or publicly traded corporations more generally.

Does either of these dividing lines make sense? Or should all corporations be considered capable of making religious claims? Or should none?

In a post on Bleeding Heart Libertarians, Jacob T. Levy is skeptical of the U.S. Supreme Court’s reasoning. He thinks that whatever rights corporations have, they have them as distinct legal persons, rather than as extensions of their owners:

the corporation qua property owner has, for example, 4th Amendment rights against its property being unreasonably warrantlessly searched, and 5th Amendment rights against it being taken for public use without compensation, or against being deprived of it without due process of law. …

To say that “corporations are made of people” is to make “a different point, nearly the opposite point, from saying that they are themselves persons.” The reason the Court makes this point is that, unlike for other rights, it doesn’t make sense to say that corporations have religious rights. These rights only make sense if they belong to individuals, the corporations’ owners. But that makes the claim of corporate rights contrived. In short,

[c]orporations are persons, or corporations are made out of people– the two thoughts lead to very different conclusions, and I think protecting the former requires rejecting this kind of easy recourse to the latter.

By contrast, over at the Volokh Conspiracy, Ilya Somin endorses the Court’s logic. For him, “[t]he fundamental point here is that people organized as corporations are people too.” Indeed, in his view, this logic extends to all corporations, and not just closely-held ones, as does the protection of other rights.

I too think that the distinction between closely-held and publicly traded corporations should not matter for defining the rights which corporations should be able to claim. As I suggested here, in response to a paper by Burt Neuborne arguing that closely-held but  not publicly traded corporations should have the right to engage in political speech, it would be strange if a corporation lost some rights upon filing an IPO and could then reacquire these rights upon being bought out by a private equity firm. “Rights, we generally think, are universal, if they exist at all.”

And, at least if we insist on speaking in terms of rights rather than limits on government action, I agree with prof. Somin that corporate rights are primarily the rights of individuals. I’m not sure I fully understand prof. Levy’s objection to this approach, but it seems to me that while  we are used to speaking of the freedom of expression of the New York Times, there really is, as I suggested in the post just linked to, “something puzzling about a purely legal entity, ‘a nexus of contracts,’ with no mind or personality of its own, having ideas to share.” The puzzle, indeed, is no less than in the case of a purely legal entity which, instead of producing newspapers, runs a church or, say, a religiously-compliant slaughterhouse. In all these cases, corporations themselves have no real moral claims; they have no personality of their own, no dignity, no liberty that we should care about. Corporate rights protect the rights their shareholders, and probably other stakeholders too (I have suggested otherwise in the past, but I am now inclined to think that I was wrong to exclude other stakeholders here).

These rights matters because in going to the marketplace ― whether as businessperson or as an employee ― one does not leave one’s personality behind. One does not surrender one’s identity or one’s beliefs. We recognize this, for example, when we insist that the law protect employees from having to do so, through anti-discrimination provisions. It is only right that people who go into business rather than become employees also be allowed to continue worshipping gods other than Mammon.

Defying Shame

A number of institutions in Québec, notably Montreal’s Jewish General Hospital and the English Montreal School Board, have announced their intention to defy the Charter of Shame prohibiting their employees from displaying “conspicuous” religious symbols ― if, that is, the Charter is ever enacted. In other words, these institutions are threatening to engage in civil disobedience, in response to what they see as a law that goes against their core values. Although I fully agree, and have argued at length in previous posts too numerous to link to, that this law would be a great iniquity, I think that institutional civil disobedience in response to it would raise difficult questions, which have not so far been discussed.

Some of these questions are of the kind anyone who considers engaging in civil disobedience ought to address. The most general and fundamental one is what is it that justifies one in defying democratically enacted law. Of course, that question has been answered before ― perhaps most famously by Henry David Thoreau and Martin Luther King Jr. Interestingly, both Thoreau and King gave fairly elaborate (and quite different) explanations of what they regarded as the government’s proper role, in addition to saying why they thought the governments to which they were subject strayed so far from it as to justify disobedience. However vague, these explanations make it possible to judge their actions. As has been said on a grander but similar occasion, “a decent respect to the opinions of mankind requires that they should declare the causes which impel them” to take the positions they do.

But there is also a more specific question to be answered by those who would defy the Charter of Shame. Are they justified in engaging in civil disobedience in a situation where they can, instead, address themselves to the courts and have the law they intend to defy struck down? Thoreau’s differences with government of the United States were not of the justiciable kind; King faced a judiciary that was unwilling to give him the justice to which he was entitled under the U.S. Constitution. By contrast, there is every reason to believe that the The Charter of Shame will be invalidated by the courts. Why break the law, then, rather than use the procedure it puts at one’s disposal to obtain the result one seeks? It is a quicker way to that result, perhaps, but if one believes in the Rule of Law, must one not sometimes take the longer, but lawful road? It is one thing to engage in civil disobedience when that road is blocked; it is another one, and arguably subject to a heavier burden of justification, to do it when the road is wide open.

And then there questions which arise because those who now proclaim their intention to defy the Charter of Shame are not individuals, but organizations. Does it even make sense for an organization to engage in civil disobedience? Civil disobedience is closely linked to conscience ― and a organization might not have a conscience, as we are frequently reminded these days by those, on the American left, who angrily insist that corporations can have no right to free speech or free exercise of religion. Now, Thoreau at least had no doubts in this respect (though the point, I think, is rather tangential to his argument): “[i]t is truly enough said,” he wrote, “that a corporation has no conscience; but a corporation of conscientious men is a corporation with a conscience,” and I am inclined to agree with him. However, this position is not entirely free from difficulties, some of them similar to those I discussed here. And note that my rhetorical move of speaking of limits on the government rather than individual rights, which I suggested as a solution to the corporate rights conundrum, does not work in the case of civil disobedience, which is very much an exercise of individual freedom, not the imposition of a limit on the government.

Perhaps more importantly, though, even if one concludes, as I think one should, that organizations ― Thoreau’s “corporations with a conscience” ― can, in abstracto, engage in civil disobedience, one should still think about their moral responsibilities in doing so. A person who engages in civil disobedience must be prepared to go to prison for it, as Thoreau and King were. But if such a person is indeed put to prison, the cost of his standing on his conscience is borne by him alone ― and maybe by his family. An organization such as the English Montreal School Board or the Jewish General Hospital cannot be imprisoned. But they can be deprived of funding, and perhaps even dissolved, both of which would hurt their employees whom they are trying to defend, and the people taking care of whom is their main job. As a quip in Soviet times had it, “Galileo’s neighbour scientist also knew that the Earth moved, but he had a family.” A principled stand that is commendable in a solitary individual like Thoreau, might not be for those with responsibilities to others, and especially for organizations with responsibilities to thousands of vulnerable people.

All that is not to say, conclusively, that the English Montreal School Board and the Jewish General are wrong ― only that their position raises questions worthy of serious thought. Of course, it may well be that this position is nothing but posturing, cost-less so long as the Charter of Shame is not enacted, which hopefully it never will be. But it might be, alas, and anyway, civil disobedience is a serious matter, which should not be threatened, I think, without having thought through its moral implications.

Personality Issues

First of all, my apologies for the extended silence. At first, it was a lack of interesting topics; but then the worst enemy of blogging, the loss of habit of frequent writing. I will do my best to get back into it now.

I start off by a comment on an interesting recent article by my NYU professor, former National Legal Director of the ACLU, and sometime movie start, Burt Neuborne. In “Of ‘Singles’ without Baseball: Corporations as Frozen Relational Moments,” prof. Neuborne grapples with an issue that has aroused a great of controversy of late: the legal personality and constitutional rights of corporations. (I have a couple of posts on this topic here and here.)

In a nutshell, prof. Neuborne argues that corporate legal personality is a legal fiction, which is very useful for protecting and enforcing the rights of the corporation’s “participants”―mostly, but not only, shareholders. Accordingly, this notional personality can be endowed with constitutional rights insofar as doing so protects the rights of the corporation’s participants. For example, courts rightly recognize that corporations have a right to property, because this recognition protects the property rights of its shareholders; they rightly recognize the corporations’ freedom of speech when that freedom is exercised to communicate about the corporations’ business, because this protects the shareholders’ ability to pursue their legitimate commercial interests; and so on. On the other hand, courts have traditionally refused, and ought to refuse, to recognize corporate rights when doing so would favour some “participants” in a corporation at the expense of others. Thus, conferring on a corporation constitutional protection against self-incrimination would favour managers by allowing them to cover up their misdeeds, to the shareholders’ detriment. And, crucially, allowing a multi-shareholder corporation to spend money to intervene in electoral politics:

Unlike the garden-variety decisions about how to manage the corporate business …  no participant in the corporate enterprise believes that by joining a corporate community he or she has delegated the exercise of his or her First Amendment electoral rights to corporate management. Given the inevitable conflicts of interest within a large multi-shareholder corporate community about which candidate to support in a contested election, it appears inconsistent with [the usual legal principles] to vest a corporate management with a centralized power to use other peoples’ money for political ends.

Thus broad readings of the U.S. Supreme Court’s Citizens United decision, which, controversially, declared unconstitutional restrictions on the ability of corporations to spend money to support or oppose candidates in elections, are misguided. 

This is an elegant argument, much more fine-grained and plausible, and thus interesting, than the categorical rejection of corporate legal personality and constitutional rights which have become popular in some quarters on the left in reaction to Citizens United. But I find it problematic in its own way. For one thing, I wonder whether it makes sense to make the answer to the question whether a corporation has a certain free speech right dependent on its internal structure. For another, I think that prof. Neuborne mischaracterizes the relationship between the rights of the “participants” in a corporation and the corporation itself, at least in the case of electoral speech. Most broadly, I think there is reason to question his rejection of the possibility of meaningfully distinct corporate personality and rights.

First, prof. Neuborne’s theory makes the existence of corporate rights dependent on their potential for advancing or hindering the interests of corporate “participants”―rights should be recognize when they advance the participants’ interests when they are unified, and rejected when the participants’ interests conflict and corporate rights would favour those of some participants over others. This means, as prof. Neuborne acknowledges, that corporations owned by a single shareholder, or presumably by a small group of like-minded shareholders, should have more rights than those owned by large numbers of shareholders who might have diverse opinions and interests. A public corporation whose shares are widely held would not have the right to spend on supporting candidates for an election―but the same corporation, if it bought out and taken private, would presumably have that right in the next election, as there is no longer a possibility for conflict among its shareholders. This strikes me as implausible. Rights, we generally think, are universal, if they exist at all.

Second, I don’t think that recognizing corporate speech rights, including the right to intervene in electoral politics, amounts to “delegat[ing] the exercise” of these rights from the shareholders and other corporate “participants” to management. Shareholders remain free to exercise these rights on their own, independently from and contrary to the corporation. One doesn’t have a limited supply of free speech rights, some of which one hands over to corporate management, so one’s rights are not actually impeded by corporate speech, even if one disagrees with it. Of course, one might be upset about one’s investment serving to promote ideas one disagrees with, but one might be similarly upset about business decisions a corporation of which one owns shares makes. Prof. Neuborne is right that there is a certain price to pay for extricating oneself from a relationship with a corporation―but that is the risk one takes by buying shares. 

Finally, I am not sure that prof. Neuborne is right to argue that corporate personality and rights can exist only insofar as they promote the easily ascertainable interests and uphold the rights of corporate “participants.” I accept that a corporation only serves to advance the interests of its shareholders (note that prof. Neuborne speaks of “participants,” not only shareholders―it is a disagreement I do not want to get into here). But we treat other artificial entities―notably governments of all sorts―as having an existence and rights of their own, even though they also exist in order to serve the interests and/or protect the rights of individuals. I’m not persuaded that the position of corporations is very different.

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.

Freedom of Corporate Religion?

A number of cases now working their way through the US court system and attracting a great deal of commentary, some of which Josh Blackman summarizes and/or links to in this post, ask an interesting question: can a corporation challenge a requirement that it provide its employees with health insurance covering, among a great many other things, contraception, on the basis that this infringes its (owners’) religious freedom (the so-called “contraception mandate”)? A corporation, of course, does not worship, or believe anything. So can it be entitled to exercise a religious right? I am not qualified to answer this question as a matter of US law, but I thought I’d say a few words about how it might play out in Canada.

Could a Canadian corporation challenge a law on the basis that it infringed religious freedom? The answer seems to be sometimes yes, and sometimes maybe. The foundational case on freedom of religion, and indeed one of very the first Charter cases, was  R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295. As the style of clause makes clear, the respondent was a corporation. It was accused of operating a store on a Sunday, contrary to the Lord’s Day Act, R.S.C. 1970, c. L‑13. It claimed that the statute was contrary to the Charter’s guarantee of freedom of religion because it enforced a Christian religious observance. And sure enough, the government said that that didn’t matter, because as a corporation, Big M could not possibly have a right to freedom of religion. Justice Dickson (as he then was) rejected this argument:

Any accused, whether corporate or individual, may defend a criminal charge by arguing that the law under which the charge is brought is constitutionally invalid. Big M is urging that the law under which it has been charged is inconsistent with s. 2(a) of the Charter and by reason of s. 52 of the Constitution Act, 1982, it is of no force or effect.

…

The argument that the respondent, by reason of being a corporation, is incapable of holding religious belief and therefore incapable of claiming rights under s. 2(a) of the Charter, confuses the nature of this appeal. A law which itself infringes religious freedom is, by that reason alone, inconsistent with s. 2(a) of the Charter and it matters not whether the accused is a Christian, Jew, Muslim, Hindu, Buddhist, atheist, agnostic or whether an individual or a corporation. It is the nature of the law, not the status of the accused, that is in issue. (Emphasis mine)

But there is a very important qualification:

 As the respondent submits, if the legislation under review had a secular purpose and the accused was claiming that it interfered with his religious freedom, the status of the accused and the nature of his belief might be relevant: it is one thing to claim that the legislation is itself unconstitutional, it is quite another to claim a “constitutional exemption” from otherwise valid legislation, which offends one’s religious tenets.

This possible exception―possible, because Justice Dickson is not deciding that the status of the claimant is relevant to, much less dispositive of, exemption claims―might actually be much more important than the rule in Big M.  That case was probably unique; Canada is not about to re-enact the Lord’s Day Act, or any other law enforcing or prohibiting religious observances. Claims for religious exemptions, by contrast, have arisen in the last few years, and will continue to arise.

One such case was Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567, in which Hutterites tried to obtain an exemption from the requirement that their drivers’ licences bear their pictures, which contradicted their interpretation of the Second Commandment. Unfortunately, it is not entirely clear what sort of entity the colony is, legally speaking―is it a corporation or something else? I am guessing though that it is a corporation of some sort, since it sued in its own name. Indeed, it is remarkable enough that no individual Hutterite was a party in the case, considering that it is individuals who applied for drivers’ licences and were required to submit to picture-taking contrary to their faith. Still, that was not at all an issue in the case. Perhaps this is simply because a violation individuals’ religious freedom was so obvious (though the majority held that it was justified under s. 1 of the Charter). Perhaps the Colony had a sort of implicit public interest standing, if such a thing can exist. Perhaps the key is that even if the Colony is, legally, a corporation, it is an obviously religious one, in a way that most ordinary commercial corporations are not. The most we can say with confidence is that this case does not confirm Justice Dickson’s caveat about corporations seeking religious exemptions; but nor does it conclusively put that caveat to rest.

So much for the law, as best I understand it. I will try to have some more theoretical comments on the issue in the coming days.