Many people are uncomfortable with the relative power corporations have within Western society, power they have been handed by human beings that in some ways gives them the legal equivalence of human beings.
Corporations are run by humans. And, like humans corporations can borrow money, can sue and be sued, and can own property.
Corporations are legal or artificial persons, in contrast to natural persons, human beings.
So should the important Charter protection from cruel and unusual treatment or punishment apply not only to Canadian human beings but also to Bombardier and SNC Lavalin and the Bank of Montreal?
Nearly a year ago, the Quebec Court of Appeal said “yes” to that question, albeit in a split decision.
The court was hearing the case of a Quebec builder that argued a $30,000 fine for carrying out construction work without proper permits constituted a violation of the corporation’s section 12 Charter rights, which states: “Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.”
Writing for the majority, Justice Dominque Belanger decided this Charter protection can apply to corporations. Society would find it unacceptable, she wrote, if a company was forced into bankruptcy because of disproportionate fines.
“The fine can be cruel to the legal entity,” she wrote. “A legal entity may suffer from a cruel fine that manifests itself by its harshness, its severity and a sort of hostility.”
The Attorney General of Quebec appealed that Quebec Court of Appeal ruling to the Supreme Court of Canada, a hearing scheduled for Jan. 22, 2020.
The Canadian Constitution Foundation (CCF), a conservative advocacy group, is an intervenor in the case, arguing that section 12 should indeed protect corporations. In its factum, the CCF argues that “it is a legal person’s human affiliates who ultimately suffer the consequences of punishment.”
In contrast, another intervenor, the British Columbia Civil Liberties Association (BCCLA) argues that there is a consensus in international human rights law that protections against cruel, inhuman or degrading treatment or punishment only apply to human beings.
“Informed by the concept of human dignity, these provisions aim to protect human beings against grossly disproportionate physical and mental suffering,” the BCCLA factum states.
In arguing that, the BCCLA references the first phrase of the preamble of the 1948 Universal Declaration of Human Rights: “Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.”
Now I am not a lawyer, nor am I a corporate or human rights expert. But that, to me, is the nub of it.
Can a corporation feel physical pain? Can a corporation suffer? Can we be cruel to a corporation? Does a corporation have dignity? Obviously not.
The people who work for a corporation can feel pain, suffer, receive cruelty and have dignity, and that may well be the argument the Quebec company will make, with the CCF intervening on its behalf.
But the BCCLA points out that to extend section 12 protection “to non-human entities that are incapable of such suffering would put Canada out of step with the international consensus.”
And: “Such a decision would also be at odds with the historic purpose and contemporary meaning of the human right to be free from cruelty.”
Regardless the outcome, with corporate dignity at stake, it will only be real human beings making the arguments and decisions all around.
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