Attorney General of Quebec v. Director of Criminal and Penal Prosecutions, 2020 SCC 32

SUPREME COURT OF CANADA Citation: Quebec (Attorney General) v. 9147-0732 Québec inc., 2020 SCC 32, [2020] 3 S.C.R. 426 Appeal Heard: January 22, 2020 Judgment Rendered: November 5, 2020 Docket: 38613 Between: Attorney General of Quebec and Director of Criminal and Penal Prosecutions Appellants and 9147-0732 Québec inc.

Respondent - and - Director of Public Prosecutions, Attorney General of Ontario, Association des avocats de la défense de Montréal, British Columbia Civil Liberties Association, Canadian Civil Liberties Association and Canadian Constitution Foundation Interveners Official English Translation: Reasons of Kasirer J. Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.

Joint Reasons for Judgment: (paras. 1 to 48) Brown and Rowe JJ. (Wagner C.J. and Moldaver and Côté JJ. concurring) Concurring Reasons: (paras. 49 to 137) Abella J. (Karakatsanis and Martin JJ. concurring) Concurring Reasons: (paras. 138 to 142) Kasirer J.

quebec (a.g.) v. 9147-0732 québec inc. Attorney General of Quebec and Director of Criminal and Penal Prosecutions Appellants v. 9147-0732 Québec inc. Respondent and Director of Public Prosecutions, Attorney General of Ontario, Association des avocats de la défense de Montréal, British Columbia Civil Liberties Association, Canadian Civil Liberties Association and Canadian Constitution Foundation Interveners Indexed as: Quebec (Attorney General) v. 9147-0732 Québec inc. 2020 SCC 32 File No.: 38613. 2020: January 22; 2020: November 5.

Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ. on appeal from the court of appeal for quebec Constitutional law — Charter of Rights — Cruel and unusual treatment or punishment — Scope and purpose of guarantee — Whether s. 12 of Canadian Charter of Rights and Freedoms protects corporations from cruel and unusual treatment or punishment. A corporation was found guilty of carrying out construction work as a contractor without holding a current license for that purpose, an offence under s. 46 of Quebec’s Building Act .

Pursuant to s. 197.1 of that Act, the penalty for an offence under s. 46 is a mandatory minimum fine which varies depending on whether the offender is an individual or a corporation. Applying this provision, the Court of Québec imposed the then minimum fine for corporations of $30,843. The corporation challenged the constitutionality of the mandatory minimum fine on the basis that it offended its right to be protected against cruel and unusual treatment or punishment under s. 12 of the Charter .

The Court of Québec dismissed the challenge, concluding that expanding the protection of rights intrinsically linked to individuals to include corporate rights would trivialize the protection granted by s. 12 . On appeal by the corporation, the Quebec Superior Court similarly held that corporations were not covered by s. 12, as the provision’s purpose was the protection of human dignity, a notion meant exclusively for natural persons.

A majority at the Quebec Court of Appeal, however, allowed the corporation’s appeal, concluding that since corporations could face cruel treatment or punishment through harsh or severe fines, s. 12 could apply to them. The dissenting judge was of the view that s. 12 does not apply to corporations. Held : The appeal should be allowed and the judgment of the Court of Appeal set aside. Per Wagner C.J. and Moldaver, Côté, Brown and Rowe JJ.:

Section 12 of the Charter does not protect corporations from cruel and unusual treatment or punishment because the text “cruel and unusual” denotes protection that only human beings can enjoy. The protective scope of s. 12 is thus limited to human beings. The Court’s jurisprudence on s. 12, in both its French and English versions, is marked by the concept of human dignity, and the existence of human beings behind the corporate veil is insufficient to ground a s. 12 claim of right on behalf of a corporate entity, in light of the corporation’s separate legal personality.

To claim protection under the Charter , a corporation must establish that it has an interest falling within the scope of the guarantee, and one which accords with the purpose of that provision. The court must seek to discern the scope and purpose of the right by way of a purposive

interpretation, that is, by reference to the character and the larger objects of the Charter itself, to the language chosen to articulate the specific right or freedom, to the historical origins of the concepts enshrined, and where applicable, to the meaning and purpose of the other specific rights and freedoms with which it is associated within the text of the Charter . The approach is generous, purposive and contextual and should be done in a large and liberal manner. Within the purposive approach, the analysis must begin by considering the text of the provision.

While constitutional norms are deliberately expressed in general terms, the words used remain the most primal constraint on judicial review and form the outer bounds of a purposive inquiry. Giving primacy to the text prevents an

interpretation that overshoots (or undershoots) the actual purpose of the right. It is not the sole consideration, but treating it as the first indicator of purpose is constitutive of the principles of Charter

interpretation. T he text of s. 12, particularly the inclusion of “cruel”, strongly suggests that the provision is limited to human beings. The ordinary meaning of the word “cruel” does not permit its application to inanimate objects or legal entities such as corporations. The words “cruel and unusual treatment or punishment” refer to human pain and suffering, both physical and mental. An examination of

s. 12’s historical origins shows that the Charter took a different path from its predecessors, the English Bill of Rights and the Eighth Amendment of the United States Constitution, by carving off the right not to be denied reasonable bail without just cause from the right to be free from cruel and unusual punishment and by omitting the protection against excessive fines. The protection against cruel and unusual punishment under s. 12 therefore exists as a standalone guarantee. This is highly significant: excessive fines (which a corporation can sustain), without more, are not unconstitutional.

For a fine to be unconstitutional, it must be so excessive as to outrage standards of decency and abhorrent or intolerable to society. This threshold is, in accordance with the purpose of s. 12, inextricably anchored in human dignity and cannot apply to treatments or punishments imposed on corporations. There is agreement with Abella J.’s discussion of related Charter rights. However, there is disagreement with the prominence given to international and comparative law in the interpretive process.

International and comparative sources play a limited role of providing support or confirmation for the result reached by way of purposive

interpretation of Charter rights. Their weight and persuasiveness depends on the nature of the source and its relationship to the Charter . A principled framework and methodology for considering international and comparative sources in constitutional

interpretation is necessary, both to properly recognize Canada’s international obligations and to provide consistent and clear guidance to courts and litigants. The presumption of conformity is the firmly established interpretive principle that the Charter is presumed to provide protection at least as great as that afforded by similar provisions in international human rights documents which Canada has ratified.

Binding international instruments carry more weight in the analysis than non-binding instruments, which should be treated as relevant and persuasive but not determinative interpretive tools, and courts drawing from the latter should be careful to explain why they are drawing on a particular source and how it is being used. In this case, the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment and the International Covenant on Civil and Political Rights are both binding on Canada, thus triggering the presumption of conformity.

However, neither extends protection from cruel and unusual punishment to corporations. While both the American Convention on Human Rights and the European Convention for the Protection of Human Rights and Fundamental Freedoms have also been found not to extend protection to corporations against cruel and unusual punishment, these instruments are merely persuasive here. International instruments that pre-date the Charter can also clearly form part of the historical context of a Charter right regardless of whether Canada is a party to such instruments.

In this case, the context of the English Bill of Rights and the Eighth Amendment is highly relevant as each contained similar but not identical protections as s. 12. As for instruments that post-date the Charter , those that do not bind Canada carry much less interpretive weight than those that do. Finally, decisions of foreign and international courts are included among those non-binding sources that are relevant and may be persuasive. However, particular caution should be exercised as the measures in effect in other countries say little about the scope of the rights enshrined in the Canadian Charter .

Per Abella, Karakatsanis and Martin JJ.: The purpose of s. 12 of the Charter is to prevent the state from inflicting physical or mental pain and suffering through degrading and dehumanizing treatment or punishment. It is meant to protect human dignity and respect the inherent worth of individuals. Its intended beneficiaries are people, not corporations.

Determining the scope of s. 12 requires first determining the purpose of the right, which is to be sought by reference to the character and objectives of the Charter itself, to the language chosen to articulate the specific right or freedom, to the historical origins of the concepts enshrined, and to the principles and values underlying the right. Examining the text of the Charter is only the beginning of the interpretive exercise, which is fundamentally different from interpreting a statute.

A generous, purposive and contextual approach should be applied so that Charter rights can grow and adapt to changing realities. Overemphasizing the plain text of Charter rights would make Canadian constitutional law more insular, and creates a risk that, over time, those rights will cease to represent the fundamental values of Canadian society and the purposes they were meant to protect. Purpose remains the central consideration in interpreting the scope and content of a Charter right.

While several factors — including the text — can help inform the exercise, the Court has never endorsed a rigid hierarchy among these interpretative guides. A review of the language used in the Court’s s. 12 jurisprudence shows that both the English and French versions capture the same concept, namely, that s. 12 prohibits treatment or punishment that is incompatible with human dignity. Dictionary

definitions of “cruel”, “cruelty”, “cruel and unusual punishment” and “ cruel ” in French, reveal that the ordinary meaning of the words cruel and unusual treatment or punishment in s. 12 centers on human pain and suffering. The fact that the word “everyone” is found in the text of s. 12 cannot, by virtue of its literal meaning, expand the protection to corporations, without any regard for the purpose of the right as protecting human dignity.

The historical origins and values underlying s. 12 of the Charter can be traced back to art. 10 of the English Bill of Rights , which stipulated that excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. The provision was incorporated almost verbatim into the Eighth Amendment of the United States Constitution. In both the English and American contexts, protection for corporations was not contemplated. In the United States, the historical purpose of prohibiting cruel and unusual punishment was to protect the inherent worth and dignity of human beings.

In Canada, similar language first appeared in s. 2(

b) of the Canadian Bill of Rights . The wording of that provision and of s. 12 of the Charter are almost identical. Like the Canadian Bill of Rights , the enactment of the Charter was influenced by the events of the Second World War, WWII’s shocking indifference to human dignity and the devastating human rights abuses it tolerated resulted in responsive protections in international human rights instruments and in domestic rights guarantees like the Charter .

Since Canada’s rights protections emerged from the same chrysalis of outrage as other countries around the world, it is helpful to compare Canada’s s. 12 prohibition against cruel and unusual treatment with how courts have interpreted the numerous international instruments containing similar provisions. The Court has frequently relied on international and comparative law sources to assist in delineating the breadth and content of Charter rights; this is a standard and accepted practice. Both those sources which are binding and those which are not have proven to be indispensable in almost all areas of the law.

The Court has never required that these sources be separately weighed, nor has it ever applied a hierarchical sliding scale of persuasiveness, segmenting non-binding international and comparative sources into categories worthy of more or less influence. Considering what and how laws and decisions have been applied on related questions by other countries and institutions is part not only of an ongoing global judicial conversation, but of the epistemological package constitutional courts routinely rely on.

Narrowing our approach by putting unnecessary barriers in the way of access to international and comparative sources is a worrying setback.

While s. 12’s international siblings vary in language, a common meaning can be ascribed to their various formulations as thephrase “cruel and unusual” is a compendious expression of a norm. The criterion applied to determine whether a punishment is cruel andunusual is whether the punishment prescribed is so excessive as to outrage standards of decency.

All of the relevant international sourceslead to the irrefutable inference that the right to be free from cruel and unusual punishment is intended to protect human dignity byprohibiting degrading, inhuman, or dehumanizing treatment or punishment that causes physical or mental pain and suffering. None ofthem include protection for corporations. While this international consensus does not dictate the outcome, it provides compelling andrelevant interpretive support. A review of foreign domestic law, while not determinative, also supports an

interpretation of s. 12 of theCharter which excludes protection for corporations. Internationally, it is widely acknowledged that the right to be free from cruel andunusual punishment is intended to protect human dignity by prohibiting degrading, inhuman, or dehumanizing treatment or punishmentthat causes physical or mental pain and suffering. Looking at the meaning and purpose of the other specific rights and freedoms with which s. 12 is associated, ss. 7 to 14 ofthe Charter are grouped under the heading “Legal Rights”.

The broad purposes of these legal rights are to preserve the rights of detainedindividuals, by ensuring they are dealt with fairly and humanely, and to maintain the repute and integrity of the system of justice.Significantly, corporations have been found not to be included under both ss. 7 and 11(c). The purpose of s. 12 is to confer protection on a singularly human level. It is meant to protect human dignity and respect theinherent worth of individuals. Just as corporations cannot experience human reactions such as stress or anxiety, neither can theyexperience suffering. It would strain the

interpretation of cruel and unusual treatment or punishment under s. 12 if a corporation, anartificial entity, could be said to experience it. Since corporations do not fall within the purpose of s. 12, they do not fall within itsprotective scope. Per Kasirer J.: There is agreement with Abella, Brown and Rowe JJ. that the protection offered by s. 12 of the Charter doesnot extend to corporations. Charter rights must be given a large, liberal and purposive

interpretation. Starting from the language of s. 12,particularly the word “cruel”, the dissenting Court of Appeal judge correctly found that it would distort the ordinary meaning of thewords to say that it is possible to be cruel to a corporate entity. Although the scope of s. 12 has been broadened over the years, itsevolution is still concerned only with human beings. In his analysis, the dissenting judge relied on sources drawn from domestic,international and English law and on the Civil Code of Québec. In this case, it is unnecessary to consider questions relating to the properapproach to constitutional

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APPEAL from a judgment of the Quebec Court of Appeal (Chamberland, Bélanger and Rancourt JJ.A.), 2019 QCCA 373, [2019] AZ-51573754, [2019] J.Q. no 1443 (QL), 2019 CarswellQue 1425 (WL Can.), setting aside a decision of Dionne J., 2017 QCCS 5240, [2017] AZ-51443312, [2017] J.Q. no 16310 (QL), 2017 CarswellQue 10451 (WL Can.), which affirmed a decision of Ratté J.C.Q., 2017 QCCQ 1632, [2017] AZ-51373092, [2017] J.Q. no 2085 (QL), 2017 CarswellQue 1930 (WL Can.). Appeal allowed. Stéphanie Quirion-Cantin, Sylvain Leboeuf, Julie Dassylva and Anne-Sophie Blanchet-Gravel, for the appellant theAttorney General of Quebec.

Laura Élisabeth Trempe and Marie-Pier Champagne, for the appellant the Director of Criminal and Penal Prosecutions. Martin Villa and Niki Galanopoulos, for the respondent. François Lacasse and Mathieu Stanton, for the intervener the Director of Public Prosecutions. Courtney Harris, Ellen Weis and Ravi Amarnath, for the intervener the Attorney General of Ontario. Léon H. Moubayed, Sarah Gorguos and Guillaume Charlebois, for the intervener Association des avocats de la défense deMontréal. Gib van Ert and Jessica Magonet, for the intervener the British Columbia Civil Liberties Association.

Alyssa Tomkins, Albert Brunet and Penelope Simons, for the intervener the Canadian Civil Liberties Association. Brandon Kain, Adam Goldenberg and Sébastien Cusson, for the intervener the Canadian Constitution Foundation. The judgment of Wagner C.J. and Moldaver, Côté, Brown and Rowe JJ. was delivered by Brown and Rowe JJ. — I. Overview [1] This appeal requires this Court to decide whether s. 12 of the Canadian Charter of Rights and Freedoms protectscorporations from cruel and unusual treatment or punishment.

Like our colleagues, we conclude that it does not, because corporations liebeyond s. 12’s protective scope. Simply put, the text “cruel and unusual” denotes protection that “only human beings can enjoy”: IrwinToy Ltd. v. Quebec (Attorney General), (SCC), [1989] 1 S.C.R. 927, at p. 1004. The protective scope of s. 12 is thuslimited to human beings. [2] This Court’s jurisprudence on s. 12, in both its French and English versions, is marked by the concept of humandignity, as our colleagues have noted.

And the existence of human beings behind the corporate veil is insufficient to ground a s. 12 claimof right on behalf of a corporate entity, in light of the corporation’s separate legal personality. Like our colleagues, and contrary to themajority at the Court of Appeal, we therefore reject the proposition that the effect of a corporation’s bankruptcy on its stakeholdersshould be considered in determining the scope of s. 12. [3] Despite our agreement in the result, we find it necessary to write separately in order to assert the proper place inconstitutional

interpretation of foreign and international sources such as those upon which our colleague Abella J. relies in her analysis. Ifthese sources are to be accorded a persuasive character, it must be done by way of a coherent and consistent methodology. Coherenceand consistency in a court’s reasons are important, because they are critical means by which it may account to the public for the mannerin which it exercises its powers. This is particularly so on a matter so fundamental as constitutional

interpretation. As Professor StéphaneBeaulac notes, a consistently defined methodology of

interpretation is a means of promoting the rule of law, notably through legalpredictability: “‘Texture ouverte’, droit international et interprétation de la Charte canadienne” (2013), 61 S.C.L.R. (2d) 191, at pp. 192-93. [4] We also make a preliminary and more general point on constitutional

interpretation. Our colleague Abella J. appliesthe primacy of constitutional text and considerations of purpose in accordance with the purposive approach adopted in R. v. Big M DrugMart Ltd., (SCC), [1985] 1 S.C.R. 295, at p. 344, recently affirmed in R. v. Poulin, 2019 SCC 47, [2019] 3 S.C.R. 566,at para. 32. In doing so, however, she makes several remarks which risk minimizing the primordial significance assigned by this Court’sjurisprudence to constitutional text in undertaking purposive

interpretation. [5] Having regard to the decision under appeal, that of the Quebec Court of Appeal, we find Justice Chamberland’sdissenting reasons difficult to improve upon. His analysis belies any perceived need to dispose of this matter by referring extensively to

international and comparative law. And his textual analysis ⸺ notably on the meaning of “cruel” ⸺ is compelling. As he put it,[translation] “[i]t would completely distort the ordinary meaning of the words . . . to say that it is possible to be cruel to a corporateentity”: 2019 QCCA 373, at para. 53 . His discussion of the other Big M Drug Mart factors was also in keeping with thisCourt’s direction on the proper methodology of Charter

interpretation. II. Analysis [6] A

summary of relevant facts and judicial history is found in the reasons of Abella J., and we are content to rely onit. [7] To claim protection under the Charter, a corporation ⸺ indeed, any claimant ⸺ must establish that “it has aninterest falling within the scope of the guarantee, and one which accords with the purpose of that provision”: R. v. CIP Inc., (SCC), [1992] 1 S.C.R. 843, at p. 852. In order to make that determination, the court must seek to discern the scope and purpose ofthe right by way of a purposive

interpretation, that is, “by reference to the character and the larger objects of the Charter itself, to thelanguage chosen to articulate the specific right or freedom, to the historical origins of the concepts enshrined, and where applicable, tothe meaning and purpose of the other specific rights and freedoms with which it is associated within the text of the Charter”: Big MDrug Mart, at p. 344; see also Poulin, at para. 32. The approach is “generous, purposive and contextual” and should be done in a “largeand liberal manner”: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 15; Caron v. Alberta, 2015 SCC 56, [2015] 3 S.C.R. 511, atpara. 35. A. Preliminary Observations on Purposive

Interpretation [8] This Court has consistently emphasized that, within the purposive approach, the analysis must begin by consideringthe text of the provision. As this Court made clear in British Columbia (Attorney General) v. Canada (Attorney General), (SCC), [1994] 2 S.C.R. 41 (“Vancouver Island Railway”), “[a]lthough constitutional terms must be capable of growth, constitutionalinterpretation must nonetheless begin with the language of the constitutional law or provision in question”: p. 88.

This was reiterated inGrant, where the Court stated that “[a]s for any constitutional provision, the starting point must be the language of the section”: para. 15(emphasis added). Recently, in Poulin, the Court yet again affirmed that the first step to interpreting a Charter right is to analyze the textof the provision: para. 64. [9] This is so because constitutional

interpretation, being the

interpretation of the text of the Constitution, must first andforemost have reference to, and be constrained by, that text. Indeed, while constitutional norms are deliberately expressed in generalterms, the words used remain “the most primal constraint on judicial review” and form “the outer bounds of a purposive inquiry”: B. J.Oliphant, “Taking purposes seriously: The purposive scope and textual bounds of

interpretation under the Canadian Charter of Rightsand Freedoms” (2015), 65 U.T.L.J. 239, at p. 243. The Constitution is not “an empty vessel to be filled with whatever meaning we mightwish from time to time”: Reference re Public Service Employee Relations Act (Alta.), (SCC), [1987] 1 S.C.R. 313 (“RePSERA”), at p. 394; Caron, at para. 36. Significantly, in Caron, the Court reiterated this latter passage and reasserted “the primacy of thewritten text of the Constitution”: para. 36; see also para. 37. [10] Moreover, while Charter rights are to be given a purposive

interpretation, such

interpretation must not overshoot (or,for that matter, undershoot) the actual purpose of the right: Poulin, at paras. 53 and 55; R. v. Stillman, 2019 SCC 40, [2019] 3 S.C.R.144, at paras. 21 and 126; R. v. Blais, 2003 SCC 44, [2003] 2 S.C.R. 236, at paras. 17-18 and 40; Big M Drug Mart, at p. 344.

Givingprimacy to the text — that is, respecting its established significance as the first factor to consider within the purposive approach —prevents such overshooting. [11] While acknowledging, at para. 71, that language is part of the analysis, and that “the text of the Charter matters”,our colleague Abella J. stresses the direction in Hunter v. Southam Inc., (SCC), [1984] 2 S.C.R. 145, that the task ofinterpreting a constitution is fundamentally different from interpreting a statute, and that courts ought “not to read the provisions of theConstitution like a last will and testament lest it become one”: p. 155.

This felicitous phrase cannot, however, be taken as minimizing theprimordial significance of constitutional text as it has since, and repeatedly, been recognized in this Court’s jurisprudence: see, e.g.,Caron, at para. 36; Vancouver Island Railway, at p. 88. It is not the sole consideration, but treating it as the first indicator of purpose isnot in the least inconsistent with the principles of Charter

interpretation; it is in fact constitutive of them. [12] We pause here to emphasize that recognizing the importance of the text in interpreting a Charter right purposivelydoes not translate into advocating for what our colleague Abella J. calls a “[p]urely textual

interpretation” of the Constitution: para. 76,quoting A. Barak, “A Judge on Judging: The Role of a Supreme Court in a Democracy” (2002), 116 Harv. L. Rev. 19, at p. 83. Thenotion of “textualism” to which she looks for support diverges substantially from the idea — embodied in our jurisprudence and in ourreasons — that the purposive inquiry must begin by examining the text.

For instance, the “new textualism” denounced by Aharon Barakis a “system [which] holds that the Constitution and every statute should be understood according to the reading of a reasonable reader atthe time of enactment” and in which “[r]eference to the history of the text’s creation . . . is not allowed”: pp. 82-83. Similarly, the kind ofinterpretation Lorne Neudorf characterizes as “a purely textual reading” is one where the analysis is strictly restricted to the text of theConstitution: “Reassessing the Constitutional Foundation of Delegated Legislation in Canada” (2018), 41 Dal. L.J. 519, at p. 544.

Theseconceptions of constitutional

interpretation are not remotely consistent with that which we apply and which our law demands. [13] Moreover, our colleague Abella J. draws a false dichotomy between the purposive approach and beginning thatanalysis with the text of the provision. Indeed, beginning with the text is precisely what the precedents of this Court direct us to do.

Herassertion that “considering the text as prime [is] unhelpful in interpreting constitutional guarantees” (at para. 75) discards theseprecedents and the role they have assigned to the text in delimiting an analysis which, we repeat, must also be conducted by reference tothe historical context, the larger objects of the Charter, and, where applicable, the meaning and purpose of associated Charter rights. [14] Returning to the case at bar, the text of s. 12, particularly the inclusion of “cruel”, strongly suggests that theprovision is limited to human beings.

Justice Chamberland quite rightly emphasized that the ordinary meaning of the word “cruel” doesnot permit its application to inanimate objects or legal entities such as corporations. As he explained, [translation] “[o]ne would not say, it

seems to me, that a group of workers who demolish a building using explosives (rather than going about it more gradually, brick by brick, plank by plank) are being cruel to the building. Nor would one say that a group of consumers who boycott a business’s products, creating a real risk that it will be driven into bankruptcy, are being cruel to the company that owns the business” : para. 56, fn. 32.

We therefore agree with Justice Chamberland (at paras. 51-56), as with our colleague (Abella J.’s reasons, at para. 86), that the words “cruel and unusual treatment or punishment” refer to human pain and suffering, both physical and mental. [ 15 ] We note that, in refusing to apply s. 7 of the Charter to corporations in Irwin Toy , Dickson C.J. and Lamer and Wilson JJ. reasoned in a similar manner, observing that the text of the provision did not permit corporations to be included within its protective scope: In our opinion, a corporation cannot avail itself of the protection offered by s. 7 of the Charter .

First, we would have to conceive of a manner in which a corporation could be deprived of its “life, liberty or security of the person”. We have already noted that it is nonsensical to speak of a corporation being put in jail. To say that bankruptcy and winding up proceedings engage s. 7 would stretch the meaning of the right to life beyond recognition . . . . . . .

A plain, common sense reading of the phrase “Everyone has the right to life, liberty and security of the person” serves to underline the human element involved ; only human beings can enjoy these rights. “Everyone” then, must be read in light of the rest of the

section and defined to exclude corporations and other artificial entities incapable of enjoying life, liberty or security of the person, and include only human beings. [Emphasis added; pp. 1002-4.] [ 16 ] Relatedly, we also largely agree with our colleague Abella J.’s analysis of s. 12 ’s historical origins, subject to our discussion below on the proper role of international and comparative law in the analysis. We would add that an examination of s. 12 ’s historical origins shows that the Charter took a different path from its predecessors. Following an early, related protection in Magna Carta (1215),

Article 10 of the English Bill of Rights (Eng.), 1688, 1 Will. & Mar. Sess. 2, c. 2 provided that excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. Using almost identical text, the Eighth Amendment of the Constitution of the United States provides that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted”. In Canada, however, the right not to be denied reasonable bail without just cause was carved off from the right to be free from cruel and unusual punishment, and placed in s. 11(

e) of the Charter . Even more significantly, the protection against “excessive fines” was not retained at all, neither in the Charter nor in the Canadian Bill of Rights , S.C. 1960, c. 44 , as noted by Justice Chamberland: para. 66. [ 17 ] The protection against cruel and unusual punishment under s. 12 of the Charter therefore exists as a standalone guarantee. Viewed in light of the historical background noted above, this is highly significant, if not determinative: excessive fines (which a corporation can sustain), without more, are not unconstitutional.

For a fine to be unconstitutional, it must be “so excessive as to outrage standards of decency” and “abhorrent or intolerable” to society: R. v. Boudreault , 2018 SCC 58 , [2018] 3 S.C.R. 599 , at paras. 45 and 94 . This threshold is, in accordance with the purpose of s. 12 , inextricably anchored in human dignity. It is a constitutional standard that cannot apply to treatments or punishments imposed on corporations. [ 18 ] Finally, we agree with our colleague’s discussion of related Charter rights . B. The Proper Role of International and Comparative Law in Charter

Interpretation [ 19 ] We differ fundamentally from our colleague Abella J. on the prominence she gives to international and comparative law in the interpretive process. We see this as a significant and unwarranted departure from this Court’s jurisprudence. Specifically, her claim that all international and comparative sources have been “indispensable” to Canadian constitutional

interpretation (at para. 100) does not hold true when considering this Court’s jurisprudence and the varying role and weight it has assigned to different kinds of instruments. [ 20 ] As a constitutional document that was “made in Canada” ( Prime Minister Pierre Elliot Trudeau, Federal-Provincial Conference of First Ministers on the Constitution (morning session of November 2, 1981), at p. 10), the Charter and its provisions are primarily interpreted with regards to Canadian law and history. [ 21 ] This remains unchanged by the purposive approach developed in Big M Drug Mart .

That judgment makes no reference to international and comparative law, except inasmuch as it relates to the historical origins of the concepts enshrined in the Charter . [ 22 ] While this Court has generally accepted that international norms can be considered when interpreting domestic norms, they have typically played a limited role of providing support or confirmation for the result reached by way of purposive

interpretation. This makes sense, as Canadian courts interpreting the Charter are not bound by the content of international norms. As Professor Beaulac and Dr. Bérard explain: [ translation ] In addition to distorting the relationship between the international and domestic legal orders, the suggestion that domestic courts are bound by international normativity is inconsistent with the constitutional mandate and the function of the judiciary , which is to exercise decision-making power under the applicable Canadian and Quebec law. Seeing international law as having persuasive authority is a more appropriate, consistent and effective approach.

. . . . . . even though international normativity is not binding in domestic law, what it can and, indeed, should do in appropriate circumstances is to influence the

interpretation and application of domestic law by our courts . Except among a few zealous supporters of the internationalist cause, there is general agreement that, in this regard, the criterion for referring to international law in domestic law is that of “persuasive authority”. [Emphasis added; footnotes omitted.] ( Précis d’interprétation législative (2nd ed. 2014),

Chapter 5 , at paras. 5 and 36) [ 23 ] Furthermore, even within that limited supporting or confirming role, the weight and persuasiveness of each of these international norms in the analysis depends on the nature of the source and its relationship to our Constitution. The reason for this is the necessity of preserving the integrity of the Canadian constitutional structure, and Canadian sovereignty. As this Court cautioned in Kazemi Estate v.

Islamic Republic of Iran , 2014 SCC 62 , [2014] 3 S.C.R. 176, “[t]he interaction between domestic and international law must be managed carefully in light of the principles governing what remains a dualist system of application of international law and a constitutional and parliamentary democracy”: para. 150. [ 24 ] Although this Court has been careful to attach the appropriate weight to international and comparative law in Charter

interpretation, it has not always explained how or why different international sources are being discussed or relied on, while others are not.

The result has been a want of clarity, even confusion, to which, we say with respect, our colleague Abella J. adds by indiscriminately drawing from binding instruments and non-binding instruments, instruments that pre-date the Charter and instruments that post-date it, and decisions of international tribunals and foreign domestic courts, before concluding that, combined, they represent an “international consensus [that] does not dictate the outcome [but] provides compelling and relevant interpretive support”: para. 107. [ 25 ] As we will discuss, the various instruments and case law our colleague Abella J. reviews play different roles in the analysis and receive different weight.

Treating them all alike — stating that each is “indispensable” and provides “compelling and relevant interpretive support” (at paras. 100 and 107) — actually risks undermining the importance of Canada’s international obligations: The temptation may be great to treat all international law, whether binding on Canada or not, as “optional information” and to disregard the particular interpretative onus that is placed upon courts by the presumption of conformity with Canada’s international obligations. There is a significant difference between international law that is binding on Canada and other international norms.

The former is not only potentially persuasive but also obligatory. This distinction matters — when we fail to uphold our obligations, we undermine the respect for law internationally. The distinction also provides the rationale for the traditional common law presumption of conformity with Canada’s international obligations as well as for treating differently international norms that do not legally bind Canada. (J. Brunnée and S. J. Toope, “A Hesitant Embrace: The Application of International Law by Canadian Courts” (2002), 40 Can. Y.B. Intl Law 3, at p. 41; see also J. H.

Currie, Public International Law (2nd ed. 2008), at p. 260.) [ 26 ] We are not alone in expressing concern about the need for structure when citing international and foreign sources. Commentators have called for clarification in this regard, noting that courts should provide “greater analytical rigour” and “approach international law in a principled and coherent manner, providing clarity as to precisely what effect is accorded to international law in a given case and why”: Brunnée and Toope, at p. 8; see also the Honourable Mr. Justice R. G.

Juriansz, “International Law and Canadian Courts: A Work in Progress” (2008), 25 N.J.C.L. 171, at pp. 176 and 178.

Specific areas calling for clarification include: . . . the standards by which courts will determine whether treaties have been implemented; what role non-binding sources (such as treaties which Canada has signed but not ratified, treaties which Canada has neither signed nor ratified, or “soft law” instruments) should play in interpreting domestic law; and whether these various categories of non-binding sources should be treated differently from one another or Canada’s binding international legal obligations. (Currie, at p. 262) [ 27 ] A principled framework is therefore necessary and desirable, both to properly recognize Canada’s international obligations and to provide consistent and clear guidance to courts and litigants.

Setting out a methodology for considering international and comparative sources recognizes how this Court has treated such sources in practice and provides guidance and clarity. Given the issue raised in this case, our focus is on the use of international and comparative law in constitutional

interpretation. [ 28 ] This Court has recognized a role for international and comparative law in interpreting Charter rights. However, this role has properly been to support or confirm an

interpretation arrived at through the Big M Drug Mart approach; the Court has never relied on such tools to define the scope of Charter rights. Respectfully, our colleague Abella J.’s approach represents a marked and worrisome departure from this prudent practice. [ 29 ] This Court (generally, albeit not invariably) has been careful to specify the normative value and weight of different kinds of international sources. Our colleague Abella J.’s approach simply abandons this important practice. [ 30 ] A useful starting point is Dickson C.J.’s guidance in Re PSERA .

While it appeared in a dissenting opinion, his approach to international and comparative law has since shaped the way this Court treats these sources. His consideration of the scope of s. 2(

d) of the Charter looked first to Canadian and Privy Council jurisprudence and then to U.S. and international law: p. 335. On international sources specifically, he explained: The various sources of international human rights law — declarations, covenants, conventions, judicial and quasi-judicial decisions of international tribunals, customary norms — must, in my opinion, be relevant and persuasive sources for

interpretation of the Charter ’s provisions .

In particular, the similarity between the policies and provisions of the Charter and those of international human rights documentsattaches considerable relevance to

interpretations of those documents by adjudicative bodies, in much the same way that decisions of theUnited States courts under the Bill of Rights, or decisions of the courts of other jurisdictions are relevant and may be persuasive. Therelevance of these documents in Charter

interpretation extends beyond the standards developed by adjudicative bodies under thedocuments to the documents themselves. [Emphasis added; pp. 348-49.] [31] Continuing, Dickson C.J. then clarified that not all of these sources carry identical weight in Charter

interpretation,stating that “the Charter should generally be presumed to provide protection at least as great as that afforded by similar provisions ininternational human rights documents which Canada has ratified”: p. 349 (emphasis added). This proposition has since become a firmlyestablished interpretive principle in Charter

interpretation, the presumption of conformity: Ktunaxa Nation v. British Columbia (Forests,Lands and Natural Resource Operations), 2017 SCC 54, [2017] 2 S.C.R. 386, at para. 65; India v. Badesha, 2017 SCC 44, [2017] 2S.C.R. 127, at para. 38; Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4, [2015] 1 S.C.R. 245, at para. 64; Kazemi, atpara. 150; Divito v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 47, [2013] 3 S.C.R. 157, at para. 23; HealthServices and Support ⸺ Facilities Subsector Bargaining Assn. v.

British Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391, at para. 70. [32] Importantly, Dickson C.J. referred to instruments that Canada had ratified. In other words, his focus in framing thispresumption was on binding international instruments, as ratification is the way in which international instruments become bindinginternationally: see Currie, at pp. 153-54.

Similarly, Dickson C.J. explained that in becoming a party to international human rightsconventions, “Canada has thus obliged itself internationally to ensure within its borders the protection of certain fundamental rights andfreedoms which are also contained in the Charter” and that “[t]he content of Canada’s international human rights obligations is . . . animportant indicia of the meaning of ‘the full benefit of the Charter’s protection’”: p. 349 (emphasis added). [33] Subsequent case law has continued to tie the presumption of conformity to the language of Canada’s internationalobligations or commitments: Ktunaxa, at para. 65; Badesha, at para. 38; Saskatchewan Federation of Labour, at paras. 62 and 64-65;Divito, at para. 22; Health Services, at para. 69. [34] This Court has explained that the presumption of conformity “operates principally as an interpretive tool in assistingthe courts in delineating the breadth and scope of Charter rights”: Kazemi, at para. 150.

But, being a presumption, it is also rebuttableand “does not overthrow clear legislative intent”: para. 60. [35] Dickson C.J.’s approach to non-binding sources — treating them as relevant and persuasive, but not determinative,interpretive tools — also holds true: United States v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283, at para. 80. Non-binding sources notablyinclude international instruments to which Canada is not a party. Such instruments do not give rise to the presumption of conformity.They therefore have only persuasive value in Charter

interpretation. [36] This is not to say that such instruments are irrelevant. As Professors Brunnée and Toope observe, “[t]here is noreason why Canadian courts should not draw upon these [non-binding] norms so long as they do so in a manner that recognizes theirnon-binding legal quality”: p. 53 (emphasis added); see also G. van Ert, Using International Law in Canadian Courts (2nd ed. 2008), atp. 350.

As our colleague notes, “[t]his Court has frequently relied on [non-binding] international law sources to assist in delineating thebreadth and content of Charter rights”: Abella J.’s reasons, at para. 99 (emphasis added). Respectfully, her subsequent attempt to pullinto this jurisdiction the deep divisions that inhabit the jurisprudence of our neighbour is no part of what is at issue here. But moreimportantly, the cases she relies on support the distinctions we draw in these reasons.

Dickson C.J.’s articulation of the presumption ofconformity in Re PSERA was described as the “template for considering the international legal context” in Divito, at para. 22. Thatpassage was similarly cited in Slaight Communications Inc. v. Davidson, (SCC), [1989] 1 S.C.R. 1038, at p. 1056.Meanwhile, Burns and Re B.C.

Motor Vehicle Act, (SCC), [1985] 2 S.C.R. 486, dealt with the meaning of the “principlesof fundamental justice,” a point we address below in para. 45. [37] In addition to properly characterizing their use, courts must not allow consideration of such instruments to displacethe methodology for Charter

interpretation set out in Big M Drug Mart. This Court has been careful to proceed in this manner. Forexample, in Ktunaxa, the Court first reviewed Canadian case law on the scope of freedom of religion before confirming that scope withreference to binding international instruments: paras. 62-65.

It then briefly looked to non-binding instruments that “also” supported theCanadian case law, being careful to specify that the instruments were “not binding on Canada and therefore do not attract thepresumption of conformity” but were “important illustrations of how freedom of religion is conceived around the world”: para. 66.Similarly, in Saskatchewan Federation of Labour, the Court began with Canadian case law on s. 2(

d) of the Charter and its history:paras. 28-55. It then explained that Canada’s international human rights obligations “also” mandated protecting the right to strike, withparticular emphasis on binding instruments and the presumption of conformity: paras. 62-70. Finally, it noted that its conclusion was“[a]dditionally” supported by foreign domestic law: paras. 71-74. [38] It follows from all this ⸺ and, specifically, from the presumption of conformity ⸺ that binding instrumentsnecessarily carry more weight in the analysis than non-binding instruments.

While resort may be had to both, courts drawing from anon-binding instrument should be careful to explain why they are drawing on a particular source and how it is being used. Werespectfully say that the distinctions we draw are the very reason that “[t]his Court has had no difficulty in the past in deciding whichsources it finds to be more relevant and persuasive than others” (Abella J.’s reasons, at para. 104) and that stating this framework withclarity will not do “a disservice to our Court’s ability to continue to consider them with selective discernment”: para. 102.

Ourmethodology is firmly rooted in this Court’s jurisprudence. [39] In this case, the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, Can.T.S. 1987 No. 36, and the International Covenant on Civil and Political Rights, Can. T.S. 1976 No. 47 (“ICCPR”), are both binding onCanada, thus triggering the presumption of conformity. However, we agree with our colleague that neither extends protection from crueland unusual punishment to corporations.

[40] Our colleague’s analysis then flows into a consideration of the American Convention on Human Rights, 1144U.N.T.S. 123, adopted by Mexico and nations in the Caribbean and central and South America, and the European Convention for theProtection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 221. While we agree that neither instrument has been found toextend protection to corporations against cruel and unusual punishment, we are wary of our colleague Abella J.’s approach, whichappears to give these non-binding instruments similar weight to binding ones.

We therefore highlight that these instruments are merelypersuasive here, and that a court relying upon them should explain why it is doing so, and how they are being used (that is, what weightis being assigned to them). [41] Another important distinction is between instruments that pre- and post-date the Charter. Within the Big M DrugMart approach itself, courts are called on to consider the “historical origins of the concepts enshrined” in the Charter when determiningthe scope of a Charter right: p. 344.

International instruments that pre-date the Charter can clearly form part of the historical context of aCharter right and illuminate the way it was framed. Here, whether Canada is or is not a party to such instruments is less important, as the“drafters of the Charter drew on international conventions because they were the best models of rights protection, not because Canadahad ratified them”: L. E. Weinrib, “A Primer on International Law and the Canadian Charter” (2006), 21 N.J.C.L. 313, at p. 324.

In thiscase, then, the context of the English Bill of Rights, and the Eighth Amendment is highly relevant as each contained similar — but,importantly, not identical — protections as s. 12, as we have explained above. Similarly, it is entirely proper and relevant to consider theUniversal Declaration of Human Rights, G.A. Res. 217 A (III), U.N. Doc. A/810, at 71 (1948), which Canada voted to adopt and whichinspired the ICCPR, the International Covenant on Economic, Social and Cultural Rights, Can.

T.S. 1976 No. 46, and related protocolsCanada has ratified: Weinrib, at p. 317. [42] As for instruments that post-date the Charter, however, the question becomes once again whether or not they arebinding on Canada and, by extension, whether the presumption of conformity is engaged. It can readily be seen that an instrument thatpost-dates the Charter and that does not bind Canada carries much less interpretive weight than one that binds Canada and/orcontributed to the development of the Charter. [43] Finally, we turn to decisions of foreign and international courts.

In Re PSERA, these decisions were included amongthose non-binding sources that “are relevant and may be persuasive”: p. 348. Particular caution should, however, be exercised whenreferring to what other countries have done domestically, as the measures in effect in other countries say little (if anything at all) aboutthe scope of the rights enshrined in the Canadian Charter ⸺ a point stated emphatically by this Court in Frank v. Canada (AttorneyGeneral), 2019 SCC 1, [2019] 1 S.C.R. 3, at para. 62.

As Michel Bastarache explains, “[t]he logic employed by other courts providesguidance to Canadian courts rather than precedents to be followed” and “it is important to note that all foreign decisions ultimatelyinfluence Canadian law based on persuasive, rather than binding, authority”: “How Internationalization of the Law has Materialized inCanada” (2009), 59 U.N.B.L.J. 190, at p. 196. [44] While our colleague notes that her review of foreign domestic jurisprudence is “not determinative” and “supports”her analysis (Abella J.’s reasons, at para. 118), jurisprudence of foreign and international courts seems to infuse her analysis at variouspoints without an explanation of their role in the interpretive process.

Respectfully, her discussion of these sources fails to explain inwhat way they are instructive, how they are being used, or why the particular sources are being relied on. Indeed, she considers varioussources of international and comparative law, and gives them unstated, but seemingly equal, interpretive weight.

This is made most clearat paras. 99-100 of her reasons, where she says that the Court “has frequently relied on international law sources to assist in delineatingthe breadth and content of Charter rights” and that “both those sources which are binding and those which are not have proven to beindispensable in almost all areas of the law”. Yet, in line with the distinctions we have drawn, the cases our colleague cites in support ofthis broad statement largely focus on binding instruments: Canadian Egg Marketing Agency v. Richardson, (SCC),[1998] 3 S.C.R. 157, at para. 58; R. v.

Oakes, (SCC), [1986] 1 S.C.R. 103, at pp. 120-21; Health Services, atparas. 70-71; R. v. Smith, (SCC), [1987] 1 S.C.R. 1045, at p. 1061; Ktunaxa, at paras. 64-65; Saskatchewan Federationof Labour, at paras. 65-70. As we have already explained, the discussion of non-binding instruments in Saskatchewan Federation ofLabour and Ktunaxa properly served a confirmatory function. [45] Nor can Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3, Re B.C. MotorVehicle Act, Burns, or Kazemi justify relying on non-binding, non-historical instruments for the purposes of Charter

interpretation in thepresent case, as those cases required consideration of whether an international consensus existed because of the nature of the questionsasked. In Suresh, the Court was called on to determine if a peremptory norm of customary international law existed, which necessarilyrequired looking to international sources: paras. 59-75. Re B.C. Motor Vehicle Act, Burns, and Kazemi, meanwhile, were concerned withthe principles of fundamental justice under s. 7.

Determining these principles may call for an examination into international sources asthe analysis requires establishing a “societal consensus”: Kazemi, at paras. 139 and 150; Re B.C. Motor Vehicle Act, at p. 503; Burns, atparas. 79-81. [46] As this Court’s jurisprudence amply shows, the normative value and weight of international and comparativesources has been tailored to reflect the nature of the source and its relationship to our Constitution.

Reaffirming this guidance cannotreasonably be characterized as “novel”, howsoever forceful or overstated our colleague Abella J.’s charges to the contrary. [47] In all, courts must be careful not to indiscriminately agglomerate the traditional Big M Drug Mart factors withinternational and comparative law. The analysis must be dominated by the former and draw on the latter only as appropriate,accompanied by an explanation of why a non-binding source is being considered and how it is being used, including the persuasiveweight being assigned to it.

In our respectful view, our colleague Abella J.’s reasons do not conform to this approach. The result is thatforeign and international instruments and jurisprudence dominate her analysis, contrary to this Court’s teachings on constitutionalinterpretation. While this change in approach is not determinative in the case at bar, it could very well be in a different one. We thereforefind it crucial to reiterate the proper approach to Charter

interpretation. III. Conclusion [48] We would allow the appeal and set aside the judgment of the Court of Appeal.

The reasons of Abella, Karakatsanis and Martin JJ. were delivered by [ 49 ] Abella J. — The Canadian Charter of Rights and Freedoms constitutionalized protection for human rights and civil liberties in Canada, entrusting courts with the responsibility for interpreting the meaning of its provisions. Using a contextual approach, the Court has, over time, decided who and what came within the Charter ’s protective scope. [ 50 ]

Section 12 of the Charter guarantees the right not to be subjected to cruel and unusual treatment or punishment. This is the first case in which the Court has been asked to determine the scope of s. 12 , that is, who or what comes under its protection. This appeal raises the question of whether corporations come within its scope. [ 51 ] In my respectful view, s. 12 ’s purpose is to prevent the state from inflicting physical or mental pain and suffering through degrading and dehumanizing treatment or punishment. It is meant to protect human dignity and respect the inherent worth of individuals.

Its intended beneficiaries are people, not corporations. Background [ 52 ] The corporation before the Court, 9147-0732 Québec inc., was found guilty of carrying out construction work as a contractor without holding a current license for that purpose, an offence under s. 46 of the Building Act , CQLR, c. B-1.1 : 46. No person may act as a building contractor, hold himself out to be such or give cause to believe that he is a building contractor, unless he holds a current licence for that purpose.

No contractor may use, for the carrying out of construction work, the services of another contractor who does not hold a licence for that purpose. [ 53 ] Pursuant to s. 197.1 of the Building Act , the penalty for an offence under s. 46 of this statute is a mandatory minimum fine which varies depending on whether the offender is an individual or a corporation: 197.1 Any person who contravenes

section 46 or 48 by not holding a licence of the appropriate class or subclass is liable to a fine of $5,141 to $25,703 in the case of an individual and $15,422 to $77,108 in the case of a legal person, and any person who contravenes either of those sections by not holding a licence is liable to a fine of $10,281 to $77,108 in the case of an individual and $30,843 to $154,215 in the case of a legal person. [1] [ 54 ] Applying this provision, the Court of Québec imposed the then minimum fine for corporations of $30,843 on 9147- 0732 Québec inc. [ 55 ] The corporation challenged the constitutionality of the mandatory minimum fine in s. 197.1 of the Building Act on the basis that it offended its right to be protected against cruel and unusual treatment or punishment under s. 12 of the Charter . [ 56 ] It did not succeed at the Court of Québec, where Ratté J.C.Q. concluded that expanding the protection of rights intrinsically linked to individuals to include corporate rights would trivialize the protection granted by s. 12 of the Charter .

In any event, he concluded that the minimum corporate fine at issue, far from being cruel and unusual, represented the norm in penal regulatory law. At the time, no fine had yet been invalidated as cruel and unusual by a higher court, even in the context of individuals. [ 57 ] At the Quebec Superior Court, Dionne J. similarly held that corporations were not covered by s. 12 .

In his view, s. 12 ’s purpose was the protection of human dignity, a notion clearly meant exclusively for [ translation] “natural persons”. [ 58 ] A majority at the Quebec Court of Appeal allowed the appeal and held that s. 12 can apply to corporations. It found that s. 12 ’s association with human dignity did not prevent its application to corporations, since other Charter rights which also protect human dignity — ss. 8 and 11(

b) of the Charter — have been held to apply to corporations. Rather than looking at the purpose of the provision, it adopted a [ translation] “tangible benefit” approach, focusing on whether a corporation could theoretically benefit from the Charter protection in question: “a corporation’s ability to derive a tangible benefit from it”. This resulted in its conclusion that since corporations could face cruel treatment or punishment through harsh or severe fines, s. 12 could apply to them.

It remitted to the Court of Québec the question of whether the particular minimum fine against corporations set out in s. 197.1 of the Building Act amounted to cruel and unusual treatment or punishment. [ 59 ] In dissent, Chamberland J.A. was of the view that s. 12 is concerned with human dignity, a concept inapplicable to corporations. [ 60 ] For the following reasons, I agree with Chamberland J.A. that s. 12 does not apply to corporations. I would therefore allow the appeal. Analysis [ 61 ] This case gives us an opportunity to apply this Court’s approach to both constitutional

interpretation and the role of international and comparative law in its development. Regrettably, however, the majority has put into question this Court’s approach to both. Instead of using the text as the beginning of the search for purpose, the majority has given it “primacy” and assigned a secondary role to the other contextual factors, thereby erasing the difference between constitutional and statutory

interpretation. And instead of only relying on the traditional distinction between binding and non-binding international sources, the majority seems to have added a novel requirement: whenever a Canadian court considers non-binding international sources, it must explicitly justify their use, segment them into categories, and attribute a degree of weight to their inclusion, thereby transforming the Court’s usual panoramic search for global wisdom into a series of compartmentalized barriers. For constitutional, comparative and international law, this apparent change in

direction is a worrying setback. [62]

Section 12 of the Charter states: 12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment. [63] Most of this Court’s s. 12 jurisprudence has dealt with minimum and indeterminate sentences and the harmful effectsof incarceration.

The threshold test developed and applied in these and other cases is whether the treatment or punishment of theindividual is so “grossly disproportionate” as to “outrage standards of decency”, and be “abhorrent or intolerable”.[2] [64] 9147-0732 Québec inc. argued that this is the language that we should apply, since it is broader than the languageused in the French version of our s. 12 jurisprudence, which refers to treatment or punishment that is [translation] “incompatible withhuman dignity”.

This argument, with respect, results from looking at the words literally, in both the English and French versions, withoutexamining them in the context of the cases in which they were decided, thereby creating artificial conceptual schisms instead oflinguistic coherence (see Michel Doucet, “Le bilinguisme législatif”, in Michel Bastarache and Michel Doucet, eds., Les droitslinguistiques au Canada (3rd ed. 2013), 179, at p. 281). [65] A review of the language used in our s. 12 jurisprudence shows that both the English and French versions capture thesame concept, namely, that s. 12 prohibits treatment or punishment that is incompatible with human dignity (see R. v.

Smith, (SCC), [1987] 1 S.C.R. 1045; Kindler v. Canada (Minister of Justice), (SCC), [1991] 2 S.C.R. 779, at pp.811, 815 and 818; R. v. Boudreault, 2018 SCC 58 , [2018] 3 S.C.R. 599, at paras. 43, 67 and 126). I agree with ChamberlandJ.A. that [translation] “[t]he assertion that no one is to be subjected to cruel [and unusual] treatment or punishment cannot be dissociatedfrom the concept of human dignity” (para. 59).

The English and French versions of how this Court has described what is at stake in s. 12are, therefore, not only reconcilable, they are different ways of expressing the same idea. [66] 9147-0732 Québec inc. also argued that the scope of s. 12 should be seen to include corporations based on thisCourt’s recent decision in Boudreault. Writing for the majority, Martin J. found that the mandatory victim surcharge under s. 737 of theCriminal Code, R.S.C. 1985, c.

C-46, violated s. 12 of the Charter because it caused four interrelated harms to individuals:disproportionate financial consequences suffered by the indigent; threat of detention and/or imprisonment; threat of provincial collectionsefforts; and de facto indefinite criminal sanctions (para. 65). [67] But recognizing the suffering of individuals from harsh economic treatment by the state does not lead to the inferencethat s. 12 protects the economic interests of corporations. To answer that question requires a prior assessment of whether s. 12 applies toa corporation at all.

This in turn requires 9147-0732 Québec inc. to “establish that it has an interest falling within the scope of theguarantee, and one which accords with the purpose of that provision” (R. v. CIP Inc., (SCC), [1992] 1 S.C.R. 843, at p.852). [68] Unlike the approach applied by the majority of the Court of Appeal, with respect, determining the scope requires firstdetermining the purpose of the right. A Charter right must be interpreted “by an analysis of the purpose of [the] guarantee” (R. v. Big MDrug Mart Ltd., (SCC), [1985] 1 S.C.R. 295, at p. 344 (emphasis deleted); Hunter v.

Southam Inc., (SCC), [1984] 2 S.C.R. 145, at pp. 155-57; see also Peter W. Hogg, Constitutional Law of Canada (5th ed. Supp.), at s. 36.8(c)). Big MDrug Mart provides the definitive account of this approach: . . . the proper approach to the definition of the rights and freedoms guaranteed by the Charter was a purposive one. The meaning of aright or freedom gua

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