Supreme Court to examine whether fines to companies can be ‘cruel and unusual’

OTTAWA — The Supreme Court of Canada has agreed to hear a case examining whether the Charter protection against cruel and unusual punishment can apply to companies as well as individuals

The question arose when a Quebec company convicted of acting as a construction contractor without the necessary license was fined $30,000, the minimum under the provincial Building Act.

The numbered company sought to have the minimum fine in the law struck down, invoking Section 12 of the Canadian Charter of Rights and Freedoms, which states, “Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.”

Last March, the Quebec Court of Appeal sided with the company, with one of the three judges who heard the case dissenting. Quebec’s attorney general sought leave to appeal, and on Thursday the high court agreed to hear the case.

The main argument against giving a legal entity the protection provided under Section 12 is that it falls within the framework of the preservation of “human dignity.” In an online “Guide to the Canadian Charter of Rights and Freedoms,” the federal government cites torture, abusive use of force and disproportionate prison sentences as examples of cruel and unusual punishment.

But Court of Appeal Justice Dominique Belanger, writing for the majority last March, said she was not convinced Section 12 refers only to “human dignity.” She noted that companies have successfully invoked other Charter protections in the past.

“The fine can be cruel to the legal entity,” she reasoned. “A legal entity may suffer from a cruel fine that manifests itself by its harshness, its severity and a sort of hostility.”

The decision opened the door for Quebec businesses to challenge other statutes with minimum fines.

An association representing the construction industry had joined the challenge of the numbered company’s fine, and after winning in the Court of Appeal, it said it hoped the decision would lead the government to review fines levied on construction companies to ensure they are proportionate to the offence.

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