March 04, 2019
Chamberland, Bélanger, Rancourt
Appeal from a judgment of the Superior Court dismissing the appeal from a sentence rendered by the Court of Quebec. Allowed, with dissenting reasons.
The appellant was convicted of an offence under the Building Act (CQLR, c. B-1.1) for having acted as a building contractor without holding a current licence for that purpose, and condemned to pay the minimum fine ($30,843) under that Act (s. 197.1). The appellant unsuccessfully challenged the constitutional validity of this provision, alleging that the mandatory minimum fine was cruel and unusual treatment within the meaning of s. 12 of the Canadian Charter of Rights and Freedoms (R.S.C. 1985, App. II, No. 44, Schedule B, Part I). This is the only issue to decide in appeal.
Just like any organization within the meaning of the Criminal Code (R.S.C., 1985, c. C-46) legal persons are entitled to protection against cruel or unusual treatment or punishment. The Charter must receive a progressive interpretation that adapts to new realities. Since the enactment of the Charter, commentators and the courts have associated the right not to be subjected to cruel or unusual treatment or punishment with the concept of “human dignity”. Human dignity does not constitute an insurmountable obstacle barring the expansion of this protection to a legal person or an organization. A fine may be cruel to the legal person. Further, s. 12 of the Charter provides that “everyone” has the right not to be subjected to cruel and unusual treatment or punishment. According to the case law, the protection granted to “everyone” in matters involving search and seizure (s. 8 of the Charter) extends to legal persons. The terms used in these two provisions and the fact that the fundamental right falls under the heading of legal rights does not prevent an organization from benefiting therefrom. Moreover, a penal or criminal sanction must take the public interest into consideration. The Court does not believe that Canadian society would find it acceptable in all circumstances for a completely disproportionate fine to cause the bankruptcy of a legal person or an organization, thereby endangering the rights of creditors or forcing layoffs. The file should be referred back to a presiding justice of the peace for a determination of whether, in this case, the minimum fine under s. 197.1 of the Building Act infringes s. 12 of the Charter.
Dissent: The large and liberal interpretation of the guarantee against cruel and unusual treatment or punishment has made it possible to expand its scope to include, among other things, sentences involving a deprivation of liberty, conditions of detention, and now fines, without ever losing sight of the fact that the line that must never be crossed is that of compatibility with human dignity. The concept of “human dignity” is not applicable to legal persons. The appellant does not benefit from protection under s. 12 of the Charter.
Provision interpreted: Section 12 of the Canadian Charter of Rights and Freedoms
*Summary by SOQUIJ
Text of the decision: Http://citoyens.soquij.qc.ca
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