Can a corporation challenge a mandatory minimum fine on the basis that it infringes s. 12[1] of the Canadian Charter of Rights and Freedoms? This is the question the Supreme Court of Canada will address in Attorney General of Quebec, et al. v. 9147-0732 Québec Inc., which was argued before the Supreme Court in January 2020 and is currently under reserve.
Background
In 2012, contractors for 9147-0732 Québec Inc., a private corporation, installed residential cabinets without the requisite permit to carry out the construction work. The corporation was convicted under s. 46 of Québec’s Building Act [2] for undertaking unpermitted work and faced a mandatory minimum regulatory fine of $30,843.[3] The corporation argued that the mandatory minimum fine constituted cruel and unusual punishment and violated s. 12 of the Charter.
The test under s. 12 of the Charter is whether the impact and effects of a punishment create circumstances which are grossly disproportionate to what would otherwise be a fit sentence, outrage the standards of decency, and are both abhorrent and intolerable. In the case of any mandatory minimum punishment, a court must determine: (a) what would constitute a proportionate sentence for the offence according to the principles of sentencing; and (b) whether the mandatory punishment is grossly disproportionate when compared to the fit sentence for either the claimant or for a reasonable hypothetical offender.
In this case, the threshold question about whether s. 12 applies to corporations was the focus of the litigation, as opposed to the constitutionality of the fine itself. To date, s. 12 of the Charter has only been applied to natural persons (i.e. humans) as opposed to legal persons (i.e. corporations).
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