Quebec (Attorney General) v. 9147-0732 Québec inc.

2020 SCC 32

Supreme Court of Canada

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.

Indexed as: Quebec (Attorney General) v. 9147-0732 Québec inc.

File No.: 38613.

Overview

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.

Headnotes

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.

The 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 the phrase "cruel and unusual" is a compendious expression of a norm. The criterion applied to determine whether a punishment is cruel and unusual is whether the punishment prescribed is so excessive as to outrage standards of decency. All of the relevant international sources lead to the irrefutable inference that the right to be free from cruel and unusual punishment is intended to protect human dignity by prohibiting degrading, inhuman, or dehumanizing treatment or punishment that causes physical or mental pain and suffering. None of them include protection for corporations. While this international consensus does not dictate the outcome, it provides compelling and relevant interpretive support. A review of foreign domestic law, while not determinative, also supports an interpretation of s. 12 of the Charter which excludes protection for corporations. Internationally, it is widely acknowledged that the right to be free from cruel and unusual punishment is intended to protect human dignity by prohibiting degrading, inhuman, or dehumanizing treatment or punishment that 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 of the Charter are grouped under the heading "Legal Rights". The broad purposes of these legal rights are to preserve the rights of detained individuals, 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 the inherent worth of individuals. Just as corporations cannot experience human reactions such as stress or anxiety, neither can they experience suffering. It would strain the interpretation of cruel and unusual treatment or punishment under s. 12 if a corporation, an artificial entity, could be said to experience it. Since corporations do not fall within the purpose of s. 12, they do not fall within its protective scope.

Per Kasirer J.

There is agreement with Abella, Brown and Rowe JJ. that the protection offered by s. 12 of the Charter does not 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 the words 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, its evolution 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 proper approach to constitutional interpretation or the place of international law and comparative law in that approach any further.

Cases Cited

By Brown and Rowe JJ.

Applied: R. v. Big M Drug Mart Ltd., 1985 69 (SCC), [1985] 1 S.C.R. 295; considered: Reference re Public Service Employee Relations Act (Alta.), 1987 88 (SCC), [1987] 1 S.C.R. 313; referred to: Irwin Toy Ltd. v. Quebec (Attorney General), 1989 87 (SCC), [1989] 1 S.C.R. 927; R. v. Poulin, 2019 SCC 47, [2019] 3 S.C.R. 566; R. v. CIP Inc., 1992 95 (SCC), [1992] 1 S.C.R. 843; R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353; Caron v. Alberta, 2015 SCC 56, [2015] 3 S.C.R. 511; British Columbia (Attorney General) v. Canada (Attorney General), 1994 81 (SCC), [1994] 2 S.C.R. 41; R. v. Stillman, 2019 SCC 40, [2019] 3 S.C.R. 144; R. v. Blais, 2003 SCC 44, [2003] 2 S.C.R. 236; Hunter v. Southam Inc., 1984 33 (SCC), [1984] 2 S.C.R. 145; R. v. Boudreault, 2018 SCC 58, [2018] 3 S.C.R. 599; Kazemi Estate v. Islamic Republic of Iran, 2014 SCC 62, [2014] 3 S.C.R. 176; Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54, [2017] 2 S.C.R. 386; India v. Badesha, 2017 SCC 44, [2017] 2 S.C.R. 127; Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4, [2015] 1 S.C.R. 245; Divito v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 47, [2013] 3 S.C.R. 157; Health Services and Support — Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391; United States v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283; Slaight Communications Inc. v. Davidson, 1989 92 (SCC), [1989] 1 S.C.R. 1038; Re B.C. Motor Vehicle Act, 1985 81 (SCC), [1985] 2 S.C.R. 486; Frank v. Canada (Attorney General), 2019 SCC 1, [2019] 1 S.C.R. 3; Canadian Egg Marketing Agency v. Richardson, 1997 17020 (SCC), [1998] 3 S.C.R. 157; R. v. Oakes, 1986 46 (SCC), [1986] 1 S.C.R. 103; R. v. Smith, 1987 64 (SCC), [1987] 1 S.C.R. 1045; Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3.

By Abella J.

Applied: R. v. Big M Drug Mart Ltd., 1985 69 (SCC), [1985] 1 S.C.R. 295; referred to: R. v. Smith, 1987 64 (SCC), [1987] 1 S.C.R. 1045; R. v. Lyons, 1987 25 (SCC), [1987] 2 S.C.R. 309; R. v. Luxton, 1990 83 (SCC), [1990] 2 S.C.R. 711; Steele v. Mountain Institution, 1990 50 (SCC), [1990] 2 S.C.R. 1385; R. v. Goltz, 1991 51 (SCC), [1991] 3 S.C.R. 485; R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90; R. v. Latimer, 2001 SCC 1, [2001] 1 S.C.R. 3; R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96; R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773; R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130; R. v. Boudreault, 2018 SCC 58, [2018] 3 S.C.R. 599; Kindler v. Canada (Minister of Justice), 1991 78 (SCC), [1991] 2 S.C.R. 779; R. v. CIP Inc., 1992 95 (SCC), [1992] 1 S.C.R. 843; Hunter v. Southam Inc., 1984 33 (SCC), [1984] 2 S.C.R. 145; Conseil scolaire francophone de la Colombie-Britannique v. British Columbia, 2020 SCC 13, [2020] 1 S.C.R. 678; Syndicat Northcrest v. Amselem, 2004 SCC 47, [2004] 2 S.C.R. 551; R. v. Oakes, 1986 46 (SCC), [1986] 1 S.C.R. 103; Irwin Toy Ltd. v. Quebec (Attorney General), 1989 87 (SCC), [1989] 1 S.C.R. 927; Ford v. Quebec (Attorney General), 1988 19 (SCC), [1988] 2 S.C.R. 712; R. v. Keegstra, 1990 24 (SCC), [1990] 3 S.C.R. 697; Re B.C. Motor Vehicle Act, 1985 81 (SCC), [1985] 2 S.C.R. 486; Eldridge v. British Columbia (Attorney General), 1997 327 (SCC), [1997] 3 S.C.R. 624; R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906; R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353; R. v. Stillman, 2019 SCC 40, [2019] 3 S.C.R. 144; R. v. Poulin, 2019 SCC 47, [2019] 3 S.C.R. 566; Law Society of Upper Canada v. Skapinker, 1984 3 (SCC), [1984] 1 S.C.R. 357; Reference re Prov. Electoral Boundaries (Sask.), 1991 61 (SCC), [1991] 2 S.C.R. 158; District of Columbia v. Heller, 554 U.S. 570 (2008); Furman v. Georgia, 408 U.S. 238 (1972); R. v. Therens, 1985 29 (SCC), [1985] 1 S.C.R. 613; Divito v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 47, [2013] 3 S.C.R. 157; United States v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283; Slaight Communications Inc. v. Davidson, 1989 92 (SCC), [1989] 1 S.C.R. 1038; Reference re Public Service Employee Relations Act (Alta.), 1987 88 (SCC), [1987] 1 S.C.R. 313; Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817; Canadian Egg Marketing Agency v. Richardson, 1997 17020 (SCC), [1998] 3 S.C.R. 157; Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3; Health Services and Support — Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391; Kazemi Estate v. Islamic Republic of Iran, 2014 SCC 62, [2014] 3 S.C.R. 176; Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4, [2015] 1 S.C.R. 245; Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54, [2017] 2 S.C.R. 386; Roper v. Simmons, 543 U.S. 551 (2005); Reyes v. The Queen, [2002] UKPC 11, [2002] 2 A.C. 235; S. v. Williams, 1995 (3) S.A. 632; R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483; R. v. Hebert, 1990 118 (SCC), [1990] 2 S.C.R. 151; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), 1990 135 (SCC), [1990] 1 S.C.R. 425; R. v. Wholesale Travel Group Inc., 1991 39 (SCC), [1991] 3 S.C.R. 154; Mills v. The Queen, 1986 17 (SCC), [1986] 1 S.C.R. 863; R. v. Amway Corp., 1989 107 (SCC), [1989] 1 S.C.R. 21.

By Kasirer J.

Referred to: Conseil scolaire francophone de la Colombie-Britannique v. British Columbia, 2020 SCC 13, [2020] 1 S.C.R. 678; R. v. Smith, 1987 64 (SCC), [1987] 1 S.C.R. 1045.

Statutes and Regulations Cited

Bill of Rights (Eng.), 1688, 1 Will. & Mar. Sess. 2, c. 2, art. 10.

Building Act, CQLR, c. B-1.1, ss. 46, 197.1.

Canadian Bill of Rights, S.C. 1960, c. 44, preamble, s. 2(b).

Canadian Charter of Rights and Freedoms, ss. 7, 7 to 14, 8, 11(b), (c), (e), 12.

Civil Code of Québec.

Constitution of South Africa, s. 12(1)(e).

Magna Carta (1215).

New Zealand Bill of Rights Act 1990, s. 9.

United States Constitution, Eighth Amendment.

Treaties and Other International Instruments

American Convention on Human Rights, 1144 U.N.T.S. 123, arts. 1(2), 5(2).

Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, Can. T.S. 1987 No. 36, preamble, arts. 1, 16(1).

Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 221, art. 3.

International Covenant on Civil and Political Rights, Can. T.S. 1976 No. 47, preamble, art. 7.

International Covenant on Economic, Social and Cultural Rights, Can. T.S. 1976 No. 46.

Universal Declaration of Human Rights, G.A. Res. 217 A (III), U.N. Doc. A/810, at 71 (1948), preamble, art. 5.

Procedural History

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. n^o 1443 (QL), 2019 CarswellQue 1425 (WL Can.), setting aside a decision of Dionne J., 2017 QCCS 5240, [2017] AZ-51443312, [2017] J.Q. n^o 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. n^o 2085 (QL), 2017 CarswellQue 1930 (WL Can.). Appeal allowed.

Counsel

For the appellant the Attorney General of Quebec: Stéphanie Quirion-Cantin, Sylvain Leboeuf, Julie Dassylva and Anne-Sophie Blanchet-Gravel, Attorney General of Quebec, Québec.

For the appellant the Director of Criminal and Penal Prosecutions: Laura Élisabeth Trempe and Marie-Pier Champagne, Director of Criminal and Penal Prosecutions, Québec.

For the respondent: Martin Villa and Niki Galanopoulos, Services juridiques de l'APCHQ inc., Québec.

For the intervener the Director of Public Prosecutions: François Lacasse and Mathieu Stanton, Public Prosecution Service of Canada, Ottawa.

For the intervener the Attorney General of Ontario: Courtney Harris, Ellen Weis and Ravi Amarnath, Attorney General of Ontario, Toronto.

For the intervener Association des avocats de la défense de Montréal: Davies Ward Phillips & Vineberg, Montréal.

For the intervener the British Columbia Civil Liberties Association: Gib van Ert Law, Ottawa.

For the intervener the Canadian Civil Liberties Association: Caza Saikaley, Ottawa; University of Ottawa, Faculty of Law, Ottawa.

For the intervener the Canadian Constitution Foundation: McCarthy Tétrault, Toronto.

Judgment

Joint Reasons for Judgment — Brown and Rowe JJ.

(Wagner C.J. and Moldaver and Côté JJ. concurring)

I. Overview

[ 1 ] This appeal requires this Court to decide whether s. 12 of the Canadian Charter of Rights and Freedoms protects corporations from cruel and unusual treatment or punishment. Like our colleagues, we conclude that it does not, because corporations lie beyond s. 12's protective scope. Simply put, the text "cruel and unusual" denotes protection that "only human beings can enjoy": Irwin Toy Ltd. v. Quebec (Attorney General), 1989 87 (SCC), [1989] 1 S.C.R. 927, at p. 1004. The protective scope of s. 12 is thus limited to human beings.

[ 2 ] This Court's jurisprudence on s. 12, in both its French and English versions, is marked by the concept of human dignity, as our colleagues have noted. 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. Like our colleagues, and contrary to the majority at the Court of Appeal, we therefore reject the proposition that the effect of a corporation's bankruptcy on its stakeholders should be considered in determining the scope of s. 12.

[ 3 ] We agree with Abella J.'s discussion of related Charter rights. We respectfully disagree, however, with the prominence she gives to international and comparative law in the interpretive process. In our view, 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. We therefore take this opportunity to propose a principled framework and methodology for considering international and comparative sources in constitutional interpretation.

II. Section 12 Does Not Protect Corporations

[ 4 ] The proper approach to delineating the scope of a Charter right is purposive interpretation. As this Court has long held"the Charter ought to be interpreted in a generous rather than legalistic manner" ( R. v. Big M Drug Mart Ltd., 1985 69 (SCC), [1985] 1 S.C.R. 295, at p. 344). The court must seek to "ascertain the purpose [of a right] and then seek to identify the claimant class and the kind of conduct it protects" ( R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 16 (emphasis deleted)). The scope of the right is therefore defined by identifying its purpose and determining whether the particular claimant or interest fits within it ( Grant, at para. 16; R. v. Poulin, 2019 SCC 47, [2019] 3 S.C.R. 566, at para. 35).

[ 5 ] 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 ( Irwin Toy, at pp. 1003-4). The purpose of a right or freedom is to be sought 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 (Big M Drug Mart, at p. 344). The approach is generous, purposive and contextual and should be done in a large and liberal manner.

[ 6 ] Within the purposive approach, we are of the view that 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, in our view, constitutive of the principles of Charter interpretation. As this Court has stated"the protection of rights and freedoms" under the Charter "begins with a textual interpretation of the relevant provisions" (Caron v. Alberta, 2015 SCC 56, [2015] 3 S.C.R. 511, at para. 36). Considering the text first also disciplines the purposive inquiry against the risk of giving it scope broader or narrower than the purpose which the provision was meant to serve (British Columbia (Attorney General) v. Canada (Attorney General), 1994 81 (SCC), [1994] 2 S.C.R. 41, at p. 67).

[ 7 ] Some may read our approach as endorsing "textualism" as a method of constitutional interpretation. It does not. Textualism, as a theory, holds that the text alone controls the interpretation of a legal provision ( see R. v. Blais, 2003 SCC 44, [2003] 2 S.C.R. 236, at para. 16; R. v. Stillman, 2019 SCC 40, [2019] 3 S.C.R. 144, at para. 53). We are not proposing that approach. Rather, we are saying that, in any purposive analysis, the text ought to be considered first, as it is the most immediate expression of legislative intent and marks the outer boundary of the judicial interpretive function.

[ 8 ] This approach is, in our respectful view, fully consistent with the majority's approach in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 16, where the Court said that the "scope of a right must be understood in terms of its purpose" and that the court must seek to identify "the kind of conduct it protects". The text is a primary element of purpose but is not the only one. Other elements may include the historical origins of the provision, and the purposes of the surrounding provisions. Our point is not that the text is the only consideration, but that it is the first one to be considered.

[ 9 ] Section 12 of the Charter states:

12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

[ 10 ] The 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. One can be cruel to persons and animals, but it would not make sense to speak of being "cruel" to a corporation. As a result, the words "cruel and unusual treatment or punishment" refer to human pain and suffering, both physical and mental. The Court of Appeal's majority approached s. 12 as if it contained a standalone prohibition on "unusual" treatment or punishment, ignoring the word "cruel". We reject this approach. The words "cruel and unusual" form a single unified expression in s. 12, and both its French ("cruels et inusités") and English versions reflect the same concept.

[ 11 ] Looking to the historical origins of s. 12, as the Court must ( Big M Drug Mart, at p. 344), an examination of the historical sources confirms that s. 12 of the Charter is limited to human beings.

[ 12 ] Section 12 has its historical origins in art. 10 of the English Bill of Rights (1688), which provides:

That excessive Baile ought not to be required nor excessive Fines imposed nor cruell and unusuall Punishments inflicted.

[ 13 ] These words were incorporated almost verbatim into the Eighth Amendment to the United States Constitution, which provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

[ 14 ] The Charter took a different path from its predecessors. It carved off the right not to be denied reasonable bail without just cause from the right to be free from cruel and unusual punishment (the former appearing in s. 11( e ) and the latter in s. 12), and it omitted the protection against excessive fines (see R. v. Boudreault, 2018 SCC 58, [2018] 3 S.C.R. 599, at paras. 39-40). 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 ( R. v. Smith, 1987 64 (SCC), [1987] 1 S.C.R. 1045, at p. 1072). This threshold is, in accordance with the purpose of s. 12, inextricably anchored in human dignity, and it cannot logically apply to treatments or punishments imposed on corporations.

[ 15 ] We agree with Abella J.'s examination of related Charter rights, at paras. 126-136, and her conclusion that "the purpose of s. 12 is to confer protection on a 'singularly human level'" (para. 135). Since corporations do not fall within the purpose of s. 12, they do not fall within its protective scope.

[ 16 ] We respectfully disagree, however, with the Court of Appeal majority's approach, which appears to approach the scope of s. 12 as encompassing any treatment or punishment that is so disproportionate as to be outrageous to Canadians, and to conclude from that framing that corporations can logically experience such treatment or punishment. This approach inverts the analytical method. Whether the treatment or punishment violates s. 12 is a separate question from whether s. 12 applies at all. To determine the latter, the Court must ask whether the potential claimant is within the protective scope — i.e., within the class of persons or interests that s. 12 was designed to protect.

III. International and Comparative Law

[ 17 ] We agree with Abella J. that international and comparative sources may properly inform the purposive interpretation of Charter rights. But we respectfully disagree with the prominence she accords those sources.

[ 18 ] The proper role of international and comparative law in Charter interpretation is a longstanding question, and one on which this Court has not yet spoken with a single voice. We take this opportunity to clarify the matter.

[ 19 ] As this Court has consistently recognized, the Charter is "inspired by" and reflects the values expressed in international human rights documents: Reference re Public Service Employee Relations Act (Alta.), 1987 88 (SCC), [1987] 1 S.C.R. 313, at p. 348. This background provides a basis for considering the content and interpretation of those documents when interpreting the scope of Charter rights. But there are important distinctions to be drawn between different categories of international and comparative sources, and the respective weight to be accorded to each.

[ 20 ] We propose the following framework for considering international and comparative sources in Charter interpretation:

[ 21 ] First, 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 ( Slaight Communications Inc. v. Davidson, 1989 92 (SCC), [1989] 1 S.C.R. 1038; Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3, at para. 59; United States v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283). Binding international instruments thereby carry more weight in the analysis than non-binding instruments.

[ 22 ] Non-binding international instruments and decisions of foreign courts should be treated as relevant and persuasive but not determinative interpretive tools. Courts drawing from non-binding instruments should be careful to explain why they are drawing on a particular source and how it is being used.

[ 23 ] 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 such protection to corporations, these instruments are merely persuasive here.

[ 24 ] International instruments that pre-date the Charter can clearly form part of the historical context of a Charter right regardless of whether Canada is a party to such instruments. 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.

[ 25 ] 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. To treat those sources as near-equivalent with binding obligations, or with the Court's own jurisprudence on Charter rights, would improperly elevate them and expose Charter interpretation to an unmoored form of comparative eclecticism.

IV. Disposition

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

Concurring Reasons — Abella J.

(Karakatsanis and Martin JJ. concurring)

[ 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.

[ 52 ] 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.

[ 53 ] In determining the purpose of s. 12, I begin with its text. Section 12 reads:

12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

[ 54 ] While several factors — including the text — can help inform the purposive inquiry, the Court has never endorsed a rigid hierarchy among these interpretative guides.

[ 55 ] 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.

[ 56 ] 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.

[ 57 ] 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.

[ 58 ] While s. 12's international siblings vary in language, a common meaning can be ascribed to their various formulations as the phrase "cruel and unusual" is a compendious expression of a norm. The criterion applied to determine whether a punishment is cruel and unusual is whether the punishment prescribed is so excessive as to outrage standards of decency. All of the relevant international sources lead to the irrefutable inference that the right to be free from cruel and unusual punishment is intended to protect human dignity by prohibiting degrading, inhuman, or dehumanizing treatment or punishment that causes physical or mental pain and suffering. None of them include protection for corporations. While this international consensus does not dictate the outcome, it provides compelling and relevant interpretive support. A review of foreign domestic law, while not determinative, also supports an interpretation of s. 12 of the Charter which excludes protection for corporations. Internationally, it is widely acknowledged that the right to be free from cruel and unusual punishment is intended to protect human dignity by prohibiting degrading, inhuman, or dehumanizing treatment or punishment that causes physical or mental pain and suffering.

[ 59 ] Looking at the meaning and purpose of the other specific rights and freedoms with which s. 12 is associated within the text of the Charter (Big M Drug Mart, at p. 344), s. 12 is grouped, along with ss. 7 to 11 and 13 to 14, under the heading "Legal Rights" ("Garanties juridiques"). All legal rights, as Lamer J. declared"have been recognized as essential elements of a system for the administration of justice which is founded upon a belief in 'the dignity and worth of the human person' (preamble to the Canadian Bill of Rights . . . ) and on the 'rule of law' (preamble to the Canadian Charter . . . )" (Re B.C. Motor Vehicle Act, at p. 503).

[ 60 ] The broad purposes of the legal rights in ss. 7 to 14 were described by McLachlin J. as being two-fold"to preserve the rights of the detained individual and to maintain the repute and integrity of our system of justice" (R. v. Hebert, 1990 118 (SCC), [1990] 2 S.C.R. 151, at p. 179). These rights were "designed to ensure that individuals suspected of crime are dealt with fairly and humanely" (Robert J. Sharpe and Kent Roach, The Charter of Rights and Freedoms (6th ed. 2017), at p. 292; see also Re B.C. Motor Vehicle Act, at p. 503). They are, as Martin J. has recently put it"the core tenets of fairness in our criminal justice system" (Poulin, at para. 5).

[ 61 ] Only ss. 8 and 11(b) within the ss. 7 to 14 grouping have been found by this Court to apply to corporations. In Hunter, the Court accepted, without discussion or explanation, that the s. 8 right to be secure against unreasonable search or seizure could apply to corporations. Subsequently, in Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), 1990 135 (SCC), [1990] 1 S.C.R. 425, at pp. 521-22, La Forest J. noted that an unlawful search or seizure could have a significant impact on the privacy rights of individuals within a corporation. He noted that since "[p]eople . . . think of their own offices as personal space in a manner somewhat akin to the way in which they view their homes, and act accordingly", the requirement to submit to a search of business premises could "amount to a requirement to reveal aspects of one's personal life to the chilling glare of official inspection" (pp. 521-22).

[ 62 ] The inference that breaches of s. 8 can have a direct impact on an individual in a corporation, however, is not logically available under s. 12. The individuals within the corporation are not the subject of any treatment or punishment imposed on the corporate entity. This is reinforced by the corporation's separate legal personality, as stressed by Lamer C.J. in R. v. Wholesale Travel Group Inc., 1991 39 (SCC), [1991] 3 S.C.R. 154:

The corporate form of business organization is chosen by individuals because of its numerous advantages (legal and otherwise). Those who cloak themselves in the corporate veil, and who rely on the legal distinction between themselves and the corporate entity when it is to their benefit to do so should not be allowed to deny this distinction in these circumstances (where the distinction is not to their benefit). [pp. 182-83]

[ 63 ] In CIP, the Court extended the s. 11(b) right to be tried within a reasonable time to corporations on the basis that any accused, corporate or human, has, as Stevenson J. said"a legitimate interest in being tried within a reasonable time", and the right to a fair trial (p. 856; see also pp. 857-59). He acknowledged, however, that some of the harms of a pending criminal accusation, such as "'stigmatization of the accused, loss of privacy, stress and anxiety resulting from a multitude of factors, including possible disruption of family, social life and work'" were not "concerns [that] logically appl[ied] to corporate entities" (p. 862 (emphasis added), citing Mills v. The Queen, 1986 17 (SCC), [1986] 1 S.C.R. 863, at p. 920). As a result, he concluded that a corporation could not rely on a presumption of prejudice.

[ 64 ] Just as corporations cannot experience human reactions such as stress or anxiety, neither can they experience suffering, since, as Chamberland J.A. noted [translation] "Suffering, whether physical or mental, is unique to living beings, not corporate entities and inanimate objects" (para. 56).

[ 65 ] Significantly, corporations have been found not to be included under both ss. 7 and 11(c). In R. v. Amway Corp., 1989 107 (SCC), [1989] 1 S.C.R. 21, the Court concluded that the s. 11(c) right not to be compelled to be a witness in proceedings does not apply to corporations. Sopinka J. concluded that since a corporation cannot testify, the right of an accused person not to be compelled to be a witness against himself in s. 11(c) is not available to a corporation. Applying a purposive interpretation to s. 11(c), Sopinka J. was of the view that it was "intended to protect the individual against the affront to dignity and privacy inherent in a practice which enables the prosecution to force the person charged to supply the evidence out of his or her own mouth" (p. 40). In his words"it would strain the interpretation of s. 11(c) if an artificial entity were held to be a witness" (p. 39).

[ 66 ] In concluding that s. 7, which protects against deprivations of life, liberty and security of the person, does not apply to corporations (Irwin Toy, at p. 1004), Dickson C.J. and Lamer and Wilson JJ., for the Court, expressed their resistance to applying s. 7 to corporations as follows:

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.

. . . 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. [pp. 1003-4]

[ 67 ] The Court in Irwin Toy also concluded that bankruptcy and winding up proceedings did not engage s. 7, because that "would stretch the meaning of the right to life beyond recognition" (p. 1003). And it rejected the argument that corporations should be protected against deprivations of economic liberty:

The intentional exclusion of property from s. 7, and the substitution therefor of "security of the person" has, in our estimation, a dual effect. First, it leads to a general inference that economic rights as generally encompassed by the term "property" are not within the perimeters of the s. 7 guarantee. . . . In so stating, we find the second effect of the inclusion of "security of the person" to be that a corporation's economic rights find no constitutional protection in that section.

That is, read as a whole, it appears to us that this section was intended to confer protection on a singularly human level. [Underlining in original; italics added; pp. 1003-4.]

[ 68 ] As in Irwin Toy, the purpose of s. 12 is to confer protection on a "singularly human level". In line with the global consensus, its 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. To paraphrase Sopinka J. in Amway Corp., it would strain the interpretation of cruel and unusual treatment or punishment under s. 12 if a corporation, an artificial entity, could be said to experience it.

[ 69 ] Corporations are, without question, entitled to robust legal protection, constitutional or otherwise. But protection for a quality it does not have, namely, human dignity or the ability to experience psychological or physical pain and suffering, is a remedy without a right. Since it cannot be said that corporations have an interest that falls within the purpose of the guarantee, they do not fall within s. 12's scope.

[ 137 ] Accordingly, I would allow the appeal.

Concurring Reasons — Kasirer J.

(English version of the reasons)

[ 138 ] Kasirer J. — For the reasons given by Chamberland J.A., and with respect for those of a different opinion, I share my colleagues' view that the appeal must be allowed. I fully agree with Chamberland J.A. that the respondent, 9147-0732 Québec inc., a corporation, cannot avail itself of the protection of s. 12 of the Canadian Charter of Rights and Freedoms to challenge the constitutionality of s. 197.1 of the Building Act, CQLR, c. B-1.1.

[ 139 ] Starting, quite rightly, from the language of s. 12, as Abella J. and Brown and Rowe JJ. propose to do in their respective reasons, Chamberland J.A. pointed to the word "cruel" and reasoned that it would distort the ordinary meaning of the words to say that it is possible to be cruel to a corporate entity (2019 QCCA 373, at para. 53). I agree.

[ 140 ] He was careful to adhere to the principle that Charter rights must be given a large, liberal and purposive interpretation, a principle whose relevance was emphasized again recently by Wagner C.J. in Conseil scolaire francophone de la Colombie-Britannique v. British Columbia, 2020 SCC 13, [2020] 1 S.C.R. 678, at para. 4. At the conclusion of his analysis based primarily on the decisions of this Court, including R. v. Smith, 1987 64 (SCC), [1987] 1 S.C.R. 1045, Chamberland J.A. found that, although the scope of s. 12 has been broadened over the years, [translation] "its evolution is still concerned only with human beings (human dignity) and provides no basis . . . for extending its application to corporations" (para. 59). He further reasoned that "[t]he assertion that no one is to be subjected to cruel treatment or punishment cannot be dissociated from the concept of human dignity" (para. 59). In arriving at this interpretation of s. 12 — unassailable, in my opinion — Chamberland J.A. also relied on sources drawn from domestic law and international law, an approach perfectly in keeping with the principles of Charter interpretation.

[ 141 ] With regard to the ground of appeal that a corporation might enjoy the protection of s. 12 through the natural persons closely related to it, Chamberland J.A. relied on this Court's decisions, but also on English case law and the Civil Code of Québec, to explain in a compelling manner that the respondent was [translation] "asserting rights here that are not its own" (para. 75). Again, no error has been shown.

[ 142 ] In this case, all the relevant factors are to the same effect, indicating that the protection offered by s. 12 does not extend to corporations. I therefore find it unnecessary to consider questions relating to the proper approach to constitutional interpretation or the place of international law and comparative law in that approach any further. In my view, Chamberland J.A.'s reasons permit us to conclude, without saying more, that the appeal must be allowed.

Appeal allowed.

Footnotes

[1] The current provision states:

197.1 Any person who contravenes section 46 or 48 is guilty of an offence and is liable, as the case may be, to a fine

(1) of $5,841 to $29,200 in the case of an individual and $17,521 to $87,604 in the case of a legal person if the individual or legal person does not hold a licence of the appropriate class or subclass or uses the services of another person who does not hold a licence of the appropriate class or subclass; or

(2) of $11,682 to $87,604 in the case of an individual and $35,041 to $175,206 in the case of a legal person if the individual or legal person does not hold a licence or uses the services of another person who does not hold a licence.

[2] See, e.g., R. v. Smith, 1987 64 (SCC), [1987] 1 S.C.R. 1045; R. v. Lyons, 1987 25 (SCC), [1987] 2 S.C.R. 309; R. v. Luxton, 1990 83 (SCC), [1990] 2 S.C.R. 711; Steele v. Mountain Institution, 1990 50 (SCC), [1990] 2 S.C.R. 1385; R. v. Goltz, 1991 51 (SCC), [1991] 3 S.C.R. 485; R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90; R. v. Latimer, 2001 SCC 1, [2001] 1 S.C.R. 3; R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96; R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773; R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130; R. v. Boudreault, 2018 SCC 58, [2018] 3 S.C.R. 599.

[3] Textualism has been described as a theory which shares "both the philosophy and the partisans of the 'originalist' method of constitutional interpretation" (see Stéphane Beaulac"Parliamentary Debates in Statutory Interpretation: A Question of Admissibility or of Weight?" (1998), 43 McGill L.J. 287, at p. 300).

[4] The Court has cited comparative legal sources in 50 different fields of both public and private law. The 10 fields of law that have generated the highest number of foreign precedents are: constitutional law, torts, criminal law, insurance, intellectual property, civil procedure, administrative law, evidence, courts and labour law (Rado, Figure 5, at p. 69; see also p. 67). Beyond comparative legal sources, the Court has cited international precedents in 13 different fields of both public and private law: constitutional law, immigration law, criminal law, administrative law, torts, labour law, statutes, civil procedure, intellectual property, courts, evidence, international law, contracts (Rado, Figure 6, at p. 76; see also p. 75) as well as international treaties in constitutional law, intellectual property, international law (public and private), immigration law, administrative law, civil procedure, labour law, statutes, arbitration and in 20 other fields of law (Rado, Figure 7, at p. 76).