Discussion Activity 4.1 (and some ramblings…)

Page 88, Question 1)
What is the effect of the different wording between s. 15(1) of the CBCA and s. 30 of the BCBCA? The difference in language, of course, is in the characterization of corporate personhood rights by the term ‘natural person’ and ‘individual of full capacity’ respectively.
This distinction of statutory drafting throws the problem of corporate personhood into sharp relief. What exactly is being referred to when we call a corporation a person? Is it legally the same as a ‘flesh and blood’ human being? The graphic nature of having to draw this third distinction underscores how awkward the dilemma is – in what other realm can one imagine having to specify that this is a ‘flesh and blood’ human, and not simply a person?
In Agat Laboratories, Justice Fradsham cites Irwin Toy, in which the Supreme Court, regarding the application of s. 7 of the Charter to corporations, stated that “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”. A ‘flesh and blood’ human, in this excerpt, is called a ‘human being’ – that is, what I writing this or you reading this are (notwithstanding of course the innumerable trolling and scrolling robots of the internet).
In my estimation, a ‘natural person’ is much closer than ‘an individual of full capacity’ to matching the SCC language of ‘human being’. An ‘individual of full capacity’ reads to me like a careful avoidance of any human characteristics. It simply refers to an individual unit with full legal capacity. It allows room for the perpetual legal fiction of full corporate personhood without allowing for the (frankly) delusional misinterpretation that you can, for example, marry a corporation (though I think many wealthy and overworked people may take issue with that analogy). The BCBCA language allows for what I think is a healthy linguistic distinction between ‘flesh and blood’ humans and the corporate person which is, for all intents and purposes, a cleverly contrived and often socially maligned legal fiction and metaphor for the legal status of corporations in society.
The CBCA language, however, is to my mind more problematic. It suggests to me that legislators may have forgotten that corporate personhood is in fact a legal fiction and are rather looking forward to watching as their favourite darling corporation graduates from college, stops smoking so much pot, and finally settles down into something responsible. Like a real job. This leads me to the next question:
Page 88, Question 2)
The CBCA language of ‘natural person’ is, I think, as close as a legislature can get, given the inherent limits of statutory drafting, to extending full Charter rights to a corporation. However, as was made clear in Agat, even this language does not allow for a ‘free for all’ in terms of assigning analogous rights to corporations. To support this claim I will summarize the present state of the law on the rights corporations to use s. 7 of the Charter (also as per the 4.1 discussion activity prompt).
Agat Laboratories borrows the following helpful foundational question from CIP: “Does the corporate accused have an interest falling within the scope of the right protected by the Charter section”. In Agat, this question pertains specifically to the right to a full answer and defence (per Stinchcombe). Agat holds that “all accused (whether they are human beings are corporations) have an identical interest in being able to make full answer and defence when charged with an offence”, and that “it follows that a corporate accused has an interest (the right to make full answer and defence) which falls within section 7 of the Charter and may therefore invoke section 7 to protect that interest”. This conclusive final statement summarizes the present law in Canada regarding the ability of corporations to use s. 7 of the Charter. This analysis, by virtue of it needing to be done and standing now as the test, maintains the distinction between ‘flesh and blood’ humans and corporations in terms of their access to s. 7. However, the flexible nature of the term ‘interests’ means the division is murky at best. Is there any limit set on a corporate entity’s access to s. 7 rights by virtue of interests it does not share with flesh and blood humans? The answer is likely no, as the interests of flesh and blood humans have no bearing on corporations. What Agat has done is to essentially write a mirror image section 7 which applies exclusively to the legal interests of corporations. From this viewpoint, the decision is, I think, marvelously illustrative of how awkward corporate personhood can be when looked at through the lens of the Charter. It simultaneously grapples with the legal kinship corporations share with flesh and blood humans while, by necessity, acknowledging that these entities are not flesh and blood humans. At this point in writing this answer, the clumsiness (and grotesque phonetics) of the phrase ‘flesh and blood’ humans is becoming apparent, so I will return to the nearly identical phrase chosen by the CBCA drafters: natural person.
So long as the corporation has an interest in it, they as a natural person have the right to s. 7 protection. And we as natural people have our own set of protections. Our interests make them distinct. The term ‘rights’ in s. 15 of the CBCA therefore means precisely this, at least in the context of Charter rights: the right to have your legitimate interests protected by the Charter. As a blanket entitlement, this is the same for both sets of natural persons. When it comes to the minutiae of specific interests, however, the meaning is quite distinct.  This is something that is more clearly defined by looking at some of the other jurisprudence discussed in this unit.
Looking at the cases of Transamerica Life, Big Bend, and London Computer Operators’ Training helps to frame how courts are often unwilling to completely blur the line between the interests of natural (actual) persons and corporations. As per Transamerica Life: “[T]he court will disregard the separate legal personality of a corporate entity where it is completely dominated and controlled and being used as a shield for fraudulent or improper conduct”. Though this isn’t a Charter case, the decision works as a helpful analogy for corporate personhood being recognized as a legal fiction in courts, and torn down as such when the interests of justice outweigh maintaining it. If it were truly the case that the interests of corporate entities were given equal protection under the Charter, then piercing, shredding, tearing down, dissolving in acid, flamethrowering, or even devouring the corporate veil (in a bottomless space-maw) would be tantamount to telling a real person in court that their identity has been pierced and they will from now on be subjected to the same rights which, say, laboratory animals enjoy.
Something which we keep coming back to in class is business law’s ‘lack of foundation’. The discussion here, I think, really drives the metaphor of ‘unstable footing’ home. The corporate veil, identity, personhood, or whatever, can absolutely be removed by the courts. True human personhood cannot, because it is the ultimate foundation upon which most, if not all, law rests. Therefore, while it is a valiant effort on behalf of the legislature to streamline corporate rights by pinning the ‘natural person’ moniker upon corporations, it is inevitably an impossible task. When tasked with statutory interpretation, courts look to the spirit of the law, and corporations, if you’ll forgive the metaphysical metaphor, have no spirit. That’s for us (the flesh and blood ones) to enjoy.