Note 2 on page 88 on the textbook asks whether a legislature could indirectly extend full Charter rights to a corporation, and whether this has already been done. This raises really interesting questions about Constitutional and legislative amendments generally. As we’ve all seen, courts will sometimes use statutory interpretation to ‘read in’ or ‘read down’ legislative provisions. Some have complained this amounts to judicial activism, or judges ‘donning the cloaks’ of legislators. The same thing seems to be happening here, where the legislature is defining certain terms so as to extend Charter rights to new, unforeseen groups of individuals. The legislature, were its jurisdiction challenged, could simply claim to be interpreting, not amending.
I think that indeed the legislature has extended Charter rights to corporations, although I’m not sure what the phrase “full rights” is meant to denote. Clearly not every provision applies to corporations, since not every provision applies to all persons. Legally, it seems the legislature can indirectly extend rights in this way so long as its actions are in keeping with “Charter values” and the underlying purpose of the Charter. Using the living tree doctrine the legislature could always claim that the word “person” has evolved to encompass corporations, just as it evolved to encompass both men and women in the famous “Persons Case” (Edwards v Canada). On this view, perhaps the legislature really isn’t extending rights at all: perhaps it is merely clarifying that certain Charter provisions were always meant to apply to corporations.
Then again, basic statutory interpretation indicates that “persons” in the Charter was not meant to apply to corporations: s.28 guarantees rights equally to “male and female persons”. As corporations have no biological sex or gender identity, this provision indicates that the CBCA (provision granting the rights of a natural person to corporations) is a genuine Charter amendment and thus ultra vires.
I would really love to see someone make this argument, just to have a corporation intervene and argue that it “doesn’t subscribe to binary notions of gender”. Enter living tree and the court reading into the Charter “male and female…and gender neutral persons”. Who said you can’t fix ultra vires legislation with some good ol’ judicial activism!
