Category Archives: LAW

Corporations and the Charter

There is a very big problem in Canada. It is that the Charter of Rights and Freedoms is taken not to apply to corporations. This position is fairly well-stated in Mckinney:

The appellants strongly relied on a statement by Hogg, Constitutional Law of Canada (2nd ed. 1985), at p. 671, cited by this Court in Slaight Communications Inc. v. Davidson, supra, at p. 1078, to the effect that Parliament and the legislatures cannot authorize action by others that would be in breach of the Charter. That statement would, no doubt, be true of a situation such as occurred in Slaight Communications Inc. v. Davidson, supra, where a statute authorizes a person to exercise a discretion in the course of performing a governmental objective. But the Charter was not intended to cover activities by non-governmental entities created by government for legally facilitating private individuals to do things of their own choosing without engaging governmental responsibility. Professor Hogg himself makes this clear, at n. 140 on p. 677:

There is perhaps a faint argument that the Charter applies to the actions of all Canadian corporations, whether publicly or privately owned, and even if they are engaged only in commercial activity. The argument would start from the premise that the existence and powers of a modern corporation depend upon the statute which authorized its incorporation. In that sense, it could be argued, all modern corporations act under statutory authority and should be held to be bound by the Charter. But the better view is that a corporation, once it has been brought into existence and empowered (admittedly under statutory authority), is thereafter exercising the same proprietary and contractual powers as are available to any private person. (LA FOREST J, [1990] 3 SCR 229)

Hogg’s reasoning is not persuasive: natural persons enjoy proprietary and contractual powers due to their natural constitution; such are not grants of Government. The issue is better articulated by the majority of the BC Court of Appeal in Re Bhindi and British Columbia Projectionists:

In my opinion, Mr. Justice Gibbs was right in rejecting the extension of the Charter to a private contract such as this. It is a rare commercial contract which does not ex facie infringe on some freedom set out in s. 2 or some legal right under s. 7 . To include such private commercial contracts under the scrutiny of the Charter could create havoc in the commercial life of the country.((1986), 29 D.L.R. (4th) 47, at p. 54)

Rather than having any strict ground of statutory construction, we have the problem of “havoc in the commercial life of the country.” The Court of Appeal, however, overstates the matter: it would not apply to all commercial contracts; Bob could contract with Alice to bake a cake. The Charter would, however, apply if Bob, for the purpose of availing himself of a government-designed liability management scheme, designed to promote economic activity, incorporated himself. If this were the case, Alice should have the benefit of charter scrutiny for her contract.

Perhaps a consideration of the law of England will help to determine the matter. This is how Edward Coke divides the law:

the law of England is divided into three parts, common law, statute law, and custom; but the King’s proclamation is none of them: also malum aut est malum in se, aut prohibitum, that which is against common law is malum in se, malum prohibitum is such an offence as is prohibited by Act of Parliament, and not by proclamation. (12 Co Rep 74)

Thus, whenever something is prohibited by Act of Parliament, the Charter applies, but it should equally apply whenever something is enabled by Act of Parliament, or by the royal prerogative. As to the notion that corporations are private, this is another part of the problem: corporations exist to discharge a broad government policy concerning limitation of liability, for the purpose of spurring economic activity, as well as for the benefit of making it possible for a durable entity to subsist even though all of its members should change. In exchange for these statutory benefits, which are in no way available to natural persons considered in disconnection from society, the Charter ought to apply.

It is also the case, though perhaps hard to stomach for some, that Parliament is a corporation. Drawing again from English Law,

THE conftituent parts of a parliament are the next objects of our enquiry. And thefe are, the king’s majefty, fitting there in his royal political capacity, and the three eftates of the realm ; the lords fpiritual, the lords temporal, (who fit, together with the king, in one houfe) and the commons, who fit by themfelves in another. And the king and thefe three eftates, together, form the great corporation or body politic of the kingdom(1 Bl. Comm. 149)

While the Parliament of Canada is not composed of the exact same estates, it is still a corporation, composed of the two estates of our realm: the commons, the senate, of which the sovereign is head. The Charter, therefore, applies to the Parliament as a corporation, and the Parliament is therefore incapable of granting anything contrary to the Charter, and it would be a strange thing if a corporation could grant more power than it had itself. The notion that Parliament has a public side, by which public statutes are made, and a private side, which does not attract Charter scrutiny, is false.

Whatever commercial havoc this might bring upon Canada, the Constitution is not designed to promote commerce; it is designed to ensure respect for the fundamental rights and freedoms of individuals.

Exception to Jurisdiction

An exception is defensive material alleged to delay or to destroy an action. One dilatory exception is that to the exception of the judge. Under our Constitution, in Canada, all Judges hold office by delegation from the King or Queen. It is true that these delegations continue even upon the demise of the sovereign, but it is equally true that the delegation, as expressed in a commission, is an essential ingredient to jurisdiction.

It is a common sense enough that that an individual who purports to be a Judge must have some sort of grant to exercise the office. Here are three authorities demonstrating this proposition:

The first comes from the Mirror of Justices:

A defendant can aid himself by other dilatory exceptions against the power of the judge in this manner:–‘Sir, I demand sight and hearing of the commission by which you claim jurisdiction over me.’ And if the judge refuses or cannot show the commission, no one need acknowledge him as a judge delegate. (7 Selden Society 93)

A second instance comes from the ancient authority Fleta:

Rightful judgments ought to endure and stand firm and be inviolably observed until adequate satisfaction is obtained and so first of all it must be seen whether the justice who has to make judgement is competent. If he is a delegate and has no warrant from the king, what is done before him will be of no consequence as if it were done before one who is not his proper judge, although such as are summoned ought to come. Yet they should not be obeyed, not only when they have no warrant but also even if they show a warrant which has not proceeded from the king. (99 Selden Society 177)

A third instance comes from Bracton’s De Legibus et Consuetudinibus Angliae:

It is clear that first of all, in order that judgments be valid, it is necessary to see whether the justice has a warrant from the king so that he may judge, for if he has no warrant what will be done before him will have no validity, done, so to speak, before one not his proper judge. The original writ ought first to be read and then the writ constituting him a justice; if he has no such writ at all, or if he has but it is not at hand, he need not be obeyed, unless the original writ makes mention of his judicial authority.(Bracton, v. 4 p. 278)

DIEU ET MON DROIT = GOD IS MY LAW

This is the royal motto: DIEU ET MON DROIT.

But how should it be translated? The common translation is “God and my right.” However, this is not the only possible translation. At the outset, I should let the reader know that I have had it translated by a Judge of the Provincial Court of British Columbia as “GOD IS MY LAW.” And this is a right and reasonable translation if we only admit a few principles. The first is from Mrs. Beeton’s

The law is not particular as to orthography; in fact, it distinctly refuses to recognize the existence of that delightful science. You may bring your action against Mr. Jacob Phillips, under the fanciful denomination of Jaycobb Fillipse, if you like, and the law won’t care, because the law goes by ear; and, although it insists upon having everything written, things written are only supposed in law to have any meaning when read, which is, after all, a common-sense rule enough.
(The Book of Household Management. Mrs. Isabella Beeton. Retrieved on December 19, 2016 from http://www.gutenberg.org/cache/epub/10136/pg10136-images.html)

And thus, we should beware any notion that an ancient motto like DIEU ET MON DROIT has any precise meaning, due to orthography. This motto, as a legal signifier, is meant to be heard, not seen. The “s” in “est” is perhaps more seen than heard, and, indeed, if we allow that “et” means “est”, we are left not with a sentence fragment, “God and my right” (this sentence no verb), but with a full independent clause: GOD IS MY LAW.

There is further evidence for this if we consult an online Anglo-Norman dictionary, which shows that there is not much standardization of orthography in Anglo-Norman. Here is a selection from the entry for “estre”, that is, the verb “to be.”

estre3, eistre, ester, estere, estier, estiere, etre; istre; aistre, astre (ethre Receptaria 92 93); ind.pr.1 seo, siu, su, sue, sui; ind.pr.2 es, iés; ind.pr.3 e, es, est, eist, eit, et, estz; (Anglo-Norman Dictionary. Retrieved on December 19, 2016 from www.anglo-norman.net/dict/AND-201-53828C71-80DCE522-84172DEC-C5ACF8FD

And so we see that a single “e”, or “et”, can mean the third person indicative, which would render the motto quite clearly GOD IS MY LAW. This is also the version given by Diderot in his Encyclopédie, to wit:

Dieu est mon droit, (Hist. mod.) c’est le mot ou la devise des armes d’Angleterre, que prit d’abord Richard premier ou Coeur de – lion, qui vivoit à la fin du xije siecle, ce qu’il fit pour marquer qu’il ne tenoit son royaume d’aucun mortel à titre de vassal.
(Retrieved December 19, 2016 from http://artflsrv02.uchicago.edu/cgi-bin/philologic/getobject.pl?c.3:2488:1.encyclopedie0513)

This, translated into English by Susan Emanuel, is as follows:

God is my right. Dieu est mon droit is the motto or device of the army of England, first taken by Richard the Lionheart who lived at the end of the thirteenth century, which he did to mark that he took his kingdom from no mortal as a vassal.
(Retrieved December 19, 2016 from http://quod.lib.umich.edu/d/did/did2222.0003.042/–god-is-my-right?rgn=main;view=fulltext)

The term droit poses a legal translation challenge. However, let use use the Canadian Law Dictionary, Fifth Ediction, by John A. Yogis, Q.C.:

DROIT (drwä) Fr.: a right. Law; the whole body of the law. (Canadian Law Dictionary, Fifth Edition, p. 89)

Thus it seems quite possible that a proper translation is “God is my whole body of the law,” or “God is my whole right.” And in this sense, we see firmly captured, in only four words, the notion of the King being governed not by the law of humans, but by the Law of God, which is the Law that makes the King. And we find this quite consonant with the Old Testament, in which God, through Moses, commands that

Ye shall not add unto the word which I command you, neither shall ye diminish ought from it, that ye may keep the commandments of the LORD your God which I command you…Behold, I have taught you statutes and judgments, even as the LORD my God commanded me, that ye should do so in the land whither ye go to possess it. Keep therefore and do them; for this is your wisdom and your understanding in the sight of the nations, which shall hear all these statutes, and say, Surely this great nation is a wise and understanding people. For what nation is there so great, who hath God so nigh unto them, as the LORD our God is in all things that we call upon him for? And what nation is there so great, that hath statutes and judgments so righteous as all this law, which I set before you this day? Only take heed to thyself, and keep thy soul diligently, lest thou forget the things which thine eyes have seen, and lest they depart from thy heart all the days of thy life: but teach them thy sons, and thy sons’ sons. (Deuteronomy, cap. 5 ss. 2, 5-9)

Therefore, it is quite clear that the word, that is, law, as Delivered by Moses, should not be diminished nor added to. And therefore, requiring University students to obey anything outside of the bible is clearly a damnable heresy intended to deprive them of the protection of Royal Government, which is freedom under the Monarch, whose office is to discharge the duties historically discharged by Moses, and subsequently by Jesus Christ, either in the monarch’s own proper person, or through delegates within the King’s faith.

The oldest English legal textbook, Horn’s Speculum Justitiariorum, the Mirror of Justices, makes this plain in even clearer terms:

we discovered that law is nothing else than the rules laid down by our holy predecessors in Holy Writ for the salvation of souls from everlasting damnation, although it be obscured by false judges. And we found that all Holy Writ consists of the Old Testament and of the New.
(Mirror of Justice, p. 2. Retrieved on December 19, 2016 from https://archive.org/stream/mirrorofjustices00hornrich#page/n65/mode/2up)