Corporations don't deserve protection under the Charter

(This editorial, co-authored by Duff Conacher and Aaron Freeman, Founding Directors of Democracy Watch, appeared in The Ottawa Citizen, Thursday, September 28, 1995 on page A15; in The Toronto Star, Monday, October 2, 1995 on page A17; and in The Gazette (Montreal), Tuesday, October 3, 1995 on page B3)

The successful use by big tobacco companies of the freedom of speech protections in the Canadian Charter of Rights and Freedoms has angered many Canadians. However, that the Supreme Court ruling offends the sensibilities of Canadians is not surprising, as it is only the latest in a century-long string of legal victories of corporate rights over individual rights and democracy.

The origins of these victories is found in the United States. While corporations existed at the time of the drafting of the U.S. Constitution 200 years ago, they were not mentioned in the document. For the drafters, the U.S. Constitution shielded living beings from arbitrary government action, and endowed them with the right to speak, assemble and petition.

However, the rise of corporate power in the early 1800s led Thomas Jefferson in 1816 to state "I hope we shall crush in its birth the aristocracy of our monied corporations which dare to already challenge our government to a trial of strength and bid defiance to the laws of our country." Jefferson's warning proved to be prophetic. In an otherwise obscure 1886 case, the U.S. Supreme Court told the lawyers for both sides that it did "not wish to hear argument" on whether corporations are "persons" protected by the civil rights amendments of the U.S. constitution. Without considering the impact the case would have as a precedent, the Court simply decreed that corporations are persons.

That misguided act was rejected in a series of dissents in later cases, each of which showed that neither the history nor the language of the civil rights provisions was meant to protect corporations. But it was too late. Corporations had been handed the shield once reserved for humans, and they proceeded to use it as a sword to thwart government interference in their actions. Of the civil rights cases brought before the U.S. Supreme Court between 1890 and 1910, only 19 dealt with humans while 288 were brought by corporations challenging government regulations.

Unfortunately, Canadian governments committed the same mistake as the U.S. constitutional drafters when they enacted our Charter of Rights and Freedoms in 1982. They failed to set out explicitly that the Charter is intended to protect human beings. Left to decide the application of the Charter, our courts have followed the lead of the U.S. courts, which have been consistently expanding corporate constitutional rights over the past 100 years. Hence the absurd notion that big tobacco companies can claim a right to free speech, even for commercial speech that has as its goal encouraging consumption of deadly products.

While the differences between corporations and humans may seem obvious to most Canadians, clearly it needs spelling out for the courts. First, corporations have always been created and sustained by government legislation that directs them to create public benefits. Humans, on the other hand, are born, take on a life of their own, and have inalienable rights as living beings. Charters of rights and freedoms are intended to give expression to these human rights.

Second, corporations enjoy a status under the law that is distinctly inhuman. They can switch heads, switch bodies, merge with other bodies, be bought and sold, live forever, or die and then come back to life. They can't be interrogated or be jailed for their crimes. In addition, corporations enjoy protection from liability for industrial accidents such as nuclear power disasters, and can use bankruptcy to avoid financial obligations such as compensating victims of corporate crimes. Indeed, the main reason a corporation is created is to protect individual officers of the corporation from responsibilities they would face as citizens.

Third, corporations (especially large corporations) have economic and political power far beyond that of individual citizens. They can threaten to move their offices and plants if they don't receive tax breaks and other incentives to stay put. They can take the profits they make from sales to citizens and fund advertising, lobbying efforts and lawsuits that push their interests in ways the majority of citizens may not support. And they can take their individual shareholder's money and make huge donations to political parties in order to influence policies in ways that even the majority of their own shareholders may not support.

These artificial entities have a far superior offence than individuals when it comes to asserting their rights and escaping responsibilities in our society. They do not need an equal defence when it comes to constitutional protection. By adding constitutional rights to the legislative benefits corporations already enjoy, courts create Frankensteins with inhuman powers who are often unaccountable to law enforcers, workers, consumers, and taxpayers.

Under the Charter, the courts are directed to allow limits on rights and freedoms which can be shown to be reasonable in a free and democratic society. Given the imbalance of power between corporations and citizens, we should determine what is reasonable based on whether it makes society free and democratic for people, rather than for corporations, especially in the areas of civil and democratic rights.

Canadian governments should respond, therefore, to the ruling in the tobacco advertising case by amending the Constitution to make it clear that our Charter is intended to be a Charter of Human Rights and Freedoms.