Criminal Liability of Partnerships: Constitutional and Practical ...

To be clear, my argument is not to say that Bill C-45 necessarily contravenes the rule of law. Nor is my
argument that the rule of law as a constitutional principle can be used to invalidate legislation that does not infringe
any other specifically enumerated Charter guarantee. Nor am I advocating that the rule of law can or should be used
to create broader constitutional protection than those rights specifically enumerated in the Charter. Rather, the
focus here is to suggest that protection under s. 2(d) is justified in these circumstances, because to find that s. 2(d)
applies will enhance the rule of law. Thus, just as a desire to uphold the values of human dignity and autonomy
informed the content of s. 2(d) in the Health Services and Support case, a desire to uphold and enhance the rule of
law as a Charter value could impact the analysis of s. 2(d) in a case involving Bill C-45.
D. Section 1
As most readers will be aware, s. 1 of the Charter applies to any prima facie violations of Charter rights. The section
provides as follows:
The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits
prescribed by law as can be demonstrably justified in a free and democratic society. 123
Once again, this is not the proper forum for a comprehensive discussion of s. 1 justifications with respect to Bill
124
C-45. After all, the burden of such justification lies on the party seeking to invoke s. 1. For example, only the
government would be able to present long-term sociological studies tending to show the need to deter criminal
conduct in the business setting. This is neither to suggest that such studies necessarily exist, nor conversely, that they
do not. Having not done the sociological research necessary to draw any such conclusion, it is not the goal here to
make a full-blown s. 1 analysis. However, it would be both misleading and irresponsible to not deal with s. 1 in some
way.
125 126 In R. v. Oakes, the constitutionality of what was then s. 8 of the Narcotic Control Act was tested and found
wanting. Section 8 created a rebuttable presumption that a person found in possession of a narcotic was in possession
of the drug for the purposes of trafficking. 127 The challenge was upheld, as s. 8 violated s. 11(d) of the Charter. 128 The
government could not successfully invoke s. 1 of the Charter in Oakes, because the fact proven (that is, the simple
possession of a narcotic) was not “rationally connected” to the presumption.
Notice that in Oakes, the person whom the Crown sought to have convicted of the offence (possession for the
purposes of trafficking) was already convicted of the lesser offence (the simple possession of a narcotic). In other
words, the presumption further punished the criminal behaviour of the accused. The greater offence is certainly
related to the lesser offence (in the sense that they both involve possession of a narcotic). Nonetheless, the Supreme
Court held that the rational connection between the two offences was not sufficiently established for the rebuttable
presumption created by s. 8 of the Narcotic Control Act to be saved under s. 1.
In the context of Bill C-45, there is no underlying offence committed by the innocent partner. There is no
express rationale given for creating what appears to be the equivalent of an irrebuttable presumption that:
(i) a senior officer of the partnership commits an offence with the intention of benefiting the partnership;
and
(ii) any other person is a partner of the partnership, then
(iii) the partner (who is innocent of any crime) should suffer the consequence of a finding of guilt vis-à-vis
the partner’s assets.
With all due respect to Parliament, Oakes establishes that the rebuttable presumption that a person who is
criminally convicted of possession of a drug intends to traffic in that drug does not have a sufficiently rational
connection for the purposes of s. 1. Bill C-45 creates a situation where a person who has done nothing criminal will
be irrebuttably presumed to be connected with a crime committed by someone else, so as to make him liable to make
123
Supra note 6.
124
R. v. Oakes, [1986] 1 S.C.R. 103 [Oakes].
125
Ibid.
126
Narcotic Control Act, R.S.C. 1970, c. N-1.
127
Oakes, supra note 124 at 116.
128 Ibid. at 134-135.