By Richard Stobbe

Last week, hearings concluded in the important case of Google Inc. v. Equustek Solutions Inc., et al.  The Supreme Court of Canada (SCC) will render its judgment in writing, and the current expectation is that it will clarify the limits of extraterritoriality, and the unique issues of protected expression in the context of IP rights and search engines.

In Part 1, I admonished Google, saying “you’re not a natural person and you don’t enjoy Charter rights.” Some commentators have pointed out that this is too broad, and that’s a fair comment.  Indeed, it’s worth clarifying that corporate entities can benefit from certain Charter rights, and can challenge a law on the basis of unconstitutionality. The Court has also held that freedom of expression under s. 2(b) can include commercial expression, and that government action to unreasonably restrict that expression can properly be the subject of a Charter challenge.

The counter-argument about delimiting corporate enjoyment of Charter rights is grounded in a line of cases stretching back to the SCC’s 1989 decision in Irwin Toy where the court was clear that the term “everyone” in s. 7 of the Charter, read in light of the rest of that section, excludes “corporations and other artificial entities incapable of enjoying life, liberty or security of the person, and includes only human beings”.

Thus, in Irwin Toy and Dywidag Systems v. Zutphen Brothers  (see also: Mancuso v. Canada (National Health and Welfare), 2015 FCA 227 (CanLII)), the SCC has consistently held that corporations do not have the capacity to enjoy certain Charter-protected interests – particularly life, liberty and security of the person – since these are attributes of human beings and not artificial persons such as corporate entities.

It is also worth noting that the Charter is understood to place restrictions on government, but does not provide a right of a corporation to enforce Charter rights as against another corporation. Put another way, one corporation cannot raise a claim that another corporation has violated its Charter rights. While there can be no doubt that a corporation cannot avail itself of the protection offered by section 7 of the Charter, a corporate entity can avail itself of Charter protections related to unreasonable limits on commercial expression, where such limits have been placed on the corporate entity by the government – for example, by a law or regulation enacted by provincial or federal governments.

There is a good argument that the limited Charter rights that are afforded to corporate entities should not extend to permit a corporation to complain of a Charter violation where its “commercial expression” is restricted at the behest of another corporation in the context of an intellectual property infringement dispute.

Calgary – 07:00 MT