Guindon v Canada | |
---|---|
Hearing: 5 December 2014 Judgment: 31 July 2015 | |
Full case name | Julie Guindon v Her Majesty The Queen |
Citations | 2015 SCC 41 |
Docket No. | 35519 |
Prior history | APPEAL from Canada v Guindon, 2013 FCA 153 (12 June 2013), setting aside Guindon v The Queen, 2012 TCC 287 (2 October 2012). Leave to appeal granted, Julie Guindon v Her Majesty the Queen, 2014 CanLII 12480 (20 March 2014). |
Ruling | Appeal dismissed. |
Holding | |
| |
Court membership | |
Reasons given | |
Majority | Rothstein and Cromwell JJ, joined by Moldaver and Gascon JJ |
Concur/dissent | Abella and Wagner JJ, joined by Karakatsanis J |
McLachlin CJ and Côté J took no part in the consideration or decision of the case. | |
Laws applied | |
Income Tax Act , R.S.C. 1985, c. 1 (5th Supp.), s. 163.2 |
Guindon v Canada, 2015 SCC 41 is a landmark decision of the Supreme Court of Canada on the distinction between criminal and regulatory penalties, for the purposes of s.11 of the Canadian Charter of Rights and Freedoms . It also provides guidance on when the Court will consider constitutional issues when such had not been argued in the lower courts.
Guindon, a lawyer who specialized in family and wills and estates law, was approached in 2001 by promoters of a leveraged donation program which was said to operate in the following manner:
Guindon agreed, for a fee, to provide an opinion letter on the tax consequences of this program on the basis of a precedent provided by the promoters. Although recommending that a tax lawyer and an accountant review her letter for accuracy, she proceeded to provide the letter to the promoters, knowing it would form part of their information package. The letter stated that the transactions would be implemented based on supporting documents that she had been provided with and had reviewed. However, she had not reviewed the supporting documents. [1]
A charity with which Guindon was connected agreed to become the recipient of the promoted timeshares. In reality, no timeshare units were created and no transfers from the donors to the charity occurred. [2] The Minister of National Revenue later disallowed the charitable donation tax credits claimed by the donors, and Guindon was assessed an administrative monetary penalty in 2008 for each of the tax receipts disallowed, [3] amounting in total to almost $600,000. [4]
Guindon appealed the assessment to the Tax Court of Canada, submitting that s. 163.2 of the Income Tax Act [lower-alpha 1] created a criminal offence, and thus was subject to the Charter protection afforded under s.11. [5]
The TCC held that s. 163.2 was "by its very nature a criminal proceeding" and "involve[d] a sanction that is a true penal consequence," [6] and in consequence vacated the assessment. Protests by the Crown that the constitutional issue was raised without proper notice [lower-alpha 2] were overruled by the trial judge Bédard J. [7]
The Federal Court of Appeal allowed the appeal, set aside the TCC's judgment, and restored the assessment against Guindon. In his ruling, Stratas JA held that: [8]
Leave to appeal to the SCC was granted in June 2013.
By a unanimous decision, the appeal was dismissed. However, the Justices split 4:3 as to whether the constitutional issue should have been considered without prior notice, and only the majority addressed the constitutional issue.
While the minority considered the Court's prior ruling in Eaton v Brant County Board of Education [9] as requiring a mandatory notice of a constitutional question, as it "gives governments an opportunity to present evidence justifying the constitutionality of the law and permits all parties to challenge that evidence," and "allowing a party unilaterally to make an end-run around notice requirements by claiming that demonstrably constitutional arguments are not in fact constitutional arguments, rewards linguistic tactics at the expense of the public interest." [10] The majority held that Eaton was not conclusive, as Sopinka J's judgment did not express a final opinion on the point. In addition, there have been numerous instances both before and after Eaton where the Court has addressed constitutional questions de novo without prior notice. [11]
S. 11 protection is available to those charged with criminal offences, not those subject to administrative sanctions, according to the test the Court has devised in R v Wigglesworth , [12] which declares that a matter falls under s. 11 where;
In addition, Martineau v MNR [14] declares that, in general, "proceedings of an administrative—private, internal or disciplinary—nature instituted for the protection of the public in accordance with the policy of a statute are not penal in nature." [15] To determine whether a proceeding is criminal or administrative in nature, the Court must examine "(1) the objectives of the [Act]; (2) the purpose of the sanction; and (3) the process leading to imposition of the sanction." [16]
In the present case, the Court declared that criticisms that the Wigglesworth/Martineau tests were unclear, circular in nature or not properly accounting for the modern context of administrative monetary penalties were unfounded, as:
In the case at bar, s. 163.2(4) of the ITA was held:
Several practical consequences were immediately apparent in Guindon: [21]
Commentators generally agree that Guindon is only a first step in the development of the case law concerning administrative proceedings:
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