Supreme Court

Constitutional Law


Appellant was not person “charged with an offence” and not entitled to protections under s. 11 of Charter

Section 163.2 of Income Tax Act imposes monetary penalties on every person who makes false statement that could be used by another person for purpose of act. Appellant was assessed substantial penalties under s. 163.2(4) in respect of false statements made by her in donation receipts issued by her on behalf of charity. Minister of National Revenue claimed appellant knew or would reasonably be expected to have known statements could be used by taxpayers to claim unwarranted tax credit. Appellant argued she was person “charged with an offence” because penalty imposed under s. 163.2(4) is criminal. She claimed she was therefore entitled to procedural safeguards provided for in s. 11 of Canadian Charter of Rights and Freedoms. Her appeal of Minister’s assessment to Tax Court of Canada was allowed despite fact she did not raise any Charter issue in her notice of appeal nor did she provide notice of constitutional question to attorneys general as required by s. 19.2 of act. Federal Court of Appeal set aside Tax Court’s decision and restored assessment. Appellant’s appeal dismissed. This court has narrow discretion to address merits of constitutional issue when it receives proper notice of constitutional questions even though issue was not properly raised in courts below. Discretion ought to be exercised in this case. Proceedings under s. 163.2 of act are not criminal in nature and do not lead to imposition of true penal consequences. Appellant was not person “charged with an offence” and not entitled to protections under s. 11 of Charter. Proceedings under s. 163.2 are of administrative nature. Process does not bear traditional hallmarks of criminal proceeding. True penal consequence is imprisonment or fine. Monetary penalty may be true penal consequence when it is, in purpose or effect, punitive. Penalties assessed against appellant, however, reflect objective of deterring conduct of type she engaged in. In signing charitable tax receipts, she chose to rely on her own legal opinion which she knew to be incomplete. Tax Court found her conduct was indicative either of complete disregard of law or of wilful blindness.

Guindon v. R. (Jul. 31, 2015, S.C.C., Abella J., Rothstein J., Cromwell J., Moldaver J., Karakatsanis J., Wagner J., and Gascon J., File No. 35519) Decision at 228 A.C.W.S. (3d) 94 was affirmed.  256 A.C.W.S. (3d) 78.

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