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SCC Grants Leave to Appeal in Guindon v. The Queen

By Larry Nevsky
March 21, 2014
  • Canadian Charter of Rights and Freedoms
  • Penalties and Interest
  • Supreme Court of Canada
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The Supreme Court of Canada has granted leave to appeal in Guindon v. The Queen (Docket # 35519).  In this case, the Supreme Court of Canada will consider whether penalties imposed under section 163.2 of the Income Tax Act (Canada) constitute an “offence” within the meaning of s. 11 of the Charter.

The Tax Court found that the penalty imposed under section 163.2 of the Act is a
criminal penalty, not a civil one, and therefore subject to the same constitutional protections as other penal statutes enacted by the federal government.

The Federal Court of Appeal reversed the Tax Court’s ruling, first on the basis that Ms. Guindon had not followed the proper process in challenging section 163.2 by failing to provide notice of a constitutional question, and so the Tax Court lacked the jurisdiction to make the order it did. However, the Federal Court of Appeal considered the merits of the issue in any event, and held that advisor penalty proceedings are not criminal in nature and do not impose “true penal consequences.”

Our previous comments on the decisions are here and here.

advisor penalties, section 163.2, Supreme Court of Canada
Larry Nevsky

About Larry Nevsky

Larry Nevsky is a partner in Dentons’ national Tax group in Toronto, where he focuses on all aspects of income tax and corporate tax planning. With his comprehensive background as both a lawyer and a chartered professional accountant, Larry operates a thriving practice advising domestic and international clients on a wide range of tax-related matters, including mergers and acquisitions, corporate reorganizations, corporate finance, business structuring, inbound and outbound expansion, cross-border transactions and tax dispute resolution.

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