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.
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 s. 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
Our previous comments on the decisions are
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