While the majority of the Court (Rothstein, Cromwell, Moldaver
and Gascon) exercised its discretion to consider the taxpayer's
constitutional arguments despite the taxpayer's failure to
provide notice of constitutional question, the Court held that the
penalty under section 163.2 was not criminal in nature:
 We conclude that the proceeding under s. 163.2 is not
criminal in nature and does not lead to the imposition of true
penal consequences. We agree with Stratas J.A., writing for the
Federal Court of Appeal, that "the assessment of a penalty
under s. 163.2 is not the equivalent of being 'charged with a
[criminal] offence.' Accordingly, none of the s. 11 rights
apply in s. 163.2 proceedings": para. 37.
 Finally, we note that even though s. 11 of the
Charter is not engaged by s. 163.2 of the ITA,
those against whom penalties are assessed are not left without
recourse or protection. They have a full right of appeal to the Tax
Court of Canada and, as the respondent pointed out in her factum,
have access to other administrative remedies: R.F., at para. 99;
see, e.g., ITA, s. 220(3.1).
In a concurring opinion that dissented on the issue of the
notice requirement, Justices Abella, Karakatsanis and Wagner held
that the taxpayer's failure to provide notice of constitutional
question in the Tax Court or Federal Court of Appeal was fatal to
See our previous posts on the Guindon case
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Ten days following the election, join us for a discussion with Gary Doer, former Canadian Ambassador to the US, and Gordon Giffin, US Ambassador to Canada under Bill Clinton, to discuss how the new President and Congressional makeup will shape US-Canada relations for years to come.
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On Thursday, September 22, 2016, Dentons hosted a panel discussion about the management of liabilities and risks associated with environmental crises, including potential liabilities for directors and officers and provided insight into risk and liability techniques associated with environmental crisis management.
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