On July 31, 2015, the Supreme Court of Canada released its
decision in Guindon v. Canada. The substantive issue
in that case concerned whether s. 163.2(4) of the Income Tax
Act, which imposes monetary penalties on a person who makes a
false statement that could be used by another person for the
purpose of the ITA, creates a criminal offence and, therefore,
attracts all the protection of s. 11 of the Canadian Charter of
Rights and Freedoms. What is of interest for the purposes of
this blog, however, is the procedural issue: what happens when the
appellant has given notice of a constitutional question in the
Supreme Court but failed to give notice in the courts below? Should
the Supreme Court hear and determine the constitutional issue
despite the lack of notice in the lower courts?
The Court was divided on this question. The majority and the
dissent agreed that notice was required in this case and, since
proper notice was given in the Supreme Court, the Court had
discretion to consider and decide the constitutional issue. Where
the majority and the dissent parted ways is on how and whether the
Court should exercise its discretion.
The majority held that the principles guiding the exercise by
the Court of its discretion to hear the constitutional issue are
essentially those governing whether a new issue should be
considered on appeal:
"The issue is "new" in
the sense that the constitutional issue, by virtue of the absence
of notice, was not properly raised before either of the courts
below. Whether to hear and decide a constitutional issue when it
has not been properly raised in the courts below is a matter for
the Court's discretion, taking into account all of the
circumstances including the state of the record, fairness to all
parties, the importance of having the issue resolved by this Court,
its suitability for decision and the broader interests of the
administration of justice." (para. 20)
The majority also held that "the test for whether new
issues should be considered is a stringent one" and the
Court's discretion to hear and decide new issues should
"not [be] exercised routinely or lightly." (para.
The majority then identified additional elements to be
considered when dealing with a new issue of a constitutional
"New constitutional issues
engage additional concerns beyond those that are considered in
relation to new issues generally. In the case of a constitutional
issue properly raised in this Court for the first time, the special
role of the attorneys general in constitutional litigation —
reflected in the notice provisions — and the unique role of
this Court as the final court of appeal for Canada must also be
carefully considered. The Court must be sure that no attorney
general has been denied the opportunity to address the
constitutional question and that it is appropriate for decision by
this Court. The burden is on the appellant to persuade the Court,
that in light of all of the circumstances, it should exercise its
discretion to hear and decide the issue. There is no assumption of
an absence of prejudice. The Court's discretion to hear and
decide new issues should only be exercised exceptionally and never
unless the challenger shows that doing so causes no prejudice to
the parties." (para. 23)
On the facts of the case, the majority concluded that the Court
should exercise its discretion to hear and decide the
constitutional issue raised by the appellant. The Court found that:
(1) the issue raised is "important to the administration of
the ITA and it is in the public interest to decide it"; (2)
there is "no indication that any attorney general has suffered
a prejudice"; (3) the Court has the "benefit of fully
developed reasons for judgment on the constitutional point in both
of the courts below"; (4) "there was no deliberate
flouting of the notice requirement" by the appellant because
she "advanced an arguable [...] position that notice was not
required in the circumstances of this case"; and (5)
"enormous waste of judicial resources" would result from
the Court declining to hear and decide the merits of the case.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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