In Guindon v. Canada, released today, the Supreme Court of Canada dismissed the appeal of a tax lawyer acting as a tax adviser, Julie Guindon, for penalties imposed by the Minister of National Revenue for issuance of tax receipts containing false statements. Guindon argued she was entitled to procedural safeguards under s. 11 of the Canadian Charter of Rights and Freedoms. The court held that proceedings under s. 163 of the Income Tax Act are administrative in nature and not subject to the protection of s. 11 of the Charter, reserved for criminal matters or matters involving “truly penal consequences.”
The Supreme Court ruled that the law has long been settled that s. 11 does not apply to disciplinary measures because one is not dealing with an “offence” strictly speaking. This is significant because the penalty imposed was not like an extra charge for an individual’s late payment of taxes, but rather a form of administrative tax fraud on an office holder. Compare this to, say, transit fraud under s. 393 of the Criminal Code, a sanction for breach of a similar ethical duty. Or compare it to criminal charges against a Canadian Senator for making false or misleading statements in expense claims. The functional policy analysis undeniably blurs the court’s focus on the words used in s. 11 to describe the procedural protection of the person on whom a penalty is imposed.
In para. 44 of Guindon, the majority reiterated the adoption of a “somewhat narrow definition of the opening words of s. 11 in order to avoid having to craft differing levels of protection under s. 11 for different sorts of proceedings.” That is reasonable, but only as long as the text of the Charter supports the narrow construction. Does it?
The Charter, like many Canadian enactments, is a bilingual statute. As a constitutional document, there is a presumption of application potentially to every statute that deals with a covered subject matter. Unfortunately, it appears the issue of the penal-administrative division of application of s. 11 has been litigated only with regard to the word “offence” as the touchstone. In Quebec, proceedings before the Barreau also recognize that s. 11 does not apply to discipline proceedings, employing the above interpretation (Barreau du Québec (syndique ad hoc) c. Bouchard).
If one looked up the actual analogue of “offence” in the French text of s. 11, one would reads the word: “infraction.” According to Prof. Vanderlinden’s lexicon of French common law (the juridical language of French public law in Canada), “infraction” means “Violation d’une disposition de droit pénal ou de droit disciplinaire.”* In other words, the French word “infraction” in s. 11 includes administration of discipline, defined as proceedings “primarily intended to maintain compliance or to regulate conduct within a limited sphere of activity” (para. 45 of Guidon).
To make matters more confusing, the more expansive meaning of the French word “infraction” is evident in para. 44 of the majority in Guidon in the following statement: “The two parts test for determining which statutory infractions are criminal offences and which are administrative penalties was set out in Wigglesworth” (underline added). Maybe that was a Freudian slip, but if a Supreme Court justice uses a word, it should mean something. In this instance, use of the English word “infraction” to encompass penal and administrative penalties is identical to the generality of the definition in Vanderlinden’s dictionary.
Counsel for lawyers and other professionals facing regulatory sanction will have to wait for the next time the issue is before the Supreme Court, to ask for a reconciliation of the two words. Until then, interpretation of s. 11 in this context using the French text of the Charter will have to take a back seat to the English one.
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*Vanderlinden et al., La Common Law de A à Z (Cowansville: Éd. Yvon Blais, 2010), p. 282