The Supreme Court has dismissed the taxpayer’s appeal in Guindon v R, 2015 SCC 41.
I wrote the following about the Federal Court of Appeal’s decision (2013 FCA 153):
That said, the penalties imposed were large, and that should mean something in this analysis. Apparently, the size of a penalty is something the European Court of Justice considers carefully in trying to make the distinction at issue in Guindon. The Court of Appeal, however, simply referred to other case law on this point without further analysis. Even more importantly, I found counterintuitive the notion that a taxpayer is entitled to Charter protection where a sanction is imposed after the exercise of discretion and after taking into account mitigating circumstances but not where a “penalty” is imposed that is a “non-discretionary fixed amount” where “the Minister [does not] evaluate the moral blameworthiness or turpitude of the conduct, including any mitigating circumstances.” What is wrong with that picture?
The Supreme Court majority devotes more attention to the quantum argument, but the reasoning is still unconvincing. I find it startling (or is “absurd” the better word?) that section 11 of the Charter protects those to whom the state issues a traffic ticket (per ¶64 of the SCC decision) but not Ms Guindon, on whom the state imposed a $546,747 “civil penalty”.
