The Constitutionality of Administrative Monetary Penalties: Defining the punitive paradigm

Kenneth Jull
Saturday, August 8, 2015

The Supreme Court of Canada released its anticipated decision in Guindon v. Canada[i]on July 31, 2015, which held that administrative monetary penalties ("AMPs") under section 163.2 of the Income Tax Act (the "ITA")[ii] are not offences that trigger constitutional protections such as the right to be presumed innocent.

Other AMPs schemes and the punitive paradigm

The door is still open for constitutional challenges to the myriad of other AMPs if they fall within the 'punitive paradigm'.  In Guindon, the Supreme Court observed that "[a] monetary penalty may or may not be a true penal consequence" and "[i]t will be so when it is, in purpose or effect, punitive."[iii]  Where a penalty's purpose or effect is punitive, this will trigger Charter[iv]rights.  The Court articulated a balancing test to determine whether an outcome is punitive:

Prof. Audrey Macklin co-authors "We need to better regulate Canadian companies abroad"

Tuesday, July 28, 2015

In a commentary in the Globe and Mail, Prof. Audrey Macklin and Prof. Penelope Simons of the University of Ottawa Faculty of Law argue that Canada can and should more closely regulate the conduct of Canadian oil, gas and mining companies operating overseas ("We need to better regulate Canadian companies abroad," July 25, 2015). The commentary responds in part to the report by the UN Human Rights Committee on Canada published a few days prior.

The New Integrity Regime in Canada – Revised Debarment Rules still too strict?

Kenneth Jull
Thursday, July 23, 2015

On July 3rd, 2015, the Canadian government announced a new Integrity Framework (the “Integrity Regime”), which applies to all federal procurement and debars suppliers who have been convicted of “integrity offences” from contracting with the federal government for 10 years.  A supplier may have its ineligibility period reduced by five years, if they meet the new disjunctive test and demonstrate that they: 

  • cooperated with law enforcement authorities; or
          
  • have undertaken remedial action(s) to address the wrongdoing.

.
“ Integrity offences”  include

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