Defending the presumption of innocence
Section 11 of the Charter of Rights and Freedoms guarantees important procedural protections such as the right to “be presumed innocent until proven guilty” and the right to a “fair and public hearing by an independent and impartial tribunal.”
Unfortunately, these rights are not always protected.
Indeed, our rights to presumed innocence and to have fair, open hearings are often swept away when the government punishes citizens with something known as Administrative Monetary Penalties (AMPs). Public bodies which impose these AMPs can accuse, convict and punish in the same action, and most people hit with these “regulatory fees” have no chance to defend themselves before any sort of panel or tribunal.
AMPs presume that you are guilty until proven innocent.
In 2008, the Minister of National Revenue imposed upon Ottawa lawyer Julie Guindon an AMP of $546,747 for making false statements in the context of a charitable donation program. Ms. Guindon appealed, arguing that the AMP in question created a criminal consequence rather than a civil penalty, which meant she was entitled to a presumption of innocence and other Section 11 Charter rights. The Tax Court of Canada agreed and allowed the appeal in 2012. In 2013, the Federal Court of Appeal overturned this decision, saying that the AMP did not impose a “true penal consequence.” Ms. Guindon has been granted leave to appeal that decision to the Supreme Court of Canada.
The CCF is seeking leave to intervene in the upcoming Supreme Court case to protect citizens’ ability to rely on the Charter in defending against a broad range of AMPs. While we don’t condone Ms. Guindon’s actions, we know that the ability to count on Section 11 protections is crucial for both civil and economic liberties, especially now that governments and public bodies are increasingly relying on AMPs which are designed to circumvent Charter protections. Simply by calling something an AMP rather than a penalty, the government can avoid the application of the Charter to an otherwise serious penal consequence. For instance, under Canada’s new anti-spam law the CRTC now has the power to impose AMPs of up to $10,000,000 dollars. Yet the presumption of innocence does not apply.
The Guindon decision could potentially affect every one of us. For the sake of our democratic rights, it is time to stop such extrajudicial punishments.
The Supreme Court of Canada has granted the CCF intervener status in Guindon v. the Queen.
The CCF has been permitted to file arguments with Canada’s highest court in advance of the hearing, which is tentatively scheduled for December 5, 2014.
Marni Soupcoff, executive director of the CCF, said, “Canadians get greater procedural protection when we’re charged with a traffic infraction than when a civil servant puts us on the hook for half a million dollars.”
“Julie Guindon’s actions may indeed have been wrong, but she is entitled to be presumed innocent until her guilt is proven before an independent judge. No bureaucrat should have the power to impose life-altering fines on a person without a proper trial.”
The CCF is very grateful to lawyers Darryl A. Cruz, Brandon Kain, Kate Findlay, and Brandon Siegal of McCarthy Tetrault LLP for their skilled pro bono work on this case.
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