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. 22).

The majority then identified additional elements to be considered when dealing with a new issue of a constitutional nature:

“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. (paras. 35-36)