[2011] 3 F.C.R. D-2
Constitutional Law
Charter of Rights
Criminal Process
Appeal from Federal Court decision (2010 FC 642) dismissing appellants’ motion challenging constitutional validity of Investment Canada Act, R.S.C., 1985 (1st Supp.), c. 28, ss. 39, 40 as violating right to fair hearing, presumption of innocence contrary to Canadian Bill of Rights, S.C. 1960, c. 44, s. 2(e), Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 11(d)—Act allowing Minister of Industry to review, approve applications from foreign investors wishing to obtain control of major Canadian corporations—S. 39 allowing Minister to demand foreign investor comply with Act, any undertakings made during application process—S. 40 providing Minister may commence action if unsatisfied with investor’s response—In present case, Minister advising appellants of their contravention of certain undertakings; demanding, under s. 39 that contraventions cease, default be remedied—Unsatisfied with appellants’ response, Minister bringing proceedings under 40, seeking compliance with undertakings, imposing penalty of $10 000 per day per breach—Federal Court applying R. v. Wigglesworth, [1987] 2 S.C.R. 541 two-category test to determine applicability of Charter, s. 11(d)—Finding, inter alia, that proceeding under s. 40 not criminal proceeding, fine imposed under s. 40 not pointing to public purpose (redress harm caused to society), requirements of natural justice not as stringent as argued by appellants—Whether ss. 39, 40 violating Charter, s. 11(d), Bill of Rights, s. 2(e)—Federal Court not erring in concluding that ss. 39, 40 not fitting within two categories in Wigglesworth—Martineau v. M.N.R., 2004 SCC 81, [2004] 3 R.C.S. 737 enunciating following factors to consider when determining whether proceeding criminal by nature: objectives of statute, purpose of sanction, process leading to imposition of sanction—Clear that mere existence of public purpose cannot per se be determinant that proceedings criminal—Courts must ask what sort of public purpose legislation addressing—Public purpose pertaining to financial regulations generally administrative, non-penal—Relevant purpose of Act at issue to encourage economic growth, employment opportunities—Proceedings thus not penal—Purpose of Act, s. 40(2)(d) sanction, lack of penal proceedings not suggesting Charter, s. 11 applicability—Use of contempt proceedings under Act, s. 40(4) not suggesting that penalties criminal rather than civil—Appellants only facing contempt proceedings if able but unwilling to pay penalty—Concluding that availability of contempt making civil trial proceedings criminal in nature contrary to wording of Charter, s. 11(d)—Language of Act supporting conclusion that s. 40 proceedings not criminal—Sheer magnitude of monetary penalties not determinative that s. 40 proceedings leading to penal consequences—Statutory power to impose fines with little statutory guidance not subject to Charter, s. 11 if exercised to achieve proper administrative aims—As to violation of Bill of Rights, s. 2(e), appellants vague about what s. 2(e) adding to common law principle that a party should know case to meet, not presenting argument suggesting that Federal Courts Rules, SOR/98-106 inadequate to satisfy s. 2(e) requirements—Purpose of Federal Courts Rules, not Act, to provide procedural protections—Appeal dismissed.
Canada (Attorney General) v. United States Steel Corporation (A-242-10, 2011 FCA 176, Nadon J.A., judgment dated May 25, 2011, 34 pp.)