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As the majority saw it, the adviser penalties were not analogous to criminal law because they were not aimed at promoting public order and welfare within a public sphere of activity; rather, they were primarily intended to maintain compliance or regulate conduct within a limited sphere. The adviser penalties, aimed at promoting honesty and deterring gross negligence on the part of tax preparers, did precisely that.

Unlike the criminal process, the AMP process involved no charge, no arrest, no summons to a criminal court, and did not result in a criminal record. At most, the penalties involved being forced to pay by way of a civil action.

The decision has broad implications. In recent years, AMPs have become an increasingly common feature of sanctions available under Canadian business statutes, like the Competition Act. Now that the SCC has definitively categorized offences giving rise to AMPs as civil proceedings, prosecutors and regulators will continue to have a much easier time proving them.

Guindon arose after the lawyer wrote an opinion for a relative regarding a tax shelter program. The opinion stated that Guindon had read the underlying documents despite the fact that she had not done so.

The program involved the donation of Turks and Caicos timeshare properties to a charity. The lawyer was also president of the charity and signed at least some of the tax receipts issued to investors. Although the promoters confirmed orally that the property had been transferred, the lawyer never saw documentation substantiating the conveyances.

As it turned out, the properties were never transferred. The CRA levied adviser penalties in excess of $500,000. The SCC decision means Guindon will have to pay them.