Digests

ConSTITuTIonal law

Charter of rights

Criminal Process

Motion by United States Steel Corporation, U.S. Steel Canada Inc. (U.S. Steel) challenging validity of Investment Canada Act, R.S.C., 1985 (1st Supp.), c. 28 (ICA), s. 40 as being in violation of 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), Canadian Bill of Rights, S.C. 1960, c. 44, s. 2(e)—U.S. Steel, non-Canadian investor, obtaining ministerial approval for acquisition of Canadian business after providing undertakings in support of application—Minister subsequently advising U.S. Steel that it was in contravention of undertakings—Minister filing application under ICA, s. 40 seeking order directing U.S. Steel to comply with undertakings, penalty of $10 000 per day, per breach—Whether Charter, s. 11(d) applying to proceedings under ICA, s. 40—S. 11(d) applying if matter by its very nature criminal proceeding or involving imposition of true penal consequences, as articulated in R. v. Wigglesworth, [1987] 2 S.C.R. 541—Matter of public nature, intended to promote public order, welfare within public sphere of activity falling within s. 11(d)—Applicant contending magnitude of fine sufficient to engage s. 11(d)— Court interpreting R. v. Wigglesworth to mean body can have unlimited power to fine, however, in determining whether penalty true penal consequence, analysis must proceed beyond magnitude of fine to determine whether fine imposed for purpose of redressing harm done to society or for particular private purpose—Although ICA having public aspect, s. 40 proceeding not serving broader public service of promoting public order, welfare within public sphere of activity—Purpose of monetary penalty at issue herein: encouraging, promoting, enforcing compliance with undertakings, legislation—S. 40 arising in context of private transactions, investor not being called to account to public—Fact Minister’s application brought before Superior Court reflecting Parliament’s choice of enforcing compliance through civil, not criminal proceeding—Magnitude of fine alone insufficient basis for concluding penalty true penal consequence—In relation to Bill of Rights, s. 2(e) issue, fair hearing in accordance with principles of fundamental justice thereunder synonymous with concept of natural justice, procedural fairness—Federal Courts Rules, SOR/98-106 providing adequate procedural protection—Motion dismissed.

United States Steel Corporation v. Canada (Attorney General) (T-1162-09, 2010 FC 642, Hansen J., judgment dated June 14, 2010, 39 pp.)