Lavers v. Minister of Finance of B.C., 90 DTC 6017, [1990] 1 CTC 265 (BCCA) -- summary under Paragraph 11(h)

The Minister assessed the taxpayers under s. 163(2) for penalties, and shortly thereafter the taxpayers were convicted under s. 239(1). The taxpayers applied to the Supreme Court of British Columbia for an order declaring that the imposition of the penalties, in light of their previous convictions, amounted to their being punished for the same offence twice. It was held that s. 163(2) did not create an "offence", because the penalty assessments were "properly characterized as private matters of a regulatory nature - primarily intended to regulate the conduct of taxpayers with reference to their complying with the requirements" of the income tax legislation, whereas prosecutions for a violation of s. 239 "are properly characterized as criminal and penal matters intended to 'promote public order and welfare within a public sphere of activity' by deterring the public from the commission of flagrant breaches of the Income Tax Act." In addition, s. 163(2) did not impose "punitive sanctions [which] were so severe as to constitute 'a true penal consequence'." Finally, in light of the presumption that an assessment is valid and binding until an appeal court varies or vacates it, the penalties effectively constituted punishment of the taxpayers before their conviction under s. 239(1), rather than afterwards.