Table of Contents The History, Creation, and Evolution of Administrative Monetary Penalties in Canada A companion analysis. Prepared July 2026. Introduction An Administrative Monetary Penalty, or AMP, is a fine imposed by a regulator, tribunal, or government official rather than by a court in a criminal or quasi-criminal proceeding. AMPs have become one of the primary enforcement tools of Canadian federal and provincial governments, deployed across securities regulation, telecommunications, broadcasting, tax law, competition law, environmental regulation, and dozens of other fields. This document traces where that tool came from, the Supreme Court decisions that created and entrenched it, how far its outer limits have been allowed to expand, and how it connects to a much older and quieter story: the deliberate exclusion of property rights from the Canadian Charter of Rights and Freedoms. The core argument is straightforward. Canadian governments have spent the past several decades moving enforcement out of the criminal and quasi-criminal system — where the state must prove its case beyond a reasonable doubt, before an independent court, against a presumptively innocent person — and into the civil and administrative system, where the standard drops to a balance of probabilities, the decision-maker is often the same body that investigated the case, and there is no meaningful ceiling on the size of the penalty. This is not an accident of bureaucratic drift. It follows a specific legal test, created by the Supreme Court of Canada five years after the Charter came into force, that tells legislators exactly how to design a penalty so that it captures the deterrent power of a criminal sanction while shedding the constitutional protections that would normally accompany one. The doctrinal engine: how the Supreme Court built the map R. v. Wigglesworth , [1987] 2 S.C.R. 541, is the origin point. The Supreme Court set out a two-part test for when section 11 of the Charter — proof beyond a reasonable doubt, the presumption of innocence, an independent and impartial tribunal — applies to a government proceeding at all. Section 11 protections attach only where a proceeding is “criminal in nature,” or where it carries a “true penal consequence.” Everything that falls outside those two categories is, constitutionally speaking, merely administrative — governed by a much thinner standard. That distinction is worth stating precisely, because it is widely misunderstood even among people with legal training. Fundamental justice , protected by sections 7 and 11 of the Charter, is a constitutional floor with real substantive and procedural content: proof beyond a reasonable doubt, the presumption of innocence, an independent tribunal, and a fault requirement scaled to the seriousness of the offence. Natural justice — more precisely, the common-law “duty of procedural fairness” set out in Baker v. Canada (Minister of Citizenship and Immigration) , [1999] 2 S.C.R. 817 — is a much thinner, purely procedural, and context- dependent standard. It typically requires only notice and an opportunity to respond, before a decision-maker who isn’t obviously biased. It contains no floor equivalent to proof beyond a reasonable doubt and no presumption of innocence in the constitutional sense. Whether a person facing a penalty gets the protections of fundamental justice or only the protections of natural justice depends entirely on which forum the legislature chose to route the case through — a choice the legislature controls completely. Guindon v. Canada , 2015 SCC 41, is where this doctrine was tested against a very large penalty and held firm. Julie Guindon, a lawyer, was assessed an administrative monetary penalty of nearly $546,747 under the Income Tax Act for her role in a fraudulent charitable-donation tax shelter. She argued the size and severity of the penalty made it a disguised criminal proceeding, entitling her to section 11 protections. The Supreme Court disagreed. The process was “classically administrative,” the majority held, because it lacked the traditional hallmarks of a criminal proceeding: no arrest, no summons to a criminal court, no resulting criminal record. The Court was explicit that there is “no fixed upper limit” on how large an AMP can be — the only constraint is that the penalty should not be “out of proportion to the amount required to achieve regulatory purposes.” As the case studies below demonstrate, that limiting language has done very little limiting in practice. The timing here is not incidental. Wigglesworth arrived five years after the Charter’s entrenchment, at the exact moment legislators needed to know how to keep new enforcement schemes clear of the Charter’s more demanding protections. AMP regimes proliferated visibly in the years that followed — one legal commentary on the Guindon decision, published in 2015, observed that “over the past two decades, numerous administrative bodies across Canada have been granted new powers to impose AMPs,” placing the acceleration squarely in the 1990s and after. That is the pattern this document traces: a specific doctrinal signal, followed by a specific and sustained legislative response. Case studies: a ceiling that keeps moving, but only in one direction Proportionality without a ceiling. R. v. Samji , 2017 BCCA 415, shows how little practical constraint Guindon ’s “proportionality” language provides. Rashida Samji, a former notary public, ran a Ponzi scheme defrauding roughly 200 investors of over $100 million between 2003 and 2012. The BC Securities Commission ordered two things: a disgorgement order of $10,811,799 — the calculated gap between what investors put in and what they got back, representing her true retained gain — and, separately, an administrative monetary penalty of $33 million, justified not as compensation but explicitly as “a meaningful and substantial general deterrent to others who would engage in similar misconduct.” That AMP is roughly three times the disgorgement figure. The BC Court of Appeal upheld it; the Supreme Court of Canada refused leave to appeal. Commentary on the decision notes that “the Court was not deterred by the size of the AMP.” A penalty triple the wrongdoer’s calculated gain, imposed on general-deterrence reasoning alone, passed the proportionality test without difficulty — which tells you how much genuine constraint that test supplies. There is also a procedural trap worth noting. Samji later tried to argue, in a separate criminal proceeding, that the AMP was in substance a “true penal consequence” and that prosecuting her criminally afterward amounted to double jeopardy. The court rejected the argument because she had never appealed the original administrative decision. The lesson: the argument that an AMP is secretly punitive has to be raised inside the administrative process itself, at the time of the original hearing — under natural justice, without the procedural tools that would make the argument easiest to prove — or it is lost permanently. Where does the money go? The BC Securities Commission’s stated policy is that AMP funds collected are allocated partly toward investor education and “payments to third parties harmed by the misconduct” — so the system is not designed, on paper, to exclude victims by rule. In practice, the outcome is very close to that anyway. There is no public record that any meaningful portion of Samji’s $33-million AMP, or even her $10.8-million disgorgement order, was ever collected; she was reported living in a rental apartment, working as a receptionist. This is not an isolated case. A 2024 CBC News investigation found the BC Securities Commission is owed approximately $430 million in unpaid administrative penalties and disgorgement orders across more than 400 respondents, having collected only about $12.7 million over six fiscal years, with roughly $130 million of the outstanding total considered permanently unrecoverable. The penalties are set at headline-grabbing, deterrence-theatre magnitudes disconnected from what is realistically collectible, while the one order type nominally earmarked for victims — disgorgement — is typically a fraction of the AMP and just as often never paid. A characterization that never once favours the victim. Poonian v. British Columbia (Securities Commission) , 2024 SCC 28, completes the picture. The question was what happens to BC Securities Commission financial sanctions when the sanctioned person declares bankruptcy. The Supreme Court split the two order types: disgorgement orders survive bankruptcy — they cannot be discharged, because they represent money the wrongdoer actually obtained through fraud, with a sufficiently direct link to that fraud. Administrative monetary penalties do not survive bankruptcy — they are discharged like ordinary debt, because the Court found them insufficiently tied to the specific fraudulent conduct; they are general deterrence, not compensation. Read together with Guindon and Samji , this produces a characterization that runs only one way. At the moment the penalty is imposed, the state’s position is that the AMP is not a true penal consequence, so the wrongdoer receives none of the criminal process protections an equivalent fine would carry if prosecuted as a crime. Years later, if the wrongdoer goes bankrupt, the position flips: the AMP is not sufficiently tied to the fraud to survive bankruptcy the way compensation-oriented orders do. The AMP is legally too soft to count as punishment when that characterization would help the defendant’s due-process argument, and too disconnected from the wrong to count as a genuine debt when that characterization would help the victim’s recovery. Both characterizations serve the state’s and the wrongdoer’s interests. Neither has ever been shown to serve the person who was defrauded. The property rights connection: a deliberate constitutional gap None of this architecture would be possible in its current form if Canada’s Charter protected property the way the constitutions of most comparable democracies do. It doesn’t, and the omission was neither an oversight nor a historical accident — it was a contested, negotiated, and deliberately made choice. During the constitutional negotiations of 1980 and 1981, the federal government’s initial draft of section 7 included a right to “the enjoyment of property,” mirroring language already present in the 1960 Canadian Bill of Rights. That language was struck at the insistence of several provincial governments — Saskatchewan and Prince Edward Island most vocally — and the federal New Democratic Party, specifically out of concern that entrenching a constitutional property right would expose environmental regulation, zoning, land-use planning, and natural- resource policy to constitutional challenge. The concern was not abstract: Saskatchewan in particular had a recent history of resource-related legislation that a property right might have jeopardized. The result is that Canada, along with New Zealand, is one of only two OECD member states without constitutional protection for property rights. That gap is the space in which the mechanisms described above operate. Without a constitutional floor protecting property, a government does not need to prove a crime, beyond a reasonable doubt, before an independent court, in order to take a person’s money, freeze their assets, or permanently ban them from an industry. It need only prevail in a civil or administrative proceeding, on the lower balance-of-probabilities standard, before a decision- maker it controls. The clearest illustration of that gap being used, deliberately, at scale, is civil asset forfeiture. Chatterjee v. Ontario (Attorney General) , 2009 SCC 19, is the leading case. Ontario police arrested Robin Chatterjee for an unrelated breach of a court order and, in a search of his vehicle, found $29,020 in cash and equipment associated with the illicit drug trade. No drugs were found. No criminal charges were ever laid in relation to the cash. Ontario nonetheless applied under its Civil Remedies Act to permanently forfeit the money as “proceeds of unlawful activity” — on a balance-of-probabilities standard, in a proceeding brought against the property itself rather than against Chatterjee as an accused. The original style of cause in the case was literally Attorney General of Ontario v. $29,020 in Canadian Currency ; Chatterjee appeared only as a property claimant, not a defendant facing a charge. The Supreme Court unanimously upheld the forfeiture, expressly acknowledging that it “may have de facto punitive effects in some cases” — and holding that this doesn’t matter, because the statute is legally characterized as provincial regulation of “property and civil rights” rather than criminal law, and therefore never has to clear the higher bar that a criminal forfeiture proceeding would require. Every Canadian province has since adopted some version of this civil forfeiture regime, almost all of them in the decade following Chatterjee — squarely inside the window in which governments, armed with the Wigglesworth test, had a clear map for how to build enforcement mechanisms that captured the practical power of a criminal sanction while avoiding its constitutional obligations. Asset forfeiture and administrative monetary penalties are, in substance, the same mechanism. Both bypass the criminal process by declining to lay a charge. Both use the civil, balance-of-probabilities standard rather than proof beyond a reasonable doubt. Both are decided by a body — a court applying civil procedure, or a tribunal applying its own rules — that does not offer the accused the protections a criminal court would. They differ only in the form the penalty takes: an AMP extracts a sum of money as a consequence for a regulatory contravention; civil forfeiture extracts a specific piece of property directly, characterized as the “proceeds” or “instruments” of unlawful activity. The underlying legal architecture, and the underlying gap in constitutional protection that makes it possible, is identical. A partial counterweight, and its limits Annapolis Group Inc. v. Halifax Regional Municipality , 2022 SCC 36, lowered the evidentiary bar for a related but distinct property doctrine: “constructive taking,” formerly known as de facto expropriation. A landowner no longer needs to show the government actually acquired title to or possession of their property — only that regulation conferred some “advantage” on the government while removing all reasonable economic use of the land. On its face, this looks like the Court moving to protect property owners. The limits of that protection are worth stating clearly. The remedy rests entirely on a common- law presumption dating to a 1920 English case, Attorney-General v. De Keyser’s Royal Hotel Ltd. , that a legislature intends to compensate a property owner unless it says otherwise in clear statutory language. That means any government wishing to avoid this exposure can simply draft an explicit ouster clause into the relevant statute. The protection Annapolis Group offers is real, but entirely defeasible — it exists at the ongoing sufferance of the same legislatures whose regulatory reach it nominally constrains, and it is not, and has never been, a constitutional right. Where the Court has genuinely pushed back — and where it hasn’t John Howard Society of Saskatchewan v. Saskatchewan (Attorney General) , 2025 SCC 6, is the one recent decision that runs meaningfully against the pattern described above. The Supreme Court struck down a Saskatchewan regulation permitting inmate disciplinary proceedings — which could result in solitary confinement — to be decided on a balance-of-probabilities standard, holding that this violated both sections 7 and 11(d) of the Charter. In doing so, the Court explicitly overturned the older precedent, R. v. Shubley (1990), that had exempted such proceedings from full Charter scrutiny, insisting on what it called a “functional, not formalistic” reading of the Wigglesworth test. This is a genuine expansion of protection, and it matters for understanding the overall shape of the law. But it was triggered by actual physical liberty deprivation — solitary confinement — imposed on a natural person. Corporations facing administrative monetary penalties receive no comparable benefit: corporations have no constitutional liberty or security interest under section 7 at all, a point the Supreme Court settled decades ago in Irwin Toy Ltd. v. Quebec (Attorney General) , [1989] 1 S.C.R. 927. The pattern that emerges across this body of case law is consistent: the Court is willing to police the line between fundamental justice and natural justice when a human being’s physical liberty is directly at stake, and has shown no comparable willingness to do so when what’s at stake is corporate money, seized cash, or forfeited property instead. Conclusion The tools examined in this document — administrative monetary penalties and civil asset forfeiture — did not emerge from a single statute or a single government’s agenda. They emerged from a specific Supreme Court test, created in 1987, that told every legislature in the country exactly how to design an enforcement mechanism that keeps the deterrent power of a criminal sanction while shedding its constitutional obligations. That test has been applied, refined, and in every meaningful respect expanded — never meaningfully constrained — over the nearly four decades since. It operates most freely, and most consequentially, in the constitutional space left open by the deliberate 1981 decision to exclude property rights from the Charter. And in the two most significant recent applications of this architecture — a $33- million penalty triple the wrongdoer’s calculated gain, and a bankruptcy ruling that lets that same category of penalty be discharged as ordinary debt — the pattern holds without exception: the state’s characterization of these penalties shifts freely to suit whichever purpose it currently serves, and the person actually harmed by the underlying conduct has never yet been the beneficiary of that flexibility. Sources consulted: R. v. Wigglesworth, [1987] 2 S.C.R. 541; Guindon v. Canada, 2015 SCC 41; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; R. v. Samji, 2017 BCCA 415, leave to appeal to SCC refused; Poonian v. British Columbia (Securities Commission), 2024 SCC 28; Chatterjee v. Ontario (Attorney General), 2009 SCC 19; Annapolis Group Inc. v. Halifax Regional Municipality, 2022 SCC 36; John Howard Society of Saskatchewan v. Saskatchewan (Attorney General), 2025 SCC 6; R. v. Shubley, [1990] 1 S.C.R. 3; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; Mills v. The Queen, 1986 CanLII 17 (SCC), [1986] 1 S.C.R. 863, per Lamer J. (dissenting); Centre for Constitutional Studies (University of Alberta) commentary on the 1981 property-rights omission; CBC News investigative reporting (March 2024) on unpaid BC Securities Commission penalties; Mondaq, Osler, Fasken, and CanLII Connects case commentary on Samji, Poonian, Chatterjee, and Annapolis Group. This is analysis, not legal advice — case citations and figures should be verified against the underlying decisions before use in any filing.