Guindon, a lawyer who specialized in family and wills and estates law, was approached in 2001 by promoters of a leveraged donation program which was said to operate in the following manner: Guindon agreed, for a fee, to provide an opinion letter on the tax consequences of this program on the basis of a precedent provided by the promoters.

Protests by the Crown that the constitutional issue was raised without proper notice[b] were overruled by the trial judge Bédard J.

"[11] The majority held that Eaton was not conclusive, as Sopinka J's judgment did not express a final opinion on the point.

In addition, there have been numerous instances both before and after Eaton where the Court has addressed constitutional questions de novo without prior notice.

[12] S. 11 protection is available to those charged with criminal offences, not those subject to administrative sanctions, according to the test the Court has devised in R v Wigglesworth,[13] which declares that a matter falls under s. 11 where; In addition, Martineau v MNR[15] declares that, in general, "proceedings of an administrative—private, internal or disciplinary—nature instituted for the protection of the public in accordance with the policy of a statute are not penal in nature.