In the Supreme Court of Canada (On Appeal from the Court of Appeal for Alberta)

File Number: 36865/36866 IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL FOR ALBERTA)

BETWEEN:

JEREMY JAMES PEERS APPELLANT (Appellant) and

HER MAJESTY THE QUEEN (ALBERTA SECURITIES COMMISSION) RESPONDENT (Respondent) and

ATTORNEY GENERAL OF CANADA; ATTORNEY GENERAL OF ALBERTA; ATTORNEY GENERAL OF ONTARIO; ATTORNEY GENERAL OF QUEBEC; ONTARIO SECURITIES COMMISSION; CANADIAN CONSTITUTION FOUNDATION; BRITISH COLUMBIA CIVIL LIBERTIES ASSOCIATION; CANADIAN CIVIL LIBERTIES ASSOCIATION

INTERVENERS

RONALD JAMES AITKENS APPELLANT (Appellant) and

HER MAJESTY THE QUEEN (ALBERTA SECURITIES COMMISSION) RESPONDENT (Respondent) and

ATTORNEY GENERAL OF CANADA; ATTORNEY GENERAL OF ALBERTA; ATTORNEY GENERAL OF ONTARIO; ATTORNEY GENERAL OF QUEBEC; ONTARIO SECURITIES COMMISSION; CANADIAN CONSTITUTION FOUNDATION INTERVENERS

FACTUM OF THE INTERVENER THE ATTORNEY GENERAL OF CANADA (Rule 37 of the Rules of the Supreme Court of Canada)

Attorney General of Canada Attorney General of Canada Public Prosecution Service of Canada Department of Justice Canada Department of Justice Canada 234 Wellington Street, Room 1161 Ontario Regional Office Ottawa, Ontario 130 King Street West, Suite 3400 K1A 0H8 Toronto, Ontario M5X 1K6 Per: Robert Frater Per: Marianne Zoric Jeanette Gevikoglu Telephone: 613-957-4763 Fax: 613-954-1920 Telephone: 416 954-8046 Email: [email protected] Telephone: 416-973-3112 Fax: 416 954-8982 Agent for the Intervener Email: [email protected] [email protected]

Counsel for the Intervener

ORIGINAL TO: THE REGISTRAR AND TO:

BERESH ALONEISSI O'NEILL SUPREME ADVOCACY LLP HURLEY O'KEEFE MILLSAP 340 Gilmour Street, Suite 100 300 MacLean Block Ottawa, ON K2P 0R3 10110 - 107 Street Edmonton, Alberta T5J 1J4 Marie-France Major

Steve Fix, Nathan J. Whitling, Tel.: (613) 695-8855 ext. 102 Alex Millman Fax: (613) 695-8580 Email: [email protected] Tel.: (780) 421-4766 Fax: (780) 429-0346 Ottawa Agent for the Appellant, Jeremy Email: [email protected] Peers

Counsel for the Appellant, Jeremy Peers

WALSH LLP SUPREME ADVOCACY LLP 2800, 801 6th Avenue S.W. 340 Gilmour Street, Suite 100 Calgary, Alberta T2P 4A3 Ottawa, ON K2P 0R3

Brendan Myers Miller Marie-France Major Tel: (403) 267-8467 Tel.: (613) 695-8855 Fax: (403) 264-9400 Fax: (613) 695-8580 Email: [email protected] Email: [email protected]

Counsel for the Appellant, Ronald Aitkens Ottawa Agent for Counsel for the Appellant, Ronald Aitkens

ALBERTA SECURITIES COMMISSION GOWLING WLG (Canada) LLP th 600, 250 – 5 Street S.W. 2600-160 Elgin Street Calgary, Alberta T2P 0R4 Ottawa, ON K1P 1C3

Lorenz Berner D. Lynne Watt

Tel.: (403) 355-3889 Tel.: (613) 786-8695 Fax: (403) 297-7252 Fax: (613) 788-3509 Email: [email protected] Email: [email protected]

Counsel for the Respondent, Her Majesty Ottawa Agent for the Respondent, Her the Queen (Alberta Securities Commission) Majesty the Queen (Alberta Securities Commission)

ALBERTA JUSTICE – GOWLING WLG (Canada) LLP CONSTITUTIONAL LAW DIVISION 2600-160 Elgin Street 400, 9833 – 109 Street Ottawa, ON K1P 1C3 Edmonton, Alberta T5K 2E8 D. Lynne Watt Robert Normey Tel.: (613) 786-8695 Tel.: (780) 422-9532 Fax: (613) 788-3509 Fax: (780) 425-0307 Email: [email protected] Email: [email protected]

Counsel for the Intervener, Attorney Ottawa Agent for the Intervener, Attorney General of Alberta General of Alberta

Attorney General of Ontario Burke-Robertson 720 Bay Street, 4th Floor 200-441 MacLaren Street Toronto, ON M7A 2S9 Ottawa, ON K2P 2H3

Matthew Horner, Jennifer Luong Robert E. Houston, Q.C.

Tel: (416) 212-7009 Tel: (613) 236-9665 Fax: (416) 326-4015 Fax: (613) 235-4430 E-mail: [email protected] E-mail: [email protected]

Counsel for the Intervener, Attorney Ottawa Agent for the Intervener, Attorney General of Ontario General of Ontario

McCarthy Tétrault LLP Gowling WLG (Canada) LLP Suite 5300 2600-160 Elgin Street Toronto Dominion Bank Tower Ottawa, ON K1P 1C3 Toronto, ON M5K 1E6

Darryl A. Cruz, Brandon Kain Jeffrey W. Beedell Byron Shaw, Atrisha Lewis Tel: (613) 786-0171 Tel: (416) 601-8200 Fax: (613) 788-3587 Fax: (416) 868-0673 E-mail: [email protected] E-mail: [email protected] Ottawa Agent for the Intervener, Canadian Counsel for the Intervener, Canadian Constitution Foundation Constitution Foundation

Ontario Securities Commission Conway Baxter Wilson LLP 20 Queen Street West, 22nd Floor 400 - 411 Roosevelt Avenue Toronto, ON M5H 3S8 Ottawa, ON K2A 3X9

Hugh Craig Colin S. Baxter

Tel: (416) 593-8259 Tel: (613) 780-2012 Fax: (416) 593-2319 Fax: (613) 688-0271 E-mail: [email protected] E-mail: [email protected]

Counsel for the Intervener, Ontario Ottawa Agent for the Intervener, Ontario Securities Commission Securities Commission

Stockwoods LLP Power Law TD North Tower, Toronto-Dominion Centre 1103-130 Albert Street 4130-77 King Street West Ottawa, ON K1P 5G4 Toronto, ON M5K 1H1 David Taylor Gerald Chan, Nader R. Hasan Tel: (613) 702-5563 Tel: (416) 593-1617 Fax: (613) 702-5563 Fax: (416) 593-9345 E-mail: [email protected] E-mail: [email protected] Counsel for the Intervener, British Ottawa Agent for the Intervener, British Columbia Civil Liberties Association Columbia Civil Liberties Association

Procureur général du Québec Noël & Associés 1200, Route de l'Église, 2ème étage 111, rue Champlain Québec, QC G1V 4M1 Gatineau, QC J8X 3R1

Sylvain Leboeuf Pierre Landry

Tel: (418) 643-1477 Ext: 21010 Tel: (819) 771-7393 Fax: (418) 644-7030 F: (819) 771-5397 E-mail: [email protected] E-mail: [email protected]

Counsel for the Intervener, Attorney Ottawa Agent for the Intervener, Attorney General of Quebec General of Quebec

Goldblatt Partners LLP Goldblatt Partners LLP 1100-20 Dundas Street West 500-30 Metcalfe St. Toronto, ON M5G 2G8 Ottawa, ON K1P 5L4

Marlys A. Edwardh, Adriel Weaver Colleen Bauman

Tel: (416) 979-4380 Tel: (613) 482-2463 Fax: (416) 979-4430 Fax: (613) 235-3041 E-mail: [email protected] E-mail: [email protected]

Counsel for the Intervener, Canadian Civil Ottawa Agent for the Intervener, Canadian Liberties Association Civil Liberties Association i

TABLE OF CONTENTS

PART I – STATEMENT OF FACTS ...... 1 A. Overview ...... 1 B. Facts and Legislative Scheme ...... 1 PART II – POINTS IN ISSUE ...... 2 PART III – ARGUMENT ...... 2 A. Preliminary Point ...... 2 B. Section 11(f): AGC’s Proposed Interpretation ...... 3 1. “More Severe Punishment” Must Be Assessed Through the Lens of Liberty ...... 3 2. Section 11(f) – Clear Basis on Which to Determine if Right is Triggered ...... 3 3. Purpose and Context Support AGC’s Position ...... 7 PART IV – COSTS ...... 10 PART V – ORDER SOUGHT ...... 10 PART VI – TABLE OF AUTHORITIES ...... 11 A. Charter, Statutes, and Regulations ...... 11 B. Jurisprudence ...... 11 C. Secondary Sources ...... 12 D. Government Documents ...... 12 E. Non-Canadian Statutes and Authorities ...... 12

PART I – STATEMENT OF FACTS

A. OVERVIEW

1. The Charter does not guarantee the right to a jury trial for every offence. The right guaranteed in s. 11(f) is only triggered when the maximum punishment for the offence is imprisonment for five years or a more severe punishment. The Constitution draws a line and provides an objective standard. By referencing the physical imprisonment of the accused for at least five years, s. 11(f) draws the line where the individual’s liberty interest is implicated in a more serious fashion.

2. A fine, by itself, is not “a more severe” punishment than imprisonment. Nor should the potential imposition of a fine in addition to a period of imprisonment of less than five years trigger the right to a jury trial. Section 11(f) does not refer to an additional punishment, but rather “a more severe” one than five years imprisonment. By contrast, the imposition of a fine does not even implicate the liberty interest. It is not “more severe” than imprisonment. Characterizing a fine— whether combined with imprisonment or otherwise—as creating a more severe punishment ignores the clear demarcation in s. 11(f) as to the right to a jury trial and invites courts to perform unnecessary and hypothetical calculations equating money to imprisonment, creating uncertainty, and adding delay. That is not what s. 11(f) requires.

B. FACTS AND LEGISLATIVE SCHEME

3. The Attorney General of Canada (AGC) accepts the facts as agreed by the parties.

4. The penalty at issue in these appeals is found in s. 194 of the Alberta Securities Act which provides for a maximum potential fine of $5,000,000, or for a term of imprisonment of not more than five years less a day, or both.1

5. In Alberta, the Provincial Offences Procedure Act (POPA) and the Procedures Regulation govern proceedings under Alberta’s Securities Act.2 Section 3 of the POPA incorporates by reference “all provisions of the Criminal Code (Canada), including the provisions in Part XV respecting search warrants, that are applicable in any manner to summary convictions and related

1 Securities Act, RSA 2000 c S-4 [Securities Act]. 2 Provincial Offences Procedure Act (Alberta), C. P-34 [POPA]; Procedures Regulation, Alta Reg 233/1989, s 12. 2

proceedings” unless they are inconsistent with the POPA.3 Sections 11-14 of the POPA and the Procedures Regulation contain provisions for the enforcement of fine orders including time to pay. Neither the Securities Act, nor the POPA, provide for a jury trial to try the s. 194 offence.

6. Section 11(f) of the Charter provides for the benefit of a jury trial in certain specified circumstances:

11. Any person charged with an offence has 11. Tout inculpé a le droit : the right: f) sauf s'il s'agit d'une infraction relevant (f) except in the case of an offence under de la justice militaire, de bénéficier d'un military law tried before a military procès avec jury lorsque la peine tribunal, to the benefit of trial by jury maximale prévue pour l'infraction dont il where the maximum punishment for the est accusé est un emprisonnement de cinq offence is imprisonment for five years or a ans ou une peine plus grave. more severe punishment.

PART II – POINTS IN ISSUE

7. The addition of a fine to a potential term of imprisonment of less than five years does not constitute a “more severe punishment” for the purposes of s. 11(f) of the Charter so as to engage the right to a jury trial.

PART III – ARGUMENT

A. PRELIMINARY POINT

8. Although a motion to state a constitutional question was dismissed on November 10, 2016, this case squarely deals with the constitutionality of the Securities Act in light of the protections in s. 11(f) of the Charter. If the Appellants are correct, then they will have a right to a jury trial when the statute under which they were prosecuted does not allow for one. Legislation, not state conduct, is impugned. The challenge to the statute is direct and unavoidable. Any relief to which the Appellants are entitled must be obtained under s. 52(1) of the Constitution Act, 1982, not s. 24(1) of the Charter. When a statute is inconsistent with the Charter, the appropriate remedy is

3 POPA, ibid, s 3. 3

a declaration, and, at the Court’s discretion, may include a suspension to allow Parliament or the legislature the opportunity to design an alternative, Charter-compliant scheme.4

B. SECTION 11(F): AGC’S PROPOSED INTERPRETATION

1. “More Severe Punishment” Must Be Assessed Through the Lens of Liberty

9. Section 11(f) of the Charter must be interpreted purposively, having regard to the language of the provision itself, its context within the Charter, and in view of the other rights that are guaranteed in s. 11, as well as the historic context and intended purpose of the guaranteed right to a jury trial for certain offences. It is important not to overshoot the actual purpose of the right and to recall that the Charter was not enacted in a vacuum. It must therefore be placed in its proper linguistic, philosophic, and historical contexts.5

10. Section 11(f) of the Charter provides that the right to a jury trial is only engaged when the potential punishment is at least five years imprisonment, or a punishment “more severe” or “plus grave” than five years imprisonment. A five year sentence of imprisonment clearly impacts liberty. For the purposes of s. 11(f), a more severe punishment must be one that impacts liberty more severely than five years imprisonment would. A term of imprisonment in excess of five years is obviously “more severe”, as it impacts liberty rights more severely than a five year sentence. By contrast, a fine does not impact the liberty interest and it cannot be said that the imposition of a fine, even a large one, constitutes a “more severe” punishment than imprisonment for the purpose of s. 11(f).

2. Section 11(f) – Clear Basis on Which to Determine if Right is Triggered

11. The text of s. 11(f) demonstrates an intention to provide an objective basis on which to determine whether the right to a jury trial is engaged. The specification of a particular threshold sentence of imprisonment of five years signals that a bright line is being drawn. This strongly suggests that a “more severe” punishment than imprisonment for five years must be readily ascertainable on an objective basis.

4 Peter Hogg, Constitutional Law in Canada, 5th ed supp, (Toronto: Thomson Reuters Ltd, 2007, 2016) vol 2 at 40.1 (d) [Tab2]; Schachter v Canada, [1992] 2 SCR 679, at 705-710, 715-717, 724-724 5 Hunter v Southam Inc, [1984] 2 SCR 145 at 156-157; R v Big M Drug Mart Ltd, [1985] 1 SCR 295 at 344, paras 116-117. 4

12. Clarity in the interpretation of s. 11(f) is desirable for both the accused and the administration of justice. The accused must know at the outset of the criminal process the mode of trial that they are entitled to elect. Indeed, the administration of justice calls for that election at an early stage of the process so that the accused and the courts can have a clear view of how the matter will proceed and what rights the accused will have as a result. Clarity is also important for legislators. An objective and predictable measure provides guidance for legislatures so that the full impact on the justice system of a given scheme may also be considered.

13. The Appellants’ interpretation suggests that a fine might be “more severe” than the additional period of imprisonment necessary to arrive at a five-year sentence. Their approach imports unnecessary complexity and uncertainty into the basic procedural question of whether the accused has the right to a jury trial. Although it is proposed that the assessment be undertaken from the perspective of a “reasonable person”, there is no one reasonable view as to what fine would be preferable to how much time in prison. Thus, this assessment would be dependent on variable individual circumstances particular to a given accused. As recognized by this Court in Wu, offenders may have their own preferences between the payment of a fine or imprisonment.6

14. Weighing various possible fines against various possible periods of imprisonment to determine whether the threshold in s. 11(f) is met creates uncertainty and confusion. It would be impossible to know in advance whether an offence is one for which an accused may elect trial by jury. What fine in combination with what period of imprisonment would trigger the right? Could a fine alone be sufficient? On the Appellants’ interpretation, the right to a jury trial for some offences could potentially be triggered for some accused, but not for others, depending on individual circumstances. It could hardly have been intended that s. 11(f) would require such case- by-case assessment.

15. Instead, the phrase a “more severe punishment” must be interpreted as more severe on an objective basis. Otherwise it would be impossible to draw any bright line that defined the parameters for a jury trial. Logic and common sense, as well as the language of s. 11(f) itself, suggest that “more severe” should be interpreted in reference to the numerical concept that the provision itself expresses. A more severe punishment is one which directly and more “severely”

6 R v Wu, [2003] 3 SCR 530 at paras 42 and 91 [Wu]. 5

impacts an accused person’s liberty than a sentence of five years or more imprisonment would. That is what renders it “more severe”. This Court itself has described the various punishments under the Criminal Code as being staggered by increasing levels of severity with life imprisonment as “the most severe”.7 The language of the Criminal Code also distinguishes imprisonment from other sanctions that might be imposed. For instance, ss. 718.2(d) and 718.2(e), which codify the principle of restraint in sentencing, refer respectively to being “deprived of liberty” and “all available sanctions, other than imprisonment.”8

16. Assessing the subjective quality of punishment for every offence needlessly and inappropriately imports uncertainty and ambiguity into the constitutional standard set out in s. 11(f), and into Canadian criminal procedure. Any combination of imprisonment and a fine could conceivably be put forward as a “more severe punishment” than five years imprisonment. Even if only limited to the “close case”, as the Appellant Peers suggests, various offences, including regulatory offences, would potentially call for a jury trial that otherwise fall clearly outside the parameters of s. 11(f), including absolute jurisdiction offences that are tried in provincial court.9

17. Indeed, it could be argued that absolute jurisdiction marihuana offences under the Controlled Drugs and Substances Act (CDSA), for which a fine and five years less a day imprisonment is possible, should be tried by a jury.10 However, Parliament had rejected a proposal to make five years imprisonment the maximum sentence for possession of marihuana prosecuted by indictment, which would have allowed the accused an option of a jury trial.11 Parliament and the legislatures’ discretion should not be circumscribed in a way that s. 11(f) Charter never intended.

18. The AGC’s proposed interpretation of s. 11(f) is also in harmony with this Court’s recent jurisprudence on the meaning of “punishment” in s. 11 of the Charter. Since the underlying proceedings in these appeals are criminal in nature and the potential penalties on sentence clearly

7 R v M (CA), [1996] 1 SCR 500 at para 36. 8 Criminal Code, RSC 1985, C-46, ss 718.2(d) & (e) [Criminal Code]. 9 Criminal Code, s 553. 10 Controlled Drugs and Substances Act, 1996 C 19, ss 4(4)(a) & 5(3)(a.1) [CDSA]; Criminal Code, s 553(c)(xi). 11 Parliament, Legislative Summary, “Bill C-8: The Controlled Drugs and Substances Act” by J Allian et al (1 May 1997) at 9 [Tab 12]. 6

constitute punishment,12 there is no doubt that the prosecutions engage s. 11 of the Charter. However, the question here is whether a fine can constitute “a more severe” punishment than imprisonment for the purposes of s. 11(f). This Court’s jurisprudence suggests that it cannot.

19. In Wigglesworth, this Court accepted that a fine could constitute a true penal consequence, but it was imprisonment that was described as “the most severe deprivation of liberty.”13 In Guindon, even a large monetary penalty did not constitute a true penal consequence. In KRJ, this Court reformulated the test for punishment in s. 11(i) of the Charter so that a sanction could be assessed with a view to whether it had “a significant impact on an offender’s liberty or security interests.”14 Thus, while there is no dispute that the imposition of a fine in the within proceedings would be punishment, a fine per se does not engage the liberty interest and thus could not constitute a more severe punishment than imprisonment so as to trigger the s. 11(f) right.

20. Lower court decisions interpreting s. 11(f) also lend support to the proposition that a more severe punishment would be one that impacts liberty interests more severely by the imposition of additional imprisonment.15 In Bondy, a trial judge rejected the argument that a mandatory minimum sentence of 14 days amounted to a more severe punishment than a potential maximum sentence of five years imprisonment. The trial judge interpreted a more severe punishment as a term of imprisonment for a period of five years or greater.16 Similarly, in Gibbs, a trial judge found the reference to imprisonment for five years or a more severe punishment went “to the issue of the imprisonment and not some other punishment such as a significant fine.”17

21. While the Appellants criticize the POPA’s treatment of time in default, it does not determine the issue here. This Court has decided that a fine is not an additional restriction of liberty for the original offence.18 The possibility of imprisonment for failure to pay a fine is a

12 R v Shubley, [1990] 1 SCR 1; Martineau v MNR, [2004] 3 SCR 737 at paras 19-24, 30, 45, 57- 66; R v Wigglesworth, [1987] 2 SCR 541 at 560-561; R v KRJ, 2016 SCC 31 at paras 35-41, [KRJ]. 13 Wigglesworth, ibid at 562. 14 KRJ, supra note 12 at para 41. 15 See eg: PPG Industries v Attorney General of Canada [1983] CarswellBC 16 at paras 11, 43- 44 (BCCA); R v Bondy, 2013 ONCJ 268 [Bondy]; R v Gibbs, 2001 BCPC 361 at para 33 [Gibbs]. 16 Bondy, ibid at paras 41-43. 17 Gibbs, supra note 15 at para 33. 18 Wu, supra note 6. 7

consequence of failing to comply with a court order and not punishment for the conviction. It thus does not bear on the issue of whether a right to a jury trial is triggered.

22. The Appellants’ argument presumes that any fine imposed under the POPA will not be paid. However, before imposing a fine, the court must inquire into an offender’s ability to pay.19 Since the party seeking the imposition of the fine must show that the offender can afford to pay it, imprisonment for non-payment punishes willful disregard for the Court’s order.20 The purpose of a fine is not to deprive an offender of liberty or security; only the deliberate refusal to pay will lead to that result. As this Court explained in Topp, the only situation in which an offender could serve a default sentence of imprisonment is for having willfully failed to pay the fine.21

3. Purpose and Context Support AGC’s Position

23. The Constitution demonstrates a choice about entitlement to a jury trial: the measure of seriousness for triggering the right was set at a sentence of imprisonment of five years or more. This deliberate choice balances various Charter considerations by providing a jury trial for certain serious offences without unnecessarily slowing down the administration of justice and while maintaining some discretion for Parliament and the legislatures to determine what offences ought to be tried by jury. As the Alberta Securities Commission argues, this line established that “serious criminal (indictable) offences were the focus of the guarantee.”22

24. A concern for efficient functioning of the courts is important to the overall administration of justice and also to other legal rights the Charter guarantees: the right to receive a trial within a reasonable time and the right to a fair and public hearing by an independent and impartial tribunal.23 This Court has considered both of these as important Charter rights. When there is an entitlement to a jury, it should be representative and impartial. However, the need to ensure that trials are held within a reasonable time is also a pressing societal concern.24

19 Criminal Code, s 734(2); POPA, s 3. 20 R v Topp, [2011] 3 SCR 119 at para 20; Wu, supra note 6 at paras 3, 60-65; Criminal Code, s 734(2). 21 Topp, ibid. 22 Respondent Alberta Securities Commission Factum at para 14. 23 Charter, ss 11(b) and 11(d). 24 R v Kokopenace, 2016 SCC 27; R v Jordan [2015] 2 SCR 398. 8

25. The tension between these competing rights pre-dates the Charter. As Professor Graham Parker noted of the history of the jury in Canada, “there is a constant tension between maintaining the supposed grand tradition of the Magna Carta and an attempt to do justice to those who were imprisoned for weeks or months awaiting trial by the assize judge.”25 Section 11(f) thus reserves the right to a jury trial for serious offences and in doing so achieves a balance between competing legal rights for the accused.

26. The historical context of s. 11(f) supports the AGC’s position. Prior to 1980, the draft Charter was silent as to the right to a jury trial. In 1980, an amendment was proposed to include the right to a jury trial in the case of serious offences.26 In response, Minister of Justice Chrétien pointed out that the right to a jury trial was not mentioned in the United Nations Covenant on Civil and Political Rights and was limited in other common law countries. “[T]the problem would be to find the proper test to decide what is a serious offence.”27 In January 1981, an amendment adding s. 11(f) was proposed, the same language the Charter contains today. To capture only these serious offences, s. 11(f) set the bar for a jury trial at five years imprisonment or a more severe punishment.28

27. A subsequent amendment which proposed to expand the right to a jury trial by substituting two years for five was specifically rejected. As Mr. Ewaschuk (as he then was) explained for the Minister of Justice, the amendment would increase the number of jury trials and the concern was not to overly inconvenience the courts. “Jury trials are much slower, and civilians have to be

25 Graham Parker, “Trial by Jury in Canada” (1987) 8 J Legal Hist 178 at 181 [Tab 1]. 26 Minutes of the Proceedings and Evidence of the Special Joint Committee of the Senate and the House of Commons on the Constitution of Canada: 32nd Parl, 1st Sess, No 4 (November 13, 1980) at 57-58 [Tab 3]; 32nd Parl, 1st Sess, No 36 (January 12, 1981) at 12 [Tab 4]. 27 Minutes of the Proceedings and Evidence of the Special Joint Committee of the Senate and the House of Commons on the Constitution of Canada, 32nd Parl, 1st Sess, No 4 (November 13, 1980) at 58. 28 Minutes of the Proceedings and Evidence of the Special Joint Committee of the Senate and the House of Commons on the Constitution of Canada, 32nd Parl, 1st Sess, No 36 (January 12, 1981) at 12. 9

brought in and they have to sit, and panels have to be selected.” Two years would have captured offences for which people often did not go to jail and where in fact there were discharges.29

28. Also relevant to the interpretation of “a more severe punishment” is the legislative history and historical context. Although no longer part of Canadian law, capital punishment was a live issue for Parliamentarians while the Charter was being drafted and considered. The issue was the subject-matter of Parliamentary debate at the time.30 Thus, legislators would have had a view to this debate when considering s. 11(f).

29. The AGC agrees with the Respondents that the American experience provides little guidance on the interpretation of s. 11(f). Indeed, by contrast to the situation in the United States, other common law jurisdictions typically use some objective measure to determine whether a jury trial is triggered, either by reference to the maximum punishment for the offence (New Zealand),31 or to whether it is being tried on indictment (Australia and England and Wales).32 None of these employ the same text as s. 11(f), nor have the rights evolved in the same context. In fact, the right to a jury trial is not even constitutionalized in every jurisdiction. Accordingly, as this Court cautioned in Turpin, care must be taken in placing reliance on interpretations of the right to a jury trial under constitutions different in structure and purpose from our own which may not provide a sound basis for interpreting s. 11(f).33 This cautionary proviso continues to apply.

30. Parliament and the legislatures may legitimately enact offences with maximum punishments that would not provide for the right to a jury trial so as to achieve the objective of

29 Minutes of the Proceedings and Evidence of the Special Joint Committee of the Senate and the House of Commons on the Constitution of Canada, 32nd Parl, 1st Sess, No 47 (January 28, 1981) at 56 [Tab 5]. 30 House of Commons Debates: 32nd, Parl, 1st Sess No 8 (March 19, 1981) at 8423 [Tab 6]; 32nd, Parl, 1st Sess, No 8 (April 3, 1981) at 8969-8976 [Tab 7]; 32nd Parl, 1st Sess, No 8 (April 21, 1981) at 9363, 9370, 9401, 9410 [Tab 8]; 32nd, Parl, 1st Sess, No 9 (April 22, 1981) at 9419-9420 [Tab 9]; 32nd, Parl, 1st Sess, No 12 (November 27, 1981) at 13442 [Tab 10]; 32nd, Parl, 1st Sess, No 12 (December 1, 1981) at 13608-13609 [Tab 11]. Minutes of the Proceedings and Evidence of the Special Joint Committee of the Senate and the House of Commons on the Constitution of Canada, 32nd Parl, 1st Sess, No 47 (January 28 1981) at 75-76. 31 New Zealand Bill of Rights Act 1990 (NZ), 1990/109, s 24(e). 32 Commonwealth of Australia Constitution Act 1900, s 80 and Alqudsi v R, [2016] HCA 24; R v Twomey and others, [2009] EWCA Crim 1035 at para 10. 33 R v Turpin, [1989] 1 SCR 1296 at pages 1316-1320. 10

providing expeditious trials for complex regulatory offences. In the Competition Act, Parliament precluded jury trials for corporations in part because the intricate evidence in those prosecutions imposed a heavy burden not only on counsel and the judge, but also on jury members. Jury trials were seen to be “singularly inappropriate” for those cases because of the complexity and volume of evidence.34

31. In Lee, Chief Justice Lamer recognized that there is a finite amount of good will, confidence, and respect in the public for the administration of the criminal justice system. He concluded that the legislative purposes of protecting the administration of justice from delay, inconvenience, expense and abuse, and “to secure the respect of the public for the criminal trial process” were all legitimate.35

PART IV – COSTS

32. The Attorney General of Canada does not seek costs and asks that none be awarded against the AGC.

PART V – ORDER SOUGHT

33. The Attorney General of Canada requests that the appeal be determined in accordance with the above and seeks permission to make brief oral argument at the hearing of this appeal.

Toronto, Ontario, this 26th day of January 2017.

______Marianne Zoric Jeanette Gevikoglu Counsel for the Intervener Counsel for the Intervener

34 House of Commons Debates, 21st Parl, 1st Sess, No 2 (November 14, 1949) at 1712-1714; House of Commons Debates, 21st Parl, 1st Sess, No 3 (November 25, 1949) at 2229-2234. 35 R v Lee, [1989] 2 SCR 1384 at 1392. 11

PART VI – TABLE OF AUTHORITIES

A. CHARTER, STATUTES, AND REGULATIONS Para. Number(s)

Canadian Charter of Rights and Freedoms, Part 1 of the Constitution 24 Act, 1982, s. 11(b), (d), (f)

Controlled Drugs and Substances Act, S.C. 1996 c.19, ss 4(4)(a), 17 s.5(3)(a.1) Criminal Code, R.S.C., 1985, c. C-46, s. 553,. s. 7182(d)(e), s. 734(2) 15, 16, 17, 22 Provincial Offences Procedure Act (Alberta), c. P-34 5, 22 Procedures Regulation, Alberta Regulation 233/1989, s. 12 5 Securities Act, RSA 2000, c S-4 4

B. JURISPRUDENCE

Hunter v Southam Inc., [1984] 2 SCR 145 9 Martineau v MNR, [2004] 3 SCR 737 18

PPG Industries v Attorney General of Canada (1983) 146 D.L.R. (3d) 20 261 R v Big M Drug Mart Ltd, [1985] 1 SCR 295 9 R v Bondy, 2013 ONCJ 268 20 R v M (CA), [1996] 1 SCR 500 15 R v Gibbs, 2001 BCPC 361 20 R v Jordan, 2016 SCC 27 24 R v KRJ, 2016 SCC 31 18, 19 R v Kokopenace, [2015] 2 SCR 398 24 R v Lee, [1989] 2 SCR 1384 31 R v Shubley, [1990] 1 SCR 18 R v Topp, [2011] 3 SCR 119 22 R v Turpin, [1989] 1 SCR 1296 29 R v Wigglesworth, [1987] 2 SCR 541 18, 19 R v Wu, [2003] 3 SCR 530 13, 21, 22 12

Schachter v Canada, [1992] 2 S.C.R. 679 8

C. SECONDARY SOURCES

Graham Parker, “Trial by Jury in Canada” (1987) 8 J Legal Hist 178 25

Peter Hogg, Constitutional Law in Canada 5th ed supp, (Toronto: 8 Thomson Reuters Ltd, 2007, 2016) vol 2 at 40.1 (d)

D. GOVERNMENT DOCUMENTS

Minutes of the Proceedings and Evidence of the Special Joint Committee of the Senate and the House of Commons on the Constitution of Canada, 26 32nd Parl, 1st Sess, No 4 (November 13, 1980) Minutes of the Proceedings and Evidence of the Special Joint Committee of the Senate and the House of Commons on the Constitution of Canada, 26 32nd Parl, 1st Sess, No 36 (January 12, 1981) Minutes of the Proceedings and Evidence of the Special Joint Committee of the Senate and the House of Commons on the Constitution of Canada, 27,28 32nd Parl, 1st Sess, No 47 (January 28, 1981)

House of Commons Debates, 21st Parl, 1st Sess, No 2 (November 14, 30 1949)

House of Commons Debates, 21st Parl, 1st Sess, No 3 (November 14, 1949)

House of Commons Debates, 32nd, Parl, 1st Sess, No 8 (March 19, 28 1981) House of Commons Debates, 32nd, Parl, 1st Sess, No 8 (April 3, 1981) 28 House of Commons Debates, 32nd, Parl, 1st Sess, No 8 (April 21, 1981) 28 House of Commons Debates, 32nd, Parl, 1st Sess, No 9 (April 22, 1981) 28

House of Commons Debates, 32nd, Parl, 1st Sess, No 12 (November 27, 28 1981)

House of Commons Debates, 32nd, Parl, 1st Sess; No 12 (December 1, 28 1981)

Parliament, Legislative Summary, “Bill C-8: The Controlled Drugs and 17 Substances Act” by J Allian et al (1 May 1997)

E. NON-CANADIAN STATUTES AND AUTHORITIES

Commonwealth of Australia Constitution Act 1900, s 80 29 13

New Zealand Bill of Rights Act 1990 (NZ), 1990/109, s 24(e) 29 Alqudsi v. R, [2016] HCA 24 29 R v Twomey and others, [2009] EWCA Crim 1035 29

PART VII – LEGISLATION

Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, s. 11(b), (d), (f)

Proceedings in criminal and penal matters Affaires criminelles et pénales 11. Any person charged with an offence 11. Tout inculpé a le droit : has the right b) d’être jugé dans un délai raisonnable; (b) to be tried within a reasonable time; d) d’être présumé innocent tant qu’il n’est pas déclaré coupable, (d) to be presumed innocent until conformément à la loi, par un tribunal proven guilty according to law in a fair indépendant et impartial à l’issue d’un and public hearing by an independent procès public et équitable; and impartial tribunal; f) sauf s’il s’agit d’une infraction (f) except in the case of an offence relevant de la justice militaire, de under military law tried before a bénéficier d’un procès avec jury lorsque military tribunal, to the benefit of trial la peine maximale prévue pour by jury where the maximum l’infraction dont il est accusé est un punishment for the offence is emprisonnement de cinq ans ou une imprisonment for five years or a more peine plus grave; severe punishment;

Criminal Code, R.S.C., 1985, c. C-46, s. 553, s. 718.2(d)(e), s. 734(2)

Absolute jurisdiction Juridiction absolue 553. The jurisdiction of a provincial court 553. La compétence d’un juge de la cour judge, or in Nunavut, of a judge of the provinciale et, au Nunavut, de la Cour de Nunavut Court of Justice, to try an accused is justice, pour juger un prévenu est absolue et ne absolute and does not depend on the consent of dépend pas du consentement du prévenu, the accused where the accused is charged in an lorsque celui-ci est inculpé, dans une information dénonciation :

(a) with a) soit d’avoir, selon le cas : (i) theft, other than theft of cattle, (i) commis un vol, autre qu’un vol de bétail, (ii) obtaining money or property by false pretences, (ii) obtenu de l’argent ou des biens par de faux-semblants, (iii) unlawfully having in his possession any property or thing or any (iii) illégalement en sa possession un proceeds of any property or thing bien, une chose ou leur produit sachant knowing that all or a part of the que tout ou partie d’entre eux ont été property or thing or of the proceeds obtenus directement ou indirectement 15

was obtained by or derived directly or par la perpétration au Canada d’une indirectly from the commission in infraction punissable sur acte Canada of an offence punishable by d’accusation ou obtenus par une indictment or an act or omission omission ou un acte survenus anywhere that, if it had occurred in n’importe où qui, au Canada, auraient Canada, would have constituted an été punissables sur acte d’accusation, offence punishable by indictment, (iv) par supercherie, mensonge et autre (iv) having, by deceit, falsehood or moyen dolosif, frustré le public ou other fraudulent means, defrauded the toute personne, déterminée ou non, de public or any person, whether tout bien, argent ou valeur, ascertained or not, of any property, money or valuable security, or (v) commis un méfait au sens du paragraphe 430(4), (v) mischief under subsection 430(4), lorsque l’objet de l’infraction n’est pas un where the subject-matter of the offence is titre testamentaire et que sa valeur ne not a testamentary instrument and the dépasse pas cinq mille dollars; alleged value of the subject-matter of the offence does not exceed five thousand b) soit d’avoir conseillé à quelqu’un de dollars; commettre une infraction, d’avoir tenté de commettre une infraction, d’avoir (b) with counselling or with a comploté en vue de commettre une conspiracy or attempt to commit or infraction ou d’avoir été complice with being an accessory after the fact to après le fait de la perpétration d’une the commission of infraction, qu’il s’agisse de l’une ou l’autre des infractions suivantes : (i) any offence referred to in paragraph (a) in respect of the subject-matter and (i) une infraction visée à l’alinéa a), value thereof referred to in that sous réserve des limites quant à la paragraph, or nature et à la valeur de l’objet de l’infraction mentionnées dans cet (ii) any offence referred to in paragraph alinéa, (c); or (ii) une infraction visée à l’alinéa c); (c) with an offence under c) soit d’une infraction prévue par : (i) section 201 (keeping gaming or betting house), (i) l’article 201 (maison de jeu ou de pari), (ii) section 202 (betting, pool-selling, book-making, etc.), (ii) l’article 202 (bookmaking), (iii) section 203 (placing bets), (iii) l’article 203 (gageure), (iv) section 206 (lotteries and games of (iv) l’article 206 (loteries, etc.), chance), (v) l’article 209 (tricher au jeu), (v) section 209 (cheating at play), (vi) l’article 210 (maison de débauche), (vii) [Abrogé, 2000, ch. 25, art. 4] 16

(vi) section 210 (keeping common (viii) l’article 393 (fraude en matière de bawdy-house), prix de passage), (vii) [Repealed, 2000, c. 25, s. 4] (viii.01) l’article 490.031 (défaut de se (viii) section 393 (fraud in relation to conformer à une ordonnance ou à une fares), obligation), (viii.01) section 490.031 (failure to (viii.02) l’article 490.0311 (déclaration comply with order or obligation), fausse ou trompeuse), (viii.02) section 490.0311 (providing (viii.1) l’article 811 (manquement à false or misleading information), l’engagement), (viii.1) section 811 (breach of (ix) le paragraphe 733.1(1) (défaut de recognizance), se conformer à une ordonnance de probation), (ix) subsection 733.1(1) (failure to comply with probation order), (x) l’alinéa 4(4)a) de la Loi réglementant certaines drogues et (x) paragraph 4(4)(a) of the Controlled autres substances, Drugs and Substances Act, or (xi) l’alinéa 5(3)a.1) de la Loi (xi) ) paragraph 5(3)(a.1) of the réglementant certaines drogues et Controlled Drugs and Substances Act. autres substances.

Other sentencing principles Principes de détermination de la peine 718.2 A court that imposes a sentence shall 718.2 Le tribunal détermine la peine à infliger also take into consideration the following compte tenu également des principes suivants : principles: d) l’obligation, avant d’envisager la shall be deemed to be aggravating privation de liberté, d’examiner la circumstances; possibilité de sanctions moins contraignantes lorsque les circonstances le justifient; (d) an offender should not be deprived of liberty, if less restrictive sanctions e) l’examen, plus particulièrement en may be appropriate in the ce qui concerne les délinquants circumstances; and autochtones, de toutes les sanctions substitutives qui sont raisonnables dans (e) all available sanctions, other than imprisonment, that are reasonable in les circonstances et qui tiennent compte the circumstances and consistent with du tort causé aux victimes ou à la the harm done to victims or to the collectivité. community should be considered for all offenders, with particular attention to the circumstances of Aboriginal

offenders. 17

Offender’s ability to pay Capacité de payer 734. (2) Except when the punishment for an 734. (2) Sauf dans le cas d’une amende offence includes a minimum fine or a fine is minimale ou de celle pouvant être infligée au imposed in lieu of a forfeiture order, a court lieu d’une ordonnance de confiscation, le may fine an offender under this section only if tribunal ne peut infliger l’amende prévue au the court is satisfied that the offender is able to présent article que s’il est convaincu que le pay the fine or discharge it under section 736 délinquant a la capacité de la payer ou de s’en acquitter en application de l’article 736.

Controlled Drugs and Substances Act, S.C. 1996 c.19, ss 4(4)(a) & s.5(3)(a.1)

Punishment Peine 4. (4) Subject to subsection (5), every person 4. (4) Quiconque contrevient au paragraphe (1) who contravenes subsection (1) where the commet, dans le cas de substances inscrites à subject-matter of the offence is a substance l’annexe II mais sous réserve du paragraphe (5) included in Schedule II : (a) is guilty of an indictable offence and a) soit un acte criminel passible d’un liable to imprisonment for a term not emprisonnement maximal de cinq ans exceeding five years less a day; moins un jour;

Punishment Peine 5. (3) Every person who contravenes 5. (3) Quiconque contrevient aux paragraphes subsection (1) or (2) (1) ou (2) commet : (a) subject to paragraph (a.1), if the subject a) dans le cas de substances inscrites aux matter of the offence is a substance annexes I ou II, mais sous réserve de included in Schedule I or II, is guilty of an l’alinéa a.1), un acte criminel passible de indictable offence and liable to l’emprisonnement à perpétuité, la durée de imprisonment for life, and l’emprisonnement ne pouvant être inférieure : . (i) to a minimum punishment of imprisonment for a term of one year if . (i) à un an, si la personne, selon le cas :

. (A) the person committed the . (A) a commis l’infraction au profit offence for the benefit of, at the ou sous la direction d’une direction of or in association with a organisation criminelle au sens du criminal organization, as defined in paragraphe 467.1(1) du Code subsection 467.1(1) of the Criminal criminel ou en association avec elle, Code, 18

. (B) the person used or threatened to . (B) a eu recours ou a menacé de use violence in committing the recourir à la violence lors de la offence, perpétration de l’infraction,

. (C) the person carried, used or . (C) portait ou a utilisé ou menacé threatened to use a weapon in d’utiliser une arme lors de la committing the offence, or perpétration de l’infraction,

. (D) the person was convicted of a . (D) a, au cours des dix dernières designated substance offence, or années, été reconnue coupable d’une had served a term of imprisonment infraction désignée ou purgé une for a designated substance offence, peine d’emprisonnement within the previous 10 years, relativement à une telle infraction,

Provincial Offences Procedure Act, c. P-34

Part 1 General Application of Act 2 Subject to any express provision in another Act, this Act applies to every case in which a person commits or is suspected of having committed an offence under an enactment for which that person may be liable to imprisonment, fine, penalty or other punishment.

Application of Criminal Code 3 Except to the extent that they are inconsistent with this Act and subject to the regulations, all provisions of the Criminal Code (Canada), including the provisions in Part XV respecting search warrants, that are applicable in any manner to summary convictions and related proceedings apply in respect of every matter to which this Act applies. […] Time for payment 11(1) When time has been allowed for payment and a justice has ordered imprisonment in default of payment of the fine, a justice shall not issue a warrant of committal until the expiration of the time allowed for payment. (2) Notwithstanding subsection (1), if, before the expiration of the time allowed for payment, the defendant who has been allowed time for payment applies in writing to be committed immediately rather than await the expiration of the time allowed, the justice may immediately issue a warrant of committal without requiring the defendant to appear in person before the justice. 19

(3) When time has been allowed for payment any justice may, on application by or on behalf of the person allowed time for payment, allow further time for payment.

Orders relating to payment 12 When a justice, in a conviction or order, imposes a fine or penalty, the conviction or order is not void nor is the right to collect a fine or to enforce a penalty under the conviction or order impaired because (a) time has been allowed for the payment of all or any part of the fine or penalty, (b) payment of part of the fine or penalty has been received, (c) the justice has accepted security for the payment of all or any part of the fine or penalty, or (d) the conviction is under appeal, unless a judge of the Court of Queen’s Bench stays the right to collect the fine or to enforce the penalty.

Civil recovery 13(1) When a fine is imposed on a defendant but imprisonment of the defendant in default of payment of the fine is not ordered and the fine is not paid forthwith or within the time allowed by the justice, the Minister of Justice and Solicitor General or a person authorized by the Minister of Justice and Solicitor General may, by filing the conviction, enter as a judgment in the Court of Queen’s Bench the amount of the fine plus the late payment charge prescribed in the regulations, if any, and the judgment is enforceable against the convicted defendant in the same manner as if it were a judgment rendered against the defendant in that Court in a civil proceeding. (2) If an enactment provides that any fine or penalty imposed (a) on a conviction for an offence occurring in a city, town or village enures to the benefit of the city, town or village, or (b) on a conviction for an offence occurring in a summer village, municipal district, Metis settlement or reserve, elsewhere than on a provincial highway under the Highways Development and Protection Act, enures to the benefit of the summer village, municipal district, Metis settlement or band, and the conviction has not been entered as a judgment under subsection (1), an agent of the city, town, village, summer village, municipal district, Metis settlement or band, as the case may be, may enter the amount of a fine payable by the convicted defendant for that offence as a judgment under subsection (1). (3) For the purposes of this section, “reserve” and “band” have the meanings assigned to them in the Indian Act (Canada).

Application of money received

14(1) Subject to section 8(5) of the Victims of Crime Act and any express provision in another enactment, the disposition of a penalty, fine or sum of money or the proceeds of a forfeiture under the enactment belong to the Crown in right of Alberta. (2) Notwithstanding any other enactment, the proceeds of a late payment charge under this Act belong to the Crown in right of Alberta. (3) Where, under an enactment, (a) the Crown in right of Alberta collects an amount of money in respect of a penalty, fine or sum of money payable under the enactment or the proceeds of a forfeiture, and (b) the amount collected by the Crown does not belong to the Crown in right of Alberta, the Crown in right of Alberta may, notwithstanding any Act and subject to the regulations, retain a portion of that amount to offset the expenses incurred by the Crown with respect to the collecting of penalties, fines, sums of money or forfeitures arising under any enactment, and that portion that is retained by the Crown belongs to the Crown in right of Alberta and shall be deposited in the General Revenue Fund.

Procedures Regulation, Alta Reg 233/1989, s 12

Criminal Code provisions

12(1) Sections 730, 734.7(1) and (3) and 809 and Part XVII of the Criminal Code (Canada) are not applicable to any proceedings to which the Act applies.

(2) Sections 731, 732, 732.1, 732.2, 733, 734 and 736 of the Criminal Code (Canada) are not applicable to proceedings that are commenced under Part 3 of the Act.

Securities Act, RSA 2000, c S-4

General offences and penalties

194(1) A person or company that contravenes Alberta securities laws is guilty of an offence and is liable to a fine of not more than $5 000 000 or to imprisonment for a term of not more than 5 years less a day, or to both.