Court File No. 36865
IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE ALBERTA COURT OF APPEAL)
BETWEEN: JEREMY JAMES PEERS Applicant (Appellant) - and -
HER MAJESTY THE QUEEN (ALBERTA SECURITIES COMMISSION) Respondent (Respondent) - and -
ATTORNEY GENERAL OF ALBERTA,ALBERTA, ATTORNEY GENERAL OF CANADA, ATTORNEY GENERAL OF ONTARIO, ATTORNEY GENERAL OF QUEBEC, CANADIAN CONSTITUTION FOUNDATION, ONTARIO SECURITIES COMMISSION, BRITISH COLUMBIA CIVIL LIBERTIES ASSOCIATION AND CANADIAN CIVIL LIBERTIES ASSOCIATION IntervenersInterveners
Court File No. 36866 IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE ALBERTA COURT OF APPEAL)
BETWEEN:B E T W E E N: RONALD JAMES AITKENS Applicant (Appellant) - and -
ALBERTA SECURITIES COMMISSION Respondent (Respondent) - and -
ATTORNEY GENERAL OF ALBERTA,ALBERTA, ATTORNEY GENERAL OF CANADA, ATTORNEY GENERAL OF ONTARIO, CANADIAN CONSTITUTION FOUNDATION AND ONTARIO SECURITIES COMMISSION IntervenerIntervenerss
FACTUM OF THE INTERVENER, CANADIAN CONSTITUTION FOUNDATION (Pursuant to RulesRules 37 and 42 of the Rules of the Supreme Court of CanadaCanada))
McCarthy TetraultTétrault LLP Gowling WLG (Canada) LLP Suite 5300, Toronto Dominion Bank 160 Elgin Street —– Suite 20002000 Tower Ottawa ON KIPK1P 1C3 Toronto ON M5K 1E6 Jeff Beedell Darryl Cruz ([email protected]([email protected]) Tel: (613) 786-0171786-0171 Brandon Kain ([email protected]([email protected]) Fax: (613) 563563-9869-9869 Byron Shaw ([email protected]([email protected]) Email: [email protected]@gowlingwlg.com Atrisha Lewis ([email protected]([email protected]) Ottawa Agent for Counsel for the Tel: (416) 362362-1812-1812 Intervener, Canadian Constitution Fax: (416) 868868-0673-0673 Foundation Counsel for the IIntervener,ntervener, Canadian ConstitutionConstitution Foundation
ORIGINAL THE REGISTRAR TO: Supreme Court of Canada 301 Wellington Street Ottawa, ON K1A On0J1
COPIES TO: BERESH ALONEISSI O'NEILL HURLEY O'KEEFE MILLSAP SUPREME ADVOCACY LLP 300 MacLean Block 340 Gilmour Street 10110 - 107 Street Suite 100 Edmonton, AB T5J 1J4 Ottawa, ON K2P OR30R3 Steve Fix Nathan J. Whitling Marie-FranceMarie-France Major Alex Millman Tel: (613) 695695-8855-8855 Ext. 102 Tel: (780) 421-4766421-4766 Fax: (613) 695695-8580-8580 Fax: (780) 429-0346429-0346 Email: [email protected] EE-mail:-mail: [email protected] Ottawa Agent for the Appellant, Jeremy Counsel for the Appellant, Jeremy James James Peers Peers
ALBERTA SECURITIES COMMISSIONCOMMISSION GOWLING WLG (CANADA) LLP 600, 250 —– 5th Street S.W. 20002000 —– 160 Elgin Street Calgary, AB T2P OR40R4 Ottawa, ON K1P 1C3
Don Young D. Lynne Watt Lorenz Berner Tel: (613) 786786-8695-8695 Tel: (403) 297-2642297-2642 Fax: (613) 788-3509788-3509 Fax: (403) 297-2210297-2210 Email: [email protected]@gowlingwlg.com Email: [email protected] Email: [email protected] Ottawa Agent for the Respondent, Her Majesty the Queen (Alberta Securities Counsel for the Respondent, Her Majesty Commission) the Queen (Alberta Securities Commission)
ATTORNEY GENERAL OF ALBERTA GOWLING WLG (CANADA) LLP 4th Floor, Bowker Building 20002000 —– 160 Elgin Street 9833 —– 109th Street Ottawa, ON K1P 1C3 Edmonton, AB T5K 2E8 D. Lynne Watt Robert J. Normey Tel: (613) 786786-8695-8695 Tel: (780) 422-9532422-9532 Fax: (613) 788-3509788-3509 Fax: (780) 425-0307425-0307 Email: [email protected]@gowlingwlg.com EE-mail:-mail: [email protected] Counsel for the Intervener, Attorney Ottawa Agent for the Intervener, Attorney General of Alberta General of Alberta 11ii
ATTORNEY GENERAL OF CANADA ATTORNEY GENERAL OF CANADA Suite 3400, Box 36 50 O'ConnorO’Connor Street 130 King Street West Suite 500, Room 556 Toronto, ON M5X 1K6 Ottawa, ON 1(11K1P3 6L2
Marianne Zoric Robert J. Frater, Q.C. Jeanette Gevikoglu Tel: (613) 670670-6289-6289 Tel: (416) 954954-8046-8046 Fax: (613) 954954-1920-1920 Fax: (416) 954954-8982-8982 Email: [email protected] Email: [email protected]@justice.gc.ca Ottawa Agent for the Intervener, Counsel for the Intervener, Attorney Attorney General of Canada General of Canada
ATTORNEY GENERAL OF ONTARIO BURKE-ROBERTSONBURKE-ROBERTSON 720 Bay Street 441 MacLaren Street 4th Floor Suite 200 Toronto, ON M7A 2S9 Ottawa, ON K2P 21132H3
Matthew Horner Robert E. Houston,Houston, Q.C. Jennifer Luong Tel: (613) 236-9665236-9665 Tel: (416) 212-7009212-7009 Fax: (613) 235-4430235-4430 Fax: (416) 326326-4015-4015 Email: [email protected] Email: [email protected] Ottawa Agent for the Intervener, Counsel for the Intervener, Attorney Attorney General of Ontario General of Ontario
ONTARIO SECURITIES COMMISSIONCOMMISSION CONWAY BAXTER WILSON LLP 20 Queen Street West 400 —– 411 Roosevelt Avenue 22h22ndd Floor Ottawa, ON K2A 3X9 Toronto, ON M5H 3S8 ConnColin S. Baxter Hugh Craig Tel: (613) 780780-2012-2012 Tel: (416) 593593-8259-8259 Fax (613) 688-0271688-0271 Fax: (416) 593593-2319-2319 Email: [email protected] Email: [email protected] Ottawa Agent for the Intervener, Counsel for the Intervener, Ontario Ontario Securities Commission Securities Commission
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BRITISH COLUMBIA CIVIL LIBERTIESLIBERTIES POWER LAW ASSOCIATION 130 Albert Street Stockwoods LLP Suite 1103 TD North Tower, Toronto-DominionToronto-Dominion Centre Ottawa, ON K1P 5G4 77 King Street West, Suite 4130 Toronto, ON M5K 11111H1 David Taylor Tel: (613) 702702-5563-5563 Gerald Chan Fax: (613) 702-5563702-5563 Nader R. Hasan Email: [email protected] Tel: (416) 593593-1517-1517 Fax: (416) 593593-9345-9345 Ottawa Agent for the Intervener, British Email: [email protected] Columbia Civil Liberties Association
Counsel for the Intervener, British Columbia Civil Liberties Association
ATTORNEY GENERAL OF QUEBEC NOEL & ASSOCIESASSOCIÉS Procureur generalgénéral du QuebecQuébec 111, rue ChamplainChamplain 1200, Route de l'Eglise,l’Église, 2eme2ème etageétage Gatineau, Quebec Quebec,Québec, Quebec J8X 3R1 G1V 4M1 Pierre Landry Sylvain Leboeuf Tel: (819) 771771-7393-7393 Tel: (418) 643-1477643-1477 Ext. 21010 Fax: (819) 771-5397771-5397 Fax: (418) 644644-7030-7030 Email: [email protected] Email: [email protected] Ottawa Agent for the Intervener, Counsel for the Intervener, Attorney Attorney General of Quebec General of Quebec
GOLDBLATT PARTNERS LLP GOLDBLATT PARTNERS LLPLLP Box 180 500 —– 30 Metcalfe Street 1100 —– 20 Dundas Street West Ottawa, ON K1P 5L4 Toronto, ON MSGM5G 2G8 Colleen Bauman Marlys A. Edwardh Tel: (613) 482-2463482-2463 Adriel Weaver Fax: (613) 235-3041235-3041 Tel: (416) 979979-4380-4380 Email: [email protected] Fax: (416) 979979-4430-4430 Email: [email protected] Ottawa Agent for the Intervener, Canadian Civil Liberties Association Counsel for the Intervener,Intervener, Canadian Civil Liberties Association
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WALSH LLP SUPREME ADVOCACY LLP 2800 —– 801 6th Avenue S.W. 340 Gilmour Street, Suite 100 Calgary, AB T2P 4A3 Ottawa, ON K2P OR30R3
Brendan Myers Miller Marie-FranceMarie-France Major Tel: (403) 267-8467267-8467 Tel: (613) 695695-8855-8855 Fax: (403) 264-9400264-9400 Fax: (613) 695695-8580-8580 Email: [email protected] Email: [email protected]
Counsel for the Appellant, Ronald James Ottawa Agent for the Appellant, Ronald Aitkens James Aitkens
TABLE OF CONTENTS Page
Part I —– Overview …………………………………………………………………….. 1
Introduction ………………………………………………………………………… 1
Statement of Facts ………………………………………………………………….. 2
Part II —– Statement of Position ………………………………………………………. 2
Part III —– Statement of Argument …………………………………………………… 33
1. Imprisonment and Larges Fines May Attract Section 11 (f) Protection ………… 3
2. The Impact on Liberty and Security Should be Considered in Determining 7 Whether a Punishment is More Severe than Five Years'Years’ Imprisonment …………...
Part IV —– Submissions Concerning Costs …………………………………………... 10
Part V —– Order Sought ………………………………………………………………. 10
Part VI —– Table of Authorities ………………………………………………………. 11
Part VII —– Legislative Enactments ………………………………………………….. 13
1
PART I - OVERVIEW
Introduction
1. The Canadian Constitutional Foundation ("CCF") (“CCF”) submits that an offence carrying a maximum punishment of a prison term less than five years combined with a large fine may engage the right to a jury trial under s. 11(f)11(f) of the CharterCharter.. In determining whether a punishment is more severe than five years'years’ imprisonment, regard should be had to the K.R.JK.R.J.1 framework,framework, particularly the impact on the liberty liberty and security interests of offenders from the maximum punishment authorized by the offence.
2. The inclusion of offences such as s. 194(1) of the Securities Act2 within the ambit of s. 11(f)11(f) follows from the purposive approach to rights interpretation laidlaid down in Big M3 andand Southam.Southam.4 Had the CharterCharter's’s drafters intended to restrict s. 11(f) 11(f) to offences with at least five years' years’ imprisonment or sanctions such as corporal punishment, banishment, forced labour or citizenship revocation, they would have drafted s. 11(f) 11(f) accordingly. Instead, they used the broad term "punishment",“punishment”, with reference to a five year prison term severity benchmark. The right to a jury trial for offences such as s. 194(1) of the Securities Act is also supported by the historical originsorigins of s. 11(f),11(f), which is rooted in the protection against tyranny from oppressive laws and their enforcement and the jury'sjury’s central role in the Canadian justice system. It is further supported by the generous approach to rights interpretation, particularlyparticularly since the opening words of s. 11 have been construed to limit the application of the enumerated rights that follow. Finally, it is supported by the meaning and purpose of rights with which s. 11(f)11(f) is associated, including the protection against doubledouble jeopardy in s. 1111((h)h) and the lesser punishment protection in s. 1111((i).i).
3. The CCF submits that in considering whether s. 11(f)11(f) is engaged, Courts should consider the K.R.J. framework, particularly the impact on the liberty and security interests of accused persons who face the maximum punishment for the offence in question.
1 1 R. v. KR.J.,K.R.J., 2016 SCC 31 [[KR.J.].K.R.J.]. 2 2 Securities Act,Act, R.S.A. 2000, c. SS-4,-4, s. 194(1). 3 3 R. v. Big M Drug Mart Ltd.Ltd.,, [1985] 1 S.C.R. 295 [[BigBig M].M]. 4 4 Hunter v. Southam Inc., [1984] 2 S.C.R. 145 [[Southam].Southam].
2
Statement of Facts
4. The appellants were charged with offences under the Alberta Securities Act.Act. Section 194(1) of the Securities Act provides that "[a]“[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."both.”5
5. The appellants arguedargued that the potential punishment of five years less one day plus a $5 million fine in s. 194 amounts to a "more“more severe punishment"punishment” attracting s. 11(f)11(f) protection. Section 11 provides any person charged with an offence with the right
(h)(h) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;
6. A majority of the Alberta Court of Appeal rejected thethe appellants'appellants’ submission, holding that an offence with a maximum penalty of "five“five years less one day"day” does not become a "more“more severe punishment"punishment” merely because a "collateral“collateral consequence"consequence” such as a fine is authorized. The majority held open the possibility that other sanctions such as "corporal“corporal punishment, banishment from the community, forced labour or revocation of citizenship"citizenship” could engage s. 11(f).11(f).6
7. O'FerrallO’Ferrall J. disagreed with the majority'smajority’s reasoning, but nonetheless concurred in the result on the basisbasis that the appellants had requested a stay of proceedings when the appropriate remedy was a trial by jury.7
8. On November 17, 2016, the Court granted CCF'sCCF’s motion to intervene.
PART II - STATEMENT OF POSITIONPOSITION
9. The CCF'sCCF’s position is that an offence with a maximummaximum punishment of less than five years'years’ imprisonment combined with a large fine may engage the right to a jury trial under s. 11(f).11(f). In determining whether s. 11(f)11(f) is engaged, the Court should look to the K.R..I.K.R.J. framework and, in
5 5 Securities Act,Act, R.S.A. 2000, c. SS-4,-4, s. 194(1) 6 6 R. v. Peers,Peers, 2015 ABCA 407, at ¶ 15. 7 7 Ibid.,Ibid., O'FerrallO’Ferrall J., concurring in the result.
3 particular, the impact on the liberty and security interests of offenders from the maximum punishment for the offence in question.
PART III - STATEMENT OF ARGUMENTARGUMENT
1. Imprisonment and Large Fines May Attract Section 11(f)11(f) Protection
10. Section 11(f),11(f), like all Charter rights, should be interpreted using the purposive approach to rights interpretation. The purpose of s. 11(f)11(f)
…... is to be sought by reference to the character and the larger objects of the Charter itself,itself, to the language chosen to articulate the specific right right or freedom, to the historical origins of the concepts enshrined, and where applicable, to the meaning and purpose of the other specific rights and freedoms with which it is associated within the text of the CharterCharter.. The interpretation should be, as thethe judgment in Southam emphasizes, a generous rather than a legalistic one, aimed at fulfilling the purpose of the guarantee and securing for individuals the full benefit of the CharterCharter's’s protection. At the same time it is important not to overshoot the actualactual purpose of the right or freedom in question, but to recall that the Charter was not enacted in a vacuum, and must therefore, as this Court's decision in Law Society of Upper Canada v. Skapinker,Skapinker, [1984] 1 S.C.R. 357, illustrates, be placed in its proper linguistic, philosophic and historical contexts.8
11. A purposive approach compels the conclusion that s. 11(f) 11(f) captures offences with a maximum punishment of imprisonment less than five years combined with large fines.
12.12. FirstFirst,, the language of s. 11(f)11(f) is comparative;comparative; the sole question being whether the maximum punishment for the offence in question is more severe than five years'years’ imprisonment. Had the CharterCharter's’s drafters intended to restrict s. 11(f)11(f) to offences carrying a maximum punishment of five years'years’ imprisonment or specific sanctions such as the examples given by the Court of Appeal, they would drafted the provision accordingly. Instead, they used the broad term "punishment",“punishment”, with reference to the severity benchmark of five years'years’ imprisonment. As this Court stated in Lee:Lee:
…... the language of s. 11(f)11(f) is clear and unambiguous. The only qualifications on the right to the benefit of a jury trial under the section are that the maximum punishment forfor the offence be five years imprisonment or a more severe punishment and that it
8 8 Big M,M, supra note 3 at p. 344.
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not be available in the case of an offence under military law tried before a military tribunal.9
13.13. Second,Second, this interpretation is consistent with other Charter rights with which s. 11(f)11(f) is associated. As this Court held in KR.J.,K.R.J., harmony within s. 11 is desirable.'desirable.10°
14. This Court has consistently interpreted the term "punishment"“punishment” broadly, to include fines and other sanctions. In WigglesworthWigglesworth,, this Court held that the protection againstagainst double jeopardy in s. 11(h)11(h) may be triggered not only by criminal or quasi-criminalquasi-criminal proceedings, but non-criminalnon-criminal proceedings that result in a sanction with "true“true penal consequences”,consequences", including "imprisonment“imprisonment or a fine by which its magnitude would appearappear to be imposed for the purpose of redressing the wrong done to society at large rather than to the maintenance of internal discipline within the limited sphere of activity." activity.” Wilson J. quoted Professor Stuart approvingly, who observed that "other “other punitive forms of disciplinary measures, such as fines or imprisonment,imprisonment, are indistinguishable from criminal punishment and should surely fall within the protection of s. 11(h).""11(h).”11
15. In Shubley,Shubley, this Court held that a sanction imposed in an internal prison disciplinary proceeding did not engage s. 11(h),11(h), in part because the possible sanctions involved neither punitive fines nor imprisonment, recognizing that fines may constitute "punishment"“punishment” within the meaning of s. 11.12
16. In Rodgers,Rodgers, this Court held that imprimprisonmentisonment and heavy fines are "true “true penal consequences"consequences” and that punishment was not limited to these two sanctions.13
17. In K.R..I.,K.R.J., this Court held that an order under s. 161(1) of the Criminal Code empowering sentencing judges to prohibit sexual offenders fromfrom having any contact with a person under 16
9 9 R. v. Lee,Lee, [1989] 2 S.C.R. 1384, at p. 1401 [[Lee],Lee], emphasis addedadded.. 101° K.R.J. supra note 1,1, at ¶ 39. "11 R. v. WigglesworthWigglesworth,, [1987] 2 S.C.R. 541, at p. 561 [[Wigglesworth],Wigglesworth], emphasis addedadded.. 12 R. v.v. Shubley,Shubley, [1990] 1 S.C.R. 3, at p. 23 [[Shubley].Shubley]. 13 13 R. v. Rodgers , [2006] 1 S.C.R. 554 at ¶ 59 [[Rodgers].Rodgers]. See also: Canada (Attorney General) v. WhalingWhaling,, [2014] 1 S.C.R. 392, at ¶ 46.
5 years of age or from using the Internet or other digital networks constituted "punishment"“punishment” within the meaning of s. 1111((i)i) of the Charter.Charter. 14
18.18. ThirdThird,, the opening words of s. 11 have been given a "somewhat“somewhat narrow defdefinition"inition” so as to limit application of the enumerated rights that follow. Section 11 only applies to persons "prosecuted“prosecuted by the State for offences involving punitive sanctions, i.e. criminal, quasi-criminalquasi-criminal and regulatory offences,offences, either federally or provinciallyprovincially enacted."enacted.”15 Given the limitations imposed on s. 11 as a whole, a "generous“generous rather than legalistic”legalistic" interpretation requires offences authorizing less than five years'years’ imprisonment combined with large fines be included within s. 11W's11(f)’s ambit. As Chan Charron-on J. held in Rodgers,Rodgers, the WigglesworthWigglesworth test "applies “applies to determine whether s. 11 is triggered but does not purport to restrict the meaning of ‘punishment’…”'punishment' ..."16
19.19. FourthFourth,, the historical origins of the concepts enshrined in s. 11(f)11(f) militate in favour of provisions such as s. 194(1) of the Securities Act attracting the right to a jury trial. The historical and continued importance of jury trials as a bulwark against tyranny has been repeatedly recognized. In R. v. SherratSherrat,, this CourtCourt held as follows:
…... Most of the early rationales for the use of the jury are as compelling today as they were centuries ago while other, more modern,modern, rationales have developed....developed…. The jury, through its collective decision making, is an excellent fact findefinder;r; due to its representative character, it acts as the conscience of the community; the jury can act as the final bulwark against oppressive laws or their enforcementenforcement;; it provides a means whereby the public increases its knowledge of the criminal justice systemsystem and it increases, through the involvement of the public, societal trust in the system as a whole. … The importance of the jury in our system of criminal justice past and present is eloquently described by Blackstone in his Commentaries...Commentaries…
So that the liberties of England cannot but subsist so long as this palladium remains sacred and inviolate; not only from all open attacks, (which none will be so hardy as to make,) but also from all secret machinations which may sap and undermine it; by introducing newnew and arbitrary methods of trial, . . . And, however convenient these may appear at first, (as doubtless
14 14 KR..I.,K.R.J., supra note 1,1, at ¶ 57. 15 15 Goodwin v. British Columbia (Superintendent of MotorMotor Vehicles)Vehicles),, [2015] 3 S.C.R. 250, at ¶ 40, citing WigglesworthWigglesworth,, supra note 11 at p. 554; and Guindon v. CanadaCanada,, [2015] 3 S.C.R. 3, at ¶ 44. 16 16 Rodgers,Rodgers, supra note 13 at ¶ 59.
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all arbitrary powers, well executed, are the most convenient,) yet let it be again remembered that delays and little inconveniences in the forms of justicejustice are the price that all free nations must pay for their liberty in more substantial matters; that these inroads upon this sacred bulwark of the nation are fundamentally opposite to the spirit of our constitution;constitution; . . .
Section 11(f)11(f) of the Canadian ChCharterarter of Rights and Freedoms enshrines the right to trial by jury...jury…17
20. In R. v. LeeLee,, this Court quoted R. v. Bryant with approval:
This history demonstrates that the right of trial by jury is not only an essential part of our criminal justice system but also is an important constitutional guarantee of the rights of the individual in our democratic society. In all common law countries it has,has, for this reason, been treated as almost sacrosanct and has been interfered with only to a minimal extentextent..
…... the reality is that the right to a jury trial was guaranteed in the Charter as recently as 1982....1982…. The inescapable inference would seem to be that the right to a jury trial is viewed as just as important a protection for the accused today.18
21. As Blair J.A. wrotewrote in R.R. v. Bryant:Bryant:
Now that the right of jury trial is entrenched in our Constitution it is preserved both from open attack or subtle erosionerosion.. The importance of maintaining this constitutional protection inviolate was expressed by Blackstone in words whichwhich Lord Devlin, supra, at p. 165, said were "still “still after two centuries as fresh and meaningful as when they were written"...written”…19
22. As Gonthier J. wrote in R. v. Bain:Bain:
Jury trials are a central element of Anglo-American Anglo-American criminal law. Sometimes lauded, sometimes sometimes vilified, trial by jury has withstood the test of time and has acquired such an importance that it has been entrenched in our Constitution through 20 s. 11(f) of the CharterCharter.. 20
23. Juries have and continue to play an important role in the civil justice system as well. In Ontario, the right to a trial by jury in a civil case is a "substantive“substantive right"right” and one that "should“should not
17 17 R v. Sherratt,Sherratt, [1991] 1 S.C.R. 509, at pp. 523523-525,-525, emphasis added, footnotes omitted in original. 18 18 Lee,Lee, supra note 99,, at p. 1401, emphasis addedadded.. 19 19 R. v. Bryant,Bryant, 1984 CanLII 2026 (Ont. C.A.), at ¶ 31,31, emphasis addedadded.. 20 20 R.R. v. Bain,Bain, [1992] 1 S.C.R. 91, at p. 112, Gonthier J., dissenting on other grounds, emphasisemphasis addedadded..
7 be interfered with without just cause or cogent reasons”.reasons".21 A party may serve a jury notice at any time, except in specific enumerated circumstances.circumstances.22 AA party wishing to set aside a jury notice must bring a motion and bears a heavy onus of establishing that a jury trial is not appropriate.23
24. In Alberta,Alberta, jury trials are allowed in civil cases where the amount in dispute exceeds $10,000. A party who wants a jury trial need only bring an application pursuant to s. 17 of the Jury Act.Act.24 An applicant who meets the criteria in s. 17(1)(b) of the Jury Act has a prima facie right to a civil jury tria1,trial,25 which is "not“not to be removed lightly”.lightly".26
25. In light of the case law recognizing the importance of juries in both criminal and civil cases, an interpretation of s. 11(f)11(f) that protects the right to a jury trial for offences involving imprisonment in combination with substantial fines ought to be preferred.
2. The Impact on Liberty and Security Should be Considered in Determining WhetherWhether a Punishment is More Severe than Five Years'Years’ Imprisonment
26. It is difficult to establish a bright dividing line between offences which attract s. 11(f)11(f) protection and those that dodo not. In determining whether a punishment is "more“more severe"severe” than five years'years’ imprisonment, Courts should be guided by the KR.J.K.R.J. framework.
27. In KR.J.,K.R.J., this Court modified the previous two-parttwo-part test from Rodgers27 for determining whether a measure is "punishment"“punishment” as follows:
…... a measure constitutes punishment if (1) it is a consequence of conviction that forms part of the arsenal of sanctions to which an accused may be liable in respect of a particular offence, and either (2) it is imposed in furtherance of the purpose
21 21 Kempf v. NguyenNguyen,, 2015 ONCA 114, at ¶ 43 [[KemPAKempf]. • 22 22 Courts of Justice Act,Act, R.S.O. 1990, c. C.43, s. 108(1); Rules of Civil Procedure,Procedure, R.R.O. 1990, Reg. 194, rule 47.01. 23 23 KempfKempf, supra note 21,21, at ¶ 43. 24 24 Jury Act,Act, R.S.A. 2000, c. JJ-3,-3, s. 17(1)(b); Alberta Rules of CourtCourt,, Alta. Reg. 124.2010, s. 8.2. 25 25 Redshaw v. Fairfield, 2007 CarswellAlta 631 (Q.B.), at ¶ 6. 26 26 ShipanoffShipanoff v. Landry,Landry, 2008 ABQB 212, at ¶ 14; Couillard v. Smoky River (Municipal District No. 30), [1980] A.J. No. 163 (Alta. C.A.). 27 27 Supra note 13.13.
8
and principlesprinciples of sentencing, or (3) it has a significant impact on an offender'soffender’s libertyliberty or security interests.28
28. In determining whether a punishment is more severe than five years in jail, Courts should have regard to the impact on the liberty and security interestsinterests of offenders.
29. CCF acknowledges that the narrow issue in K.R.J. was whether a particular sanction constituted "punishment"“punishment” and that the s. 11(f)11(f) inquiry requires a comparative analysis between the sanction authorized and five years'years’ imprisonment. Nonetheless, the third K.R.J. factor is helpful. As this Court held in KR.J:K.R.J.:
…... a consideration of the impact of a sanction is consistent with this Court's Court’s jurisprudence. Since the early days of the CharterCharter,, this Court has always looked to both purposes and effects when considering the constitutionality of laws.29
30. Just as accounting for a sanction'ssanction’s impact assists in identifying the "lesser“lesser punishment"punishment” to which an accused is entitled for the purposes of s. 11(i),11(i), accounting for a sanction'ssanction’s impact on offenders assists in identifying whether a punishment is "more “more severe" severe” than five years' years’ imprisonment under s. 11(f).11(f). As this Court held in KR..K.R.J.I., , undue focfocusus on the objective of the sanction "obscures“obscures this inquiry."inquiry.”30
31. Thus, merely classifying an offence as "regulatory"“regulatory” or a large sanction such as a fine as being in furtherance of a "regulatory “regulatory purpose" purpose” of deterring certain conduct obscures the comparative inquiryinquiry between the maximum penalty for the offence and the five year imprisonment reference point in s. 11(f).11(f). Focusing on the effect on individual liberty and security ensures that the constitutional right to a jury trial is afforded to those facing sanctionssanctions more severe than five years'years’ imprisonment and thereby serves s. 11(/)'s11(f)’s purpose.
32. A focus on the liberty and security interests of the accused is consistent with the approach taken by American courts interpreting the Sixth Amendment.31 The U.S. Supreme Court has held
28 r.. r KK.R.J. IC J., supra note 1,1, at iii¶ 41. 29 29 Ibid,Ibid, at ¶ 39, citing Big M,M, supra note 3 at p. 331 and WhalingWhaling,, suprasupra note 13.13. 3°30 Ibid.Ibid. at ¶ 40. See also: R. v. Cross, 2006 NSCA 30, 138 C.R.R. (2d) 163, at paras. 24-25,24-25, citing R. v. T.R.T.R.,, [1983] A.J. No. 483 (Q.L.), at ¶ 7 and R. v. Lambert (1994), 93 C.C.C. (3d) 88 (Nfld. C.A.), at p. 93. 31 31 U.S. Const. amend VI.
9 that an accused has the right to a trial by jury for all but "petty"“petty” offences, and that no offence can be deemed petty where imprisonment for more than six months is authorized.32 A defendant can overcome the presumption that an offence authorizingauthorizing less than six months imprisonment is petty "by“by showing that the additional penalties, viewed together with the maximum prison term, are so severe that the legislature clearly determined that the offense is a ‘serious’'serious' one."one.”33
33. The U.S. Supreme Court has expressly recognized that substantial fines may impact one'sone’s liberty and security as much or more than jail time.34 A large fine "may“may engender a significant infringement of personal freedom" freedom” attracting Sixth Amendment protection. 35 AsAs the Supreme Court hheldeld in Southern Union Co. v. U.S.U.S.::
But not all fines are insubstantial, and not all offenses punishable by fines are petty...petty… And, where the defendant is an individual, a large fine may "engender“engender ‘a'a significant infringement of personal freedom.'"freedom.’” Blanton,Blanton, 489489 U.S., at 542, 109 S.Ct. 1289 (quoting Frank v. United States,States, 395 U.S. 147, 151, 89 S.Ct. 1503, 23 L.Ed.2d 162 (1969); see also 18 U.S.C. § 3572(a)(2) (requiring(requiring court to consider "the“the burden that the fine will impose upon the defendant”defendant" in determining whether to impose a fine and in what amount).amount).36
34. CCF submits that an offence authorizing imprisonment of five years less one day combined with a fine of up to $5 million has a greater impact on the liberty and security interests of offenders than an offence authorizing no more than five years in prison. It is a "more“more severe"severe” punishment that attracts s. 11(f)11(f) protection.
35. A multi-millionmulti-million dollar fine alone has the potential to deprive individuals of their liberty and security through the loss of livelihood, forcforceded sale of assets and permanent loss of credit ratings, for instance. The combined effect on the liberty and security of offenders charged with an
32 32 BaldwinBaldwin v. New YorkYork,, 399 U.S. 66 (1970); Williams v. Florida,Florida, 399 U.S. 78 (1970); Lewis v. United States,States, 116 S.Ct. 2163 (1996);(1996); Blanton v. North Las VegasVegas,, 489 U.S. 538, 583 (1989) [[Blanton].Blanton]. 33 33 Blanton,Blanton, ibid.ibid. 34 34 See e.g. Mine WorkersWorkers v. Bagwell,Bagwell, 512 U.S. 821, 838, n. 5 (1994). 35 35 Blanton,Blanton, supra note 32,32, at 542, emphasis addedadded.. See also: Frank v. United States,States, 395 U.S. 147, 151 (1969). 36 36 Southern Union Co. v. United States,States, 132 S.Ct. 2344, 2352 (2012), emphasis addedadded..
10 offence such as s. 194(1) of the Securities Act is greater than an offence authorizing five years in prison only.only.
PART IV - SUBMISSIONS CONCERNICONCERNINGNG COSTS
36. CCF requests that no costs be awarded either for it or against it.
PART V - ORDER SOUGHT
37. For these reasons, CCF respectfully requests an order declaring that s. 194(1) of the Securities Act is subject to s. 11(f)11(f) of the Charter and permission to present oral argument at the hearing of this appeal not exceeding 10 minutes.
38. CCF will provide focused oral submissions that differ from the parties and other interveners. No other party or intervener has proposed that thethe liberty and security interests of offenders be the focal point in determining whether an offence is "more“more severe"severe” than five years in prison. In oral submissions, the CCF will provide a unique perspective on the s. 11 jurisprudence, the historical foundationsfoundations of the constitutional right to a jury trial and foreign case law interpreting analogous constitutional provisions.
ALL OF WHICH IS RESPECTFULLY SUBMITTED this 30th day of JanuaryJanuary,, 2017.2017.
______Darryl Cruz Brandon Kain Byron Shaw AtrishaAtrisha Lewis
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PART VI - TABLE OF AUTHORITIES
Tab Authority Paragraph(s)
1. Baldwin v. New YorkYork,, 399 U.S. 66 (1970) 32
2. Blanton v. North Las VegasVegas,, 489 U.S. 538, 583 (1989) 32, 33
3. Canada (Attorney General) v. WhalingWhaling,, [2014] 1 S.C.R. 392 16, 29
4. Couillard v. Smoky RiverRiver (Municipal District No. 30), [1980][1980] A.J. 24 No. 163 (Alta. C.A.)
5. Frank v. United States,States, 395 U.S. 147, 151 (1969) 33
6. Goodwin v. British Columbia (Superintendent of Motor VVehicles),ehicles), 18 [2015] 3 S.C.R. 250
7. Guindon v. CanadaCanada,, [2015] 3 S.C.R. 3 18
8. Hunter v. Southam Inc., [1984] 2 S.C.R. 145 2
9. Kempf v. NguyenNguyen,, 2015 ONCA 114 23
10. Lewis v. United States,States, 116 S.Ct. 2163 (1996) 32
11. Mine WorkersWorkers v. Bagwell,Bagwell, 512 U.S. 821, 838, n. 5 (1994) 33
12. R. v. Bain,Bain, [1992] 1 S.C.R. 91 22
13. R. v. Big M Drug Mart Ltd.Ltd.,, [1985] 1 S.C.R. 295 2, 10, 29
14. R. v. Bryant,Bryant, [1984] O.J. No. 3404 (C.A.) 20, 21
15. R. v. CrossCross,, 2006 NSCA 30, 138 C.R.R. (2d) 163 30
16. R. v. K.R.J,K.R.J., 2016 SCC 31 1, 3, 9, 13, 17, 26, 27, 29, 30
17. R. v. Lambert (1994), 93 C.C.C. (3d) 88 (Nfld. C.A.) 30
18. R. v. Lee,Lee, [1989] 2 S.C.R. 1384 12, 20
19. R. v. Peers,Peers, 2015 ABCA 407 6
20. R. v. Rodgers , [2006] 1 S.C.R. 554 16, 18, 27
12
21. R. v. Sherratt,Sherratt, [1991] 1 S.C.R. 509 19
22. R. v. Shubley,Shubley, [1990] 1 S.C.R. 3 15
23. R. v. T.R.T.R.,, [1983] A.J. No. 483 (Q.L.) 30
24. R. v. WigglesworthWigglesworth,, [1987] 2 S.C.R. 541 14, 18
25. Redshaw v. Fairfield, 20072007 CarswellAlta 631 (Q.B.) 24
26. Shipanoff v. Landry,Landry, 2008 ABQB 212 24
27. Southern Union Co. v. United States,States, 132 S.Ct. 2344 33
28. WilliamsWilliams v. Florida,Florida, 399 U.S. 78 (1970) 32
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PART VII - LEGISLATIVE ENACTMENENACTMENTSTS
Tab Legislation Paragraph(s)
1. Alberta Rules of CourtCourt,, Alta. Reg. 124.2010, s. 8.2 24
2. Courts of Justice Act,Act, R.S.O. 1990, c. C.43, s. 108(1) 23
3. Jury Act,Act, R.S.A. 2000, c. JJ-3,-3, s. 17(1)(b) 24
4. Rules of Civil Procedure,Procedure, R.R.O. 1990, Reg. 194, rule 47.01 23
5. Securities Act,Act, R.S.A. 2000, c. SS-4,-4, s. 194 2, 4, 19, 35, 37
6. U.S. Const. amend VI 32