No Jury Trial For Securities Offences: Economic Penalties Are Not A 'More Severe Punishment' Under Section 11(f) Of The Charter

Is a $5 million fine a less severe punishment than a night in jail? Are hefty financial penalties for quasi-criminal or regulatory offences able to trigger the procedural protections of the Canadian Charter of Rights and Freedoms when combined with the threat of imprisonment? The Supreme Court of Canada had the opportunity to address these questions when it recently released the twin decisions of R v Peers, 2017 SCC 13 and R v Aitkens, 2017 SCC 14.

The appeals were from the decision of R v Peers, 2015 ABCA 407, in which a majority of the Alberta Court of Appeal held that a person charged with an offence under s.194 of the Alberta Securities Act, RSA 2000, c S-4, was not entitled to a jury trial pursuant to section 11(f) of the Charter, because the substantial fines that could be imposed under that Act were not equivalent to the deprivation of liberty.

The Supreme Court did not disturb the ruling or reasoning of the Court of Appeal, simply stating, unanimously, that each appellant "was not entitled to a trial by jury, substantially for the reasons of the majority of the Court of Appeal."

Background and Lower Court Decisions

The appellants were charged with multiple offences under s.194 of the Alberta Securities Act, which could result in liability for "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."

The appellants argued that they were entitled to jury trials pursuant to s.11(f) of the Charter, which guaranteed that right "where the maximum punishment for the offence is imprisonment for five years or a more severe punishment."

The appellants were to be tried in Provincial Court, which cannot accommodate jury trials. Their requests to transfer to the Alberta Court of Queen's Bench were denied in separate Queen's Bench and Provincial Court decisions. The appellants appealed to the Alberta Court of Appeal.

The Alberta Court of Appeal Decision

The Court of Appeal focused on the question of whether a maximum penalty of five years less a day plus a $5 million fine is "a more severe punishment" than five years of imprisonment so as to confer a right to a jury trial under s.11(f) of the Charter. The Court noted that the penalty of five years less a day in the Securities Act was deliberately chosen by the Alberta legislature to avoid jury trials in complex securities prosecutions.

The appellants argued that a $5 million fine is worth at least one day of liberty, and therefore a...