Written by Justin R. Lambert, Michael D. Mysak and William Katz

In two recent decisions, R v Peers, 2017 SCC 13 and R v Aitkens, 2017 SCC 14, the Supreme Court of Canada (SCC) held that those accused of securities law offences do not have the right to a trial by jury.

Background

The two appellants were charged with several offences under the Securities Act. The two men are facing charges with a maximum penalty of imprisonment of five years less a day and a fine of up to $5 million. Section 11(f) of the Canadian Charter of Rights and Freedoms grants the right to a trial by jury “where the maximum punishment for the offence is imprisonment for five years or a more severe punishment” [emphasis added].

The appellants argued that the potential punishment of five years less one day, plus a $5-million fine, amounted to a “more severe punishment” triggering their right to a trial by jury. The appellants raised the question as to “how much is a night in jail worth to a reasonable Canadian? If a night in jail is worth $5 million or less then the appeal must succeed”.

Court of Appeal

The majority of the Court of Appeal interpreted the phrase “more severe punishment” as engaging the deprivation of liberty inherent in the maximum sentence of imprisonment imposed by the statute. This interpretation appropriately distinguishes between those crimes serious enough to warrant a jury trial, and those that are not. A maximum penalty of “five years less one day” does not become a “more severe punishment” simply because of a collateral negative consequence (like a fine, no matter how severe).

Though not bound by the decisions of lower courts, the decision of the Court of Appeal was consistent with the few prior decisions on the subject: R v Bondy, 2013 ONCJ 268 at paras 41–43; R v Gibbs, 2001 BCPC 361 at para 33.

Supreme Court of Canada

The appeal from the judgment of Peers ABCA was heard on February 14, 2017. On February 24, 2017, the SCC delivered their judgment, holding in both only that: 

The appeal is dismissed. We conclude that the appellant was not entitled to a trial by jury, substantially for the reasons of the majority of the Court of Appeal...

Takeaways

Having provided no reasons for their decision, the SCC has left us to speculate as to their reasoning. Likely this was a policy-motivated decision to protect against an influx of jury trials in an already resource scarce system. Any alternative decision would have set the foundation for jury trials in various offences not currently granted this Charter right.

Looking to the future, the Alberta Securities Commission will continue to prosecute serious breaches of the Securities Act in Provincial Court through the summary conviction process before a judge alone. As for the appellants, Mr. Aitkens’ trial has been scheduled for April 2018, while Mr. Peers pled guilty in February 2016.