Occasionally, people and companies who cross paths with securities commissions raise questions about the constitutionality of the securities commissions' broad powers such as the right to compel interviews, share information with other enforcement agencies and impose punishments of various descriptions. The Supreme Court of Canada has recently granted Jeremy Peers and Ronald Aitkens leave to appeal a decision of the Alberta Court of Appeal that held that charges under the Alberta Securities Act did not warrant a trial by jury.
In R. v Peers, the Alberta Court of Appeal heard an appeal from Peers and Aitkens. The issue on appeal was whether Peers and Aitkens were entitled to a jury trial. Peers and Aitkens had been charged with offences under the Securities Act, which provides in section 194 for a maximum penalty of imprisonment of five years less a day, a fine of up to $5 million, "or to both". Section 11(f) of the Canadian Charter of Rights and Freedoms grants a right to a trial by jury "where the maximum punishment for the offence is imprisonment for five years or a more severe punishment". Peers and Aitkens argued that the potential punishment of five years less one day, plus a $5 million fine, amounts to a "more severe punishment" which generates a right to a trial by jury.
The Alberta Court of Appeal held that the purpose of section 11(f) was to entrench the traditional right to a trial by jury for the most serious offences. The "purpose" of the five year cut-off in section 11(f) is to distinguish those cases that are deemed "serious enough" for a jury trial from those that are not. The Court of Appeal noted that the maximum penalty of five years less a day found in the Securities Act was deliberately chosen by the legislature to avoid jury trials of complex securities prosecutions. Despite the arguments put forward by Peers and Aitkens, the Court of Appeal held that the criminal justice system does not recognize an equivalency between imprisonment and money. The Court of Appeal concluded that a maximum penalty of "five years less one day" does not become a "more severe punishment" just because some collateral negative consequences are added to it.
The Supreme Court of Canada recently granted leave to Peers and Aitkens to appeal the Alberta Court of Appeal decision: see Jeremy James Peers v. Her Majesty the Queen (Alberta Securities Commission) and Ronald James Aitkens v. Alberta Securities Commission . It is unclear why the Supreme Court granted leave to appeal since it does not give reasons when granting or dismissing a leave application; however a decision from the Supreme Court could conceivably have a broader impact on the investigations and sanctions regimes of the Alberta Securities Commission and other provincial regulators.
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