Press Release: Canadian Constitution Foundation’s intervention in Supreme Court of Canada “right to jury trial” case

Press Release: Canadian Constitution Foundation’s intervention in Supreme Court of Canada “right to jury trial” case

If you’d already spent almost five years in prison and were given the choice between paying a $5 million fine or spending one more day in prison, which would you choose?

That is the question at the heart of a constitutional challenge in which the Canadian Constitution Foundation (CCF) is intervening to support the ancient right to trial by jury.

It was also the question posed by two recent cases, the appeals of which were heard together by the Alberta Court of Appeal as Peers v Alberta Securities Commission and Aitkens v Alberta Securities Commission. The appellants had been charged under various provisions of the Alberta Securities Act, which attracted a maximum punishment of five years less a day plus a fine of up $5 million.

The Charter guarantees a right to “trial by jury where the maximum punishment is imprisonment for five years or a more severe punishment.” (Section 11(f), emphasis added). The appellants argued that a sentence of five years less day plus a $5 million fine is a “more severe punishment” than a five-year sentence without a fine. The Alberta Court of Appeal disagreed, ruling that the appellants had no Charter right to a jury trial. The Supreme Court of Canada has agreed to hear the appellants’ appeals.

The Supreme Court of Canada has previously recognized 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.”

It is the CCF’s position 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, therefore, a “more severe” punishment and persons so charged have a right to a jury trial.

As stated in our factum, drafted with the generous support of attorneys from McCarthy Tétrault LLP:
“A multi-million dollar fine alone has the potential to deprive individuals of their liberty and security through the loss of one’s livelihood, forced sale of assets and permanent loss of credit ratings, for instance. The combined effect on the liberty and security of offenders charged with an offence such as s. 194(1) of the Securities Act is greater than an offence authorizing five years in prison only.”

And as Howard Anglin, Executive Director of the CCF, said:

“The plain language of the Charter is clear: punishments for offences that are more severe than five years in prison come with the guarantee of a right to a jury trial. It would do violence to that plain language and to common sense to deny that a fine of $5 million is not a more severe punishment than a single extra day in prison. The right to a jury trial is a fundamental safeguard of our rights and it must be granted to every Canadian facing serious sanctions.”