Canadian Lawyer

46 F E B R U A R Y 2 0 1 7 w w w . C A N A D I A N L a w y e r m a g . c o m Under s. 194(1) of the Alberta Secu- rities Act, each man faced a sentence of five years less one day and a fine of $5 million. The accused argue their Char- ter rights have been violated because the combination of jail time and fine amount to a "more severe punishment," thus triggering protection under s. 11(f ) and the right to a jury trial. As Peers's lawyers argue in their factum: "Applying a common sense approach, a sentence of 1,824 days of imprisonment plus a fine of $5 [mil- lion] is, for all actual practical purposes, a much 'more severe punishment' than a sentence of 1,825 days of imprison- ment with no fine. Faced with a choice between one additional day of impris- onment and a fine of $5 [million] all sane Canadians would choose the addi- tional day of imprisonment." Count me as one of those "sane Canadians." I would trade a night in jail for $5 million. Who wouldn't? However, that's not what this case is all about. As the Alberta attorney general rightfully argues, the day-in- jail statement "misses the mark. Most importantly, a fine is a different kind of imposition than is imprisonment or a physical punishment." What the defence proposes would upend the way that Canada has tra- ditionally approached jury trials, and that's to reserve them for the most seri- ous offences. It's the jail time, not the fine, that defines the punishment. The defence's position is novel, but it could put an already overburdened justice system over the edge. That's because it extends further than securi- ties law, and reaches into legislation such as environmental laws, among others. Who knows where courts would set the jury bar? The defence arguments won some favour at the lower courts. The provin- cial court in the Peers ruling accepted it was a "more severe sentence" and trans- ferred the case to the Alberta Court of Queen's Bench. The Crown sought an order quashing that ruling and the judge hearing ordered the provincial court to adjudicate it. On further appeal, a majority of the Alberta Court of Appeal held the problem with the appellant's argument is that "it is impossible to measure how much 'a night in jail is worth' when compared in a qualitative sense to imprisonment." "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. From a purposive perspec- tive, that is not enough to change the offence into one that is 'serious' enough to warrant a jury trial." In a concurring opinion, one judge suggested, however, that the argument had merit, but the remedy that was sought — a stay of proceedings — was "draconian." The Supreme Court hears this case as fines under a number of laws are ris- ing dramatically. In securities law, fines have jumped to the seven-figure range from four figures in the late 1980s, as governments seek to deter securities fraud. Fine inflation is hitting other areas, such as environmental, to dis- suade polluting conduct. In its factum, the Alberta Securities Commission examines the legislative history of s. 11(f ) and the five-year sen- tence requirement for jury trials, citing then-general counsel for the criminal and constitutional law branch, Eugene Ewaschuk. "Our concern was not to overly inconvenience the courts. Jury trials are much slower, and civilians have to be brought in and they have to sit, and panels have to be select- ed." Ewaschuk agreed that a two-year threshold would "plug up the system." Let's hope the Supreme Court heeds those wise words. There is virtually no infrastructure in provincial courts to accommodate jury trials nor a his- tory in Canada of jury trials for lesser offences. It would overburden the exist- ing system and cause juror fatigue. The justice system is already underfunded and stretched too thin. Extending jury trials will grind the wheels of justice to a halt, which is something that the drafters of the Charter surely did not intend. The Supreme Court should dis- miss these appeals. Jim Middlemiss is a principal at Web- NewsManagement.com. B A C K PA G E O P I N I O N @JimMiddlemiss By Jim Middlemiss ow much is a night in jail worth? It's one of those questions that legal philosophers could moot for hours. It's also a question facing the Supreme Court of Canada in two cases expected to be heard in February that could have far- reaching consequences for jury trials in Canada. The cases will test the limit of s. 11(f ) of the Charter, which says that anyone charged with an offence has the right to a trial by jury where the maximum punishment is "imprisonment for five years or a more severe punishment." The cases are R. v. Peers and R. v Aitkens, which involve two matters before the Alberta Securities Commission. Jeremy James Peers was charged with 32 counts of contravening Alberta's securi- ties laws, while Ronald James Aitkens faced five counts of breaching securities law over sales of securities. Plugging up the justice system H

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