IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE ALBERTA COURT OF APPEAL) - and -

Transcription

1 Court File No IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE ALBERTA COURT OF APPEAL) BETWEEN: B E T W E E N : JEREMY JAMES PEERS - and - Applicant (Appellant) HER MAJESTY THE QUEEN (ALBERTA SECURITIES COMMISSION) Respondent (Respondent) - and - ATTORNEY GENERAL OF ALBERTA, ATTORNEY GENERAL OF CANADA, ATTORNEY GENERAL OF ONTARIO, ATTORNEY GENERAL OF QUEBEC, CANADIAN CONSTITUTION FOUNDATION, ONTARIO SECURITIES COMMISSION, BRITISH COLUMBIA CIVIL LIBERTIES ASSOCIATION AND CANADIAN CIVIL LIBERTIES ASSOCIATION Interveners Court File No IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE ALBERTA COURT OF APPEAL) BETWEEN: B E T W E E RONALD JAMES AITKENS - and - ALBERTA SECURITIES COMMISSION - and - Applicant (Appellant) Respondent (Respondent) ATTORNEY GENERAL OF ALBERTA, ATTORNEY GENERAL OF CANADA, ATTORNEY GENERAL OF ONTARIO, CANADIAN CONSTITUTION FOUNDATION AND ONTARIO SECURITIES COMMISSION Interveners FACTUM OF THE INTERVENER, CANADIAN CONSTITUTION FOUNDATION (Pursuant to Rules 37 and 42 of the Rules of the Supreme Court of Canada)

2 McCarthy Tetrault Tétrault LLP Suite 5300, Toronto Dominion Bank Tower Toronto ON M5K 1E6 Darryl Cruz Brandon Kain Byron Shaw Atrisha Lewis Tel: (416) Fax: (416) Counsel for the Intervener, Canadian Constitution Foundation Gowling WLG (Canada) LLP 160 Elgin Street Suite 2000 Ottawa ON KIP K1P 1C3 Jeff Beedell Tel: (613) Fax: (613) Ottawa Agent for Counsel for the Intervener, Canadian Constitution Foundation

3 ORIGINAL TO: THE REGISTRAR Supreme Court of Canada 301 Wellington Street Ottawa, ON K1A On 0J1 COPIES TO: BERESH ALONEISSI O'NEILL HURLEY O'KEEFE MILLSAP 300 MacLean Block Street Edmonton, AB T5J 1J4 Steve Fix Nathan J. Whitling Alex Millman Tel: (780) Fax: (780) Counsel for the Appellant, Jeremy James Peers ALBERTA SECURITIES COMMISSION 600, 250 5th Street S.W. Calgary, AB T2P OR4 0R4 Don Young Lorenz Berner Tel: (403) Fax: (403) Counsel for the Respondent, Her Majesty the Queen (Alberta Securities Commission) ATTORNEY GENERAL OF ALBERTA 4th Floor, Bowker Building th Street Edmonton, AB T5K 2E8 Robert J. Normey Tel: (780) Fax: (780) Counsel for the Intervener, Attorney General of Alberta SUPREME ADVOCACY LLP 340 Gilmour Street Suite 100 Ottawa, ON K2P OR3 0R3 Marie-France Major Tel: (613) Ext. 102 Fax: (613) Ottawa Agent for the Appellant, Jeremy James Peers GOWLING WLG (CANADA) LLP Elgin Street Ottawa, ON K1P 1C3 D. Lynne Watt Tel: (613) Fax: (613) Ottawa Agent for the Respondent, Her Majesty the Queen (Alberta Securities Commission) GOWLING WLG (CANADA) LLP Elgin Street Ottawa, ON K1P 1C3 D. Lynne Watt Tel: (613) Fax: (613) Ottawa Agent for the Intervener, Attorney General of Alberta

4 ii 11 ATTORNEY GENERAL OF CANADA Suite 3400, Box King Street West Toronto, ON M5X 1K6 Marianne Zoric Jeanette Gevikoglu Tel: (416) Fax: (416) Counsel for the Intervener, Attorney General of Canada ATTORNEY GENERAL OF ONTARIO 720 Bay Street 4th 4 Floor Toronto, ON M7A 2S9 Matthew Horner Jennifer Luong Tel: (416) Fax: (416) matthew.horner@ontario.ca Counsel for the Intervener, Attorney General of Ontario ONTARIO SECURITIES COMMISSION 20 Queen Street West 22hd nd Floor Toronto, ON M5H 3S8 Hugh Craig Tel: (416) Fax: (416) hcraig@osc.gov.on.ca Counsel for the Intervener, Ontario Securities Commission ATTORNEY GENERAL OF CANADA 50 O'Connor O Connor Street Suite 500, Room 556 Ottawa, ON 1(113 K1P 6L2 Robert J. Frater, Q.C. Tel: (613) Fax: (613) robert.frater@justice.gc.ca Ottawa Agent for the Intervener, Attorney General of Canada BURKE-ROBERTSON 441 MacLaren Street Suite 200 Ottawa, ON K2P H3 Robert E. Houston, Q.C. Tel: (613) Fax: (613) rhouston@burkerobertson.com Ottawa Agent for the Intervener, Attorney General of Ontario CONWAY BAXTER WILSON LLP Roosevelt Avenue Ottawa, ON K2A 3X9 Conn Colin S. Baxter Tel: (613) Fax (613) cbaxter@conway.pro Ottawa Agent for the Intervener, Ontario Securities Commission

5 iii 111 BRITISH COLUMBIA CIVIL LIBERTIES ASSOCIATION Stockwoods LLP TD North Tower, Toronto-Dominion Centre 77 King Street West, Suite 4130 Toronto, ON M5K H1 Gerald Chan Nader R. Hasan Tel: (416) Fax: (416) POWER LAW 130 Albert Street Suite 1103 Ottawa, ON K1P 5G4 David Taylor Tel: (613) Fax: (613) Ottawa Agent for the Intervener, British Columbia Civil Liberties Association Counsel for the Intervener, British Columbia Civil Liberties Association ATTORNEY GENERAL OF QUEBEC Procureur general général du Quebec Québec 1200, Route de l'eglise, l Église, 2eme 2ème etage étage Quebec, Québec, Quebec G1V 4M1 Sylvain Leboeuf Tel: (418) Ext Fax: (418) sylvain.leboeuf@justice.gouv.qc.ca Counsel for the Intervener, Attorney General of Quebec GOLDBLATT PARTNERS LLP Box Dundas Street West Toronto, ON MSG M5G 2G8 Marlys A. Edwardh Adriel Weaver Tel: (416) Fax: (416) medwardh@goldplattpartners.com Counsel for the Intervener, Canadian Civil Liberties Association NOEL & ASSOCIES ASSOCIÉS 111, rue Champlain Gatineau, Quebec J8X 3R1 Pierre Landry Tel: (819) Fax: (819) p.landry@noelassocies.com Ottawa Agent for the Intervener, Attorney General of Quebec GOLDBLATT PARTNERS LLP Metcalfe Street Ottawa, ON K1P 5L4 Colleen Bauman Tel: (613) Fax: (613) cbauman@goldblattpartners.com Ottawa Agent for the Intervener, Canadian Civil Liberties Association

6 iv WALSH LLP th Avenue S.W. Calgary, AB T2P 4A3 Brendan Myers Miller Tel: (403) Fax: (403) Counsel for the Appellant, Ronald James Aitkens SUPREME ADVOCACY LLP 340 Gilmour Street, Suite 100 Ottawa, ON K2P OR3 0R3 Marie-France Major Tel: (613) Fax: (613) Ottawa Agent for the Appellant, Ronald James Aitkens

7 TABLE OF CONTENTS Page Part I Overview.. 1 Introduction 1 Statement of Facts.. 2 Part II Statement of Position. 2 Part III Statement of Argument 3 1. Imprisonment and Larges Fines May Attract Section 11 (f) Protection 3 2. The Impact on Liberty and Security Should be Considered in Determining 7 Whether a Punishment is More Severe than Five Years' Years Imprisonment... Part IV Submissions Concerning Costs Part V Order Sought. 10 Part VI Table of Authorities. 11 Part VII Legislative Enactments.. 13

8 1 PART I - OVERVIEW Introduction 1. The Canadian Constitutional Foundation ("CCF") ( CCF ) submits that an offence carrying a maximum punishment of a prison term less than five years combined with a large fine may engage the right to a jury trial under s. 11(f) of the Charter. In determining whether a punishment is more severe than five years' years imprisonment, regard should be had to the K.R.J. 1 framework, particularly the impact on the liberty and security interests of offenders from the maximum punishment authorized by the offence. 2. The inclusion of offences such as s. 194(1) of the Securities Act2 2 within the ambit of s. 11(f) follows from the purposive approach to rights interpretation laid down in Big M3 M 3 and Southam.4 4 Had the Charter s Charter's drafters intended to restrict s. 11(f) to offences with at least five years' years imprisonment or sanctions such as corporal punishment, banishment, forced labour or citizenship revocation, they would have drafted s. 11(f) accordingly. Instead, they used the broad term "punishment", punishment, with reference to a five year prison term severity benchmark. The right to a jury trial for offences such as s. 194(1) of the Securities Act is also supported by the historical origins of s. 11(f), which is rooted in the protection against tyranny from oppressive laws and their enforcement and the jury's jury s central role in the Canadian justice system. It is further supported by the generous approach to rights interpretation, particularly since the opening words of s. 11 have been construed to limit the application of the enumerated rights that follow. Finally, it is supported by the meaning and purpose of rights with which s. 11(f) is associated, including the protection against double jeopardy in s. 11(h) and the lesser punishment protection in s. 11(i). 3. The CCF submits that in considering whether s. 11(f) is engaged, Courts should consider the K.R.J. framework, particularly the impact on the liberty and security interests of accused persons who face the maximum punishment for the offence in question. 1 R. v. KR.J., K.R.J., 2016 SCC 31 [K.R.J.]. [KR.J.]. 2 Securities Act, R.S.A. 2000, c. S-4, s. 194(1). 3 R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295 [Big M]. 4 Hunter v. Southam Inc., [1984] 2 S.C.R. 145 [Southam].

9 2 Statement of Facts 4. The appellants were charged with offences under the Alberta Securities Act. Section 194(1) of the Securities Act provides that "[a] [a] person or company that contravenes Alberta securities laws is guilty of an offence and is liable to a fine of not more than $ or to imprisonment for a term of not more than 5 years less a day, or to both."5 both The appellants argued that the potential punishment of five years less one day plus a $5 million fine in s. 194 amounts to a "more more severe punishment" punishment attracting s. 11(f) protection. Section 11 provides any person charged with an offence with the right (h) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment; 6. A majority of the Alberta Court of Appeal rejected the appellants' appellants submission, holding that an offence with a maximum penalty of "five five years less one day" day does not become a "more more severe punishment" punishment merely because a "collateral collateral consequence" consequence such as a fine is authorized. The majority held open the possibility that other sanctions such as "corporal corporal punishment, banishment from the community, forced labour or revocation of citizenship" citizenship could engage s. 11(f) O'Ferrall O Ferrall J. disagreed with the majority's majority s reasoning, but nonetheless concurred in the result on the basis that the appellants had requested a stay of proceedings when the appropriate remedy was a trial by jury On November 17, 2016, the Court granted CCF's CCF s motion to intervene. PART II - STATEMENT OF POSITION 9. The CCF's CCF s position is that an offence with a maximum punishment of less than five years' years imprisonment combined with a large fine may engage the right to a jury trial under s. 11(f). In determining whether s. 11(f) is engaged, the Court should look to the K.R..I. K.R.J. framework and, in 5 Securities Act, R.S.A. 2000, c. S-4, s. 194(1) 6 R. v. Peers, 2015 ABCA 407, at Ibid., O'Ferrall O Ferrall J., concurring in the result.

10 3 particular, the impact on the liberty and security interests of offenders from the maximum punishment for the offence in question. PART III - STATEMENT OF ARGUMENT 1. Imprisonment and Large Fines May Attract Section 11(f) Protection 10. Section 11(f), like all Charter rights, should be interpreted using the purposive approach to rights interpretation. The purpose of s. 11(f)... is to be sought by reference to the character and the larger objects of the Charter itself, to the language chosen to articulate the specific right or freedom, to the historical origins of the concepts enshrined, and where applicable, to the meaning and purpose of the other specific rights and freedoms with which it is associated within the text of the Charter. The interpretation should be, as the judgment in Southam emphasizes, a generous rather than a legalistic one, aimed at fulfilling the purpose of the guarantee and securing for individuals the full benefit of the Charter s Charter's protection. At the same time it is important not to overshoot the actual purpose of the right or freedom in question, but to recall that the Charter was not enacted in a vacuum, and must therefore, as this Court's decision in Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357, illustrates, be placed in its proper linguistic, philosophic and historical contexts A purposive approach compels the conclusion that s. 11(f) captures offences with a maximum punishment of imprisonment less than five years combined with large fines. 12. First, the language of s. 11(f) is comparative; the sole question being whether the maximum punishment for the offence in question is more severe than five years' years imprisonment. Had the Charter s Charter's drafters intended to restrict s. 11(f) to offences carrying a maximum punishment of five years' years imprisonment or specific sanctions such as the examples given by the Court of Appeal, they would drafted the provision accordingly. Instead, they used the broad term "punishment", punishment, with reference to the severity benchmark of five years' years imprisonment. As this Court stated in Lee:... the language of s. 11(f) is clear and unambiguous. The only qualifications on the right to the benefit of a jury trial under the section are that the maximum punishment for the offence be five years imprisonment or a more severe punishment and that it 8 Big M, supra note 3 at p. 344.

11 4 not be available in the case of an offence under military law tried before a military tribunal Second, this interpretation is consistent with other Charter rights with which s. 11(f) is associated. As this Court held in KR.J., K.R.J., harmony within s. 11 is desirable.' This Court has consistently interpreted the term "punishment" punishment broadly, to include fines and other sanctions. In Wigglesworth, this Court held that the protection against double jeopardy in s. 11(h) may be triggered not only by criminal or quasi-criminal proceedings, but non-criminal proceedings that result in a sanction with "true true penal consequences, consequences", including "imprisonment imprisonment or a fine by which its magnitude would appear to be imposed for the purpose of redressing the wrong done to society at large rather than to the maintenance of internal discipline within the limited sphere of activity." activity. Wilson J. quoted Professor Stuart approvingly, who observed that "other other punitive forms of disciplinary measures, such as fines or imprisonment, are indistinguishable from criminal punishment and should surely fall within the protection of s. 11(h)."" 11(h). 15. In Shubley, this Court held that a sanction imposed in an internal prison disciplinary proceeding did not engage s. 11(h), in part because the possible sanctions involved neither punitive fines nor imprisonment, recognizing that fines may constitute "punishment" punishment within the meaning of s In Rodgers, this Court held that imprisonment and heavy fines are "true true penal consequences" consequences and that punishment was not limited to these two sanctions In K.R..I., K.R.J., this Court held that an order under s. 161(1) of the Criminal Code empowering sentencing judges to prohibit sexual offenders from having any contact with a person under 16 9 R. v. Lee, [1989] 2 S.C.R. 1384, at p [Lee], emphasis added K.R.J. supra note 1, at " R. v. Wigglesworth, [1987] 2 S.C.R. 541, at p. 561 [Wigglesworth], emphasis added. 12 R. v. Shubley, [1990] 1 S.C.R. 3, at p. 23 [Shubley] R. v. Rodgers, [2006] 1 S.C.R. 554 at 59 [Rodgers]. See also: Canada (Attorney General) v. Whaling, [2014] 1 S.C.R. 392, at 46.

12 5 years of age or from using the Internet or other digital networks constituted "punishment" punishment within the meaning of s. 11(i) of the Charter Third, the opening words of s. 11 have been given a "somewhat somewhat narrow definition definition" so as to limit application of the enumerated rights that follow. Section 11 only applies to persons "prosecuted prosecuted by the State for offences involving punitive sanctions, i.e. criminal, quasi-criminal and regulatory offences, either federally or provincially enacted."15 enacted. Given the limitations imposed on s. 11 as a whole, a "generous generous rather than legalistic legalistic" interpretation requires offences authorizing less than five years' years imprisonment combined with large fines be included within s. 11W's 11(f) s ambit. As Chan-on Charron J. held in Rodgers, the Wigglesworth test "applies applies to determine whether s. 11 is triggered but does not purport to restrict the meaning of punishment 'punishment'..." Fourth, the historical origins of the concepts enshrined in s. 11(f) militate in favour of provisions such as s. 194(1) of the Securities Act attracting the right to a jury trial. The historical and continued importance of jury trials as a bulwark against tyranny has been repeatedly recognized. In R. v. Sherrat, this Court held as follows:... Most of the early rationales for the use of the jury are as compelling today as they were centuries ago while other, more modern, rationales have developed... developed. The jury, through its collective decision making, is an excellent fact finder; due to its representative character, it acts as the conscience of the community; the jury can act as the final bulwark against oppressive laws or their enforcement; it provides a means whereby the public increases its knowledge of the criminal justice system and it increases, through the involvement of the public, societal trust in the system as a whole. The importance of the jury in our system of criminal justice past and present is eloquently described by Blackstone in his Commentaries... Commentaries So that the liberties of England cannot but subsist so long as this palladium remains sacred and inviolate; not only from all open attacks, (which none will be so hardy as to make,) but also from all secret machinations which may sap and undermine it; by introducing new and arbitrary methods of trial,... And, however convenient these may appear at first, (as doubtless KR..I., K.R.J., supra note 1, at Goodwin v. British Columbia (Superintendent of Motor Vehicles), [2015] 3 S.C.R. 250, at 40, citing Wigglesworth, supra note 11 at p. 554; and Guindon v. Canada, [2015] 3 S.C.R. 3, at Rodgers, supra note 13 at 59.

13 6 all arbitrary powers, well executed, are the most convenient,) yet let it be again remembered that delays and little inconveniences in the forms of justice are the price that all free nations must pay for their liberty in more substantial matters; that these inroads upon this sacred bulwark of the nation are fundamentally opposite to the spirit of our constitution;... Section 11(f) of the Canadian Charter of Rights and Freedoms enshrines the right to trial by jury...17 jury 20. In R. v. Lee, this Court quoted R. v. Bryant with approval: This history demonstrates 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. In all common law countries it has, for this reason, been treated as almost sacrosanct and has been interfered with only to a minimal extent.... the reality is that the right to a jury trial was guaranteed in the Charter as recently as The inescapable inference would seem to be that the right to a jury trial is viewed as just as important a protection for the accused today As Blair J.A. wrote in R. v. Bryant: Now that the right of jury trial is entrenched in our Constitution it is preserved both from open attack or subtle erosion. The importance of maintaining this constitutional protection inviolate was expressed by Blackstone in words which Lord Devlin, supra, at p. 165, said were "still still after two centuries as fresh and meaningful as when they were written"...19 written 22. As Gonthier J. wrote in R. v. Bain: Jury trials are a central element of Anglo-American criminal law. Sometimes lauded, sometimes vilified, trial by jury has withstood the test of time and has acquired such an importance that it has been entrenched in our Constitution through s. 11(f) of the Charter Juries have and continue to play an important role in the civil justice system as well. In Ontario, the right to a trial by jury in a civil case is a "substantive substantive right" right and one that "should should not R v. Sherratt, [1991] 1 S.C.R. 509, at pp , emphasis added, footnotes omitted in original Lee, supra note 9, at p. 1401, emphasis added R. v. Bryant, 1984 CanLII 2026 (Ont. C.A.), at 31, emphasis added R. v. Bain, [1992] 1 S.C.R. 91, at p. 112, Gonthier J., dissenting on other grounds, emphasis added.

14 7 be interfered with without just cause or cogent reasons. reasons".21 A party may serve a jury notice at any time, except in specific enumerated circumstances.22 A party wishing to set aside a jury notice must bring a motion and bears a heavy onus of establishing that a jury trial is not appropriate In Alberta, jury trials are allowed in civil cases where the amount in dispute exceeds $10,000. A party who wants a jury trial need only bring an application pursuant to s. 17 of the Jury Act.24 An applicant who meets the criteria in s. 17(1)(b) of the Jury Act has a prima facie right to a civil jury tria1,25 trial, which is "not not to be removed lightly. lightly" In light of the case law recognizing the importance of juries in both criminal and civil cases, an interpretation of s. 11(f) that protects the right to a jury trial for offences involving imprisonment in combination with substantial fines ought to be preferred. 2. The Impact on Liberty and Security Should be Considered in Determining Whether a Punishment is More Severe than Five Years' Years Imprisonment 26. It is difficult to establish a bright dividing line between offences which attract s. 11(f) protection and those that do not. In determining whether a punishment is "more more severe" severe than five years' years imprisonment, Courts should be guided by the KR.J. K.R.J. framework. 27. In KR.J., K.R.J., this Court modified the previous two-part test from Rodgers27 for determining whether a measure is "punishment" punishment as follows:... a measure constitutes punishment if (1) it is a consequence of conviction that forms part of the arsenal of sanctions to which an accused may be liable in respect of a particular offence, and either (2) it is imposed in furtherance of the purpose Kempf v. Nguyen, 2015 ONCA 114, at 43 [Kempf]. [KemPA Courts of Justice Act, R.S.O. 1990, c. C.43, s. 108(1); Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule Kempf, supra note 21, at Jury Act, R.S.A. 2000, c. J-3, s. 17(1)(b); Alberta Rules of Court, Alta. Reg , s Redshaw v. Fairfield, 2007 CarswellAlta 631 (Q.B.), at Shipanoff v. Landry, 2008 ABQB 212, at 14; Couillard v. Smoky River (Municipal District No. 30), [1980] A.J. No. 163 (Alta. C.A.) Supra note 13.

15 8 and principles of sentencing, or (3) it has a significant impact on an offender's offender s liberty or security interests In determining whether a punishment is more severe than five years in jail, Courts should have regard to the impact on the liberty and security interests of offenders. 29. CCF acknowledges that the narrow issue in K.R.J. was whether a particular sanction constituted "punishment" punishment and that the s. 11(f) inquiry requires a comparative analysis between the sanction authorized and five years' years imprisonment. Nonetheless, the third K.R.J. factor is helpful. As this Court held in KR.J: K.R.J.:... a consideration of the impact of a sanction is consistent with this Court's Court s jurisprudence. Since the early days of the Charter, this Court has always looked to both purposes and effects when considering the constitutionality of laws Just as accounting for a sanction's sanction s impact assists in identifying the "lesser lesser punishment" punishment to which an accused is entitled for the purposes of s. 11(i), accounting for a sanction's sanction s impact on offenders assists in identifying whether a punishment is "more more severe" severe than five years' years imprisonment under s. 11(f). As this Court held in KR.. K.R.J., I., undue focus on the objective of the sanction "obscures obscures this inquiry." inquiry Thus, merely classifying an offence as "regulatory" regulatory or a large sanction such as a fine as being in furtherance of a "regulatory regulatory purpose" purpose of deterring certain conduct obscures the comparative inquiry between the maximum penalty for the offence and the five year imprisonment reference point in s. 11(f). Focusing on the effect on individual liberty and security ensures that the constitutional right to a jury trial is afforded to those facing sanctions more severe than five years' years imprisonment and thereby serves s. 11(/)'s 11(f) s purpose. 32. A focus on the liberty and security interests of the accused is consistent with the approach taken by American courts interpreting the Sixth Amendment.31 The U.S. Supreme Court has held 28 K K.R.J., IC r.. r supra note 1, at iii Ibid, at 39, citing Big M, supra note 3 at p. 331 and Whaling, supra note Ibid. at 40. See also: R. v. Cross, 2006 NSCA 30, 138 C.R.R. (2d) 163, at paras , citing R. v. T.R., [1983] A.J. No. 483 (Q.L.), at 7 and R. v. Lambert (1994), 93 C.C.C. (3d) 88 (Nfld. C.A.), at p U.S. Const. amend VI.

16 9 that an accused has the right to a trial by jury for all but "petty" petty offences, and that no offence can be deemed petty where imprisonment for more than six months is authorized.32 A defendant can overcome the presumption that an offence authorizing less than six months imprisonment is petty "by by showing that the additional penalties, viewed together with the maximum prison term, are so severe that the legislature clearly determined that the offense is a serious 'serious' one."33 one. 33. The U.S. Supreme Court has expressly recognized that substantial fines may impact one's one s liberty and security as much or more than jail time.34 A large fine "may may engender a significant infringement of personal freedom" freedom attracting Sixth Amendment protection.35 As the Supreme Court held in Southern Union Co. v. U.S.: But not all fines are insubstantial, and not all offenses punishable by fines are petty... petty And, where the defendant is an individual, a large fine may "engender engender a 'a significant infringement of personal freedom.'" freedom. Blanton, 489 U.S., at 542, 109 S.Ct (quoting Frank v. United States, 395 U.S. 147, 151, 89 S.Ct. 1503, 23 L.Ed.2d 162 (1969); see also 18 U.S.C. 3572(a)(2) (requiring court to consider "the the burden that the fine will impose upon the defendant defendant" in determining whether to impose a fine and in what amount) CCF submits 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 a "more more severe" severe punishment that attracts s. 11(f) protection. 35. A multi-million dollar fine alone has the potential to deprive individuals of their liberty and security through the loss of 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 Baldwin v. New York, 399 U.S. 66 (1970); Williams v. Florida, 399 U.S. 78 (1970); Lewis v. United States, 116 S.Ct (1996); Blanton v. North Las Vegas, 489 U.S. 538, 583 (1989) [Blanton] Blanton, ibid See e.g. Mine Workers v. Bagwell, 512 U.S. 821, 838, n. 5 (1994) Blanton, supra note 32, at 542, emphasis added. See also: Frank v. United States, 395 U.S. 147, 151 (1969) Southern Union Co. v. United States, 132 S.Ct. 2344, 2352 (2012), emphasis added.

17 10 offence such as s. 194(1) of the Securities Act is greater than an offence authorizing five years in prison only. PART IV - SUBMISSIONS CONCERNING COSTS 36. CCF requests that no costs be awarded either for it or against it. PART V - ORDER SOUGHT 37. For these reasons, CCF respectfully requests an order declaring that s. 194(1) of the Securities Act is subject to s. 11(f) of the Charter and permission to present oral argument at the hearing of this appeal not exceeding 10 minutes. 38. CCF will provide focused oral submissions that differ from the parties and other interveners. No other party or intervener has proposed that the liberty and security interests of offenders be the focal point in determining whether an offence is "more more severe" severe than five years in prison. In oral submissions, the CCF will provide a unique perspective on the s. 11 jurisprudence, the historical foundations of the constitutional right to a jury trial and foreign case law interpreting analogous constitutional provisions. ALL OF WHICH IS RESPECTFULLY SUBMITTED this 30th day of January, Darryl Cruz Brandon Kain Byron Shaw Atrisha Lewis

18 11 PART VI - TABLE OF AUTHORITIES Tab Authority Paragraph(s) 1. Baldwin v. New York, 399 U.S. 66 (1970) Blanton v. North Las Vegas, 489 U.S. 538, 583 (1989) 32, Canada (Attorney General) v. Whaling, [2014] 1 S.C.R , Couillard v. Smoky River (Municipal District No. 30), [1980] A.J. No. 163 (Alta. C.A.) Frank v. United States, 395 U.S. 147, 151 (1969) Goodwin v. British Columbia (Superintendent of Motor Vehicles), 18 [2015] 3 S.C.R Guindon v. Canada, [2015] 3 S.C.R Hunter v. Southam Inc., [1984] 2 S.C.R Kempf v. Nguyen, 2015 ONCA Lewis v. United States, 116 S.Ct (1996) Mine Workers v. Bagwell, 512 U.S. 821, 838, n. 5 (1994) R. v. Bain, [1992] 1 S.C.R R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R , 10, R. v. Bryant, [1984] O.J. No (C.A.) 20, R. v. Cross, 2006 NSCA 30, 138 C.R.R. (2d) R. v. K.R.J, K.R.J., 2016 SCC 31 1, 3, 9, 13, 17, 26, 27, 29, R. v. Lambert (1994), 93 C.C.C. (3d) 88 (Nfld. C.A.) R. v. Lee, [1989] 2 S.C.R , R. v. Peers, 2015 ABCA R. v. Rodgers, [2006] 1 S.C.R , 18, 27

19 R. v. Sherratt, [1991] 1 S.C.R R. v. Shubley, [1990] 1 S.C.R R. v. T.R., [1983] A.J. No. 483 (Q.L.) R. v. Wigglesworth, [1987] 2 S.C.R , Redshaw v. Fairfield, 2007 CarswellAlta 631 (Q.B.) Shipanoff v. Landry, 2008 ABQB Southern Union Co. v. United States, 132 S.Ct Williams v. Florida, 399 U.S. 78 (1970) 32

20 13 PART VII - LEGISLATIVE ENACTMENTS Tab Legislation Paragraph(s) 1. Alberta Rules of Court, Alta. Reg , s Courts of Justice Act, R.S.O. 1990, c. C.43, s. 108(1) Jury Act, R.S.A. 2000, c. J-3, s. 17(1)(b) Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule Securities Act, R.S.A. 2000, c. S-4, s , 4, 19, 35, U.S. Const. amend VI 32