Aitkens and Peers were charged with offences under the Securities Act (Alberta). Section 194 of the Securities Act (Alberta) provides for a maximum penalty of a fine of $5 million, imprisonment for a term of not more than five years less a day, or both. Section 11(f) of the Canadian Charter of Rights of Freedoms (Charter) provides for a right to a trial by jury in cases where the maximum punishment for the offence is imprisonment of at least five years or a “more severe punishment”. Aitkens and Peers argued that the potential punishment of five years less a day, plus a $5 million fine amounted to a “more severe punishment”, thereby giving them the right to a jury trial pursuant to the Charter.
The Alberta Court of Appeal dismissed the appeal by Aitkens and Peers in December 2015 noting that the purpose of Section 11(f) was obviously to entrench the traditional right to a trial by jury for the most serious offences. In addition, the Alberta Court of Appeal noted that if the drafters of the Securities Act (Alberta) thought that a combination of imprisonment and fines should compel a jury trial, one would expect some reference to that.
On February 14, 2017, the SCC heard Aitkens and Peers’ appeals and issued a unanimous ruling, dismissing the appeals, substantially for the reasons of the majority of the Alberta Court of Appeal.
Aitkens’ trial is scheduled for April 2018. Peers pled guilty in February 2016.
This decision confirms that securities law offences will continue to be prosecuted in provincial courts in trials before a judge alone. In addition the decision confirms that adding economic sanctions to a prison term of five years less a day does not does amount to a “more severe punishment” and therefore does not trigger Section 11(f) of the Charter.