Bruce McMeekin Law

When Is Trial By Jury A Constitutional Requirement?

On May 26, the Supreme Court agreed to hear the appeal in an Alberta case that could expand the scope of the constitutional requirement to trial by jury.

Section 11(f) of the Charter of Rights of Freedoms (the “Charter”) provides the benefit of jury trials to individuals charged with offences subject to five years imprisonment or a more severe punishment. The Supreme Court has never had the opportunity to interpret the italicized phrase.

In R. v. Peers the defendants are charged with multiple offences contrary to Alberta’s Securities Act. If convicted, they face imprisonment of 5 years less a day and fines of up to $5 million. By way of a preliminary trial motion, they successfully argued before the Alberta Provincial Court that “or a more severe imprisonment” included the risk of being fined on conviction a maximum fine of $5 million – meaning the defendants were entitled to a jury trial. The Court of Queen’s Bench quashed this decision and the matter was appealed to the Court of Appeal. On December 21, 2015, the appeal court found that “or a more severe imprisonment” was intended to refer to more severe deprivations of an individual’s liberty interest such as corporal punishment, community banishment, forced labour or revocation of citizenship. It was not intended to refer to the payment of fines. The latter may be punishment, but it is something referable to an individual’s economic interests, which are not protected by the Charter.

The appellants sought leave to appeal the decision of the appeal court to the Supreme Court. Leave was granted on May 26 and, tentatively, the appeal is to be heard on February 14, 2017.

If allowed, the appeal could result in individuals being entitled to jury trials for a number or regulatory offences – offences which legislatures intentionally crafted to render s.11(f) unavailable to defendants. As examples, Ontario’s Securities Act provides for the same punishment as its Alberta counterpart. Similarly, Ontario’s Environmental Protection Act (the “EPA”) and Water Resources Act provide that serious environmental offences are punishable by imprisonment of five years less a day and fines in the millions of dollars.

A successful appeal would also mean that eligible charges like that under the EPA would have to be tried by the relevant provincial high or superior courts which are clothed with jurisdiction over jury trials. That would be a huge but not unwelcome change to the prosecution of eligible offences, which are frequently tried by lay justices of the peace – some of whom, respectfully, are simply not up to the task.

This will be a hard appeal to win. Recently in Guindon v. Canada, the Supreme Court found that an administrative penalty under the Income Tax Act in excess of $500,000 was not punitive as it was of the magnitude required to deter like misconduct. Deterrence is the primary sentencing factor for regulatory offences.

In addition, the Court has frequently relaxed Charter requirements for regulatory offences in comparison to their criminal cousins. That is because the former are intended to protect the public from departures from otherwise lawful conduct in any number of regulated areas, such as transportation, workplace safety and the capital markets. This compares to the criminal law. It is engaged in denouncing and stigmatizing morally repugnant acts. The lack of stigma arising from a conviction for a regulatory offence may weigh heavily with the Court. The democracy inherent in the jury process – intended to protect innocent individuals from the stigma of a criminal conviction – may be something the Court finds unnecessary in the regulatory context.