Case: R v Kirk, 2014 ABCA 373

Keywords: Securities Act, criminal, constitutionality, ultra vires

Synopsis: The applicants were charged with contravening a number of provisions of the Alberta Securities Act regarding unregistered advising, making misleading statements to affect securities and causing artificial prices. They brought an application arguing that the impugned provisions of the Act “are ultra vires the Alberta Legislature on the grounds that they are colourable criminal law and legislation in relation to criminal law falling within the exclusive jurisdiction” of Parliament (para. 4 of 2014 ABQB 517). The Provincial Court judge dismissed the applications and an appeal to the Court of Queen’s Bench was also dismissed. The Court of Appeal denied leave to appeal.

Importance: This matter was before the Alberta Court of Appeal as an application for permission to appeal. From that perspective it provides a helpful analysis of what the Court will consider when determining whether a case meets the threshold for obtaining leave for a summary conviction appeal. In this regard the Court followed R v Chaluk, 1998 ABCA 253 and cited from the more recent Ontario Court of Appeal decision R v R(R), 2008 ONCA 497:

“Russell J.A. makes the important point that the power to grant leave to appeal in summary conviction proceedings is broad enough to reach two quite different categories of cases. Leave to appeal may be granted where the merits of the proposed question of law are arguable, even if not strong, and the proposed question of law has significance to the administration of justice beyond the four corners of the case. Leave to appeal may also be granted where there appears to be a “clear” error even if it cannot be said that the error has significance to the administration of justice beyond the specific case.

The public interest in granting leave to appeal in the first category of case described above is obvious. It is this court’s function, subject of course to decisions of the Supreme Court of Canada, to settle questions of law of general application. In doing so, the court performs a valuable function for the administration of justice beyond its error correcting function in the individual case.” (paras. 32 and 33)

The applicants argued that there is “no authority that has considered the constitutionality of these provisions of the Securities Act or their equivalents in other Canadian jurisdictions” (para. 6). While this is one factor, the Court relied heavily on the fact that the Supreme Court of Canada released its federal securities legislation decision in 2011: Reference re Securities Act, 2011 SCC 66 (an appeal of an Alberta decision). As a result of that decision and several other recent ones, the Court held that the case before it did not raise “an arguable appeal” (para. 14). Further, the applicants had one appeal and both courts below came to the same conclusion. This decision reaffirms that leave to appeal of a summary conviction appeal will be granted “sparingly” (para. 15)

From a securities perspective, this decision also likely brings an end (at least for the meantime) to the issue of whether provincial securities legislation can prohibit conduct and impose penalties similar to what is covered by the Criminal Code. It’s clear that the double aspect doctrine applies to bring this subject matter within both federal and provincial powers.

Counsel for the Applicant (Benjamin Kirk): Donald Macleod, Q.C. (O’Brien Devlin MacLeod, Calgary)
Counsel for the Applicant (John Kirk): James Lutz (Dartnell Lutz, Calgary)
Counsel for the Applicant (Dylan Boyle): Loni Da Costa (Borden Ladner Gervais LLP, Calgary)
Counsel for Respondent: Deanna  Steblyk (Alberta Securities Commission, Calgary)

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