Beaudette v. Alberta Securities Commission et al., (2016) 612 A.R. 89

• Judge: Watson, Rowbotham and Wakeling, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: October 15, 2015
• Citations: (2016), 612 A.R. 89;2016 ABCA 9

Beaudette v.  Securities Comm. (2016), 612 A.R. 89; 662 W.A.C. 89 (CA)

MLB headnote and full text

Temp. Cite: [2016] A.R. TBEd. JA.071

Scott Gerard Beaudette (appellant/applicant) v. Alberta Securities Commission (respondent/respondent) and Attorney General of Alberta (intervener/respondent)

(1501-0033-AC; 2016 ABCA 9)

Indexed As: Beaudette v. Alberta Securities Commission et al.

Alberta Court of Appeal

Watson, Rowbotham and Wakeling, JJ.A.

January 13, 2016.

Summary:

The Alberta Securities Commission moved for an order under s. 197 of the Securities Act and rules 10.52 and 10.53 of the Rules of Court, compelling Beaudette to comply with a Summons to a Witness issued to him under s. 42(1) of the Act. Beaudette challenged the constitutionality of the combined effect of ss. 42 and 46 of the Act. Principally, he argued that the requirement to provide information and documents concerning his securities activities in North America under s. 42, coupled with the possibility that the Commission might share that information with other state authorities, particularly the United States, under s. 46, infringed his s. 7 Charter right to liberty. He also asserted that the extraction of information and documents was an unreasonable search and seizure under s. 8 of the Charter.

The Alberta Court of Queen's Bench, in a decision reported at [2015] A.R. Uned. 398, dismissed the motion. Beaudette appealed.

The Alberta Court of Appeal dismissed the appeal.

Civil Rights - Topic 644.1

Liberty - Limitations on - Compelled testimony or documents - The Alberta Securities Commission moved for an order under s. 197 of the Securities Act and rules 10.52 and 10.53 of the Rules of Court, compelling Beaudette to comply with a Summons to a Witness issued to him under s. 42(1) of the Act - Beaudette challenged the constitutionality of the combined effect of ss. 42 and 46 of the Act - Principally, he argued that the requirement to provide information and documents concerning his securities activities in North America under s. 42, coupled with the possibility that the Commission might share that information with other state authorities, particularly the United States, under s. 46, infringed his s. 7 Charter right to liberty - He asserted that the Act's lack of prophylactic provisions which were necessary to guarantee use or derivative use immunity made the combined effect of ss. 42 and 46 overly broad - The claim was advanced at a general level because of the possibility that, downstream, the information or documents acquired from Beaudette might somehow become available to assist in a potential criminal prosecution against him in the United States where he would face imprisonment if charged - It was also advanced at an individual level in that, even if the Securities Act withstood scrutiny, the conduct of the Commission and its agents gave rise to the inference that they would improperly provide the acquired information to United States authorities - The Alberta Court of Appeal held that Beaudette had failed to establish that the combined effect of ss. 42 and 46 involved a generalized breach of liberty under s. 7 of the Charter or that he faced infringement of his right to liberty as an individual under s. 7 contrary to a principle of fundamental justice - See paragraphs 20 to 57.

Civil Rights - Topic 644.1

Liberty - Limitations on - Compelled testimony or documents - The Alberta Securities Commission moved for an order under s. 197 of the Securities Act and rules 10.52 and 10.53 of the Rules of Court, compelling Beaudette to comply with a Summons to a Witness issued to him under s. 42(1) of the Act - Beaudette challenged the constitutionality of the combined effect of ss. 42 and 46 of the Act - Principally, he argued that the requirement to provide information and documents concerning his securities activities in North America under s. 42, coupled with the possibility that the Commission might share that information with other state authorities, particularly the United States, under s. 46, infringed his s. 7 Charter right to liberty - The claim was advanced at a general level because of the possibility that, downstream, the information or documents acquired from Beaudette might somehow become available to assist in a potential criminal prosecution against him in the United States where he would face imprisonment if charged - The Alberta Court of Appeal stated that a party claiming that a statutory provision operated to infringe his s. 7 Charter rights had to establish, on a balance of probabilities, that there was a real nexus or consequence for his life, liberty or security of the person created by that legislation - Speculation about a potential future breach had not met that burden since the early Charter era - Mere allegations of possible foreign state actions associated with Canadian state actions were not proof that those events were likely to happen - The mere assertion that conscripted evidence from Beaudette would somehow be unlawfully shared with United States authorities in a Charter-abusive manner was not evidence that such occurrence was likely - Further, the fact that there might, in the future, be lawful means available for United States criminal prosecution authorities to seek access to the information or documents thus acquired in Canada did not mean that the impugned Canadian securities laws were constitutionally suspect ab initio - Section 7 was not engaged before liberty was actually threatened - Liberty was not assailed merely by the application of the Act's administrative and regulatory requirements - See paragraphs 20 to 22.

Civil Rights - Topic 657.1

Liberty - Limitations on - Disclosure of securities information (incl. to foreign state) - [See both Civil Rights - Topic 644.1 ].

Civil Rights - Topic 660.7

Liberty - Limitations on - Summonses - [See both Civil Rights - Topic 644.1 ].

Civil Rights - Topic 686

Liberty - Principles of fundamental justice - Deprivation of - What constitutes - [See first Civil Rights - Topic 644.1 ].

Civil Rights - Topic 1508

Property - General principles - Expectation of privacy - The Alberta Securities Commission moved for an order under s. 197 of the Securities Act and rules 10.52 and 10.53 of the Rules of Court, compelling Beaudette to comply with a Summons to a Witness issued to him under s. 42(1) of the Act - Beaudette challenged the constitutionality of the combined effect of ss. 42 and 46 of the Act - Principally, he argued that the requirement to provide information and documents concerning his securities activities in North America under s. 42, coupled with the possibility that the Commission might share that information with other state authorities, particularly the United States, under s. 46, infringed his s. 7 Charter right to liberty - He also asserted that the extraction of information and documents was an unreasonable search and seizure under s. 8 of the Charter - The Alberta Court of Appeal summarily rejected the s. 8 argument - Beaudette had a low expectation of privacy, if any, in any knowledge or records he had related to his public trading in the capital markets - In any event, if his s. 7 argument failed (which it did), there was reasonable lawful authority under the Act for requiring him to produce information and documents and, consequently, his complaint about s. 8 at the Commission's investigation stage withered - Whether some future effort to acquire the same information and documents for a different purpose by a different state agency might give rise to some form of s. 8 complaint by Beaudette was a premature topic - Therefore, his present s. 8 argument had no independent life - See paragraph 4.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - [See Civil Rights - Topic 1508 ].

Civil Rights - Topic 3107.2

Trials - Due process, fundamental justice and fair hearings - General principles and definitions - Overbreadth principle (incl. arbitrariness) - [See first Civil Rights - Topic 644.1 ].

Civil Rights - Topic 8344

Canadian Charter of Rights and Freedoms - Application - Exceptions - Principles of fundamental justice (Charter, s. 7) - [See first Civil Rights - Topic 644.1 ].

Civil Rights - Topic 8584

Canadian Charter of Rights and Freedoms - Practice - Time for raising Charter issues - [See second Civil Rights - Topic 644.1 and Civil Rights - Topic 1508 ].

Civil Rights - Topic 8591

Canadian Charter of Rights and Freedoms - Practice - Onus or burden of proof - [See second Civil Rights - Topic 644.1 ].

Securities - Topic 1366

Regulatory commissions (incl. self-regulatory organizations) - Practice - Subpoena of witnesses - [See both Civil Rights - Topic 644.1 and Civil Rights - Topic 1508 ].

Cases Noticed:

Thomson Newspapers Ltd. v. Director of Investigation and Research, Combines Investigation Act et al., [1990] 1 S.C.R. 425; 106 N.R. 161; 39 O.A.C. 161, refd to. [para. 4].

United States of America et al. v. Wakeling, [2014] 3 S.C.R. 549; 465 N.R. 1; 363 B.C.A.C. 1; 624 W.A.C. 1; 2014 SCC 72, refd to. [para. 4].

R. v. Jarvis (W.J.), [2002] 3 S.C.R. 757; 295 N.R. 201; 317 A.R. 1; 284 W.A.C. 1; 2002 SCC 73, refd to. [para. 18].

R. v. Nur (H.), [2015] 1 S.C.R. 773; 469 N.R. 1; 332 O.A.C. 208; 2015 SCC 15, refd to. [para. 19].

PHS Community Services Society et al. v. Canada (Attorney General), [2011] 3 S.C.R. 134; 421 N.R. 1; 310 B.C.A.C. 1; 526 W.A.C. 1; 2011 SCC 44, refd to. [para. 19].

Bedford et al. v. Canada (Attorney General), [2013] 3 S.C.R. 1101; 452 N.R. 1; 312 O.A.C. 53; 2013 SCC 72, refd to. [para. 20].

Operation Dismantle Inc. et al. v. Canada et al., [1985] 1 S.C.R. 441; 59 N.R. 1, refd to. [para. 21].

B010 v. Canada (Minister of Citizenship and Immigration) (2015), 478 N.R. 57; 2015 SCC 58, refd to. [para. 22].

Khadr v. Prime Minister (Can.) et al., [2010] 1 S.C.R. 44; 397 N.R. 294; 2010 SCC 3, refd to. [para. 24].

R. v. Appulonappa (F.A.) (2015), 478 N.R. 3; 2015 SCC 59, refd to. [para. 25].

Carter et al. v. Canada (Attorney General) et al., [2015] 1 S.C.R. 331; 468 N.R. 1; 366 B.C.A.C. 1; 629 W.A.C. 1; 2015 SCC 5, refd to. [para. 26].

R. v. Moriarity (2015), 477 N.R. 356; 2015 SCC 55, refd to. [para. 28].

Blencoe v. Human Rights Commission (B.C.) et al., [2000] 2 S.C.R. 307; 260 N.R. 1; 141 B.C.A.C. 161; 231 W.A.C. 161; 2000 SCC 44, refd to. [para. 31].

Global Securities Corp. v. British Columbia Securities Commission et al., [2000] 1 S.C.R. 494; 252 N.R. 290; 134 B.C.A.C. 207; 219 W.A.C. 207; 2000 SCC 21, refd to. [para. 35].

R. v. Hart (N.L.), [2014] 2 S.C.R. 544; 461 N.R. 1; 353 Nfld. & P.E.I.R. 222; 1099 A.P.R. 222; 312 C.C.C.(3d) 250; 2014 SCC 52, refd to. [para. 36].

R. v. Singh (J.), [2007] 3 S.C.R. 405; 369 N.R. 1; 249 B.C.A.C. 1; 414 W.A.C. 1; 2007 SCC 48, refd to. [para. 37].

Guindon v. Minister of National Revenue (2015), 473 N.R. 120; 387 D.L.R.(4th) 228; 2015 SCC 41, refd to. [para. 38].

R. v. R.J.S., [1995] 1 S.C.R. 451; 177 N.R. 81; 78 O.A.C. 161, refd to. [para. 39].

R. v. White (J.K.), [1999] 2 S.C.R. 417; 240 N.R. 1; 123 B.C.A.C. 161; 201 W.A.C. 161, refd to. [para. 39].

R. v. Henry (D.B.) et al., [2005] 3 S.C.R. 609; 342 N.R. 259; 376 A.R. 1; 360 W.A.C. 1; 219 B.C.A.C. 1; 361 W.A.C. 1; 2005 SCC 76, refd to. [para. 39].

R. v. Nedelcu (M.), [2012] 3 S.C.R. 311; 436 N.R. 1; 297 O.A.C. 93; 2012 SCC 59, refd to. [para. 39].

British Columbia Securities Commission v. Branch and Levitt, [1995] 2 S.C.R. 3; 180 N.R. 241; 60 B.C.A.C. 1; 99 W.A.C. 1, refd to. [para. 40].

McLean v. British Columbia Securities Commission, [2013] 3 S.C.R. 895; 452 N.R. 340; 347 B.C.A.C. 1; 593 W.A.C. 1; 2013 SCC 67, refd to. [para. 40].

R. v. Lyons, [1987] 2 S.C.R. 309, refd to. [para. 41].

Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625, refd to. [para. 41].

R. v. Malmo-Levine (D.) et al., [2003] 3 S.C.R. 571; 314 N.R. 1; 191 B.C.A.C. 1; 314 W.A.C. 1; 2003 SCC 74, refd to. [para. 43].

R. v. Demers (R.), [2004] 2 S.C.R. 489; 323 N.R. 201; 2004 SCC 46, refd to. [para. 43].

Accurso v. Charbonneau et al., 2014 QCCA 1128, leave to appeal denied (2014), 473 N.R. 400 (S.C.C.), refd to. [para. 45].

Saint John (Municipality) v. Fraser-Brace Overseas Corp., [1958] S.C.R. 263, refd to. [para. 48].

R. v. Spencer, [1985] 2 S.C.R. 278; 62 N.R. 81; 11 O.A.C. 207, refd to. [para. 49].

Schreiber v. Canada (Attorney General), [1998] 1 S.C.R. 841; 225 N.R. 297, refd to. [para. 49].

R. v. Cook (D.R.), [1998] 2 S.C.R. 597; 230 N.R. 83; 112 B.C.A.C. 1; 182 W.A.C. 1, refd to. [para. 49].

R. v. Hape (L.R.), [2007] 2 S.C.R. 292; 363 N.R. 1; 227 O.A.C. 191; 2007 SCC 26, refd to. [para. 49].

United States of America v. Burns and Rafay, [2001] 1 S.C.R. 283; 265 N.R. 212; 148 B.C.A.C. 1; 243 W.A.C. 1; 2001 SCC 7, refd to. [para. 50].

Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; 281 N.R. 1; 2002 SCC 1, refd to. [para. 50].

Application Under Section 83.28 of the Criminal Code, Re, [2004] 2 S.C.R. 248; 322 N.R. 205; 199 B.C.A.C. 45; 326 W.A.C. 45; 2004 SCC 42, refd to. [para. 50].

Khadr v. Canada (Minister of Justice) et al., [2008] 2 S.C.R. 125; 375 N.R. 47; 2008 SCC 28, refd to. [para. 50].

Statutes Noticed:

Securities Act, R.S.A. 2000, c. S-4, sect. 41, sect. 46 [para. 1 et seq.].

Counsel:

D.J. Martin and T. Duncan, for the appellant/applicant;

D. Young, for the respondent/respondent, Alberta Securities Commission;

R. Normey, for the intervener/respondent, Attorney General of Alberta.

This appeal was heard on October 15, 2015, by Watson, Rowbotham and Wakeling, JJ.A., of the Alberta Court of Appeal. The following memorandum of judgment of the court was filed at Calgary, Alberta, on January 13, 2016.