Defence lawyer Brendan Miller has filed notice in Calgary Court of King’s Bench challenging Justice Lloyd Robertson’s conviction for two charges under the provincial act, including fraud for bilking investors in a development scheme.
Miller also wants an appeal judge to consider whether the four-year prison term handed Aitkens in August, after he spent nine months on the lam after skipping out on his sentencing hearing, was excessive.
Because the Crown proceeded by summary conviction, instead of by indictment, the appeal will be heard by a Court of King’s Bench justice.
In his notice of appeal the lawyer lists multiple grounds for why Aitkens’ convictions for fraud and making misleading statements to investors ought to be overturned.
Among them is Robertson failed “to grant the appellant’s application to re-open the voir dire (trial within a trial) regarding the admissibility of … copies of banking records.”
Additionally, “Robertson erred in finding that the Crown established beyond a reasonable doubt that the appellants actions amounted to misrepresentations, or at the material time were misrepresentations,” the appeal document states.
In challenging the four-year prison term handed Aitkens the lawyer suggested Robertson “erred in imposing a sentence that was demonstrably unfit, disproportionate and overly harsh.”
Because of the complexity of the case, which took a decade to prosecute, Miller wants a King’s Bench judge to adopt appeal filing deadlines that would apply to cases in the Alberta Court of Appeal.
“The matter is a major fraud and misrepresentation case under the Securities Act,” he said.
The notice says the timelines under the King’s Bench rules for summary conviction appeals “do not contemplate a complex matter of this nature.”
Aitkens was convicted for orchestrating a real estate scheme that saw nearly 1,500 investors contribute more than $35 million to Legacy Communities Inc., which proposed to develop a 200-hectare property west of Calgary.
But on that day then-lawyer Brian Beresh indicated he did not know why his client had failed to attend proceedings.
It was later learned Aitkens, who was charged in 2013, had crossed the border into the U.S. on that date and Robertson issued a warrant for his arrest.
He remains in custody pending appeal.
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