Ontario Criminal


Appeal

GROUNDS
Fact that panel characterized witness’ breach of Order as technical was exercise of judgment

Accused appealed decision of Ontario Securities Commission dismissing his application to set aside earlier order of commission approving settlement he had made with staff of commission. Accused argued that earlier order should have been set aside because of non-disclosure of material information by commission staff prior to settlement and also argued that there was bias because of participation of one member of commission in revocation hearing. Accused had been Managing Director in Mergers and Acquisitions Department of Securities firm when he was charged with ten counts of insider trading and ten counts of tipping under it was alleged that he had given confidential information to individual with whom he had had close personal relationship since secondary school, and that individual used this information in purchasing securities. Accused tried to have settlement order revoked on basis his counsel did not inform him that Crown witness, individual who had traded on accused’s information, was charged with regards to breach of his own cease trade order. Commission found that oral disclosure of witness’ breach to accused’s lawyer was sufficient, and in any event, characterized breach of Cease Trade Order as unintentional and concluded that information would not have further substantially impaired witness’ credibility in administrative or criminal proceedings. Commission noted that granting application would lead to “perverse outcome”, because new quasi-criminal charges or administrative proceedings were barred by six year limitation period. Appeal dismissed. Commission decision was reasonable and there was no evidence to support finding of bias. No reasonable person would have run risk of second criminal trial or administrative proceeding on basis of information disclosed in second interview with witness or on basis of his subsequent sanction. Accused had been informed of option to file motion to recuse commission member who had been involved in revocation hearing, but did not contest that member’s participation. Detailed reasons for decision showed careful consideration of arguments made on behalf of accused; fact that panel characterized witness’ breach of Cease Trade Order as technical breach was exercise of their judgment, based on facts presented to them. There was dissenting opinion.

Rankin, Re (Jan. 11, 2013, Ont. S.C.J. (Div. Ct.), Brown R.S.J., Swinton and Matlow JJ., File No. 590/11) 104 W.C.B. (2d) 1164.

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