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CANADIAN CHARTER OF RIGHTS AND FREEDOMS - Legal rights - On being charged with an offence - To not be tried or punished again for same offence (double jeopardy)

Wednesday, December 13, 2017 @ 8:33 AM  


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Appeal by the accused, Samji, from convictions on multiple counts of theft and fraud. The accused was a notary public charged with 14 counts of theft and 14 counts of fraud in connected with a Ponzi scheme involving $100 million and 200 investors. The accused was also subject to regulatory proceedings before the British Columbia Securities Commission in respect of securities fraud. The Commission imposed sanctions including a $10.8 million disgorgement order, and a $33 million administrative monetary penalty. Upon commencement of a Provincial Court criminal trial, the accused sought a stay of proceedings on the basis the securities sanctions were a penal consequence that precluded a subsequent criminal proceeding based upon ss. 7 and 11(h) of the Charter. The trial judge refused to grant Charter relief and convicted the accused on all counts. She was sentenced to six years' imprisonment. The accused appealed.

HELD: Appeal dismissed. The appropriate way to address whether the administrative monetary penalty constituted a true penal consequence was by way of appeal pursuant to s. 167 of the Securities Act rather than applying for a stay of subsequent criminal proceedings under s. 11(h) of the Charter. Nonetheless, the trial judge correctly found that the administrative monetary penalty was for a regulatory purpose and therefore did not constitute a true penal consequence triggering the protections of s. 11 of the Charter. The penalty was not out of proportion to the magnitude of the fraud and the general deterrence objectives of the Securities Act. The penalty was determined by regulatory factors that were distinct from criminal sentencing principles. The stigma of the Commission's findings was not equivalent to that of a criminal conviction, and the effect of the penalty, while significant, was not truly punitive. In the absence of a finding that the administrative monetary penalty constituted a true penal consequence, s. 11(h) of the Charter did not preclude a criminal fraud trial. The trial judge correctly found that the conduct of a criminal trial following conclusion of the regulatory proceeding was not an abuse of process for the purpose of s. 7 of the Charter.

R. v. Samji, [2017] B.C.J. No. 2429, British Columbia Court of Appeal, R.J. Bauman C.J.B.C., J.J.L. Hunter and B. Fisher JJ.A., December 1, 2017. Digest No. TLD-December112017005