Solutions, Self Defense and Best Practices

[admin]

watch this BNN video with former Toronto fraud squad detective Gary Logan

http://watch.bnn.ca/the-close/january-2 ... clip131108

in it he discusses the state of affairs currently whereby the industry is charged with policing itself, and he proposes a simple, easy to understand process where traditional police agencies are involved. This would lend some objectivity or autonomy to the process that is currently not there.

Best practices would insist that potential conflict of interest be removed from all investigative action, and I believe that this process is the top solution mentioned to accomplish this.


http://watch.bnn.ca/the-close/january-2 ... clip131108

[admin]

Mike Macdonald's



TheUnbiasedPortfolio.blogspot.com/



I thought I was done for 2008, but apparently my last blog only

left readers with questions.
This one is a response to the age old question: what should we do?
It looks to solve for all markets and situations, not just the current mess!

Tuesday, December 22, 2008

THE ANTI-RANT:

HOW TO HANDLE THE MARKETS AND YOUR SO-CALLED ADVISOR

OK, having enjoyed my rant on what to stop doing, now I will share my thoughts on what you should do!

Let me preface this by saying my beliefs carry into the work I choose to do but do not require an investor to engage my services or, anybody's, to take charge of your investments. Consider it a free consult!

Point: “ONLY YOU CARE ABOUT YOU!”

You both "earn" your money and "own" your money. It seems that many people spend more time cleaning their golf clubs than they do "managing" their money. Sorry, I do not believe the common drivel that “I am so busy I have no time”. You spend 8-10 hours each working day to earn money and then you hand it to an advisor you met an hour ago because they are your friend’s cousin’s brother and thus can be trusted.

ACTION:

Understand that Advisors and Financial Planners are simply sales people. Would you hand your chequing account to a car salesman and say hold my money until you find me a good car? Not likely yet it is almost a certainty the car dealer cares more about your follow-up business than your advisor. If your car breaks down you are immediately inconvenienced; if your portfolio breaks down you pay a price at a future date. Trust your advisor like you would any 100% commission sales person.

Point: GET AN EDUCATION!

The investment industry fills the airwaves and newspapers with financial pornography designed to excite you and thus lower your defenses as they pick your wallet. The blogosphere cannot be trusted, after all who is behind the blog and how do they make money? Ya, that includes me if you have not done your homework.

ACTION:

Go to unbiased or low biased sources. An unbiased source would be “investopedia.com” which provides definitions and articles to help explain investing(ignore the ads). A "near unbiased" source would be the Canadian Securities Institute, which is supposed to be unbiased but seems to think mutual funds are heaven sent. Take the Canadian Securities Course, it will cost you a few hundred bucks and a few hours work but it will provide some good definitions and explanations. You do not need to do the exam to learn.


Point: You need to explore your personal needs before you

go hunting for a salesperson to sell you securities.

You can’t explain what you need if you do not know what you need. The sales person knows what they need; your money and a securities company that will pay them to deliver your money. What do you need?

ACTION:

Go and get a “real” financial plan.

DO NOT accept a two page plan that says you need to put $235 / month into our mutual funds. Get a plan with at least two scenarios so you can compare options, and by the way you should choose the options not the planner. If you are good with a spreadsheet then do your own forecasts but you will need to get the tax piece right so be careful. The plan should link to your investment strategy by pointing out what rate of return will meet your future needs.


Point: You need to direct your advisor on what you need to do.

You can take advice, but never hand the wheel to the advisor. If you have less than $150,000.00 you should probably just do it yourself as you will not likely find a good advisor anyway!

ACTION:

If you want to hire an advisor, interview at least three. You should set the parameters upfront with the advisor to weed out the obvious greedy bastards.
I will not pay total costs in excess of 2% ever
I will not buy deferred sales charge funds EVER
My target rate of returns net of fees is x%, what is the lowest risk portfolio you can structure to achieve that goal over the next 5-10 years
I will not hold any individual security that represents more than 10% of my portfolio
I do not want any product where I do not understand how it works or how everybody involved gets paid
You need to get the advisor to sign the above documented objectives for your records.


Point: We are back to the key point “ONLY YOU CARE ABOUT YOU”.

You need to have independent monitoring of the investment accounts. It is best if you do this yourself. You need to have a composite or blended benchmark and you need to know your rate of return (not the rate of the fund you’re in as it will differ)

ACTION:

There are a variety of ways to monitor your accounts. The best way is to use two free websites to determine both your true rate of return and how your benchmark returns performed.
i.) www.showmethereturn.ca

ii.) www.showmethebenchmark.ca

Point: The on-going management of your account is made either hard or easy based upon whether you think you have super powers or whether you think you are normal. If you have super powers and can tell really good B.S. from the truth and can explain why the smart folks with sure fire winning strategies are giving away the information for free, then you should actively manage your money and make lots of really smart trades every day!

Action: Nobody consistently beats the markets. Nobody consistently beats the market. Yes I did repeat that for a reason. It is very expensive to buy into the delusional view that some people know what random market move will happen tomorrow.


It is quite cheap to “participate” in the markets with a good diversified low risk portfolio of index funds and ETF’s. Similarly some well monitored, well diversified “buy and monitor” portfolios will be successful over time. Pick a strategy to participate at low cost. Avoid any strategy that is designed to beat the market.


THE SECRET TO SUCCESS:
SEPARATE WHO GIVES YOU ADVICE FROM WHO SELLS YOU SECURITIES.

Every advisor needs to have a secret solution that others seek. I gave my secret away (since I am not a securities advisor).

ONLY YOU CARE ABOUT YOU…..and based upon your actions,
EVEN YOU MAY NOT CARE ENOUGH TO DO IT RIGHT!
For years I was guilty of this....very busy and very important!

To those who do care and think your money is important for what it can provide your family for years to come; put in the effort or hire somebody to do it for you.

Find somebody who is very tightly bound to your goals (by contract in writing preferably) and monitor their performance and more importantly also their strategy ,to ensure they always put your family first.

When their need comes first you will see a change in strategy. That change should be viewed as the canary in the coal mine. Look for the signs:
1. more calls and recommendations for purchases,

2. a shift to "managed", "structured" or "guaranteed" products, and

3. the biggest warning sign: when they utter the killer phrase "it's different this time".
When that strategy shift happens, get out quickly!

Your skeptically focused blogger,

[admin]

9 Signs You Need to Fire Your Financial Planner
They never asked you about your personal goals and time frames before recommending investments.
Only one company’s HYPERLINK "http://www.wisebread.com/mutual-funds-for-wise-bloggers" \t "_blank" products are recommended.
You received no written financial plan, prospectus, or documentation.
You are pressured into making investments
Your planner’s recommendations don’t match your financial goals
You can never reach your advisor when you want to, and they don’t return your phone calls.
They constantly change your investments
The plan given to you seems too good to be true
They tell you they can time the market.
Source: HYPERLINK "http://www.wisebread.com/9-signs-you-need-to-fire-your-financial-planner" http://www.wisebread.com/9-signs-you-ne ... al-planner


from www.canadianfundwatch.com

[admin]

The words "institutional crime" kept coming to me last night, in a partial explanation of this financial crisis. I think that this may be part of the difficulty in solving, preventing, or even investigating the causes of our current financial crisis.
Our police and regulators are well versed in prosecuting one man, one deed, or a few men, many deeds.

But they seem powerless to act, investigate, or even understand issues that might be perpetrated against the public by "institutions".

Imagine a non specialized police force trying to understand the issues within this current financial crisis. As we have seen, the issues were systemic. They were "the system" broken, and all persons in it were simply going with the flow. "Everyone was doing it", would be the excuse.

How do we proscute that when what everyone is doing is abusing the public (and their profession). Very difficult with today's policing and prosecution abilities in Canada.

Institutional crime has taken place at every level of every area of our economy. From pharmaceutical companies, to auto makers, to governments, banks, tobacco, RCMP, securites regulators. The list goes on. (I realize the absurdity of putting police and securities regulators in this category, but I am going on the record of their behavior, not on convenentional wisdom)

I do not have the solution, but there are steps we can take to improve:

1. A new crime reporting system in Canada, whereby crimes can be objectively received by independant, trained police agencies, and not by conflicted industry self regulatory agencies.

2. An updated definition of fraud in the criminal code, complete with a modern requirement for prosecution, rather than the nearly impossible requirement we have today. (must prove intent?) The United States has a much better model than us and our legal profession looks rather antique by comparision.

3. An ability to covene a grand jury, and compel witnesses to testify. Again the United States is making our system look antique by comparison.

4. An understanding of what "institutional crime" might be, and how it is affecting too any levels of our economy. The definition of "organized crime" in Canada is "It is serious crime planned and carried out by a group of at least three people to benefit one or more members of the group."
It is my belief that some of the self serving behaviors of our institutions meet this definition, and due to the size, scope, and quasi-authority that some of them have attained, they appear to be untouchable.

This needs to change.

[admin]

Regarding Finance Minister Flaherty's dilemma on how to replace 13 provincial and territorial securities commissions, now that it has become fairly clear that they are more likely "the problem" than they are "the solution" for some of what ails Canada.

I am going to urge Mr. Flaherty to consider the following, as I urged his department when I visited Ottawa and testified to the all party standing committee on finance re ABCP crisis:

If you find it difficult to eliminate all those commissions with all their salaried self interest, leave them alone. Establish a federal commission with powers over them, establish a federal investor protection agency with powers to enforce, and establish a federal financial investigative agency with proper skills to police financial crimes. Each of these things are now captured and "handled" in house by industry related parties.

Simply take the high ground from these 13 provincial and territorial commission who have very ably taken control of the low ground.

They will quickly dissolve into obscurity (it is hoped) after a year or two of death struggle to hang onto their salaries. Allow (or cause) them to eliminate any and all interprovincial barriers and employ the passport system that they have been using for years, so they can not hold our financial regualtory system for ransom, and effectively ignore them.

As Canada's top financier Stephen Jarislowski has said of our thirteen provincial and territorial securites commissions, "they do the square root of nothing". So let them keep doing the square root of nothing, and move beyond their industry conflicts of interest and their salaried self interest.

Move on. Establish a world class, "best practices" investment regulatory regime within a new federal framework, and simply refuse to allow it to be taken over or tainted by those who cannot separate the public interest from their own interests.

Sounds easy to say it, but probably a bit more difficult to impliment.

Good luck and god speed, before we are "helped" into third world status by these "public" agencies.

[admin]

Here is a good set of solutions written by a 50 year old blogger.
Why is it that everyday citizens in Canada seem to be trying to do the job of our thirteen provincial and territorial securities commissions? My thoughts are that it is because they are not doing the job, or as Financial Guru Stephen Jarislowski said, "the securities commissions do the square root of nothing".

Thursday, 30 October 2008
My Suggestions to the Ontario Securities Commission on Retail Investor Issues
Last Thursday I noted that the Ontario Securities Commission, the financial securities regulator in Ontario, had established the Joint Standing Committee on Retail Investor Issues and is in the process of collecting public input. Being chronically opinionated, I must take a shot at this.

To the Joint Standing Committee on Retail Investor Issues,

Here are some actions that I believe would benefit retail investors:

Increase participation and seek wider input - with only 12 people on the conference call recently, that can hardly be representative; to uncover more suggestions and ideas, reach out to the online world and solicit input from discussion forums like the Financial Webring and Canadian Business and many bloggers from mainstream media folks like Ellen Roseman, Larry MacDonald, Jonathan Chevreau and Rob Carrick, to public-spirited professionals like Preet Banerjee, Norm Rothery, James Hymas, to joe public fanatics like Canadian Capitalist,Four Pillars, Michael James, Barel Carsan, Middle Class Millionaire, Million Dollar Journey, Investing Intelligently. See the links in the sidebar of my blog CanadianFinancialDIY. I am certain you will get well-informed, though perhaps pointed comments.
Abolish the OSC and other provincial regulatory bodies and create a single national regulator. This regulator should have greater resources and ability to investigate and enforce laws on the gamut of abuses that harm individual investors. Laws and regulations are of little use unless they are enforced.
Give priority to improving the regulation of advisors/ sales reps over the products themselves. Most retail investors do not have the time, inclination or skills to manage their own investing and this is becoming less so as the number and complexity of financial products increase. Investors want and need the convenience that already exists through the selling process of various providers but they also need someone trustworthy. Make the disclosure by advisor / sales person to the client of the compensation fees and payments mandatory in percentage and dollar terms.

Make the provision of financial advice a profession with regulatory requirements for certification ( a combination of knowledge and experience), licensing registration and ethics standards that are actually enforced. Recognize that investing advice is merely a subset of overall personal financial planning and cannot be isolated from it. For example, sometimes money is better spent on insurance than mutual funds, or invested in one's own human capital or an annuity etc. The investing process must start and end with a person or family's holistic, integrated neds so that investing decisions are made in the proper context. The Investored.ca website, which you at the OSC sponsor, implicitly recognizes this by providing information on such diverse not-strictly investing topics as managing debt, buying a house and insurance.

Oblige mutual fund companies to improve their disclosure by:
revealing all the costs associated with a fund, including trading costs borne by the fund, i.e provide total expense ratio not just management expense ratio, since this can be a significant drag on net performance; the new Framework 81-406 Point of Sale Disclosure for Mutual Funds and Segregated Funds is extremely disappointing in excluding trading costs since they are significant and are said to vary considerably amongst funds; total costs are an important predictor of future fund performance. See this article in Fundscope.

providing illustrations of the effects of the charges and fees on fund performance through standardized terms from the investor's perspective so that the investor can compare across funds and companies
publishing turnover ratios of funds
I would suggest that the OSC examine the UK system of regulating advisors and fact disclosure to investors. Many of the above ideas are already implemented in the UK under the Financial Services Authority, which is the single national regulator for investment and financial advice to retail investors.

Posted by CanadianInvestor at 09:16
http://canadianfinancialdiy.blogspot.co ... ities.html

[admin]

Advisor Scorecard

http://www.secondopinions.ca/tools/AdvisorScoreCard/



Most investors get their investment advice from a financial advisor. Financial advisors can be important allies for financial success – if they are competent and have their client’s best interests at heart. Unfortunately most investors have no yardstick against which they can compare the service and advice they receive with the service and advice other investors receive and against basic standards designed to maximize the success of your investing experience.

Canadians have consumer reports to rate all kind of appliances and other material goods. We have surveys to rate the satisfaction of bank customers and for rating the effectiveness of advertising campaigns. But until now there was no simple tool that allowed you to see how your financial advisor stacks up. By using the following scorecard you can see how your advisor compares with other advisors. If you are in doubt as to whether the answer to a question is true or false – assume it is false.


go to http://www.secondopinions.ca/tools/AdvisorScoreCard/

and view some of the "best practices" checklist to see how your salesperson stack up to the pros.

cheers
advocate

[admin]

Submission to the Expert Panel on Securities Regulation

July 10, 2008

The National Pensioners and Senior Citizens Federation (NPSCF) is a democratic, non-
partisan, non-sectarian, and non-racial organization, formed in 1945. We are comprised
of 450 seniors' chapters and clubs across Canada, who have a collective membership of
1,000,000 Canadian seniors. The Federation is dedicated to stimulating public interest in
the welfare of older Canadians: helping seniors maintain a life of dignity and
independence; and educating, counseling, and advising governments on what seniors
think about issues in Canada.

POLICY DEVELOPMENT & OUTREACH
Each year local seniors' clubs and chapters submit briefs and
resolutions on issues of concern to their members to the Provincial
Branches for debate. If accepted, the Provincial resolutions are then
forwarded to the Annual Convention of the National Pensioners and
Senior Citizens Federation for further debate and a vote. The NPSCF
Executives bring the resolutions brief to the attention of every
member of the House of Commons and Senate. It holds meetings with
Federal Cabinet Ministers and their Opposition Critics.

The National Pensioners & Senior Citizens Federation adopted the following resolution
at its National Conference in Truro, Nova Scotia on September 19-23, 2006:

The National Pensioners and Senior Citizens Federation resolves that the Canadian
Federal Government uses its constitutional jurisdiction to introduce new federal
investor protection laws and enforcement governing securities, and the setting of
accounting and auditing standards.

At an Ottawa media conference on October 18, 2006, our Federation asked the Federal
Government to create two new bodies - a national investor protection agency and an
independent accounting standards board. Every other industrialized country of the world
has such bodies for the protection of the savings of its citizens and foreign investors. We
have tried fragmented provincial securities regulation, where the setting and enforcement
of investor protection and accounting standards are delegated to the investment and
accounting industry self-regulatory organizations. The current investment protection and
accounting regulatory systems are failing seniors, individual Canadians saving for their
retirements and pension fund beneficiaries.
The new national investor protection agency and new independent accounting
standards board must have proper civilian oversight, strong enforcement and
restitution powers, otherwise Canadians cannot be confident that anything has
changed from the status quo.

On October 18, 2006, the NPSCF held a media conference in Ottawa to ask the Federal
Government to place a moratorium on new income trusts. On October 31, 2006, Federal
Minister of Finance James Flaherty introduced a new income trust tax, which was
supported by the NPSCF because it curtailed new income trusts, that were being sold to
seniors at inflated prices based on artificially high cash yields. The high cash yields were
not sustainable with or without the new income trust tax, and now 44% of all the income
trusts have significantly cut or suspended distributions, with the average cut being 60%.
If one bought all the units in business income trusts on the day of their latest public
offerings, he would have a cumulative capital loss of -$1 billion as of July 3, 2008. The
components of this cumulative loss is: +$14 billion capital gain from just four names,
Aeroplan, Fording Coal, Labrador Iron and Pembina Pipe; +$5 billion capital gain from
58 business income trusts; and, -$20 billion capital loss from the balance of 112 business
income trusts, or 60% of all business income trusts, in a capital loss position. The average
capital loss % is -36% among the losing business income trusts (of which at most -10%
can be attributed to the new income trust tax.)

Artist, Robert McInnis of Manitoba, has lost confidence in his securities dealer that
placed all of his life savings in income trusts. Everyone of the income trusts he owned cut
its distributions. Relying upon a registered financial advisor employed by a major bank-
owned dealer, this senior lost almost one third of his life savings. Not able to afford civil
litigation and worn out by the fight, Robert recently accepted a $0.30 on the $1.00 cash
settlement with his securities dealer.

To get justice for millions of seniors like Robert McInnis, the NPSCF joined the United
Senior Citizens of Ontario and the Small Investors Protection Association on March 30,
2006 in an official request for an RCMP Integrated Market Enforcement Team criminal
investigation of the securities dealers’ marketing of income trusts to seniors. We have
been informed by letter that the RCMP IMET takes our income trust criminal complaints
seriously, but there is no announcment of an income trusts criminal investigation, nor
have any criminal charges been laid. On the income trust file, there has been only one
Finance Canada official charged for his alleged use of confidential Government of
Canada information about no tax on income trusts and reduced dividend taxation, which
he used to buy securities in 2005 at a profit for himself. There were billions of dollars of
trusts bought prior to the 2005 government announcements and numerous admissions
from people receiving advanced information from various government officials, but no
one in the investment industry was charged with illegal insider trading.

Evidence of investment industry misconduct affecting seniors and pension beneficiaries
is overwhelming. CIBC signed settlement agreements with the U.S. Department of
Justice and U.S. SEC for financing illegal securities schemes at Enron - Royal Bank and
TD still have civil lawsuits pending for their involvement with Enron. A recent class
action alleges that the BMO-owned securities dealer systematically conducts
unauthorized foreign exchange transactions in RRSP and RRIF accounts. All securities
dealers are believed to conduct the same illegal FX transactions in the registered
accounts. The list of investment fund fiascos grows monthly, including the market
timing of mutual funds by sophisticated market players and the collapse of the Crocus,
Norbourg, Northshields, and Portus funds.

Recently 1,800 Canadian families, a high proportion of which were seniors, waged a very
public battle against their securities dealers for full cash settlement and accrued interest
for their frozen Non Bank ABCP sold to them as a top credit rated and safe savings
product. The government, corporation and pension fund owners of Non Bank ABCP are
being forced to make compromise settlements in the Non Bank ABCP CCAA
Restructuring Plan administered in the court. Marked to market losses from Non Bank
ABCP will likely be over -$16 billion, or -50%, when the new long term notes begin
trading in the secondary market.

Donna and Bruce Boyd of Mill Bay, British Columbia sold their home and have
$428,000 tied up in ABCP. Their new home bought for retirement is funded by a BMO
loan costing them $2,700 each month. “We are struggling to keep our home and
retirement at this stage is only a dream.” The Canaccord Client Relief Plan of cash
settlement for up to $1,000,000 of ABCP is returning the Boyds’ life savings, but no one
is paying for their out of pocket financial damages and one cannot replace their year of
emotional distress leading into retirement.

Janet Carey’s 89 year old mother lives in Kitchener, Ontario and she suffers from
Alzeimers. The money from the sale of her home was placed in ABCP. Janet will have
to fund her mother’s nursing home expenses, if her Credential Securities cash settlement
falls through.

John (not his real name) does not want his name published for fear that his 73 year old
mother and 95 year old grandmother will find out that their life savings are frozen in
ABCP. The grandmother’s home was sold to pay for her nursing home expenses.
Without the promised cash settlement from Credential Securities, “my 95 year old grand
mother is living with my Mother, following hip replacement surgery. How long my
Mother will be able to look after my grandmother is uncertain. At present, without
family support, or the sale of my Mother’s house, there are no nursing home funds
for my Grandmother.”

Gulmahomed Kapadin is 79 years old and because of his visual impairment he was
unable to attend the Purdy Crawford Information Meeting on ABCP in Vancouver.
“When purchasing this investment I was assured that it had AAA rating but now I
find that these top ratings are not reliable. It will be a great financial loss for me at
this age and disability I have.”
Taras and Sharie Kuchers of Toronto, Ontario say, “we are reaching retirement and
our health is dictating a need to stop working shortly. All our funds and RRSP’s
were in this commercial paper, so we have nothing left.”

Jennifer and Bill (not their real name) of Alberta have their whole life savings tied up in
ABCP after it was moved out of the stock market and strictly instructed to be in cash. “I
can only describe the stress as similar to our feelings when we lost a close family
member.”

Dave and Alvina Nicholas say, “As senior citizens we too have an expectation that the
government will protect their citizens from fraudulent practices in the banking
system. It has created hardship as I have been forced to return to work and am now
suffering from high blood pressure and other symptoms of severe stress… It is hard
to believe that these highly leveraged devices were ever allowed to be sold in
Canada. Clearly we would like to see criminal action taken against those involved.”

Angela Speller writes, “My husband and I retired five years ago and until last August
we believed that we were reasonably well positioned financially for our retirement.
Our goals have always been quite modest: a simple life style for ourselves and most
important in our lives, assistance for our children to complete their education…At
the moment we need $40,000 for our son to be able to continue his education in the
USA and to pay for health insurance there; however we have no way of getting at
our own savings.”

Gary Webber a pastor and an ABCP victim himself informs us that “The effects on
many people’s lives have been devastating _ the fear that surrounds the possibility
of losing the money has been even debilitating for some of them. As a pastor my
concern is for the personal distress that results as people are placed in these
situations that they are really powerless to effect.”

And, Yulan Wong says, “I do not eat and cannot sleep. I have excruciating pain
(physical and mental) constantly being anxious and still in shock. …When the
account was opened with my niece’s money (some belonging to her siblings) she
strongly emphasized that she only cared about the capital being preserved as stated
in your Account Information form. Her knowledge about investment is limited to
cash in a savings account. She lost both her parents to cancer and I have reminded
Mr. Evans constantly that I have to be most careful with the funds entrusted to me?

In light of all the stories we heard from seniors owning ABCP, the NPSCF was moved
to write a letter to the National Bank of Canada on July 2, 2008 asking that it not
use the Hardship Test from the Portus Alternative Asset Management
Inc. receivership in any dispute resolution and particularly not in the case of Marilyn
Avrith, a Montreal Quebec senior widow, who has lost close to 80% of her life savings
tied up in ABCP. The bank sold Marilyn ABCP as a safe and top rated savings product
and now there are widespread allegations of negligence, and perhaps fraud, in the
product’s design and sales process. The “Portus Hardship Test,” is the “Cat Food Test,”
by another name. Under this test, seniors get only enough cash back to pay for the
necessities of life and where alternative sources of funds for the client are limited. The
seniors in our Federation cannot tolerate banks and securities dealers taking the
savings of seniors by selling them defective income products said to be safe and top
credit rated. It is insulting that the banks, securities dealers and their legal
representatives have the audacity to apply the Portus Hardship Test for
reimbursement of seniors’ lost life savings caused by their negligence and possible
fraud, while their own executives take out hundreds of millions in compensation and
the banks make billions of dollars annually.

Sophisticated market players have co-opted the investment industry and accounting
industry self-regulatory organizations and even the provincial securities commissions and
the Office of the Superintendent of Financial Institutions, who are suppose to be
government authorities with public interest mandates. There is both rogue fraud and
systemic negligence and fraud going on in the investment industry, with unsophisticated
seniors and other retail investors being the predominant victims. In addition to securities
crimes not being investigated or prosecuted, the banking and investment industries
routinely receive regulatory and legal protections, that promote industry profitability and
are contrary to investors’ interests.

For example, Canadian securities regulators effectively deny the sale of mutual funds to
Canadian by foreign mutual fund companies and so Canada has the highest mutual fund
management expense ratios in the world. The exorbitant mutual fund fees cause our
seniors to have one third less personal savings for retirement than other retirees in the
world saving the same amount of their incomes.

Another example of recent undue influence on government regulation, is that the
international banks involved in the ABCP fiasco somehow managed to get a Federal
Companies’ Creditor Arrangement Act regulatory exemption on November 17, 2007 that
took away the authority for a CCAA court judge to order a stay on international banks
seizing collateral assets to pay for their debts owed by the Canadian trusts. The
exemption was granted in the middle of the largest credit restructuring in Canadian
history involving $32 billion of Canadians’ savings placed in ABCP. The impact of this
exemption was that Canadian ABCP creditors were stayed by the CCAA judge, while the
international bank creditors were not, and so the judge was unable to impose a stricter
fairness and reasonableness standard on the ABCP CCAA Restructuring Plan legal
release without risking the international banks walking away from his court administered
ABCP restructuring.

The National Pensioners & Senior Citizens Federation adopted the following resolutions
at its National Conference in Saskatoon, Saskatchewan on October 24-26, 2006:

The Federal Government fix the civilian oversight at the Commission for
Complaints against the Royal Canadian Mounted Police: so as to accord power to
summon RCMP officer and witness evidence under oath and to compel the
production of documents; and, to make Commission decisions binding on the
RCMP's conduct.

The Royal Canadian Mounted Police Integrated Market Enforcement Teams be
required to conduct white collar securities crime investigations with competence,
integrity and collaboration only with international, municipal and provincial police;
without direction or interference from federal politicians, the investment industry
self regulatory organizations and provincial securities commissions, who are seeking
to protect the reputation of political parties and the investment industry.

On April 26, 2007, the NPSCF conducted a media conference in Ottawa asking the
Federal Government to address Canada's malfunctioning securities regulatory and
securities crime policing system. Since then, two former senior investigators of the
RCMP IMET, Bill Majcher and Craig Hannaford, have spoken out about the RCMP's
white collar crime policing problems in an article written by Canadian Business, "A
Good Country for Crooks, If you suspect Canada is soft on white-collar crime, these ex-
Mounties have news for you: it's worse than you think," dated September 24, 2007.

In the RCMP Accountability Framework 2006, an EKOS Survey, Wave 3, 2005-2006
finds that over two thirds of seniors are concerned about becoming a victim of fraud.
When asked about what type of crimes Canadians were personally more concerned about,
those polled rated:

• Economic crime first at 68%
• Gang violence second at 59%
• Gun crime third at 51%
• Property crime forth at 48%
• Terrorism rated last at 30%

Seniors want the security of knowing that the RCMP is working well with provincial and
municipal police forces, and that securities crime is being vigorously pursued and
prosecuted in this country.

Art Field, President of NPSCF attended a meeting on March 11, 2008 in Ottawa with
officials from the Federal Ministry of Public Safety and Emergency Preparedness and
RCMP Integrated Market Enforcement Team (RCMP IMET). Diane and Hugh Urquhart,
members of the NPSCF, attended this meeting with him. In attendance for the Ministry
of Public Safety was Barry MacKillop, Director General Organized Crime and Border
Services Strategies; and, Yves Leguerrier, Senior Policy Analyst and Matt Boldt, Policy
Analyst of the Organized Crime Public Policy Division. In attendance for the RCMP
Integrated Market Enforcement Team was Dean Buzza, the Acting Director of this
securities crime unit; and, Joe Hull, RCMP sergeant and securities crime investigator.
The outcome of this meeting was not successful, since there appeared to be a reluctance
by the officials present to accept the need for stronger independent civilian oversight and
the creation of a new independent securities criminal complaints intake and assessment
system jointly administered by the RCMP IMET and the provincial and municipal police
forces.
The government officials appeared to promote the RCMP IMET having greater
integration with the provincial securities commissions and investment industry self-
regulatory organizations, despite the clear evidence that these regulators and self-
regulators are controlled by the investment industry and have an abysmal record of
securities law enforcement. We learned that the RCMP IMET supports new proposed
powers to force witness testimony in a securities criminal investigation without a court
warrant and to use sworn testimony obtained without a court warrant by the provincial
securities commissions in regulatory investigations. These new tools would violate the
Charter of Rights and Freedoms and therefore would not serve either the securities crime
victims or the accused perpetrators very well. We need to adopt reforms in a balanced
justice system that has appropriate checks and balances and public accountability
mechanisms.

While the many details of securities regulation and securities crime policing reform
need to be worked out, the NPSCF supports the following:

• A new Canadian Securities Commission that provides effective investor
protection regulation and enforcement and provides a simple and
inexpensive process for obtaining restitution of damages caused by securities
violations.

• A new accounting standards agency that provides for consistent and honest
financial reporting that is useful to investors and pension beneficiaries
seeking retirement income security.

• A new securities criminal intake and assessment system jointly administered
by the RCMP IMET and the fraud squads and anti-rackets units of the
provincial and municipal police forces of Canada. This new system would
eliminate the current reliance of securities crime police on the investment
industry self-regulatory organizations and the provincial securities
commissions for case referrals, information sharing and expertise.
This is respectfully submitted by the executive on behalf of the one million plus members
of the NATIONAL PENSIONERS AND SENIOR CITIZENS' FEDERATION.

ART FIELD
PRESIDENT
Box 92, Little Britain, Ontario KOM 2CO
Phone: (705)786-2778 Fax: (705) 786-0350
E-mail: afield1@sympatico.ca

ART KUBE
1st VICE-PRESIDENT
16646-84 A. Avenue, Surrey, British-Columbia V4N 4X4
Phone: (604)576-8000 Fax: (604) 576-8000
E-mail: aakube@telus.net


SHEILA RIGHI
2nd VlCE-PRESIDENT
315 28th Street East, Prince Albert, Saskatchewan S6V 1X4
Phone: (306) 922-8238

JOHN GATENS
3rd VlCE-PRESIDENT
1 Joshua Blvd., Brooklin, Ontario, L1M 2J1
Phone: (905) 655-6314
E-mail: johngatens@rogers.com

FERN HAIGHT
SECRETARY
Box 393, Hanley, Saskatchewan SOG 2E0
Phone: (306) 544-2737 Fax: (306) 544-2757
E-mail: fern.h@sasktel.ca

JOYCE MITCHELL
TREASURER
44- 2nd Avenue, Trenton, Ontario K8V 5M6
Phone (613) 394-0739
E-mail: mitche1l2@sympatico.ca

Diane A. Urquhart
Independent Financial Consultant to NPSCF
1486 Marshwood Place, Mississauga, Ontario, L5J 4J6
Tel: (905) 822-7618 Cell: (416) 505-4832
urquhart@sympatico.ca

[admin]

"fraud can't be proven in Canada at the best of time in Criminal Court because we, unlike the U.S., have to prove "intent" -- because our law and order government won't amend the criminal code to catch the big fish"



copied from another post that will be found in the forum on ABCP posted on this same date

Canadians must prove "intent" to capture a fraudster, and thus Canadians allow fraud to be prevalent in this country.

How can we expect the smartest, richest, and at times, most money addicted people in Canada not to take advantage of these legal shortcomings? the rewards and too great and the punishment is nil.

this is yet another of a dozen or so items that Canada needs to correct to get the country into economic shape.
that is my opinion

[admin]

On June 27, 2008, the United States Senate adopted new legislation that imposes additional fines on investment industry players who commit securities violations against seniors 62 years old and older. Canadian seniors were the target of financial abuse in the Canadian income trusts and Canadian Non Bank ABCP markets. Seniors were enticed to buy income trusts at inflated prices by way of deceptive high cash yields and assurances that the cash yields were sustainable and these income securities were safe. The capital losses on imploded Canadian income trusts are $18 billion as of June 27, 2008. The Non Bank ABCP was sold on the basis of top credit ratings that were inaccurate and bank guarantees that proved to be non-existent. Non Bank ABCP capital losses are expected to be $16 billion, when the new long term notes begin trading sometime in the next month or so. On these two income-oriented securities alone, the combined capital losses are $34 billion.

Yet, there are no Canadian securities regulatory or securities criminal investigations going on, to my knowledge, in either of these two investment products that were sold vigorously to Canadian seniors. The Investment Industry Self-Regulatory Association is conducting a compliance review concerning Non Bank ABCP, which is not defined to be an investigation. Also, the Ontario Superior Court of Justice, in its ABCP CCAA Restructuring Plan sanction decision on June 5, 2008, has ordered that the IISRO cannot determine remedies that award or make restitution to any Non Bank ABCP owners who have lost money due to investment industry people breaking IISRO rules. This decision is notwithstanding the fact that there are several Canadian seniors, and others, who are not part of the $200 million of estimated cash settlements being paid to Canaccord and Credential Securities retail customers if the ABCP CCAA Restrucuturing Plan is successfully implemented.

By comparison, the U.S.authorities are moving to increase penalties for people who commit securities violations against seniors as noted in the attached Investment News article, "Legislation addresses fraud against seniors," dated June 27, 2008:

"Legislation that would increase penalties for people who commit securities violations against seniors was introduced in the [U.S.] Senate today. "
"As they turn to investments to bridge the gap, seniors need to know that they can trust the people who handle their money, he said. The bill, titled the Senior Investor Protections Enhancement Act, would increase penalties for those who take advantage of investors 62 and older.

Additional fines of up to $50,000 would be levied for violations, which could include selling unsuitable products to seniors or failing to disclose fees or lock-up periods for investments."


Diane Urquhart
Independent Analyst
Mississauga, Ontario
Telephone: (905) 822-7618
Cell: (416) 505-4832
E-mail: urquhart@rogers.com

[admin]

Academic counters Flaherty’s bid for national securities regulator

National securities enforcement agency more achievable, says Queen’s professor

Wednesday, June 4, 2008

By IE Staff

Last week, federal finance minister Jim Flaherty once again attempted to muster enthusiasm for a Canada-wide national securities regulator among his provincial counterparts, with little in the way of results.

Steve Salterio, professor of business and director of the CA-Queen’s Centre for Governance, suggests now is the time to look at more creative alternatives.

“The finance ministers’ meeting is yet another sign that there is little hope that such national securities commission is any closer to coming into being,” Salteiro says.

“If we can’t achieve the international norm of having a single national securities regulator, we need to leave the various provincial regulators in place and move the enforcement part into a single national securities enforcement body,” he says.

A national securities enforcement body would be a focused organization with the sole mandate to investigate and enforce the various multilateral and national securities laws and regulations that are in effect across Canada. The power to make laws and regulations would remain where it has been for the last hundred years, with the provincial government and their securities commissions.

The proposals ensures there would be no loss of sovereignty or jurisdiction at the provincial level, “but enforcement makes a quantum leap forward.”

According to Salterio, the advantages to having a national securities enforcement body include:
Focus: The body would only focus on investigation and enforcement of regulations leaving day-to-day administration and adjudications of securities regulations at the provincial level. This also ends the appearance of conflict when securities commissioners have the combined roles as regulators, police, prosecutors and judges.
Expertise and capacity development: An elite enforcement unit with national level responsibilities would be better placed to attract the best and the brightest lawyers and accountants.
Specialized prosecution support teams: Crown prosecutors need support from dedicated teams of lawyers and accountants to ensure that they are able to clearly explain these matters to judges in a manner that makes sense.
Economies of scale in enforcement: The larger the enforcement unit, the lower the cost per investigation.
“A well-resourced national enforcement body would be a huge step forward for the protection of investors in Canadian capital markets in both appearance and in reality. While others dream of perfection and national securities regulators, the international reputation of our capital markets require that we should be a tad more Canadian and be more realistic: let’s create an enforcement agency that has some real teeth. And let’s do it soon,” he concludes.

Salterio is a PricewaterhouseCoopers/Tom O’Neill Faculty Research Fellow in Accounting and Director of the CA-Queen’s Centre for Governance.

[admin]

This article pertains to misleading marketing in the USA. Canada is yet to recognize such tactics.
--------------------------------------------------------------------------------

States to crack down on 'senior' designations
Model rule could stem fraud by demanding show of expertise

By Charles Paikert
May 26, 2008

Reacting to abuses in the marketing of financial products to seniors, several states are set to adopt model laws and regulations that will oversee designations and certifications that purport to demonstrate expertise in retirement and the financial needs of older investors.
Colorado, Maryland, New Hampshire, North Dakota, Virginia and Washington are readying new legislation or rules based on a model approved by the North American Securities Administrators Association last month. The model, developed by the Washington-based group of state regulators, is based on a pioneering Massachusetts rule adopted last year.

Some states, including Nebraska, already have adopted rules or legislation aimed at senior designations. Missouri, California and other states are expected to enact laws modeled on the NASAA template in 2009.

Widespread adoption of the model rule is expected to be aided by the Senior Protection Act of 2008, proposed legislation sponsored by Sen. Herbert Kohl, D-Wis., chairman of the Senate Special Committee on Aging. The bill would give states federal grants if they adopt the model.

The legislation has been referred to the Senate Judiciary Committee, but at press time a hearing had not been scheduled.

While Capitol Hill observers believe the bill is unlikely to become law before the end of the current congressional session in October, its prospects are considered good for the next session, especially if Democrats increase their majority in Congress.

Without adopting a standardized rule, states ran the risk of each "doing its own thing," said Keith Hickerson, vice president of marketing and student success for The American College in Bryn Mawr, Pa., which offers a senior designation, the chartered adviser for senior living.

"A lot of states were waiting for a common rule," he said.

Certifications or professional designations prohibited by the NASAA model rule include those obtained from an organization that "is primarily engaged in the business of instruction in sales and/or marketing [and] does not have reasonable standards or procedures for assuring the competency of its designees or certificants."

The rule requires organizations to monitor and discipline designees for "improper or unethical" conduct and to have reasonable continuing-education requirements to maintain the designation or certificate.


Keith Hickerson: Doesn't want states to do their own thing. "The rule is meant to eliminate designations that are nothing more than marketing documents," said NASAA president Karen Tyler, the Bismarck-based securities commissioner for North Dakota. "It strengthens the arsenal regulators can deploy in the fight against senior fraud."
Penalties for violating the rule will vary state by state, Ms. Tyler said. In North Dakota, where the model rule is expected to be in place by October, each violation could bring a penalty up to $10,000, she said.

In New Hampshire, where the rule is scheduled to become law next month, penalties include fines and revocation of the offending organization's license, said Mark Connolly, the state's Concord-based deputy secretary of state and its director of securities regulation.

"[The rule] puts users of these designations on notice that regulators are paying attention," said Melanie Lubin, the Baltimore-based Maryland securities commissioner, who led the NASAA task force on the model rule. "It sets a standard that credentials have to meet in order to be legitimate and makes investors more aware of what might be a dishonest practice."

The model rule also recognizes two Washington-based organizations, the American National Standards Institute and the National Committee for Certifying Agencies, as well as organizations approved by the Department of Education, as qualified to accredit organizations offering designations as long as the designations and credentials do not "primarily apply to sales and marketing."

The rule will "go a long way toward standardizing quality" for senior designations and certifications, said Roy Swift, ANSI's director of programs, certification and accreditation.

To date, no organization has submitted a senior designation or certification to the institute, he said.

The model rule may also serve as a standard for all financial services designations in the future, according to Dede Pahl, executive director of Denver-based Investment Management Consultants Association.

"It's well regarded and good for investors," she said. "It also has good, solid criteria and can be used to review any designation."

New Hampshire's Mr. Connolly agrees. "It could be a model beyond seniors. People are confused, and something is needed," he said.

While NASAA has not yet talked about expanding the model rule to designations beyond the senior markets, "it's certainly worth a discussion," Ms. Tyler said.

E-mail Charles Paikert at -cpaikert@investmentnews.com.

[admin]

----- Original Message -----

Sent: Sunday, April 27, 2008 3:05 PM
Subject: Voice from your past


Hi Larry,

Hope you remember me from years ago. I'm still living in XXXXX and still working with XXXXXX. however I am taking a year off to see if I can afford to retire. We even still live in the the same home we bought when moving here.

Anyway, the reason I am writing is because I just saw you on W5 and the timing was perfect. I read a bit about what you are doing now and I must say 'congratulations' to you. I think it's helping a lot of people to get a better understanding of just what really goes on behind the scene in some cases. It just happens that I am thinking strongly on making an 'investment adviser' move and my accountant had recommended someone at XXXX here in XXXXX. I'm having my second meeting with her on Wednesday. I've been with XXXXXX probably since you and I dealt together and just haven't been very satisfied with my broker. It's such a mine-field out there trying to find someone new, that I was wondering if you make any suggestions or recommendations. I have about half my RSP now in mortgages that I do myself, but I feel I should have diversification in the markets. If so many brokerage firms are driven by their interests rather than their clients, what is the solution?? Is there one?

I haven't read enough about what you are doing to know if I'm off base asking you this, but I know you and I felt you would give me good advice. Any help would be greatly appreciated.

Thanks so much,



thanks Eric. good to hear from you again. Of course I remember you. Everyone out here remembers you fondly.

My experience with investments, plus some of the real estate stuff I was doing while I was working led me to conclude that the real estate was a "more controllable" investment than other passive investments. Real estate is more difficult to manage of course.........

I must say it is difficult to make any suggestions Eric. It comes down to whether the person you go with is of high ethical fabric, and that is easily faked, and terribly hard to measure. Females, I found to be less "predatory" than males, but beyond that they still suffer from the system which rewards the hungry and punishes the ethical.

One solution (that will probably never work) is to find a broker who is willing to put in writing what their fiduciary obligations to you the client are. Now most salesmen would not know who to spell that word, much less live up to it, a few (small few) know and understand that. Your job as a client is to understand the 80/20 rule. that is Parado's law, which suggests that 80% of the professionals you meet, (realtors, judges, cops, financial advisors, etc., etc) are not living up to the role, but simply pretending. The other 20% are truly trying their best to be the best they can be. Your job is to find those who are truly trying to be professional and skim out all those who are simply "posing".

My advice is to start with the females, interview a few, let them show you copies of the professional "process" they follow. Is there a disclipline that they believe in (right or wrong) or are they simply making it up as they go along. Can they backup that investment process with records, track records, experience, and does it make sense?

What are thier educational designations. They are given out like candy in this day, so unless they are far past the old CFP, (they are pretty basic). Look for FCSI, the highest designtation for education and experience from the Canadian Securities Institute. Look for CIM, CFA. CFA is one of the most professional and demanding courses out there and only the most serious people will have it. (CFA's also have the lowest number of complaints against them in the industry)

Do they follow the "Uniform code of Fiduciary Conduct" or do they even know what it is? It is a USA standard that goes with the ERISA act (employee retirement income security act) and it gives the best guidelines for conduct for a broker to follow. If they are aware of that and can demonstrate that they follow it, you are dealing with someone exceptional. (The fact that it is a US code of conduct should never bar a true professional from rising to or recognizing its high standards of practice)

Do they give you a written letter of engagement, and can you please have a copy of it before you sign on? This is a letter that outlines what the expectations and obligations of your new relationship is. Or, again, are they winging it, and making it up as they go along?

Do they give you a written "Investment Policy Statement" which describes your situation to a tee, and understands your objectives, your risk tolerance etc,. etc, and is willing to work to obtain that? If not, they are making it up as they go along. (make sure their investment policy is not just "boilerplate" that they fill in with your name etc.

(None of the above will guarantee investment performance, just like simply pursuing happiness will not guarantee that one finds it.............but, with a very professional process in place, followed by disciplined, trained and experienced people, you are at least ......."on the the correct road towards investment performance".)

This is where many clients go wrong, they get sold on "pursuit of performance" as the only objective, and this (like pursuit of happiness) is impossible without a well drawn out plan, but many salesmen will sure promise it to you. Deal with someone who only does business in the most professional manner, and who has high enough qualifications (to deal with them) that they will not accept you as a client unless you agree to work within some of the "best practices" outlined above.

Last, but not least is the question of compensation disclosure. This is the terribly rare and often not done, bit of information where the professional give you, in writing, a copy of how and how much they charge or how they are paid, either by yourself, or through various incentives, kickbacks etc by product vendors, etc. This is a tough one to ask most salesmen, and it will truly separate the men from the boys, to use a phrase.


Get them to show you as much towards these "best practices" as possible, you will not find anyone to give you them all. (if you do, let me now and I wish to meet them, as they are a rare bird indeed)

Stay 1000 miles from anyone who calls themselves a "vice president". It (the title) is too often used as a sales reward, given to the top several hundred sales people, and it is too often given to them for sales performance, not client performance.

Stay 2000 miles from anyone who tries to sell you a "house brand" fund, or other propriatary product. They are not adisors at all, just product salesmen.

When they invite you to discuss "estate planning", remember that this is an invitation to a life insurance pitch, without ever using the word "life insurance". SOmetimes life insurance is a good estate planning tool, just like sometimes Amway really does help people, just be wary of those who invite you into the discussion without being honest enough to identify the product they are pitching.

That is enough out of me Eric. I will post in on my Flogg (names removed) under the topic of "solutions, self defense) can call it "advice to a friend"

I hope it will help you to better understand the sales game that is finance, and to separate the 80% who are often predators, from the 20% who are professional.

cheers and best regards

larry
www.investoradvocates.ca

[admin]

While I agree with the following article in principle, and have suggested in the past that "grand Jury" types of proceedings are one of the essential ingrediants required in our Canadian system to get to the truth faster...............it is apparent to most industry experts who contact this forum that the OSC and the RCMP are so far voted, "least likely to succeed" when it comes do enforcement and protection of Canadians.

If laws were put into place, combined with regulators or police who were equipped and prepared to enforce them, we would be miles ahead of where we are today............advocate

New powers sought by OSC, police

Witnesses in fraud cases should be compelled to testify and speak to investigators, joint task force says

KAREN HOWLETT AND JANET MCFARLAND

April 16, 2008

Police would be able to force witnesses to testify in white-collar crime cases under a controversial proposal designed to give prosecutors sweeping new investigative powers, sources say.

A task force report prepared by securities regulators and the RCMP recommends that potential witnesses who are not the target of an investigation should be compelled to provide evidence, according to sources familiar with the document. The recommendation is part of a plan to strengthen Canada's dismal record for prosecuting securities fraud and other white-collar crimes.

The RCMP's white-collar crime unit has tackled many of Canada's biggest securities investigations, but has laid charges in only a few minor cases. It has faced criticism for probing cases including Nortel Networks Corp., Royal Group Technologies Ltd. and Norbourg Asset Management Inc., without laying charges.

The task force report says police officers need more investigative powers when witnesses refuse to be interviewed during the investigation phase of a case, before charges have been laid or a trial has begun, the sources said. The RCMP has long complained that the existing system hampers their ability to successfully prosecute a case.

The proposal has been opposed by some people within the justice community, however, because it is viewed as a potential encroachment on an individual's Charter rights, said a senior securities official.

The Charter of Rights and Freedoms protects individuals from being compelled to give testimony that can be used against them in a criminal matter.

"One would be hard-pressed to ever see that becoming a reality in the context of the Charter," said Peter Kormos, an Ontario New Democrat and former attorney-general.

The sources also said there have been concerns raised that something intended only for white-collar crime cases could be expanded to drug and murder investigations. "That's what justice has been grappling with," an RCMP source said.

Under the proposal, police would be given new witness subpoena powers to gather evidence from bankers, accountants and others involved with a company under investigation but who are not themselves the target of a probe. As things now stand, these individuals can refuse to answer questions.

The report was submitted to federal, provincial and territorial justice ministers last November but has not yet been made public.

Federal government justice officials were not available for comment yesterday. But Finance Minister Jim Flaherty addressed the proposal in the recent federal budget.

"This is a complex issue that requires careful study," he said.

David Wilson, chairman of the Ontario Securities Commission and co-author of the task force report, will talk about enhancing Canada's enforcement procedures in a speech today at the Economic Club of Toronto.

Prominent Toronto securities lawyer Joe Groia said yesterday that he would insist his clients be given immunity from prosecution before agreeing to give evidence to the RCMP for an investigation.

He said he would be concerned that police may interview someone as a witness who later is reclassified as a potential suspect as the investigation proceeds. He said legal problems would arise if that person is later charged in the matter.

"There's a fundamental constitutional right to remain silent that has to be considered in any criminal prosecution," he said.

The RCMP's white-collar crime unit, known as the Integrated Market Enforcement Team (IMET), has been lobbying for some time to get greater powers to investigate securities crime.

[admin]

THE HILL TIMES, MONDAY, JANUARY 7, 2008
OPINION

Fixing Canadas Third World securities crime enforcement

OSC, RCMP, regional and municipal police forces cannot

continue to send all persons with complaints of wrongdoing

in the investment industry to the investment industry Self-Regulatory Organizations.

By DIANE URQUHART

We have to do a complete overhaul of Canada's process for receiving complaints from the public and whistleblowers about white collar securities crime, since the current approach is failing and is designed to fail.

There have been four advisory reports submitted to the Canadian government with recommendations for restoring the reputation and effectiveness of the RCMP. None of these advisory reports address the fundamental flaw of Canada not having a securities crime complaints intake system managed by police, rather than the investment industry Self-Regulatory Organizations (SRO) and provincial securities commissions.

The Report of the Task Force on RCMP Governance and Cultural Change submitted on Dec. 14, 2007 to Minister of Public Safety Stockwell Day and to President of the Treasury Board Vic Toews, is seeking greater control of policing functions by a new civilian Board of Management.

The Nick Le Pan Report, Enhancing Integrated Market Enforcement Teams [IMET], Achieving Results in Fighting Capital Markets Crime, submitted on Oct. 25, 2007 to RCMP Commissioner William Elliott, is asking for greater collaboration between the RCMP IMET and the investment industry Self-Regulatory Organizations and provincial securities commissions. The Report of the Standing Committee on Public Accounts, Restoring The Honour of the RCMP: Addressing Problems in the Administration of the RCMP's Pension And Insurance Plans, submitted by its chairman Liberal MP Shawn Murphy in December 2007 to Parliament, is not addressing the structural change necessary for proper white collar criminal investigations of internal RCMP personnel.

The Federal Provincial Justice Ministers Securities Enforcement Working Group Report submitted to Federal Minister of Justice and Attorney General Rob Nicholson and to the provincial justice ministers on about Nov. 13, 2007, is not being made public. David Wilson, chairman of the Ontario Securities Commission (OSC) and Co-Chair of this Working Group, and the RCMP IMET, were criticized in the Dec. 1-8, 2007 Toronto Star series, Ontario Enforcement Third World.

The OSC, RCMP, regional and municipal police forces cannot continue to send all persons with complaints of wrongdoing in the investment industry to the investment industry Self-Regulatory Organizations the Investment Dealers Association and the Mutual Fund Dealers Association. These SROs have no legislative authority, nor public accountability mechanisms, to ensure that wrongdoers are properly investigated and prosecuted.

(a) the SROs lack any of the legislative tools necessary to properly investigate and enforce fines on wrongdoers;

(b) the SROs have no authority to lay criminal or quasi-criminal charges involving jail sentence penalties, either directly or by presenting such charges to a court;

(c) the SROs are private sector organizations that are not required to refer cases with evidence of criminal offences to the RCMP or any other regional and municipal police force;

(d) the SROs interest to protect the reputation of the investment industry usually trumps investor interests and the public interest, particularly when they have no legislative basis to conduct their delegated investor protection functions effectively.

The RCMP, regional and municipal police forces cannot continue to send all persons with complaints of wrongdoing in the investment industry and in public corporations to the provincial securities commissions;

(a) the provincial securities commissions have legislative tools to investigate and enforce fines and other remedies, but it cannot conduct proper justice when their investigations and adjudication functions are both done under one roof and under one chairman, who makes all the decisions on who is investigated and prosecuted and who supervises the commissioners that adjudicate all securities law violations;

(b) the provincial securities commissions have authority to lay quasi-criminal charges involving jail sentences, by presenting such charges to a court; however, the provincial securities commissions have no authority to prosecute criminal charges under the federal Criminal Code;

(c) the provincial securities commissions are Crown regulatory agencies, but they are not required to refer cases with evidence of criminal conduct to the RCMP or any other regional and municipal police force;

(d) the provincial securities commissions are Crown regulatory agencies, but their record shows bias to protect the reputation of the investment industry and Canadas corporate and professional elite rather than to protect investors, due to: their investment industry funding sources; senior executives and commissioners being drawn from the investment banking, corporate accounting and legal communities; and the lack of public accountability mechanisms, such as hearings before standing committees of the provincial legislatures or regular independent audits on the thoroughness and integrity of enforcement activities.

The RCMP IMET and the regional and municipal police forces throughout Canada must establish a new co-coordinated securities criminal complaint intake process. In doing so, the RCMP IMET would eliminate its sole reliance on the investment industry SROs and the provincial securities commissions for the receipt and preliminary assessment of complaints from the public and insider whistleblowers about securities crimes.

(a) A new multi-jurisdiction police co-ordination committee should be established to set the protocols for assignment of securities criminal investigations to the most logical police force to do the job;

(b) The public should be able to make a securities criminal complaint at their local police station, with the knowledge that their complaint will be properly attended to under the protocols established by the new multi-jurisdiction police co-ordination committee;

(c) The participating RCMP IMET, regional and municipal police force white collar crime units will need higher budgets, more skilled resources and the new legislative tools sought to become effective in white collar crime policing. The provinces should be reallocating budgets away from the securities commissions into the regional and municipal police white collar crime units. These units will play a larger and essential role in receiving securities criminal complaints from the public and in criminal investigations that are best completed at the regional level;

(d) The RCMP IMET, regional and municipal police force white collar crime units, would conduct investigations assigned to them according to the established assignment protocols accepted by all the participating police forces and administered by the new multi-jurisdiction police co-ordination committee.

Diane Urquhart is an independent analyst and investor advocate who supports better investor protection laws, enforcement, and adjudication in Canada.