Do the RCMP get their man if he is white collar? Nope.

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Re: Do the RCMP get their man if he is white collar?

Postby admin » Wed Sep 09, 2009 8:29 am

RCMP COURSE FOR 3: $220,000

Rebuilding Image; Deputies slated to attend Arizona leadership school,
documents show
As part of an overhaul intended to restore trust in the RCMP, the force is
planning to spend nearly a quarter of a million dollars to send three of its
executives to Arizona for "personal transformation" and "accountability"
training.
Contract documents show the Royal Canadian Mounted Police intends to enrol
deputy commissioners in courses offered by Malandro Communication, a private
management training firm based in Scottsdale, Ariz.
Fees for the three students are expected to be $220,000, according to an
advance contract award notice published by the RCMP. The per-person cost of
the training is more than the average annual salary of an RCMP member.
The cost of travel and accommodations will be extra, said an RCMP
spokeswoman.
Sergeant Julie Gagnon said the program in Arizona is being offered through
the RCMP's "change management team," part of the organizational
transformation intended to rebuild public faith in the force.
The decision to award the contract to Malandro is justified in the contract
documents with information that borrows heavily from the company's
promotional material.
The document says the "3 for 1 High Performance Leadership" session the RCMP
officials will take focuses on their organization's "unique leadership
problems and behavioural barriers to success."
It explains the session is "not focused on skills acquisition. It's about
personal transformation. The leader won't just understand his/her road-map
to success, they will believe in it and know they can do it."
Another session the RCMP officers will take is called "100 per cent
accountability" and produces "significant behavioural changed (sic) need
(sic) to raise performance and build a culture of accountability," according
to the contract notice.
There are eight RCMP officers at the deputy commissioner level, one level
below Commissioner William Elliott.
The RCMP declined to identify who would be taking the course in Arizona.
The Malandro website refers to three-day "private CEO sessions," but it is
unclear if this is the program the RCMP officers will attend.
The RCMP was unable to provide further details on the course and Malandro
Communication did not respond to a request for comment.
The advance contract award notice gives other potential suppliers 15 days to
make a better offer if they can match the specific requirements of the
contract -- in this case, the RCMP says Malandro is the only known firm that
can deliver the "leadership transformation services" it needs.
Advance contract award notices are used by the government to award contracts
without a full tendering process, even though they are technically
considered to be competitive.
The RCMP has been rocked in recent years by controversy over its use of
Tasers on suspects and its handling of the case of Maher Arar, an Ottawa man
who was detained in the United States and then taken to Syria, where he
spent a year in prison. The force's transformation plan makes repeated
references to leadership, and says it will make a "substantial investment in
a leadership learning continuum."
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Re: Do the RCMP get their man if he is white collar?

Postby admin » Wed Aug 12, 2009 9:12 am

These poor guys no longer even get their man if he is right inside their own organization. It is sad to see such blind adherence to "worst practices".

Globe editorial


Self-investigation is self-defeating


Deddeda Stemler/Canadian Press
Members of the Royal Canadian Mounted Police in front of the B.C. legislature.
Several high-profile cases have helped shake public confidence in the RCMP. The least that can be done to restore it is to ensure that the Mounties are not above the law
From Wednesday's Globe and Mail Last updated on Wednesday, Aug. 12, 2009 04:12AM EDT
Paul Kennedy, the chair of the Commission for Public Complaints Against the RCMP, has confirmed what many already believed: The system for investigating members of Canada's national police force is badly flawed. It is indicative of the continuing lack of accountability at the higher ranks of the RCMP that, rather than a full acknowledgment of these problems, the reaction to Mr. Kennedy's moderate proposal to fix them has already been defensive.
To call the RCMP's internal investigation process a system at all may be slightly too charitable. “There is currently no national, centralized co-ordination of member investigations,” Mr. Kennedy said in yesterday's report, which looked at 28 investigations involving Mounties. “That means that no member of the RCMP, including the RCMP commissioner, can tell you how many criminal investigations have been undertaken into its own members.”
Mr. Kennedy did not find any standard for how the investigations are conducted, either. If one existed, it might at least dictate a certain distance between the investigators and the investigated. Perhaps the commission would not have found that, in one-quarter of the cases, the primary investigator personally knew his or her subject, and that even more often, he or she was of an equal or lower rank than the person being investigated.
Even if stricter guidelines were in place, however, it would still be problematic for Mounties to be investigating each other in serious cases. There are so many pressures and potential conflicts in police investigating one another that an argument can be made that investigations should be turned over to civilian bodies, as is now the case in Ontario and Manitoba. The British Columbia Civil Liberties Association lamented yesterday that Mr. Kennedy did not go so far as to recommend that reform for the RCMP. The Mounties should embrace as a very fair compromise Mr. Kennedy's recommendation that “certain cases” – including all involving death – should be turned over to a different police force or a provincial criminal investigation body.
Instead, the RCMP is non-committal. It will consider the recommendations, Commissioner William Elliott says, but Mr. Kennedy's language is too harsh, his proposals may be too sweeping and an overhaul “may not be warranted.”
If the RCMP won't take responsibility, then the federal government should intervene. Several high-profile cases, most notably that of Robert Dziekanski, have helped shake public confidence in the national force. The least that can be done to restore it is to ensure that the Mounties are not above the law.
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Re: Do the RCMP get their man if he is white collar?

Postby admin » Mon Apr 06, 2009 10:06 am

Of policing and regulation
Barry Critchley, Financial Post
Integrated training -- which is meant to lead to integrated policing -- was the major topic of a five-day conference organized last week by the Canadian Police College.
Titled "Integrated Financial Investigations Course -- Investment Fraud," the session , held in suburban Toronto, was the first of its kind and marked the first time a College conference had been opened up to non-police including regulators and forensic accountants. The 32 attendees heard from a variety of speakers including police agencies and regulators.
"If we have a genuine wish to change the enforcement culture from one of isolation and individualism to one of co-operation, corroboration and active participation, a good start is to have the front-line investigators receive some common training," said a backgrounder prepared by John Silter, the RCMP superintendent who organized the course. He argues that integrated policing meets the needs of victims "who would much prefer to see some form of strong integration and cohesiveness on the part of all agencies handling their case."
That's one point of view. Others have a different one, particularly when the police don't have as much independence as is required to do their job.
For instance, under Ottawa's rules a potential Integrated Market Enforcement Team (IMET) investigation is required to be presented to IMET's Joint Consultative Group, a body comprised of managers from the various agencies involved in the enforcement and prosecution of criminal, quasi-criminal and/or regulatory matters. [See paragraph 3 of Page 2 in the attached letter from Dean Buzza - Director RCMP IMET on Criminal Investigation Procedures 12112008]
Presumably the policy means IMET is obliged to share the complaint, and the evidence, to the Group -- which then decides if it will investigate. "And the chances of them doing it [given their record over the years] is zero," said investor advocate Diane Urquhart, who points to the $32-billion ABCP debacle as one example of how the process doesn't work. Those who felt they were defrauded and who lodged a complaint would be told to take the matter to IIROC (Investment Industry Association of Canada), which would decide, she said. Meanwhile, the RCMP isn't allowed to launch its own investigation. (Months back, the OSC said it was mulling charges.)
Gary Logan, a former detective sergeant who spent 32 years with the Toronto fraud squad, argues, "The police should decide on the criminality. They should make the assessment of whether there is any criminal conduct, based on the facts. That should then be assigned by police to a police investigation. The regulatory bodies should not be involved at all with criminal assessment. They don't have the knowledge, formal training or expertise."
Urquhart, who was also in Ottawa last week, has a similar view. And she doesn't like what's in the works, especially given the push by the federal government for a national securities regulator.
"Basically, there will be a situation where all of the securities regulation and crime enforcement will be under one national body. There will be no differences of opinion or places for people [with complaints] to go, and a private board will oversee the national securities commission."
In her view, "Integrated policing should be policing with other police, not policing with regulators."
So why are the authorities, as well as some industry associations, pushing for a system where the interests of the police seem to be subordinated? Urquhart believes "it's for no other purpose than control."
bcritchley@nationalpost.com
RELATED NEWS ON PROPOSED SECURITIES CRIME UNIT AT THE FOLLOWING WEBPAGE.
http://www.youtube.com/watch?v=Mb5zpALTy88
Diane Urquhart, Independent Financial Analyst, and Gary Logan, former Detective Sergeant of the Toronto Police Services Fraud Squad, are interviewed by Steven D'Souza of CBC News at Six. The story is about a DVD hosted by these two veterans in their respective fields on the proposed Canadian Securities Crime Unit (CSU). This is a new structure to organize and fully utilize the resources and facilities of all the police agencies of Canada in order to provide for the public safety of pension funds and personal retirement savings throughout Canada.
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Re: Criminal Code Violations ignored in Canada

Postby admin » Mon Feb 23, 2009 8:20 pm

Presentation to the Ontario Standing Committee on Government Agencies

Diane A. Urquhart, Independent Financial Analyst

Monday, February 23, 2009, 5:30 P.M.

(Released February 23, 2009 9:00 A.M.)



Opening Statement

Ontario Members of Parliament have to fulfil the government's public safety mandate, which is to protect life and the money needed to live.

As MP's you serve the people of Ontario under this public safety mandate. Given the evidence that the OSC and the investment industry SRO's have been facilitating systemic misconduct in the investment industry, you need to restructure both securities regulation enforcement and securities crime policing.

The world and Canada is suffering the worst economic crisis since the Depression as a consequence of a financial crisis created by abuses in the credit derivatives and mortgage markets. A few people in the banking and investment industries have made millions of dollars for themselves in schemes that have mauled investors. The schemes have put the financial industry itself in peril. The world economies are being brought down by the financial industry's negligence, failure to meet its duties to customers and even widespread systemic securities fraud.

The Canadian investment industry, the Ontario Government and the OSC are telling the public we have the best investor protection in the world and that all is well. Everyone knows this is not the case. There is widespread fear amongst Ontarians about their pension fund deficits, depleted personal retirement savings and whether their jobs are safe. The Ontario Pension Benefits Guarantee Fund and the Ontario Government will be asked to fund billions of dollars of pension fund deficits, at companies in trouble, like Nortel and Air Canada. Nortel is not even paying the severances of its terminated employees. These employees, without work and without severance to pay their families' bills while looking for new jobs, are treated as unsecured creditors in CCAA proceedings. CCAA proceedings are forums for protracted negotiations between senior management and large creditors, and a precarious place for retired workers and terminated employees to have their fate determined.

President Barack Obama says "There needs to be a shift in ethics on Wall Street, "[We need a] crack down on the culture of greed and scheming." Paul Volcker, the former Federal Reserve Chief, says "the financial system we have known will never return. Too many weaknesses and flaws have been exposed." German Chancellor Angela Merkel says before the Berlin European Union Summit on Sunday, February 22nd: "No financial market, no financial market product, no financial market stake holder can be without regulation, without oversight,"

Canada has had two of its own alleged systemic securities frauds - income trusts and non bank asset backed commercial paper . These two toxic income products have combined losses of over $58 billion. There have been no sanctions by the OSC or the SRO's for the systemic misconduct in either income trusts and non bank ABCP. No retail owners of these toxic income products have received any OSC or SRO's facilitation of compensation for their damages due to breaches of securities rules and regulations.

We remain optimistic, however, that the outcome of current investigations by IIROC, the OSC and L'Autorité des Marchés Financiers will be the laying of allegations of breaches of securities rules and regulations and the facilitation of a full cash settlement for the 36 Canadian families owning more than $1 million of ABCP. These families have lost their right to sue for remedy of their damages under the ABCP CCAA Plan, despite acknowledged breaches of securities rules and regulations in the ABCP fiasco. These families have lost large portions of their lifesavings for the Plan's purpose of ensuring the country's financial stability, and for the apparent bragging rights of Canadian banks being well-regulated and having strong balance sheets.

The U.S. FBI has 1,800 mortgage fraud and 38 securities fraud investigations going on directly related to the current financial crisis. Canadian police are not conducting investigations of alleged frauds directly related to the current financial crisis.

The top priority for structural change is for Ontario to support a new independent Canadian Securities Crime Unit, to deter both rogue fraudsters and systemic fraud in the investment industry. The Securities Crime Unit proposal has been developed by Gary Logan, the former detective sergeant of the Toronto Police Services Fraud Squad. Mr. Logan developed a similar system for mortgage fraud in Ontario. Our work on improving Canada's securities crime system is supported by the National Pensioners and Senior Citizens Federation and the United Senior Citizens of Ontario.

The Investment Industry Association of Canada and the Canadian Coalition for Good Governance is proposing a new National Enforcement Agency as a division of the new national securities commission. We are at the crossroads where Ontario MP's can accept the investment industry's proposal to move to full control over securities crime policing in this Province and throughout Canada. Or, Ontario MP's can choose to meet their public safety mandate to protect the money Ontarians need to live.

Ontario cannot afford to choose the investment industry's path this time - even the investment industry cannot afford to take its own proposed path. Confidence in the investment industry and the road to economic recovery, compels us to choose the road of an independent securities crime policing system. The Canadian securities regulators and SRO's did not protect pensions and personal retirement savings in this financial crisis, so how can you trust them to do so now. The past practices of the investment industry and its regulators have undermined the fabric of our society.

Diane A. Urquhart

Independent Financial Analyst

Mississauga, Ontario

Tel: (905) 822-7618

Cell: (416) 505-4832

E-mail: urquhart@rogers.com



Backgrounder

Income Trusts - Prospectuses Approved Despite US Criminal Prosecution and OSC Senior Corporate Finance Staff With Concerns About Cash Yield Deception

· OSC stamped hundreds of income trust prospectuses in the 2000's decade, despite the 1994 U.S. Department of Justice criminal prosecution of Prudential Securities for deceptive cash yields and an OSC Senior Corporate Lawyer publishing the same concern.



· 50% of all income trusts with public offerings during 2001-2006 have slashed their distributions.



· The average distribution cut is -67% and the prospects for distribution and price recovery post recession are poor.



· Income trusts were not safer than common equities, which was how they were marketed to seniors.



· Income trusts did not have better investment returns than bonds, which was how they were marketed to seniors.



· All business income trusts, except for the best five, are down -40% or -$31 billion since their last public offerings. They were sold to seniors who asked for capital preservation of their lifesavings

Non Bank ABCP - Securities Regulators Have Made No Sanctions & No Assistance for Retail ABCP Owners After 17 Months

• Canadian savings used to buy assets that were pledged as first security to the international banks.

• Canadians unknowingly insured the bad loans of these international banks.

• International banks bought leveraged credit default swap contracts to insure their bad loans, with rights to call margin and force liquidation of the Canadian trusts [tried to extort $60 billion from owners & Canadian governments in December 2008.]

• ABCP buyers were told the paper was safe with bank guarantees from the same international banks.

• Just one credit rating agency – DBRS gave top ratings, while S & P and Moodys gave ratings below the minimum standard.

• Trust sponsors made unjust enrichment, while the ABCP buyers bore all the risk and received no risk premium.

• JPMorgan invented credit default swaps in 1997, which is the “product from hell” causing the world’s financial crisis, but gets $100 million advisory fee to restructure the Canadian ABCP Market devastated by its invention.

• Damages Loss % Loss

Secondary Market Trading
-85%
-$27 Billion

Accounting Valuation (Caisse & Domtar)
-45%
-$ 14 Billion




• Under $1 million retail ABCP holders fought for their own cash settlements without the assistance of the IIROC or OSC. Over $1 million retail ABCP holders left out, now need IIROC or OSC actions since CCAA Plan takes away their right to sue for remedy of their damages.

Ontario Government and OSC Facilitation of Non Bank ABCP

• In 2005, allows sale of Non Bank ABCP to retail market buyers under $50,000, provided credit rating agencies give minimum credit ratings. OSC does not supervise the credit rating agencies despite this delegation of public interest responsibility.

• In 2005, gives DBRS an exemption from civil liability for misrepresentation in the secondary market.

• In 2006, several OSC Commissioners give exemptive relief decisions for BMO, TD and CIBC to sell ABCP with just one DBRS credit rating above its minimum at R1 (high) and S&P and Moody's failing their credit rating tests.

• On Jan. 2, 2009, Purdy Crawford and Goodmans LLP gives late amendment to the ABCP CCAA Plan so that DBRS and its legal counsel get their fees paid during the ABCP Restructuring.

• On Dec. 30, 2008, Huston Loke, President of DBRS, refuses to disclose who has paid DBRS and how much they have been paid during restructuring and for the “A” credit rating on the new notes.

Securities Crime Policing Broken

• RCMP IMET took effective exclusive jurisdiction for securities crime policing in 2003, and other Canadian police forces reduced their resources in this field. The RCMP is the only police force in Canada without a Police Services Board.

• David Wilson, OSC Chairman controls too much of the securities enforcement system. OSC has been captured by the investment industry. The OSC delegates investor protection to the investment industry SRO's - IIROC and MFDA. These investment industry regulatory agencies have spent 6 years building partnership with RCMP IMET.

• Disband the failed RCMP IMET – Securities Commissions – SRO's partnership model and re-engage independent securities crime policing model, involving all Canadian police forces.

i. New Canadian Securities Crime Unit for securities crime complaints intake and assessment

ii. Use fraud police experts to interview victims and prepare assessment reports

iii. Assign investigations by pre-established jurisdiction protocols to RCMP, provincial, regional and municipal police

iv. New Securities Crime Unit independent of securities commissions and SRO's -IIROC and MFDA

v. Put structures in place to ensure anti-corruption and clear accountability for the public safety of pension funds and personal retirement savings.

• The investment industry’s solution of one National Enforcement Branch is an enforcement model designed to fail.

i. National securities commission goes beyond partnering with securities crime police to fully controlling it.

ii. Shuts out Canada’s other police forces.

iii. Lacks structure for public accountability.

iv. No independent securities crime intake and assessment

v. Contaminated criminal evidence and likely securities criminal case failures
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Re: Criminal Code Violations ignored in Canada

Postby admin » Sun Feb 22, 2009 2:05 pm

Case studies that I have undertaken point to negligent misrepresentation as one of the key elements in most financial scams that we have seen. Unfortunately you have not seen any prosecutions in this area. One would wonder why these crimes are a free ride in Canada. Speaking of Free Ride, read John Lawrence Reynolds factual account of financial crime in Canada titled FREE RIDER. It will educate you beyond what you wished to know about our financial system.
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Re: Criminal Code Violations ignored in Canada

Postby admin » Sun Feb 22, 2009 1:46 pm

is it OK to "look the other way"
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Re: Criminal Code Violations ignored in Canada

Postby admin » Sun Feb 22, 2009 1:42 pm

further to predatory practices by financial providers, and passive assistance from financial regulators
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Re: Criminal Code Violations ignored in Canada

Postby admin » Sun Feb 22, 2009 1:39 pm

Criminal negligence has allowed greedy investment firms to violate client interests, and it also applies to co-operative financial regulators who knew better but chose not to act to protect the public.
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Re: Criminal Code Violations ignored in Canada

Postby admin » Sun Feb 22, 2009 1:35 pm

This criminal code violation refers to the many persons and regulators who choose to place their own private interests ahead of the interest of their trusting clients and or the vulnerable public. They looked the other way at ethics and at their duty to care, while gaining legal exemptions, and selling inferior products to their customers at superior prices.
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Re: Criminal Code Violations ignored in Canada

Postby admin » Sun Feb 22, 2009 1:28 pm

Breach of Trust is the title of my film project. See clips at web.me.com.lelford

I decided to make the project after learning of the death of an industry whistleblower. A person who tried to tell the truth against a multi million dollar sales predator. Guess who won.

One of the criminal code violations that is illustrated in the case is Breach of Trust. Where persons in positions of authority choose to look the other way, or actually help the millionaires, the bullys, to beat their opponents.

Case study #1 of a commission of inquiry request speaks pretty clearly to this criminal code violation, which was completely ignored in Canada. Too big to prosecute. Too difficult. Too risky to ones job. Best to see no evil.
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Re: Criminal Code Violations ignored in Canada

Postby admin » Sat Feb 21, 2009 6:41 pm

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"no guns, no blood" means we have "no idea" how to deal with it

better to ignore it
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Re: Criminal Code Violations ignored in Canada

Postby admin » Sat Feb 21, 2009 6:38 pm

Picture 5.png


one small reason (from Britain) as to why criminal code violations in finance are often ignored

"too messy"
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Criminal Code Violations ignored in Canada

Postby admin » Sat Feb 21, 2009 6:28 pm

I am starting a new post to compile a list of criminal code violations that appear to be ignored in Canada. It is far easier to take a "see no evil" approach when an individual police person, or an individual regulator is faced with the daunting prospect of prosecuting someone like a Conrad Black or similar.

Unfortunately that means for Canada that financial crime does indeed pay, due to the imbalance of power and might between those who commit the crimes and those who regulate the crimes. (see an excellent study by P Puri, U of T on this topic in another post in this flogg: White collar crime is widespread)

This post will contain a list of criminal code (or Competition act criminal provisions) violations that I have been personal witness to, have informed the proper authorities of, and have seen them take the "see no evil approach". Job protection when dealing with multi millionaires becomes more important than doing ones job.

This is not just my conclusion. You really should read the U of T study by P Puri.
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Re: Police should patrol trading floors

Postby admin » Tue Feb 17, 2009 9:16 pm

Garry Breitkreuz

Chairman of the Committee of Public Safety and National Security



and



Roger Préfontaine

Clerk of the Committee of Public Safety and National Security



Sixth Floor, 131 Queen Street

House of Commons

Ottawa ON K1A 0A6

Canada

Tel.: 613-944-5635

Fax: 613-992-7974

E-mail: secu@parl.gc.ca



There are a number of issues surrounding the investigation and prosecution of securities crimes in Canada. It has become obvious to Canadians that securities crime policing is abysmally weak, and as a consequence, the public safety of Canada's pension funds and personal retirement savings are being damaged.



Securities crime deterrence goes well beyond the creation of a new national securities commission, which is being worked on by the Federal Finance Minister James Flaherty and the Federal Department of Finance.



I sent a package on a new Canadian Securities Crime Unit to Federal Public Safety Minister Peter Van Loan. He replied to us in the attached letter that he is committed to enhancing the RCMP Integrated Market Enforcement Teams and that the laying of recent charges by the RCMP IMET unit on four major cases illustrates positive results. Yet, the RCMP IMET has had only five successful cases since its inception in 2003 and these involved the prosecution of nine minor rogue fraudsters. There is considerable pessimism about the RCMP IMET's ability to achieve success in obtaining jail sentences or other meaningful penalties for the senior executives of Nortel, Royal Group Technologies, Norbourg and of Ian Thow, formerly of Berkshire Securities. In any case, the new charges laid are on cases that occurred at the beginning of the decade. There are no investigations on non bank asset back commercial paper and income trusts that are alleged systemic frauds contributing to the current financial crisis. The estimated losses on Canadian non bank asset backed commercial paper and income trusts are over $50 billion. These losses are concentrated in the senior market and pension funds.



Mortgage and securities frauds in the United States have lead to trillions of dollars of publicly financed bailouts throughout the world. These frauds have been the subject of a Senate Judicial Committee hearing on February 11, 2009. You can listen to this hearing from the attached file, "judiciary02112009-1000.ram."



In the information package sent to Federal Public Safety Minister Peter Van Loan, there was a DVD of two CBC investigative reports on "The Great Wall Street Swindle and Shady Practices in Canada Too?" and "Who is Guarding Your Money?" On the DVD, Gary Logan, the former Detective Sergeant of Toronto Police Services Fraud Squad, provides the solution of a new Canadian Securities Crime Unit for the intake and assessment of securities crime complaints from the public and investment industry whistleblowers. He implemented a similar system for mortgage fraud in Ontario. We would like the Federal and Provincial Public Safety Ministers to implement the new Canadian Securities Crime Unit, to deter securities crime and provide public safety for our pension funds and personal retirement savings. The new Canadian Securities Crime Unit will use its expertise to better serve the securities crime victims and more effectively deploy the resources of the RCMP, provincial, regional and municipal police fraud divisions. The new independent securities crime policing process will not be hampered by the conflicts of interest and risks of evidence contamination occurring when police are integrated with the Self-Regulatory Organizations and the securities commissions.



Gary Logan and Diane Urquhart would like to present at future Committee of Public Safety and National Security hearings on how the police are handling securities crime in Canada. Their work on securities crime matters is supported by the National Pensioners and Senior Citizens Federation, which has over one million seniors members. It is also supported by the United Seniors Citizens of Ontario. There will be another DVD released shortly in which Gary Logan and Diane Urquhart explain how the new Canadian Securities Crime Unit will work. You will receive a copy of it. The system can be implemented without constitutional challenges and it will be well embraced by the public and Canada's police forces. The approach taken is working for mortgage fraud in Ontario. We desperately need an effective system for handling securities crime for Canada.



Hugh Urquhart

(advocate comments..........I agree that real police should be called in on any allegation of wrongdoing, but it simply cannot be the RCMP IMET or the current securities regulators. The regulators have shown themselves to be bought and paid for by the investment industry (literally) and they each have conned their way into positions inside the RCMP IMET.)
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Re: Police should patrol trading floors

Postby admin » Tue Feb 17, 2009 9:31 am

Bill C-45 questions get answered
http://www.cos-mag.com/images/stories/2 ... dwards.jpg

Answers to common queries on Criminal Code amendments

Written by Cheryl Edwards
Wednesday, 28 May 2008
By way of reminder, Bill C-45 amended the Criminal Code to create new duties and possible criminal liability for individuals and organizations, which include corporations. Because of the complexity of these Criminal Code requirements, and the amount of time that has been passed since they became law in March 2004, answers to key questions about Bill C-45 amendments are set out below, as follows:


Is the new Criminal Code duty different from OH&S duties to take all reasonable precautions or all reasonable care? How?

The new duty found in section 217.1 of the Criminal Code requires that “everyone who undertakes, or has the authority to direct how another person does work or performs a task, is under a legal duty to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task”. “Everyone” includes individuals, organizations as broadly defined, and corporations.


This duty parallels traditional OH&S standards, but also expands on the matters contained in most OH&S statutes. The duty applies to any individual with authority to direct another person in the performance of work, while OH&S legislation generally imposes duties on employers, supervisors, constructors, owners, directors and officers. The Criminal Code may apply more widely to anyone who “undertakes” to direct work, including lead hands and working forepersons.


The Criminal Code duty also requires that reasonable steps be taken to prevent bodily harm to any person, which would include the public or volunteers who may enter the workplace or be affected by workplace activities.


Does violation of the Criminal Code duty mean we are guilty of criminal negligence?


Breach of the Criminal Code duty does not necessarily mean that an organization or individual is guilty of criminal negligence. In order for a breach of the duty of care to amount to criminal negligence, the Crown must prove beyond a reasonable doubt in court that the breach of the duty occurred in a “wanton or reckless” manner.


Section 219 of the Criminal Code states that, “Everyone is criminally negligent who (a) in doing anything, or (b) in omitting to do anything that it is his duty to do, shows wanton or reckless disregard for the lives or safety of other persons.” The provisions of Section 219 broadly state that for the purposes of the criminal negligence section, Section 219 of the Criminal Code, “duty” means a duty imposed by law.


Criminal cases have found that for criminal negligence to occur, a breach of a duty must represent a “marked” and significant departure from the standard of a reasonably prudent person in the circumstances. There must be more than mere failure to meet an OH&S or Criminal Code standard through inadvertence. There must be evidence of behaviour which shows complete disregard for, or indifference to the duty. As one court put it, there must be a finding of a “devil-may-care” attitude that shows a criminal standard has been met.


Wasn’t Bill C-45 all about creating criminal liability for directors and officers?


Not exactly. While the Westray inquiry which concluded in 1997 recommended that Canada “amend or introduce legislation to ensure that corporate executives and directors are held properly accountable for workplace safety and the wrongful and negligent acts of their corporations,” ultimately Bill C-45 created a mechanism which allowed corporations to be more readily convicted of criminal negligence. The Criminal Code continues to allow individual charges of criminal negligence, which could include charges against a supervisor, or director or officer, for breach of a duty in a wanton or reckless manner, but that was not the primary focus of the Bill C-45 amendments when they were passed and came into force in 2004.


Does Bill C-45 create both corporate and individual criminal liability?


Yes, it does both. The provisions create new criminal duties and liabilities for both individuals and organizations (which are defined to include corporations). Both individuals and organizations can now be convicted of criminal negligence for failure to perform the duty, when it occurs in a manner that shows wanton or reckless disregard for the lives or safety of others.


What is necessary for an organization (including a corporation) to be convicted under the Criminal Code of criminal negligence?


The process for convicting an organization of criminal negligence in the workplace safety context involves two steps.

First, the Crown must prove beyond a reasonable doubt that the actions of a single representative (employee, partner, contractor, agent of the organization) breached the Criminal Code duty in a wanton or reckless way. This could involve reckless ignoring of safety rules or physical protective devices where the potential result is serious harm or death.

Second, after the breach of duty is established, the Crown must then show that a senior officer with operational or executive authority, or as drafters put it, someone with “real clout” who is responsible for the part of the organization involved in the breach, either failed to act or insulated themselves from obtaining the knowledge to act. The Crown has to prove a marked departure from what would reasonably be expected of a senior officer with obligations to protect workers and the public.


What are the potential liabilities under the Criminal Code provisions as amended by Bill C-45?


For individuals, the maximum penalty for criminal negligence causing death is life imprisonment, and the maximum penalty for criminal negligence causing bodily harm is ten years’ imprisonment. However, individuals are subject to a range of Criminal Code sentencing options from absolute discharge, to probation, to life in prison, depending on the specific circumstances of the contravention.


Organizations, including corporations, are subject to different penalties depending on how the Crown proceeds. Where the Crown proceeds by summary conviction (the least serious manner of proceeding), the maximum fine is $100,000 for an organization.


Where the Crown proceeds by indictment (the most serious manner of proceeding), there is no limit on the amount of the fine for the corporation or organization.


Organizations may also be placed on probation and the terms of a probationary order can include such matters as: requiring the organization to make restitution, financial or otherwise, relating to the offence; requiring the organization to report to the court or the public on implementation of remedial steps; requiring the appointment of a senior officer to be responsible for implementing remedial procedures; requiring the organization to disclose its conviction to the public.


Probation orders including these types of terms are available in addition to monetary penalties.


Cheryl A. Edwards is a former Ontario Ministry of Labour OH&S prosecutor and now leads Heenan Blaikie’s national OHS and WSIB practice group. Cheryl is recognized as one of Canada’s leading lawyers in workplace safety and insurance and occupational health and safety law. Contact her at cedwards@heenan.ca.
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