THE PROPOSED CANADIAN SECURITIES ACT: CRIMINALIZING SECURITIES REGULATION IN CANADA. James D.G. Douglas November 22, 2010

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1 THE PROPOSED CANADIAN SECURITIES ACT: CRIMINALIZING SECURITIES REGULATION IN CANADA James D.G. Douglas November 22, 2010

2 The Traditional Emphasis of Securities Regulation in Canada Has Been Regulatory in Nature The purpose of provincial and territorial securities commissions, both by legislative mandate and more generally, has been the protection of investors and the preservation of the integrity of the capital markets Provincial and territorial securities regulators have traditionally viewed their mandate as protective and corrective, rather than punitive While the provincial and territorial securities commissions have had the power to charge and prosecute for breaches of their home statutes, such quasi-criminal prosecutions have been the exception, not the rule 2

3 The Proposed Canadian Securities Act Articulates the Purposes of the Act in Language Similar to the Existing Provincial and Territorial Securities Regulatory Consequences 9. The purposes of this Act are a) to provide protection to investors from unfair, improper or fraudulent practices; b) to foster fair, efficient and competitive capital markets in which the public has confidence; and c) to contribute, as part of the Canadian financial regulatory framework, to the integrity and stability of the financial system. 3

4 The Proposed CSA Sets Out the Animating Principles that the CSRA Must Have Regard to in Pursuing the Purposes of the Act 16. (1) In pursuing the purposes of the Act, the Authority must have regard to the following principles: a) the administration of the Act should be open, efficient, flexible and responsive; b) the interests of investors and businesses in all sectors and regions across Canada should be taken into account; and c) the cost of compliance with this Act should be commensurate with the regulatory outcomes sought to be achieved. 4

5 The Proposed CSA Also Spells Out the Primary Means for Achieving the Purposes of the Act 16 (2) The primary means for achieving the purposes of the Act include a) requirements for timely, accurate and efficient disclosure of information; b) prohibitions of unfair, improper or fraudulent market practices; c) standards for honest and responsible conduct by market participants; d) the monitoring and evaluation of issues or developments affecting the integrity or stability of capital markets; and e) cooperation and coordination among financial authorities, in Canada and elsewhere. No where in the purposes, the principles or the primary means for achieving the purposes is there a reference to criminal law or the punishment of criminal offences 5

6 The Backgrounder Published by the Federal Department of Finance Describes the Importation Into the Proposed CSA of Securities-Related Offences Currently Prescribed in the Criminal Code The Act contains securities-related criminal offences that are equivalent to those that are currently prescribed in the Criminal Code. These include offences for securities fraud, market manipulation, prohibited insider trading and misrepresentation. These offences would apply nationally, in both participating and non-participating jurisdictions. The securities-related criminal offences in the Act have been modified (from those in the Criminal Code) to fit within the overall enforcement framework of the Canadian securities regulatory regime. The Act includes the aggravating circumstances, non-mitigating factors, and maximum sentences that currently apply to securities-related criminal offences in the Criminal Code. It also reflects the legislation recently tabled in Parliament that would amend the Criminal Code to strengthen sentencing measures for fraud and measures for victims of fraud. the proposed CSA contains offences of general fraud relating to a security, fraud affecting the market price of a security, market manipulation, misrepresentation about a security and illegal insider trading (similar but expanded versions of offences currently found in Part X of the Criminal Code) all of the offences carry maximum prison terms of between 10 years and 14 years 6

7 Examples of expanded criminal liability include: insiders recommending to a person the purchase or trade of a security of an issuer with knowledge of a material change or a material fact with respect to the issuer that they know has not been generally disclosed and when they know or ought to know that that the person might use the information or disclose the information to a third person (i.e., the nod and wink tip) (s. 161(6)) knowingly making a misrepresentation about a security, a trade or an issuer with intent to induce a person to purchase or trade or not purchase or trade a security or to deceive a person about an issuer or security (s. 162(1)) 7

8 Investigations of these securities-related criminal offences will be conducted by the enforcement staff of the CSRA in some instances a referral may be made to the police who will also have authority to investigate breaches of the CSA as well as breaches of the Criminal Code prosecutions will be conducted by provincial Crown counsel or by the federal Public Prosecution Service of Canada with the provinces and territories having a right of first refusal 8

9 New Evidence Gathering Tools under the Proposed CSA Production Orders The proposed CSA establishes new production orders that would allow criminal investigators to obtain court orders for, among other things: a) production of the names of registrants who purchased or traded a security and to compel a registrant to produce a document that contains the names of all persons on whose behalf the registrant purchased or traded a security if there are reasonable grounds to suspect that an offence has been committed. Currently, to obtain a criminal warrant, investigators need to show that they reasonably believe that an offence has been committed. b) requiring corporate registrants or publically traded companies to respond to a set of questions in writing where investigators reasonably believe that an offence has been committed. The questions may relate to, among other things, the flow of information in a company, discussions that took place in certain meetings, and who has access to sensitive information. 9

10 Possible Implications: a) for the CSRA: a shift in emphasis from regulatory to criminal agenda a reallocation of resources and a re-examination of resource allocation decisions enforcement schizophrenia the challenge of developing prosecutorial expertise and engaging prosecutorial interest b) for market participants: uncertainty about the regulatory agenda increased reluctance to cooperate voluntarily undermine gatekeeper role and responsibilities lawyering up for every encounter with the regulator 10

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