Glen Jennings

The Crown applied for an order to retain seized material for an additional year in a complex criminal investigation involving Fortress Real Capital Inc. and related entities.

The investigation, initiated in 2018, concerned allegations of investor fraud through misrepresentation of property values and investment eligibility.

The court granted the application, finding the investigation to be complex due to the large volume of electronic and hard copy material, the need for professional assistance (computer experts, accountants), and significant delays caused by extensive solicitor-client privilege claims over seized documents.

The court emphasized that while asserting privilege is legitimate, it contributed to the complexity and delay, justifying further detention of the material until June 22, 2021.

The appellants, Daniel Tiffin and Tiffin Financial Corporation (TFC), appealed convictions for provincial offences under the Securities Act, including trading in securities without registration, distributing securities without a prospectus, and trading while prohibited.

The central issue was whether promissory notes issued by Tiffin to clients, while he was subject to a cease trade order, constituted "securities" under the Act.

The trial judge had acquitted the appellants by applying the American "family resemblance test" to conclude the notes were not securities.

The Superior Court of Justice, on appeal, reversed this decision, declining to import the American test and finding the notes were indeed securities, thus substituting convictions.

The Court of Appeal upheld the convictions, agreeing that the "family resemblance test" should not be imported into Ontario securities law due to the distinct "catch and exclude" statutory scheme in Ontario.

However, the Court of Appeal allowed the sentence appeal, finding the six-month custodial term demonstrably unfit given mitigating factors such as the appellants' honesty in revealing their financial situation, their remorse, repayment efforts, and client support.

The probation and restitution orders were upheld.

The applicants sought leave to appeal from convictions entered by Justice Charney on May 15, 2018, under the Provincial Offences Act.

The motion judge granted leave to appeal, finding that the applicants satisfied the high test for granting leave.

The appeal raises two main issues of public importance: the interpretative principles to be applied to determine whether an instrument is a "security" within the meaning of the Ontario Securities Act, and whether a loan agreement of the type in the present case constitutes a "security".

These issues engage broader public interests regarding the regulatory reach of the Ontario Securities Act.

The court issued an addendum to its Reasons for Sentence to clarify that the probation order and restitution order applied to both the individual and corporate respondents, Daniel Tiffin and Tiffin Financial Corporation (TFC).

The original reasons had used the pronoun "you," leading to ambiguity.

The court confirmed its intention to apply the non-custodial aspects of the sentence to both parties, exercising its jurisdiction to correct an accidental slip or omission.

Tiffin and TFC were convicted of trading in securities without registration, distributing securities without a prospectus, and trading while prohibited by an OSC order.

Tiffin solicited $700,000 in loans from clients, issuing promissory notes deemed securities.

The court considered aggravating factors, including Tiffin's position of trust, use of funds for luxury items, repeat offender status, and prior unpaid penalties, against mitigating factors such as client support letters, partial repayment, and lack of intent to defraud.

A financial penalty alone was deemed insufficient due to Tiffin's history of non-payment.

The court imposed a six-month custodial sentence on Tiffin, a two-year probation order on both Tiffin and TFC, and a restitution order for the outstanding principal amount of the notes.

The defendants were charged with three breaches of the Securities Act: trading in securities without registration, trading without filing a prospectus, and trading while prohibited by a cease trade order.

The sole issue was whether fourteen promissory notes totaling $700,000 issued to investment clients constituted securities under the Act.

The defendants admitted the factual elements but argued the notes were private loan agreements exempt from securities regulation.

The court applied the "Family Resemblance Test" from Reves v. Ernst & Young and found the notes were not securities, as they resembled notes secured by a lien on a small business's assets—a recognized category of non-security notes.

The charges were dismissed.

The appellant appealed a conviction for failing or refusing to comply with a roadside breath demand under the Criminal Code.

The appeal argued that the trial judge improperly relied on a roadside utterance captured on video in violation of jurisprudence limiting the use of compelled roadside statements while the right to counsel is suspended.

The court reviewed the governing principles from the Elias line of cases and the actus reus exception recognized in appellate authority.

It held that statements made during the testing process may be admissible where they form part of the actus reus of the refusal offence or help determine whether the accused genuinely attempted to comply.

The impugned statement was admissible because it demonstrated the accused’s linguistic understanding and was relevant to whether the repeated failed attempts constituted a constructive refusal.

The conviction was therefore upheld.