R. v. Singh, 2021 ONCJ 738

Her Majesty the Queen v. David Singh, 2021 ONCJ 738

Date: 2021-11-09 Location: Toronto Court: Ontario Court of Justice

Between: Her Majesty the Queen And: David Singh

Before: Justice Mara Greene

Reasons for Judgment released: November 9, 2021

Counsel: N. Gilks, for the Ontario Securities Commission W. Gilmour, for David Singh

Judge: M. Greene, J:

1Mr. Singh is charged with three offences under the Ontario Securities Act (OSA). This matter started in March 2018. It has been adjourned several times and the evidence has been presented in drips and drabs since March 2020. Mr. Singh did not have counsel at the start of this trial. Part way through this trial, he retained counsel, Mr. Gilmour. At the close of the Crown’s case, Mr. Gilmour advised that he had no defence evidence to call but that he would be bringing an application to stay the proceedings as a result of a breach of Mr. Singh’s right to be tried within a reasonable time. A timeline was formulated for counsel to file his material. When his material was filed, it became apparent that Mr. Gilmour, on behalf of Mr. Singh, was also arguing that Mr. Singh’s rights as guaranteed by section 7 of the Charter were violated by the fact that this matter proceeded virtually (over zoom).

2Arguments on the Charter applications were heard on September 23, 2021 and closing arguments were heard on September 24, 2021. Mr. Gilks, counsel for the OSC, filed extensive written argument on the trial proper. Mr. Gilmour made no submission at all on the trial proper. This matter was then adjourned to November 9, 2021 for my judgment.

3In this judgment I will first address the two Charter issues. I will then address whether the Ontario Securities Commission (OSC) has proven the three allegations against Mr. Singh.

Section 11(b) of the Charter

4In the case at bar, Mr. Singh has argued that his rights as guaranteed by section 11(b) of the Charter have been violated as this matter has taken three and a half years to complete which is well over the 18 month ceiling identified by the Supreme Court of Canada in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631. Mr. Gilks, on behalf of the OSC argued that while this matter has taken three and a half years to complete, the delay is still constitutionally tolerable when one takes into account delay caused by Mr. Singh and the discrete exceptional event of the Covid 19 pandemic.

5The framework for determining whether a case exceeds what is constitutionally tolerable delay is set out in R. v. Jordan, supra. First, I must determine the total delay from the date the information is laid until the end of the trial (or anticipated end of the trial). Then I must subtract any delay caused solely by the defence. If the net delay exceeds the presumptive ceiling of 18 months, it falls on the Crown to establish the presence of an exceptional circumstances to justify the additional delay in the case. This can be done by identifying a discrete event or if the case is particularly complex. If the Crown is able to establish the presence of an exceptional circumstance, then this time is also deducted from the overall delay for the purpose of determining if the presumptive ceiling has been reached. If the remaining delay falls below the presumptive ceiling, the defence then must show that the delay was nonetheless unreasonable.

6In the case at bar the overall time is well in excess of the presumptive ceiling. The information was laid on March 31, 2018 and the trial evidence and submission ended on September 24, 2021. This amounts to 42 months, some two years more than the presumptive ceiling. Crown counsel argued that when one deducts the delay caused solely by the defence as well as the delay arising from the exceptional circumstances of the ongoing pandemic, the delay is well below the ceiling of 18 months. Mr. Gilmour, on behalf of Mr. Singh, argued that while the defence did cause some of the delay, the overall delay is still well over the 18-month ceiling. The main points of contention were how much delayed was caused by the defence and how much delay can reasonably be attributed to covid-19.

Summary of the Evidence Relevant to the Delay in this Case

7Mr. Singh was charged back on March 31, 2018. By August 17, 2018, the vast majority of the disclosure was provided to Mr. Singh, at least sufficient disclosure to move this matter forward to a Crown and Judicial pre-trial. The matter could not proceed to the pre-trial phase, however because Mr. Singh had not yet retained counsel. Mr. Singh continued to make regular appearances before the court always indicating an interest in retaining counsel but without having done so. Seven months after his arrest, Mr. Singh applied to legal aid. His application was denied. The matter continued to be adjourned so that Mr. Singh could investigate retaining counsel. The matter was also adjourned a number of times because Mr. Singh failed to attend court. By December 3, 2018, Mr. Singh was told by the court that if he did not retain counsel, a judicial pre-trial would be set on the next date and the case would have to move forward. On January 14, 2019, the first of many in court pre-trials was conducted.

8After the judicial pre-trial on January 14, 2019, Mr. Singh continued to seek adjournments so that he could retain counsel. On May 1, 2019, Mr. Gilmour attended court and advised the court that while he was not yet fully retained, he was retained enough to conduct a judicial pre-trial. With counsel now potentially on board, a new Judicial pretrial was scheduled for June 4, 2019. On June 4, 2019, after the second judicial pre-trial, trial dates were set. It was anticipated that this case would take six weeks to proceed with the trial starting on September 9, 2019.

9On September 9, 2019 Mr. Singh sought and was granted an adjournment. A new trial date of March 2, 2020 was set.

10Six weeks were set aside for this trial. During the first week of the trial, Mr. Singh only attended for two of the five days due to a personal illness. The second week of this trial was to proceed on March 23, 2020. The case was adjourned at that time due to the pandemic. In the months following the declaration of a pandemic the courts were closed completely. All trials scheduled to be heard from March 30, 2020 until July 3, 2020 were adjourned. Once the dust settled, the court started to re-schedule all the matters that had been delayed due to the closure of the courts. Since we only sat two of the five days scheduled for the first week, this case effectively had to be rescheduled entirely. Mr. Singh was offered dates for the new trial in January and February 2021, but he chose not to take these dates. As a result of Mr. Singh’s request to not sit in January and February, new trial dates were set for March 30, 2021 to run for six weeks.

11On March 30, 2021 the trial was to start again. Prior to this date, Mr. Singh brought another adjournment application which was denied. On the first day of the new set of trial dates, Mr. Singh brought another adjournment application. This was also denied. On April 14, 2021 Mr. Singh brought another adjournment application. This too was denied. During the six weeks set aside from March 30, 2021 until early May 2021, we only sat ten out of the thirty days set aside. The reason we sat so little was three fold (i) Mr. Singh asked not to sit certain days, or raised new legal matters not originally accounted for in the six week time span so no evidence was heard on those days (ii) there were frequent staff shortages at Old City Hall due to the ongoing pandemic, so there was no staff to help with this case, and (iii) in the middle of the trial, the Covid-19 numbers sky rocketed and the courts again closed their doors for all non-emergency matters. As Mr. Singh was out of custody, his matter was adjourned.

12When the courts re-opened in May 2021, Mr. Singh had retained Mr. Gilmour to finish his trial. When we reached the end of our allotted time set aside for this matter, there was approximately three days of evidence for the OSC left to call. We were not able, however, to set new dates at that time as Mr. Gilmour needed time to review the file to determine what defence evidence he was likely to call. Mr. Gilmour was also not in a position to estimate how much time he would need to cross-examine the remaining witnesses. At Mr. Singh’s request, the cross-examination of the key witnesses from the OSC was delayed so that Mr. Singh could have more time to prepare his cross-examination. In light of Mr. Gilmour’s lack of familiarity with the file, we were unable to identify a clear timeline for how much additional court time was needed for this case. As a result, we set one week aside for the remainder of the case for the OSC and two weeks aside for defence evidence. We were given dates during the week of August 23, the week of September 13 and the week of September 20, 2021. In the end, however, only three additional days of court time was needed. We heard evidence on August 23, 24, and 25. When we returned on September 13, 2021 for Mr. Gilmore to cross-examine the main witnesses for the prosecution, Mr. Gilmour advised that he had no question for these witnesses and that he had no defence evidence to call. As a result, these days were not used. Instead the matter went over to September 23 and 24 to hear Mr. Gilmour’s Charter arguments and for closing submissions.

Defence Delay

13Defence delay is described as delay caused solely by the defence. It is therefore necessary to look at the various adjournments in this case to determine whether Mr. Singh’s actions were the sole cause of the delay.

14The first significant period of delay was from when the information was laid and the first trial date. This accounts for 18 out of the 42 months of the delay in this case. The 18 months of permissible delay in criminal trials includes a recognition that in the early stages there will be some reasonable delay while the accused retains counsel and disclosure is prepared. Counsel, once retained, requires time to review the disclosure and prepare a defence. In the case at bar, the OSC was in a position to move this matter forward in August 2018. By then, the vast majority of the disclosure had been prepared and provided to Mr. Singh. Had Mr. Singh retained counsel by then, a judicial pre-trial would have been set. Mr. Singh, however, had not yet retained counsel.

15By the end of August or the beginning of September, the only reason this matter was not moving forward was because Mr. Singh was not prepared to move this matter forward. Mr. Gilmour argued that disclosure was not complete in August so any delay after this point was not delay caused by Mr. Singh. Respectfully, I disagree. While some items were still missing, it is clear from the record that Mr. Singh had enough disclosure to conduct a judicial pre-trial and start setting dates for trial. It is therefore my view that the delay from September 1, 2018 until December 2018 when the court forced Mr. Singh to set a judicial pre-trial is delay caused solely by the defence. This accounts for three months of the delay.

16The pre-trial was conducted on January 14, 2019. Usually after a judicial pre-trial the matter resolves or a trial date is set. That did not occur in this case because Mr. Singh wanted more time to retain counsel. Instead the matter was adjourned multiple times either at the request of Mr. Singh or because Mr. Singh failed to attend court so the matter could not be addressed meaningfully. It was not until May 1, 2019 that Mr. Gilmore attended court prepared to conduct a judicial pretrial for Mr. Singh, even though he was not yet retained. In my view the delay from January 14 until May 1, 2019 is also defence delay (3 ½ months).

17On September 9, 2019 Mr. Singh sought and was granted an adjournment. A new trial date of March 2, 2020 was set. Mr. Gilmour concedes that the delay from Sept 9, 2019 until March 2, 2020 was delay due solely to the defence (six months).

18As noted above, we only sat two days of the six weeks set aside for the trial. We lost three days due to Mr. Singh being ill and five weeks because of the pandemic. When the court started to set new dates for all the trials adjourned during the pandemic, Mr. Singh was offered dates for the new trial in January and February 2021. Mr. Singh chose not to take these dates. No explanation was provided as to why he could not attend those dates. I am mindful that defendants do not need to keep their schedules indefinitely open, but in this case, two months of dates were offered with no explanation for why Mr. Singh was unavailable. In my view, the delay from January 14, 2021 until March 30, 2021 is defence delay (two and a half months).

19As explained above this matter did not complete in the time allotted in April and May 2021 due to a host of reasons. Continuation dates were set for August and September 2021. It turned out, however, that most of these dates were unnecessary as Mr. Gilmour did not cross-examine the witnesses that were set aside for this time and he did not call any evidence. In my view, this delay is solely the result of Mr. Gilmour being retained late in the day and requiring additional time to fully assess his case. Had Mr. Gilmour been retained earlier by Mr. Singh, he would have had a better sense of the case and known that he had no questions for the witnesses that were scheduled to be cross-examined on September 13 and he would have known that he had no defence evidence to call. As a result, September 13 could have been used for submissions and this case could have ended that same day. In my view, these two weeks of lost court time and delay is delay occasioned solely by the defence. The ten days from September 13 to September 23 in my view is defence delay.

20The total defence delay in the case at bar is just over 15 months. When one deducts the fifteen months from the forty-two months that this case took to complete, we are left with 27 months of delay. This is still nine months more than the 18-month ceiling. As a result, I must now consider if there are any exceptional circumstances or discrete acts to justify this additional delay.

Discrete Event and Covid-19

21The trial began at the very beginning of the pandemic. I still recall the first week of court where everyone was nervous attending court. Mr. Singh advised the court he was ill and given the concerns about Covid-19 I readily excused him. Days later, the whole country shut down in an attempt to stop the spread of this novel virus that appeared quite deadly. Courts were closed except for emergency cases and as a result, Mr. Singh’s trial was adjourned. It is now well established that the COIVD 19 pandemic is properly characterized as a discrete event that justifies going over the ceiling for delay (see R. v. Greenidge, 2021 ONCJ 57, R. v. Pinkowski, 2021 ONCJ 35, R. v. Truong, 2021 ONCJ 613, R. v. Simmons, 2020 ONSC 7209, R. v. Drummond, 2020 ONSC 5495).

22The real issue that arises in this case is how much of the delay should be attributed to the impact of COVID-19 pandemic on court operations. In R. v. Simmons, supra, Nakatsuru J. held that the entire period from the original trial date to the new trial date should be attributed to the discrete event of the COVID-19 pandemic. I agree with this analysis. In the case at bar, the trial had just started when Covid 19 hit us. We lost most of the first week of trial due to Mr. Singh being ill and then could not sit the remaining trial dates because of the pandemic. As a result, the entire six-week trial had to be re-scheduled along with every other trial that was adjourned at the time. To only attribute the first few months of the pandemic to a discrete event completely ignores the entire effect of the pandemic on the justice system. It was not just one trial that had to be re- scheduled but hundreds of trials. It is not reasonable to expect that all the trials could have been rescheduled in just a few months. In my view the delay from March 23, 2020 until January 14, 2020 when the first next trial dates were offered to Mr. Singh should be deducted as a discrete event (ten months).

23This trial did not complete during the next set of dates provided for three reasons, Mr. Singh was unable to sit some days, there were staff shortages at the courthouse and the courts closed again from April 26 to May 7, 2021 to all out of custody matters due to the pandemic. Had the court not closed again to all out of custody matters from April 26 until May 7, 2021, this case would have finished in the time allotted. We only needed a few additional days to complete this case. In my view, the time frame from the end of the trial dates in May 2021 until September 13, 2021 is delay attributable to the discrete events of the pandemic. The courts effectively shut down to all non-emergency matters for two weeks because the number of persons contracting Covid 19 were so high that our health care system was being overrun. Steps had to be taken for the health and safety of the public to limit the spread of the disease. Closing all non-emergent business, including trials was necessary. When I deduct these additional three months, the overall delay in this case is fourteen months which is well below the ceiling as outlined in R. v. Jordan.

24Since the net time to trial falls below ceiling, it falls on Mr. Singh to demonstrate that his rights are still violated. I have no basis to find that the delay in this case should have been below the 18-month ceiling. I therefore find that Mr. Singh’s rights as guaranteed by section 11(b) of the Charter have not been violated.

Section 7 of the Charter and the Right to Make Full Answer and Defence

[25] Mr. Gilmore, on behalf of Mr. Sigh also argued that his section 7 rights were violated because his trial was held virtually. He argued that despite every effort by me and Mr. Gilks to assist Mr. Singh in this matter, Mr. Singh was not able to absorb the material and understand the process when presented virtually and as such was unable to make full answer and defence. In support of this application, Mr. Singh filed an affidavit and testified. Mr. Singh asserted the following: a) That he failed to understand the severity of the charges that he is facing; b) That he has not understood the trial or the evidence presented; c) That he has been prone to fall asleep during the proceedings; d) The case was presented in a fragmented fashion causing him to lose the continuity of the case e) As soon as he was given an election to proceed in person, he did so f) That he is not competent to conduct his own defence due to his emotional, psychiatric, and intellectual state. g) That he does not even understand why he is charged.

26Mr. Singh testified that because of all the above factors, he was unable to understand the evidence, respond to the allegations and make full answer and defence.

27If what Mr. Singh attests to is true, then he is entitled to, at a minimum, a mistrial. If the above is true, then I would have to conclude that Mr. Singh could not make full answer and defence. I therefore must assess whether there is some truth to what Mr. Singh has claimed.

28I will address each factual issue raised by Mr. Singh below.

a) That he failed to understand the severity of the charges that he faces

29In his affidavit, Mr. Singh stated that his trial commenced in March 20, 2020 and that “at or near the commencement of my trial I heard her Honour the trial judge said the following words which caused me to be less appreciative of the severity of the charges that I face “I’m not sending anybody to jail just because some people lost some money”.

30Mr. Gilmour conceded that the words attributed to me by Mr. Singh were not in fact uttered, but pointed to two comments I made while in discussion with counsel for the Security Commission to explain why Mr. Singh’s thought I made such a statement. Mr. Gilmour argued that while I did not tell Mr. Singh the charges were not serious, it was reasonable for him to assume this based on my comments.

31It is often difficult and at times inappropriate for a trial judge to attempt to defend herself in a decision. The risk always arises that the trial judge will import her own credibly into the mix which is not appropriate. I have attempted to address this issue by relying solely on what is on the record before me.

32The first comments arose during Mr. Singh’s adjournment application on September 9, 2019. I note that at this time, Mr. Singh did have counsel – Mr. Gilmore. On this date, Ms. Young, counsel for the OSC, in opposing Mr. Singh’s adjournment application, referred to the civil case of The Toronto Dominion Bank v. Weizhan Tang and Hong Xiao. Ms. Young quoted from paragraph three of this decision where the Court of Appeal wrote “we appreciate that Ms. Xiao is under considerable stress; however, in our view, an adjournment would simply have prolonged the stress”. In response to Ms. Young relying on a civil case when Mr. Singh was effectively facing criminal charges, I commented that the Xiao case was easily distinguishable from Mr. Singh’s case since Ms. Xiao was not at risk of going to jail. In other words, instead of saying that this was not a serious case, the essence of the exchange was that this case differs from the case Ms. Young provided because Mr. Singh faces significantly more jeopardy than the appellant in the Xiao case. If this was somehow unclear during the in-court discussion, it became clearer in my reasons for judgment where I stated at page 107 of that transcript that this prosecution was akin to a criminal trial.

33In my view, it is inconceivable that anyone, including Mr. Singh, could have interpreted the exchange in question as a statement from the trial judge that this was not a serious matter. Most importantly, Mr. Singh had counsel during this time. It was not as though Mr. Singh was left to his own devices to interpret the discussions between the court and counsel and my reasons for granting the adjournment.

34The second comment that Mr. Gilmour relies on to support Mr. Singh’s evidence that he thought this case was not serious did not take place at the beginning of this trial. It took place on April 14, 2021 after we were already well into the evidence. At page 91, there is discussion between me and Mr. Gilks, counsel for the Ontario Security Commission. Mr. Gilks wanted to raise evidence of potentially bad character against Mr. Singh, which I was not inclined to permit. In the midst of this discussion, Mr. Gilks’ commented that he understood my earlier opinion that “it’s totally different thing when you’re unrepresented in a criminal matter, vis-à-vis being represented in a civil matter, so I won’t press the point further”. I responded, admittedly inelegantly “I’m just trying to understand the logic of it. I think most people would agree – and maybe I’m improperly using common sense, but Mr. Singh’s affidavit has consistently repeated that the Crown is asking for five years jail as a result of a proceeding, as a result of just losing some money, that the stakes are identifiably different”.

35While I appreciate my language is not ideal, this discussion was essentially the same as the discussion back in September 2019, that Mr. Singh is not just facing some civil suit, but that significant jeopardy attaches to this case. In my view, this was obvious from the context.

36Even if there was some ambiguity and the potential for mis-interpreting my remarks, there is other evidence that, in my view, clearly establishes that Mr. Singh knew the jeopardy he was facing and that he is being disingenuous when he states that he did not appreciate the severity of these charges. This evidence comes from the affidavits Mr. Singh filed on his multiple adjournment applications. In each one of these affidavits Mr. Singh wrote that the OSC is seeking a sentence of five years incarceration. There can only be one reason for including this phrase in his affidavits in support of his adjournment applications – to drive home the jeopardy he is facing so that the court would be inclined to grant him an adjournment. If Mr. Singh truly believed that the charges were not serious and that he was not at risk of going to jail, then why keep repeating it in his affidavits as though it could actually happen?

37In addition Mr. Singh wrote in his affidavit sworn on March 19, 2021 that he gets emotionally paralyzed when he has to look at the material for this prosecution. In my view, the only reason why this case would be so stressful for Mr. Singh is if he appreciated the jeopardy he faced.

38One further piece of evidence which makes it abundantly clear that Mr. Singh knew just how serious this case is comes from the other material filed by Mr. Singh in support of one of his adjournment applications. In support of his adjournment application of March 24, 2021, Mr. Singh filed an affidavit from a lawyer who appears to have some knowledge of this case. The affidavit states as follows,

Clearly, with the penalty sought by the Crown in this prosecution the outcome, however it comes to be determined, bears profound and life changing implications for David Singh including but not limited to his very freedom or incarceration for up to five years.

39Mr. Singh clearly knew the contents of this affidavit as he filed it in support of his motion to adjourn his trial. In my view, the fact that Mr. Singh relied on this lawyer’s opinion is strong evidence that Mr. Singh knew that he faced significant jeopardy if found guilty of these charges. In my view, Mr. Singh’s evidence that he did not appreciate the severity of the charges and that he did not appreciate the seriousness of the allegations is not credible and not believable and is contradicted by material he has put before this court on other occasions. I reject his evidence on this point.

40It is also my opinion that even if my comments on April 14, 2021 somehow did leave the impression that I did not view these offences as serious, I see no prejudice to Mr. Singh and his ability to make full answer and defence. Firstly, my comments from April 14, 2021 could not possibly have had any effect on whether Mr. Singh retained counsel and made full answer and defence. I note that Mr. Singh did in fact retain counsel less than a month after this discussion. Secondly, there is no evidence that Mr. Singh would have handled the case any differently between April 14, 2021 and the day he retained counsel. Mr. Singh took this matter seriously, filed materials expressing how anxious he was about this very case, attended court and questioned witnesses.

b) That he has not been able to follow the evidence

41Mr. Singh wrote in his affidavit that he could not follow the evidence as it was presented on a computer screen and that he did not understand the case he had to meet. Mr. Singh was cross- examined at length about this. Mr. Singh ultimately conceded that it was not that he could not follow the evidence at all, but that it was very challenging and difficult for him. It was his opinion that it was so difficult that he could not properly defend himself. In my view, this evidence is essentially a repetition of what Mr. Singh claimed in his earlier adjournment applications.

42To provide some context, Mr. Singh’s trial for March 2021 was set to proceed in person. Mr. Singh did not want to attend in person due to the pandemic, so he was given the option of having a virtual trial instead. Mr. Singh, when faced with this latter option, brought an application to adjourn his trial stating that he could not attend in person and that he could not attend a virtual trial as he could not make full answer and defence if the trial was held virtually. After hearing the adjournment application, I concluded that I would not compel Mr. Singh to attend an in-person trial during the pandemic. I also concluded that Mr. Singh could have a fair trial if the trial was held virtually. Part way into the trial, in April 2021, Mr. Singh brought another adjournment application arguing that he could not make full answer and defence and properly defend himself because of a physical ailment, on going mental health issues and the fact that this case was being held virtually. I dismissed this application and provided written reasons for doing so. I will not repeat my reasons in this judgment, but I will highlight some of my key findings. Firstly, Mr. Singh had copies of all the exhibits so that he did not have to view any documents on the computer screen. Secondly, an outside company was retained so that Mr. Singh could have a computer and not have to worry about the technology while listening to the evidence. Thirdly, Mr. Singh was given advance notice of all documents that would be referenced in court so that he could prepare the paper documents ahead of time. Fourthly, Mr. Singh’s health issues did not interfere with his ability to make full answer and defence. Fifthly, Mr. Singh’s own actions during the proceedings and the adjournment application made it clear to me that he did understand the evidence, was following along with the evidence and was able to engage with this court.

43In my view there was no additional or new evidence, beyond Mr. Singh’s assertion that he could not absorb evidence given on a screen, from that presented at the adjournment application. Having watched Mr. Singh throughout this trial, I am confident that he understood the evidence and was able to defend himself even though this matter was held virtually. I reject his evidence that he did not understand or follow the evidence because it was presented virtually.

c) That he has been prone to fall asleep during the proceedings

44Mr. Singh wrote in his affidavit that he was “prone” to fall asleep from time to time during the trial. Obviously, if Mr. Singh was asleep during the trial, he could not meaningfully participate in his own defence. On Mach 31, 2021, I noticed that Mr. Singh was falling asleep and promptly stopped the proceedings for the day. I am confident that Mr. Singh did not miss any evidence on March 31, 2021. Mr. Singh did not identify any other occasion where he fell asleep during the trial. I reject his evidence that he was “prone” to fall asleep in the proceedings. This is just not an accurate statement of what occurred during our zoom court. On many occasions myself or Mr. Gilks conversed with Mr. Singh to make sure that he was in fact following along with the evidence. Moreover, Mr. Singh was advised that he could ask for breaks at any time and that it was important for him to be awake and involved in the process.

d) The case was presented in a fragmented fashion causing him to lose the continuity of the case

45There can be no doubt that this was not an ideal trial. We heard evidence sporadically over months. While this is not ideal, in my view the fragmented nature of this case did not create a barrier to understanding and appreciating the evidence. If anything, Mr. Singh benefited from this. This case began in March 2020 and after two days of evidence was adjourned for one year. The only evidence heard during March 2020 was that of Ms. Toledano. Her evidence was technical in nature mostly reviewing the material filed with the court and items seized from Mr. Singh, the banks, and other witnesses. Mr. Singh was provided with copies of the transcripts for those first few days of court so that he did not have to rely on his own notes or memory.

46I further note that some of the fragmented presentation of the evidence was at the request of Mr. Singh. Mr. Singh asked to delay his cross-examination of Ms. Toledano and other more technical witnesses from the OSC until after all the other witnesses were called so that he could have more time to prepare his cross-examination. This was a reasonable request and one that I acceded to. While the first gap in Ms. Toledano’s evidence was a result of the delay caused by the pandemic, the rest of the delay in her evidence was at Mr. Singh’s request.

47While there were other gaps in this case from April 2021 until the end of August 2021, it is my view that the fragmented nature of this case did not interfere with Mr. Singh’s ability to make full answer and defence. Mr. Singh asserted that he lost “the continuity of the case”, in my view this is not a credible assertion. While there was a lot of paperwork filed, the witness evidence was not complex. Transcripts of the evidence was provided to Mr. Singh so he could refresh his memory as needed after there had been breaks in this case. Moreover, by the time of the second significant gap in the evidence, from May until August 2021, Mr. Singh had counsel to assist him. I reject his evidence that the fragmented nature of this case made him unable to properly defend himself.

e) As soon as he was given an election to proceed in person, he did so

48Mr. Singh wrote in his affidavit that as soon as he was given the option of an in-person trial, he elected to have one. That is patently untrue. Mr. Singh had the option of having an in-person trial in March and April of 2021. Mr. Singh did not want to have an in-person trial as he was concerned for his physical health. There was nothing improper about Mr. Singh not wanting an in-person trial. Covid 19 is a frightening illness and we were all encouraged to work from home where possible. While I do not fault him for not wanting to attend the courthouse, it is not true that he was not given this option or that he accepted this option the moment it was offered.

49I further note that in my ruling on Mr. Singh’s third adjournment application Mr. Singh was advised that we would convert this trial to an in-person trial when ever he wanted, I wrote,

23In my view, this aspect of Mr. Singh’s motion must fail. Any concerns about conducting this trial over zoom have been adequately addressed. I am satisfied that Mr. Singh can have a fair trial and properly represent himself in this virtual trial. If at any point, however, Mr. Singh would rather convert this to an in person trial, I will have no difficulty accommodating this.

f) That he is not competent to conduct his own defence due to his emotional, psychiatric, and intellectual state and that he did not even understand why he was charged

50I appreciate that Mr. Singh felt that he was not capable of conducting his own defence. I stand by my findings of fact and conclusions in my earlier decision on the adjournment motion, when this very issue was raised. No additional evidence other than Mr. Singh’s bald assertion has been presented to cause me to reach a different conclusion on this motion.

51In relation to Mr. Singh’s present and new assertion that he does not even know why he was charged, this in my view, borders on absurdity. Firstly, Mr. Singh had counsel during portions of these proceedings. He had counsel to conduct a judicial pre-trial prior to the first trial dates being set and he also had counsel during the first adjournment motion. Moreover, another lawyer assisted him with the second adjournment application and filed an affidavit which included to making reference to the complexity of this case. Given the legal assistance available to him during this proceeding, it is not believable that Mr. Singh did not understand the nature of the charges. To believe this would require me to find that he had virtually no discussions with the very lawyers he retained for the first judicial pre-trial.

52I further note that in his affidavit of March 19, 2021, Mr. Singh wrote that he denies any liability for losses claimed in this case. This presents an understanding that there is an allegation that people, namely his investors, lost money and are alleging he is responsible.

53Finally, the transcript from the judicial pre-trial on January 14, 2019 makes it abundantly clear what the crux of the allegations were. Just before the pre-trial began Mr. Singh was provided a replacement copy of the synopsis, which summarized the allegations. He was also given time to review this document before conducting the judicial pre-trial. In the pre-trial, counsel for the OSC summarized the case in detail in open court for Mr. Singh to hear the essence of the allegations. Counsel for the OSC clearly stated that the charges involved a number of allegations including the allegation that, through his companies, Mr. Singh was trading in securities without a registration and issuing securities without filing a prospectus. As someone who works in the area of securities, it is unreasonable to find that Mr. Singh did not understand the nature of these charges. The documents filed at trial confirmed that Mr. Singh has some understanding of the requirements of the OSC. In relation to the more complex charge of fraud, counsel for the OSC explained on the record on January 14, 2019 that the fraud allegedly took place over four years, involved both Rockfort and Greenview corporations and that it related to mortgage related security frauds. Counsel went on to identify the number of investors, the amount of the fraud, and how the fraud took place. In particular that it is alleged that Mr. Singh took money from investors to fund mortgages but then did not fund any mortgages. This was not a foreign allegation to Mr. Singh. According to the evidence at trial, it is an allegation that had been made by an ex-consultant back in 2016. Mr. Singh knew that this ex-consultant had contacted the OSC and at the time, Mr. Singh wrote letters to his investors addressing the allegation that the companies held no mortgages. Given this history, it is impossible to accept that Mr. Singh did not understand why he was charged. In addition, during the judicial pre-trial, Counsel for the OSC reviewed the witnesses that would be called at trial and for what purpose. It was evident from the record then that Mr. Singh understood much of what was said. At page 43 of that transcript Mr. Singh was asked about the admissions that OSC counsel wanted from Mr. Singh. Mr. Singh stated,

There’s some things that he’s mentioned that I will – I will not challenge, for example, the existence of the corporations for example, bank records, they are what they are. Staff that worked for me, what it is, I will not object to those – what they say is a different matter, but the staff themselves, who the directors of the corporation were, I will not object to that, it is what it is. Things like those. The O.S.C. disciplinary hearing from 20 years ago, I will not object to it because it’s what it is.

54In my view, Mr. Singh has been able to engage in the material in this case and was provided adequate assistance to defend himself during the portion of this trial where he was self represented. I am further satisfied that he fully understood the nature of the charges against him. While I do not doubt for a moment that trial has been challenging for Mr. Singh, I reject his evidence that he did not understand the proceedings, that he did not understand the severity of the charges or that he was unable to follow the evidence in court and represent himself during the time when he was self represented. While it may have been difficult at times for Mr. Singh watching the evidence on a computer screen, I am certain that Mr. Singh was able to follow the evidence and understand the evidence and the issues at his trial.

55Finally, I note that as of May 10, 2021, Mr. Singh had counsel, Mr. Gilmour. A lawyer who already knew the file to some degree as he had been the lawyer for the Judicial pre-trial in 2019 and the first adjournment motion. The most complex witnesses were set aside until the end of the Crown’s case and Mr. Gilmour was provided time to review the material so that he could cross- examine the witnesses. Nonetheless when given the opportunity to cross-examine the witness that he now says were the most important witnesses, he had no questions. He also had no questions for the other witness from the Security commission.

56During submissions, I asked Mr. Gilmour to identify specific prejudice which could not be resolved by a remedy short of a stay of proceeding like recalling witnesses so that Mr. Gilmore could do a more thorough cross-examination if necessary. Mr. Gilmour declined my offer. It was his position that he needed to be present during the examination-in-chief in order to conduct any sort of cross-examination. Mr. Gilmour did not expand on this or provide any explanation as to why a review of the transcripts or listening to the actual proceedings on the DRDs was insufficient. I note that this was largely a paper case. Ms. Toledano collected evidence and crunched numbers from different banking and business documents. There is no basis for his assertion that a meaningful cross-examination could not have been conducted by a review of the transcripts or the DRDs.

57In my view, Mr. Singh was able to make full answer and defence. He was able to understand the evidence enough to represent himself during the portions of the trial where he was self represented. If Mr. Singh was truly unable to properly cross-examine witnesses, the witnesses could have been recalled to be cross-examined by Mr. Gilmour. No meaningful argument was put forward to explain why this was not a reasonable alternative. In my view, Mr. Singh did understand the evidence, was able to follow along with the evidence and be mentally present for his trial. I further find that his right to be present, to understand the evidence and make full answer and defence was not violated.

The Trial Proper

58Mr. Singh is facing three charges under the Ontario Securities Act. All three charges relate to two companies that Mr. Singh owned and controlled from 2015 until 2017. These two companies were Rockfort Mortgage Investment Corporation (Rockfort) and Greenview Mortgage Investment Corporation (Greenview). It is alleged that Mr. Singh sold shares in these companies to investors with the promise of a return in the range of eight to ten per cent. The investment income would be generated from the interest on mortgage loans owned by the companies. It is alleged that Mr. Singh violated the OSA through Rockfort and Greenview because both companies sold securities without being registered. It is also alleged that Mr. Singh, through both companies, distributed securities without first filing a prospectus contrary to the OSA. In addition to these more technical violations, it is also alleged that Mr. Singh committed the offence of Fraud under the OSA. It is alleged that while Rockfort and Greenview took money from investors and claimed to be gathering mortgages, Rockfort and Greenview did not actually own any mortgage loans. It is alleged that Mr. Singh used the investors money to bankroll his personal lifestyle and pay off personal debts. It is also alleged that Mr. Singh created false biographies in the material provided to investors (offering memorandum), that he lied to investors about who the president, treasurer and secretary of the company were and that he lied to investors about whether or not his sales people were to receive a commission.

59In support of these allegations, counsel for the OSC filed a host of bank records, materials seized from the offices and computers of Greenview and Rockfort, Mr. Singh’s email conversations and other related documents. Several witnesses also testified including OSC staff, investors in Rockfort and Greenview and their employees.

60At the beginning of trial, Mr. Singh was self represented. Part way through the trial, Mr. Singh retained Mr. Gilmour to represent him. Mr. Gilmour elected not to recall any of the witnesses who testified prior to his being retained and did not present any evidence. Evidence relevant to Mr. Singh’s defence came through during cross-examination and through exculpatory statements attributed to Mr. Singh during his trial.

61At the close of the trial, Mr. Gilks, counsel for the OSA, provided very lengthy written submissions. Mr. Gilmour provided no written submissions and chose to make no oral submissions. Despite the absence of defence submissions, it is still incumbent on me to carefully review all the evidence to determine whether the OSC has proven the case against Mr. Singh beyond a reasonable doubt.

Summary of the Evidence

62As previously stated, most of the evidence in this case is in documentary form. Witnesses were largely called to confirm the accuracy of the documents filed with this court and to discuss their interactions with Mr. Singh and his companies. I briefly summarize some of the evidence below.

63The investigation into Mr. Singh appears to have started when a Mr. Brown, an employee/contractor with Rockfort, made a complaint against Mr. Singh and Rockfort in the spring of 2016. During the course of his duties for Rockfort, Mr. Brown discovered that Rockfort had no ongoing mortgages. The only mortgage he was ever provided with by Mr. Singh was a dated mortgage from 2009. Even though the Mortgage was with Rockfort, it pre-dated the incorporation of Rockfort which was 2014. Mr. Brown asked Mr. Singh to provide him with information about the mortgages held by Rockford, but he provided none. Mr. Brown ultimately concluded that Rockford did not actually hold any mortgages. As a result of this discovery and other conversations with Mr. Singh, Mr. Brown complained to a trust company that referred clients to Rockfort and to the OSC. Rockfort closed shortly thereafter and Greenview was created.

64A number of employees of Rockfort testified at the trial.

65Jean Benedict testified that she was the office manager for Rockfort and for a related company, Infinity Management. Ms. Benedict worked for Rockfort and Infinity in 2014 and 2015. According to Ms. Benedict, Mr. Singh owned Rockfort and prepared the documents in support of Rockfort, in particular the offering memorandum.

66Mr. Yu was the accountant for Rockfort and later Greenview. He worked for these companies from 2015 until 2017. Mr. Yu handled all the daily bookkeeping. Mr. Yu testified that he reported to Mr. Singh and wrote cheques and disbursed funds as directed by Mr. Singh. Mr. Yu also testified about Infinity Management. According to Mr. Yu, Infinity Management was employed as a management mechanism for both Rockfort and Greenview. As a result, both Rockfort and Greenview had to pay Infinity. The fee structure to infinity was set up as a loan system. Mr. Yu, in his evidence, identified several cheques written from Infinity Management to pay for what is alleged to be personal expenses for Mr. Singh including payments for his children’s school tuition and dance classes. Mr. Yu also identified cheques issued by Infinity Management to Meridian Law. Mr. Yu testified that Mr. Singh told him that the cheques to Meridian Law were to pay off a mortgage. When asked about payments to investors for their interest in the companies, Mr. Yu testified that this was decided by Mr. Singh.

67Michael Saniga was hired in June 2015 to work for Rockfort. It was his understanding that Rockfort was really just starting up at this time and they were just in the beginning phase of looking for investors. The plan for Rockfort was to invest in residential mortgages with a target of making an 8% return on investments. Mr. Saniga left Rockfort in September 2015 for another job.

68Mr. Neal was also a Rockfort employee. He testified that his job at Rockfort was to meet with investors and encourage them to invest in Rockfort. His investors, of which there were approximately 10, invested by purchasing shares in Rockfort. Mr. Neale testified that he received a commission for bringing in investors in the range of six to eight percent. He could not specifically recall the exact amount. Mr. Neal stayed on when Rockfort closed and Greenview opened. While he worked for Greenview, he did not bring in any new business. He had heard about the problems with Rockfort and was hesitant to promote this new company.

69George Brown started to work for Rockfort in 2016 as a consultant. Mr. Brown claimed that he was hired to investigate transforming Rockfort to a public trading company. This evidence was highly disputed by Mr. Singh at trial and was the subject of some cross-examination. Despite this extensive cross-examination, in a letter Mr. Singh wrote to Ms. Vernon on May 19, 2016 (trial book 5 tab 5n) Mr. Singh wrote “A few months ago a gentleman by the name of George Brown was retained by Rockfort Mortgage Investment Corporation to assist us in getting our books and records ready for the possible listing of Rockfort on a Canadian Stock Exchange”. It therefore appears by Mr. Singh’s own admission that Mr. Brown was hired for this purpose. Mr. Brown testified that as part of his duties he had to essentially audit Rockfort and prepare a report for the board of directors. He did prepare this report and recommended not filing for a public trade due to issues with the company. Mr. Brown testified that in preparing his report he learned about another company called Infinity Management. Infinity charged Rockfort for overhead and management fees. Mr. Brown also needed to learn about the mortgages held by Rockfort. He asked Mr. Singh about them but Mr. Singh was only able to produce one mortgage. The mortgage produced was for a property at 5355 Highway 101 West in Timmins. This mortgage, however, was from 2009, approximately four years before Rockfort was incorporated. Despite repeated requests for documents relating to other mortgages, none were provided. Ultimately, Mr. Brown formed the opinion that Rockfort was a fraudulent company and took steps to alert potential investors about this. In cross-examination, Mr. Brown’s animus towards Mr. Singh was clear. In letters written to investors Mr. Singh wrote that Mr. Brown was terminated by Rockfort and was engaging in criminal actions. He wrote that it was his intention to report Mr. Brown to the police and to ask the court for an injunction against him. Other witnesses testified that Mr. Singh told them that there was a break down in his relationship with Mr. Brown and that is why Mr. Brown went to the OSC.

70Mr. Zimmerman was also employed by Rockfort. He too asked Mr. Singh to identify the mortgages held by Rockfort. Mr. Zimmerman testified that he was provided with one mortgage document. It was the same mortgage that Mr. Brown had seen – relating to a property at 5355 Highway 101 West, Timmins - with one key difference, this mortgage was dated 2015. Despite additional requests, Mr. Singh failed to provide evidence or documentation of any other mortgages held by Rockfort.

71In the aftermath of the closure of Rockfort, Mr. Singh opened a new company called Greenview. Mr. Weinberg began working for Greenview shortly after it opened, in November 2016, as president of the company. His role was to raise funds for the company through hiring and training executive officers. According to Mr. Weinberg, a management company called Infinity Management (Infinity) controlled the money coming into Greenview and received the money invested in Greenview. Mr. Singh told Mr. Weinberg that Infinity was a management company and that all transactions with Infinity were legitimate arms length transactions.

72While working at Greenview, Mr. Weinberg saw a report prepared by Mr. Brown about Rockfort. Given the contents, he decided to ask Mr. Singh about this document. Mr. Singh advised Mr. Weinberg that there was a conflict between himself and Mr. Brown which resulted in Mr. Brown reporting him to the OSC. Mr. Singh also told Mr. Weinberg that a law firm called Meridian law and Money Gate stole money from Rockfort which was why Rockfort had no money and had to close down.

73Mr. Weinberg, despite being president of Greenview, had no knowledge of any mortgages held by Greenview. He asked Mr. Singh about this. Mr. Singh then directed the accountant, Mr. Yu, to provide an outline of their mortgages. This revealed that Greenview had no mortgages. As a result, Mr. Weinberg resigned.

74In December 2016 Mr. Aziz started to work at Greenview. He took over the role as president of the company. Like Mr. Weinberg, Mr. Aziz’s responsibilities included recruiting and training executive officers to raise funds for Greenview. Mr. Aziz described executive officers at Greenview as people who could bring in business to the company by finding investors. They were not high-level decision makers. All executive officers were independent contractors. Beyond that, Mr. Aziz did not know details about the compensation structure for the executive officers. He was also unclear about the overall compensation structure of the business. He understood that Mr. Singh owned Greenview.

75In 2017, Mr. Ali Sedighpour met Mr. Singh during the course of business. Mr. Sedighpour owned a company called Discover Cash Flow. He agreed to help promote Greenview to potential investors and his own employees started to find investors and sell shares in Greenview. Mr. Sedighpour testified that when he first became involved with Greenview Mr. Aziz was the president of the company, this suggests to me that his estimate of when he met Mr. Singh could not be accurate as Mr. Aziz was the president in 2016. He later learned that Mr. Singh was the operating mind behind Greenview and that Mr. Singh ran the company. Mr. Sedighpour testified that he was told that the investors were promised a 10% return on their investment, but that their money was locked in for five years. Mr. Sedighpour was shown a list of investors in Greenview, he was able to confirm many of them as they were brought in by his staff. Mr. Sedighpour stopped working with Mr. Singh when the OSC stepped in. At some point during his time with Mr. Singh he asked to see what mortgages Greenview held. Mr. Singh showed him deeds for three different properties, albeit none in the GTA.

76Nicholas West testified that he too was a president of Greenview. He started working there in the spring and summer of 2016 as a summer student. Mr. West understood that Greenview was owned by the people that invested in it. Mr. West described his role as overseeing the marketing and business development of Greenview. Mr. West listed one of his duties as precuring mortgages for the company, however, he did not actually precure any mortgages for Greenview.

[77] A number of investors also testified at trial. They all confirmed their investment in either Rockfort or Greenview. I will briefly review the investors evidence. a) Ms. Morrison started investing in 2015. She met directly with Mr. Singh and on his advice invested with Greenview. She was not explained any of the risks associated with investing in Greenview. She understood that Greenview was a mortgage investment corporation. Ms. Morrison’s documentation for the purchase of her shares indicates that she purchased them through the family, friends and business associate exemption. Ms. Morrison testified that she was not a close friend or family to Mr. Singh or anyone else at Greenview. In September of 2017 Ms. Morrison contacted Mr. Singh as her daughter was starting university and she needed some of the money she had invested. At this point in time she had not received any dividend or interest payments from her investment. Mr. Singh told her that he would try to get her access to some funds, but he never did. In cross- examination Mr. Singh asked Ms. Morrison if he had made a promise to her that he would personally make sure she got all her money back and Ms. Morrison agreed that Mr. Singh did make this promise. b) Janarian Singh invested in Rockfort back in 2015 through Mr. Singh. He has known Mr. David Singh for over 30 years. Even though he was investing in Rockfort, Mr. Janarian Singh wrote one of his investment cheques to Infinity management at the request of Mr. Singh. Janarian Singh received back all the money he invested. c) Ms. Vernon invested in Rockfort through Winston Neal by purchasing shares in the company. According to the documentation associated with her purchase, she signed off on the friends and family exemption even though she was not friends or family with anyone at Rockfort. Ms. Vernon’s signature is clearly on a document acknowledging that she is purchasing as a “family, a friend, or business associate”. She invested on three different occasions through 2015 and 2016. Her last investment was for over $230,000.00. This money was to originate in Rockfort but be transferred out to a different investment right away. This was never done. Despite her instructions to Mr. Neal, all the money stayed in Rockfort. When Ms. Vernon realized that all her money was in Rockfort she was upset and complained to Mr. Neal. Mr. Singh responded and said he wanted to explain more about her investment. Ms. Vernon then received an email from Mr. Brown advising her of his concerns about Rockfort. In response Ms. Vernon asked Mr. Neal for her money back. She wanted her shares sold and her money returned. Mr. Singh then wrote to her and said that Mr. Brown and his colleague Mr. Ziger were just disgruntled employees. Mr. Singh also wrote to Ms. Vernon said that Mr. Brown and Mr. Ziger were terminated from Rockford and had been reported to the police. Ms. Vernon testified that she tried many times to get her money back through Mr. Neal but to no avail. In July 2016 she received an email from Mr. Singh advising that her investment was still safe. Mr. Singh also wrote her that she would get her money back by June 30, 2017 but this did not happen. d) Darryl Weinberg also purchased shares in Rockfort through Mr. Singh. His second investment cheque for Rockfort was made out to Infinity Management at Mr. Singh’s request. e) Ms. Dokmanovic invested in Greenview through Mr. Sedighpour. She never met Mr. Singh. She too signed off on the friends and family exemption even though she had no close friends or family at Greenview. The documents she signed also alerted her to the fact that she was engaging in a risky investment. Shortly after investing she received a letter from Mr. Aziz with a welcome package and a letter stating that she will get 10% annually. Ms. Dokmanovic invested just over 200,000$ in Greenview and has not received any of this money back.

Issues and the Law

78As previously noted, Mr. Singh faces three charges arising from his ownership and control over Rockfort and Greenview from 2015 until 2017. In support of their case, the OSC argues that a number of hearsay documents be admitted for the truth of their contents. While no argument was made by counsel for Mr. Singh about the admissibility of this evidence, no concessions were made either. As such, I must address whether this evidence is properly admissible at trial. Similarly, while no defence evidence was presented at trial and no submissions were made by counsel for Singh, there are no real concessions either. As a result, I must address each essential element for every offence charged to determine if the OSC has proven its case beyond a reasonable doubt.

79The issues in this case can be identified as follows:

1. Are the different sorts of documentary evidence relied on by the OSC admissible?
2. Did Mr. Singh control/own Rockfort and Greenview such that he is personally responsible for the actions of the corporations?
3. Did Mr. Singh sell securities without being registered to do so (count 1 on the information)?
4. Did Mr. Singh engage in the distribution of securities without first filing a prospectus (count two on the information)?
5. Was Mr. Singh exempted from registering and filing a prospectus?
6. Did Mr. Singh commit the offence of fraud (count three on the information)?

1. Admissible Evidence

80Mr. Gilks identified five types of documentary evidence that he argues are admissible at this trial. They include i) certified documents ii) documents identified by witnesses iii) work product by Ms. Toledano iv) trust ledgers alleged to be from Rasik Mehta of Meridian Law and v) documents found at 80 Tiverton.

81In relation to the first two sets of documents, they are clearly admissible at trial. While counsel asserts that they are admissible for the truth of their contents, in relation to the latter grouping this must be clarified. Where a witness has identified a document and confirmed it is accurate, the document is admissible for its truth. Some documents, however, were clearly identified as not representing the truth. For example, a number of applications to purchase shares were filed as exhibits. In their evidence the witnesses confirmed that the family and friends exemption was selected. The witness agreed that this accurately represented what was signed but went on to state that they were neither family nor friend to Mr. Singh or others at Rockfort or Greenview. So, these documents are admissible as evidence that the exemption was used but not that the person was actually a friend or family of executives at Rockfort or Greenview.

82In relation to what is alleged to be Mr. Mehta’s trust ledgers, Mr. Gilks, on behalf of the OSC, argued that they are admissible for their truth because they are necessary and reliable. Respectfully, I disagree. Mr. Gilks argued that they are trustworthy because they were provided in response to a court order. Mr. Singh clearly takes the position that Meridian Law is engaging in fraudulent conduct. I have no evidence that what was produced was in fact what was ordered by the Court. The mere fact that some documents were produced is not evidence that they were the right documents. I therefore cannot be satisfied that the trust ledgers provided are what was ordered by Justice O’Brien or that they are accurate. I note that no witness attended court to confirm that the ledgers are in fact what they are purported to be. Secondly while Ms. Toledano was able to compare the contents of the ledgers with cheques written and with the bank records for Rockfort and Greenview, this alone does not satisfy me that the documents are accurate. Moreover, while Mr. Yu confirmed that he wrote cheques at Mr. Singh’s request to Meridian Law for mortgages, this does not mean that the trust ledgers provided are in fact accurate. Finally, in my view the OSC has not met the test of necessity. While the courts loath to call evidence that may breach solicitor-client privilege, the trust ledgers had already been ordered by a court to be provided. All Mr. Gilks had to do was call a staff member from Meridian Law to confirm that these are the trust ledgers related to Rockfort. This in my view, given the court order already in place, would not have been inappropriate.

83I therefore find that that the trust ledgers are not admissible for their truth.

84Mr. Gilks also sought to admit the documents found by the OSC at 80 Tiverton, suite 203 in response to the search warrant. I am satisfied that these documents are admissible. Firstly, they were found at Mr. Singh’s office. Many witnesses confirmed that 80 Tiverton was the location of the offices of Greenview and Rockfort. They also testified that Mr. Singh’s office was located there. This evidence came from Ms. Benedict, Mr. Yu, Mr. Saniga, Mr. Aziz, and Mr. Weinberg, all of whom worked for either Rockfort or Greenview. I am therefore satisfied that these documents were in Mr. Singh’s possession. Secondly, many of these documents were authored by Mr. Singh. This has been established in a few ways i) by Mr. Singh’s signature being on the document (Mr. Aziz viewed a number of documents and confirmed Mr. Singh’s signature. From this a comparison of signatures supports the conclusion that the documents filed with signatures purporting to belong to Mr. Singh were in fact Mr. Singh’s signature); ii), a number of documents with what looks like Mr. Singh’s signature were confirmed by witnesses to have been from Mr. Singh; and iii) a number of documents were emails found on computers in Mr. Singh’s office from Mr. Singh’s email address. In light of this I am satisfied that the documents found in Mr. Singh’s office are admissible for their truth.

85The last category of documentary evidence I want to address relates to Ms. Toledano’s work product. Mr. Toledano works for the OSC and went through all the documentation relating to Mr. Singh and created charts tracking money coming in and out of Mr. Singh’s accounts, Rockfort’s accounts, Greenview’s Accounts, Infinity management’s accounts and the accounts of 2399021 Ontario Inc (another company linked to Mr. Singh). Ms. Toledano’s evidence essentially summarized and traced the financial material gathered during the course of the investigation. I am satisfied that her work product is admissible as long as the underlying material is admissible. I have already confirmed that the bank records, land registry documents, OSC s.139 certificates and the corporate profile reports are all properly before the court. As are the documents identified by the witnesses. The same applies to the material found in Mr. Singh’s office and on his computers. However, given my decision in relation to the Meridian Law Trust ledgers, in so far as her work product relies on these ledgers, her work product is not admissible.

2. Did Mr. Singh Own/Control Rockfort and Greenview?

86The charges before the court are not against Rockfort or Greenview, instead they are against Mr. Singh directly. The charges, however, are really based on the actions of Rockfort and Greenview. Therefore, Mr. Singh can only be found guilty of the charges before this court if he is in fact an owner of Rockfort and Greenview, if he controlled them and engaged in the trade/sale of shares for himself through them. Mr. Gilks, at pages 21 through page 27 of his written argument outlined the evidence that supports a finding that Mr. Singh was the owner/operating mind of both Rockfort and Greenview. In my view his review of the evidence properly summarizes the evidence on this point, and it does establish that Mr. Singh was the owner/operating mind of both companies. Given the detail included in Mr. Gilks’ written argument and the overwhelming evidence of ownership and control, I will only briefly address this issue.

87The evidence that Mr. Singh was the owner and operating mind of Rockfort comes from a number of sources. The only reason for scrutiny of this assertion is that corporation profile report for these companies changed over time. In a corporate profile report printed on February 10, 2017, Mr. Singh is listed as the owner of Rockfort as well as the president and secretary and treasurer. It states that he held these positions since April 30, 2015. Prior to this time, other owners and directors were listed in the Corporation profile report for Rockfort including Ms. Benedict and Mr. Saniga. Ms. Benedict testified that she consented to being placed on these corporate reports but was not in fact the owner or the president. Her job was that of office manager. Ms. Benedict testified in a forthright manner, expressed no animus to Mr. Singh and was not contradicted in her evidence. Her evidence is also corroborated by other evidence that points to Mr. Singh as being the owner and controlling mind of Rockfort. This comes from the numerous witnesses who attended Mr. Singh’s seminars, spoke to Mr. Singh and were recruited to work for Rockfort by Mr. Singh. I accept Ms. Benedict’s evidence that while she was listed as president, she did not in fact run Rockfort. I further accept her evidence that Rockfort was Mr. Singh’s company, he asked her to be listed in these positions and he made the decisions for the company. Similarly, Mr. Saniga was listed in July 2015 as the president, treasurer, and secretary of Rockfort. He testified that he never held these positions. It was his evidence that he was hired on and brought into Rockfort by Mr. Singh. In cross-examination it was put to Mr. Saniga that he did in fact talk to Mr. Singh about taking on the role of president. Mr. Saniga had no recollection of these discussions. Regardless of whether these conversations occurred, a few months later, Mr. Singh again became the listed president of Rockfort and during all the relevant times, it was Mr. Singh making the decisions about Rockfort.

88Mr. Brown also testified that Mr. Singh was the owner and directing mind behind Rockfort. It was Mr. Singh that hired him (this was confirmed in the contract between Mr. Brown and Rockfort) and Mr. Singh who held the knowledge about the mortgages and daily operations of Rockfort. I accept Mr. Brown’s evidence on this point.

89Mr. Neal also testified about being an employee of Rockfort. He testified that Mr. Singh ran the business. In particular he testified that Mr. Singh told him why he was being paid by infinity and not Rockfort, further establishing that Mr. Singh controlled Rockfort as he controlled the finances of the company. Mr. Singh also signed the shares certificates for Ms. Vernon (Mr. Neal sold her the shares) stating that he was the president and secretary of Rockfort. In other correspondence to Ms. Vernon, Mr. Singh also stated that he was the president of Rockfort.

90In my view all this evidence establishes beyond a reasonable doubt that Mr. Singh was the owner and operating mind behind Rockfort.

91Similar evidence exists for Greenview. When Rockfort closed down after Mr. Brown’s complaints, Greenview was created. Like Rockfort, the Corporation Profile reports identify different people as being president of Greenview over time. For example, Mr. Aziz was listed as the president of Greenview in the corporation profile report and in fact he testified that he was hired by Mr. Singh to be the president after meeting Mr. Singh at a seminar about Greenview. Mr. Aziz testified that Mr. Singh was going to train him to be the president.

92Other witnesses including Mr. Sedighpour and Mr. Weinberg also confirmed that Mr. Singh was the leader and operating mind of Greenview. While they hold specific roles in the company it was Mr. Singh that outlined their duties and gave them their titles. It was Mr. Singh who effectively controlled the operation of the company. It was Mr. Singh, who alone, held the knowledge and paperwork for any mortgages that may have existed for the companies. Mr. Yu, the accountant for both Rockfort and Greenview, also testified that Mr. Singh was the owner of both these companies and that he was the decision maker for both these companies. According to Mr. Yu, Mr. Singh directed how the money in the companies was to be spent. Mr. Singh controlled all the finances of the company. Moreover, in emails to Mr. Missaghi, Mr. Singh identified himself as the owner of Greenview. Finally, as Mr. Gilks’ pointed out at paragraphs 64 and 65 of his written submissions, companies owned by Mr. Singh, namely Destiny Financial and 2571315 Ontario Inc are, listed on documents found at Greenview as the first two owners of Greenview with them owning 12.5 million shares between them.

93In my view, when I consider all this evidence I am satisfied beyond a reasonable doubt that Mr. Singh owned both Rockfort and Greenview, that Mr. Singh was the operating mind behind these companies and that the actions of the company were controlled by Mr. Singh.

3. Did Mr. Singh Trade in Securities Without Being Registered?

94It has already been established that Mr. Singh controlled Rockfort and Greenview and as such, if the companies engaged in activities, he engaged in the activities. To make out an offence under section 25 of the OSA, the OSC must prove that a security was traded, that the security was traded for a business purpose and that no exemption existed.

95In my view there is overwhelming evidence that establishes beyond a reasonable doubt that Mr. Singh traded in securities through both Rockfort and Greenview. Numerous witnesses testified about purchasing shares in both Rockfort and Greenview. Some did it directly through Mr. Singh (like Jennifer Morrison and Ms. Bailey-Hart). Others did it though staff at the companies (like Ms. Vernon and Ms. Dokmonovic). Moreover, share certificates filed with this court provide additional proof that shares were being sold. As for whether or not security was traded for a business purpose, I am satisfied beyond a reasonable doubt that Rockfort and Greenview were in the business of selling shares. As I understand all the evidence, Rockfort and Greenview were set up as companies that would make money by the interest obtained through mortgage loans on residential and commercial properties. This evidence comes from many of the employees of these companies as well as from the offering memoranda for both companies. Investors were encouraged to purchase shares in Greenview and Rockfort and in return for their investment they would receive interest from the mortgages. The fact that Mr. Singh actively sought investors in Greenview was clearly set out in his emails to Mr. Khan (found in trial book 5) where he stated that he was seeking investors in Greenview. In the case at bar, the sale of shares in Rockfort and Greenview was not incidental to their business. It was at the core of their business. On all the evidence, all the activity carried out by Rockfort and Greenview centered around the selling shares as a way of bringing in income to the companies. In my view selling the shares was a significant part of the business and as such meets the test for being in furtherance of the business (see York Rio Resources Inc. re, 2013 ONSEC 10).

96Having found that Mr. Singh was operating two businesses from 2014 until 2017 that sold securities for the business purpose, as per the OSA, Mr. Singh was required to register with the OSC. According to the Ministry Records, Mr. Singh failed to do so. Unless he qualifies for one of the exemptions or acted with due diligence, he will be guilty of this offence. I will address these latter to points later in this judgment.

4. Trading in Securities Without Filing a Prospectus

97Pursuant to section 53(1) of the OSA, a person trading in securities on his own or on behalf of a company where the trade would be a “distribution” of a security, must file a preliminary prospectus and a prospectus with the OSC. It is alleged that Mr. Singh traded in securities (shares in Greenview and Rockfort), that the trade qualifies as a distribution of a security and that he did so without filing a prospectus. To prove this offence, the OSC must prove that Mr. Singh traded in security either on his own or on behalf of a company, that this trading amounted to a distraction of the security and that no prospectus was filed. The first and third elements are easily established. I have already found that Mr. Singh traded in securities. The fact that prospectuses were not filed for Rockfort and Greenview was established by the filing of the section 139 certificates. The only issue remaining is whether there was a distribution of security. Distribution is defined in the OSA broadly to include trades in new securities as well as the resale and purchase of shares. The evidence in the case at bar establishes that Mr. Singh, through Rockfort and Greenview, sold new shares to investors. This was clearly outlined in the offering memoranda for both companies. I am satisfied that this meets the definition of distribution under the OSA.

5. Exemption Defence

98There is no dispute that the requirements under section 25(1) (unregistered trading) and section 53(1) (distribution without a prospectus) are not required if the person carrying on business or selling the shares is a close family member of the purchaser or a close friend or business associate of the purchaser. In the case at bar, there is some evidence that this exemption was being used. Mr. Gilks, on behalf of the OSC, alleges that this was merely a ruse used by Mr. Singh to avoid the OSA requirements but that in fact this exemption did not apply to him or his companies. While no argument was made by counsel for Mr. Singh, I am still required to consider whether this exemption was available.

99The evidence that Mr. Singh was attempting to rely on the family and friends exemption comes from the offering memoranda of both Rockfort and Greenview as well as subscription agreement for preferred shares signed by a number of the investors. The offering memorandum for both companies makes this clear. Both offering memorandum have a heading “Prospectus Exemption”. Under this heading the following is written “The Shares are being offered on a private placement basis”. There is then a reference to the accredited investor exemption. The paragraph continues with the following: “Accordingly, no prospectus has been or will be filed in connection with the offering’. The next paragraph under this subheading references the “minimum amount investments” exemption. The next passage relates to the family and friends exemption which states,

This offering is also being made in reliance upon the “family, friends and business” exemption from the registration and prospectus requirements contained in Section 2.5 or 2.6 of JJ 45-106. That is, such subscriber is purchasing as principal and is: a) A director, executive officer or control person of the issuer, or, of an affiliate of the issuer b) A spouse, parent, grandparent, brother, sister, child or grandchild of a director, executive officer or control person of the issuer, or of an affiliate of the issuer, c) A parent, grandparent brother, sister, child or grandchild of the spouse or a director, executive officer or control person of the issuer or of an affiliate of the issuer d) A close personal friend of a director, executive officer or control person of the issuer, or of an affiliate of the issuer, e) A close business associate of a director, executive officer or control person of the issuer, or of an affiliate of the issuer, f) A founder of the issuer or a spouse, parent, grandparent, brother, sister, child, grandchild, close person friend or a close business associate of a founder of the issuer, g) A parent, grandparent, brother, sister, child or grandchild of a spouse of a founder of the issuer, h) A person of which a majority of the voting securities are beneficially owed by, or a majority of the directors are, persons described in paragraphs (a) to (g) or, i) A trust estate of which all of the beneficiaries or a majority of the trustees or executors are persons described in paragraphs (a) to (g)

100The same language exists in the offering memorandum for Rockfort and Greenview.

101Mr. Gilks argues at paragraph 288 of his closing argument that six investors testified and in all six cases, their share purchase agreements reflect reliance on the family and friends exemption. In all six cases, the investors testified that this exemption was not explained to them. Mr. Gilks argued that this failure to explain this clause to the investors disentitles him to this exemption. Mr. Gilks relies on Meharchand (Re), 2018 ONSEC 51 where the commission stated at paragraph 101

A seller of securities who seeks to rely on the accredited investor exemption cannot simply accept, without discussion, an investor’s self-certification that the investor falls within the definition. The seller must explain the exemption to the purchaser, and through reasonable diligence must determine facts upon which the seller can conclude that the purchaser qualifies as an accredited investor and that the exemption is available.

102In my view, I cannot treat each investor the same for the purpose of this analysis. Mr. Janarian Singh invested in Rockfort and the family, friends and business associate exemption was employed. Mr. Janarian Singh had no recollection of this being explained to him. I do not draw from this evidence that the conversation did not occur, only that he cannot remember it now so many years later. I note that Mr. Janarian Singh was a long-time friend of Mr. Singh and arguably this exemption did apply to him. I am satisfied on a balance of probabilities that the exemption would have applied in this case had Mr. Janarian Singh been the sole investor in Mr. Singh’s companies.

103Ms. Dokmanovic purchased her shares in Greenview through Mr. Sedighpour. There is no reason for Mr. Singh to know that Ms. Dokmanovic was not a close friend, family or business associate as contemplated by the Act or that this provision was not explained to her. It is reasonable for Mr. Singh to assume that the subscriber read the documents she signed and that the documents accurately represented the situation. Similarly, Ms. Vernon, who was sold her shares by Mr. Neal, signed a document attesting that she was purchasing the shares under the close friend, family or business associate exemption. Given the clarity of the document signed by Ms. Vernon, I cannot conclude that Mr. Singh ought to have known that she did not fall into this exemption or that Mr. Neal failed to explain this provision to her. Moreover, I cannot find Mr. Singh responsible for the negligent conduct of his associates.

104Other investors, however, clearly did not fit into this exemption and the only reasonable inference from the evidence is that Mr. Singh knew this as he was the person selling the shares to the investor. For example, Ms. Morrison purchased her shares directly from Ms. Singh as did Ms. Bailey-Hart. Both these investors signed the family and friends exemption form. Mr. Singh would know his own family, friends and business associates. Moreover, since he was the one who provided the documents and conducted the sale, he would have known that the exemption did not apply to these investors. I am therefore satisfied that this exemption does not provide a defence to the first two charges.

105While not argued by Mr. Singh or his counsel, I must still consider whether he was exempt from filing a prospectus and from registering with the OSC by virtue of other exemptions. This is because the offering memoranda filed with this court for both companies state that both companies are only selling shares using the exemption provisions of the OSA. Despite this fact, I am satisfied that this exemption was not available to Mr. Singh and his companies. I reach this conclusion for a number of reasons. Firstly, as previously stated Mr. Singh knew that a number of the investors did not qualify as investors under this exemption. Secondly, Mr. Singh was not running his companies in accordance with the offering memorandum and clearly had no intention of limiting sales to the exemption categories. I note that in the section of the offering memorandum where the exemptions are listed, the documents go on to state that no commission or finders fee will be paid to any director, officer, or control person in connection with the distribution of shares under this exemption. Despite this clear wording, Mr. Singh hired executive officers to find investors and offered them a significant commission. This was confirmed by Mr. Sedighpour, Mr. Aziz, and Mr. Neale. Thirdly, Mr. Singh clearly contemplated a widespread search for investors well beyond those captured by the exemption categories identified in the offering memorandum. This evidence comes from his emails with Jamal Kahn where he specifically spoke about finding a significant number of investors from his seminars. There was also the email Mr. Singh sent to Mr. Kahn indicating an intention to run an advertisement in the “Filipino Newspaper” advertising mortgage investment corporations and encouraging people to look at Greenview’s website. There was also the evidence of Darryl Weinberg who testified that Mr. Singh pressured him to find new investors and having high weekly investor goals, namely raising $750,000.00 in investments in one week. It is difficult to imagine locating investors willing to invest $750,000.00 in one week relying solely on the available exemption categories.

106I am mindful that another available defence to the first two charges before this court is a due diligence defence but, in my view, there is no evidence to support this defence in the case at bar. When I consider all the evidence presented at this trial, I am satisfied that the OSC has proven the first two charges beyond a reasonable doubt. Mr. Singh is therefore found guilty of the first two counts before this court.

6. Fraud

107Mr. Singh is also charged under s.126.1 of the OSA which makes it an offence under the OSA to commit a fraud on any person or company. Mr. Gilks pointed out that the offence of fraud is not defined in the OSA. Mr. Gilks argued that I should define fraud under the OSA the same way it is defined in the Criminal Code. I agree. I see no principled or legal reason to treat fraud under the OSA differently from fraud under the Criminal Code.

108The criminal offence of fraud is defined in section 380 of the Criminal Code. The actus reus of the offence includes either a dishonest act (by deceit, falsehood or other fraudulent means) and risk of deprivation or actual deprivation. What behaviours will amount to deceit and/or falsehood are pretty straightforward and easy to understand. These acts generally relate to an outright lie or an intentional omission where the intended effect is to mislead. The act of “other fraudulent means”, however, is a bit more elusive. Generally, it means anything that can be characterized as dishonest from the standpoint of a reasonable person. The courts have held that this latter aspect of fraud requires some kind of underhanded action that puts another person’s finances at risk. Negligence or carelessness with someone else’s money is not enough to make out the offence of fraud. At its heart, the offence is fraud is the wrongful use of something in which another person has an interest, in such a manner that this other’s interest in extinguished or put at risk (see R. v. Theroux, 1993 SCC 134 and R. v. Zlatic, [1993] 2 S.C.R. 548).

109The mens rea of fraud requires the subjective awareness that one is doing the prohibited act and the knowledge that it could cause deprivation or the risk of deprivation of property. (see R. v. Theroux, supra.)

[110] In the case at bar, Mr. Gilks, on behalf of the OSC, argued that Mr. Singh committed the act of fraud in the following ways: [1] i. By deceit or falsehood by selling shares in a mortgage investment corporation that held no mortgages ii. By other fraudulent means by using investors funds to pay commissions iii. By deceit or falsehood by making material misrepresentations to his investors.

(i) Selling Shares in a MIC that Held No Mortgages

111The evidence firmly establishes that Mr. Singh sold shares in two companies, Rockfort and Greenview. It also establishes that he presented these two companies as being MICs in that they held (or would hold) mortgages on residential and commercial properties and that investors would earn interest and/or dividends from the profits of these mortgages. This was expressed in the offering memoranda of both companies. The offering memoranda also make reference to a credit and investment committee whose role was to make decisions regarding investments and loans for the companies. Moreover, according to the investors who testified at trial, they were all told that the company they were investing in was a mortgage investment corporation and that the interest they would earn was based on the mortgages held by the company. The only real issue is whether the company actually held any mortgages.

112Mr. Gilks focused on the evidence of Mr. Brown and Mr. Zimmerman, both of whom testified that when they asked Mr. Singh for the documents supporting the existence of mortgages held by Rockfort, Mr. Singh failed to provide it. According to Mr. Brown, Mr. Singh provided a single mortgage agreement for the property at 5355 Highway 101 West in Timmins. This agreement was dated from 2009, long before Rockfort was created. Mr. Zimmerman testified that he too asked Mr. Singh to provide documents confirming the mortgages held by Rockfort. Mr. Singh provided him with a single mortgage document for the property at 5355 Highway 101 West in Timmins with a mortgage date of 2014. Mr. Brown, who had access to the records for Rockfort could not find any evidence that Rockfort held any active mortgages.

113In my view, the evidence of Mr. Brown and Mr. Zimmerman on this point is of limited value. Mr. Singh’s failure to show them the mortgages does not mean that Rockfort and later Greenview held no mortgages. It only establishes that Mr. Singh did not show any mortgages to these two witnesses. I do appreciate, however, that it is suspicious and some circumstantial evidence of knowledge, that when asked to provide documents relating to existing mortgages, Mr. Singh refused to do so when it was in his best interest to provide this material to his staff who needed it properly do their job.

114There is, however, other evidence that does support the prosecution’s argument. During the search of 80 Tiverton, suite 203, Mr. Young, an OSC staff member, extracted documents from electronic devices housed at 80 Tiverton. One such document was titled “Rockfort Mortgage Loan Portfolio dated February 29, 2016”. Another document downloaded was an email to Mr. Singh titled “Client addresses” from March 2016. While the Mortgage Loan Portfolio only had street names without the street number addresses and the email document had full addresses, almost all the street names listed on the loan portfolio were the same as those listed in the email. These documents suggest that the companies did hold mortgages. However, Ms. Toledano conducted a registry search on these addresses, and none were mortgaged. Moreover, Ms. Toledano conducted a broad mortgage search and found no mortgages in the name of Rockfort. [2] Ms. Toledano did find one mortgage in the name of Rockfort but this mortgage had been discharged back in 2015.

115During the search of 80 Tiverton, other documents were found that listed mortgages. For example, there was an email from Mr. Missaghi to Mr. Singh from June 2017 titled “mortgages”. This document then listed four properties. Under each property was a reference to a mortgage and a dollar figure amount. For example, the first item was:

1107 Lakeshore Rd. S., New Liskeard, ON P0J 1P0 Collateral Mortgage Security Amount: $475,000.00 At the bottom of the document were two additional addresses both added on in handwriting.

116Ms. Toledano found two other documents that had the heading “mortgages” on them with the same addresses but with some amendments. For example, in one document 79 Driftwood avenue was written with an amount advanced of $45,000.00. In another document this address was crossed out and the address 41 Marklebrook was written over top it. Another document found on Mr. Singh’s desk was on Greenview letter head and again listed the mortgages for the same addresses on the other two documents. This would be some evidence that mortgages existed, yet when Ms. Toledano conducted registry searches on these addresses to see if Rockfort or Greenview held mortgages for these properties and none existed.

117In my view, Ms. Toledano’s evidence that according to the registry searches, no mortgages were held by Greenview or Rockfort at the identifiable time is evidence that negates or rebuts any inference about the existence of mortgages which would have otherwise been available based on the above mentioned documents found at 80 Tiverton.

118There is also evidence that Mr. Singh was aware that not owning any mortgages was a problem and that he had no real intention of seeking out legitimate mortgages. I reach this conclusion from the evidence of Mr. Neal. Mr. Neal testified that in the aftermath of Mr. Brown making allegations that Rockfort held no mortgages, Mr. Singh approached him and asked if he could put a mortgage on Mr. Neal’s residence. According to Mr. Neal, Mr. Singh told him that due to the government audit, he needed to add one more mortgage to his list of mortgages for Greenview. Mr. Singh was clearly aware that his business was required to use investors’ money to fund mortgages and that this was not happening. In this statement to Mr. Neale it is also reasonable to infer that Mr. Singh was misleading his sales team about the existence of mortgages as he told Mr. Neale that he needed one more mortgage to add to his list of mortgages, when in fact the company did not have any other mortgages at the time.

119There was some evidence that Greenview held some mortgages. In Ms. Toledano’s registry search she found two mortgages registered to Greenview. Both these mortgages were only registered after the OSC conducted its search of 80 Tiverton. During the time when Mr. Singh was actively seeking investors, Greenview had no mortgages.

120While not raised as a defence, I turned my mind to whether it was even remotely possible that Mr. Singh always intended to fund mortgages with his companies but that he had not first raise enough capital to fund the mortgages. In my view, the evidence does not support this conclusion. According to the bank records and the investors’ data, both Rockfort and Greenview had ample money from investors to fund mortgages. Moreover, this was not a case of Mr. Singh simply not being able to find properties to mortgage. I reach this conclusion because one of the witnesses at trial specifically testified about wanting Greenview to fund a mortgage, but Mr. Singh did not follow through with it claiming a lack of funds. This claim was not reasonable given the number of investors involved in the company at that time. I further note that the fact that Mr. Singh lied in the offering memoranda about a credit and investment committee provides additional support for the finding that Mr. Singh intended the investors to believe that his company was actively seeking out mortgages and had in fact obtained mortgages. I further note that Mr. Singh’s refusal to show any mortgages to Mr. Brown and other staff members instead of being honest with them about the lack of mortgages is additional circumstantial evidence that Mr. Singh knew he was required to fund mortgages and was intentionally not doing so.

121I am satisfied beyond a reasonable doubt that Mr. Singh held out his companies as Mortgage investment corporations, took money from investors on the pre-text of investing in mortgages but then failed to do so. In my view, the only reasonable inference from Mr. Singh’s failure to fund any mortgages is that he never intended to do so. Mr. Singh hired a number of staff to search out investors but appears to have not created any mechanism of finding properties to mortgage and when presented with an opportunity to fund a mortgage he did not. I am satisfied that Mr. Singh deceived his investors, that this deception led to the loss of funds by the investors (as was testified to by a number of the investors) and that he knew he was being deceitful and knew that his investors would lose money if he did not fund some mortgages.

122In light of my findings, I find that Mr. Singh guilty of fraud under the OSA. Having found Mr. Singh guilty of fraud by the first route proposed by the OSC, it is unnecessary to address the other avenues as the offence is already made out. I will nonetheless briefly touch upon two of the other routes to fraud.

(ii) Use of Investor Money to Pay Commissions – Improper Diversion of Funds

123This second route to fraud is based on allegation that Mr. Singh improperly diverted funds from the companies to cover the commission payments to his sales team. As noted earlier in this judgment, the offering memoranda for Rockfort and Greenview both state that no prospectus will be filed as the company is relying on a number of different exemptions. This portion of the document also included a paragraph that stated, “no commissions or finder’s fee may be paid to…”. Moreover, all the executive officers hired and recruited by Greenview received a copy of provision that prohibits the paying of commission to any person relying on the family and friends exemption. Nonetheless numerous witnesses testified that they received commissions or expected to receive commissions for the sale of shares in Rockfort and Greenview, namely Mr. Aziz, Mr. Sedighpour, Mr. Neale, and Mr. Weinberg. Their evidence was confirmed by the banking records that showed payments were made to them. Mr. Gilks, on behalf of the OSC argued that this is fraudulent because i) it was explicitly prohibited and ii) it was at odds with the representations made to the investors.

124I confess that I struggle with Mr. Gilks’ argument on this point. It has been clearly established that Mr. Singh relied on the friends, family and business associates exemption as way of getting around the OSC regulations. He did not explain the exemption to his investors and used investors that did not meet this exemption. In light of this, in my view the evidence supports the finding that the investors did not realize that no commission would be paid out and this was not a misrepresentation that caused investors to invest. Moreover, the misrepresentation was not done to encourage people to invest, the misrepresentation was the use of the exemption, not the fact that the sales staff were not paid by commission. Moreover, this misrepresentation did not put the investors’ money at risk nor did it deprive them of property. I appreciate that some of the money was diverted from the company to pay for the commission, but a reasonable person would expect the sales staff to be paid and that some of the investors’ money would go to the operating costs of the company. I cannot find that this action meets the test for fraud either by deceit or other fraudulent means.

(iii) Material Misrepresentations

125It is alleged by the OSC that Mr. Singh made material misrepresentations to his investors beyond the misrepresentation about the mortgages. This relates to the identity of the directors of the corporations and the biographies of his employees on the offering memoranda of both companies.

126Jean Benedict was listed in the offering memorandum of Rockfort as a senior manager. Her biography described her as having a significant amount experience in the relevant field. When asked at trial about the biography, Ms. Benedict testified that she did not write her biography and that it was not accurate. She was able to confirm that Mr. Singh wrote the biography and showed it to her and despite it being inaccurate she agreed to have it posted.

127Mr. Saniga’s biography was also in the offering memorandum for Rockfort. Mr. Saniga testified that he wrote part of the biography found in this document but not all of it. The portions he did not write were not accurate and he did not consent for this misinformation about his background to be posted.

128Mr. Sedighpour testified that he saw some marketing materials for Greenview that listed him as an executive vice president when he never held this position. He asked Mr. Singh to take it down but it was not removed right away.

129In addition to the above misrepresentations, Ms. Benedict, and Michael Saniga’s roles were misrepresented in the Rockfort Offering Memorandum. Ms. Benedict was listed as director, president, treasurer and secretary and Mr. Saniga was listed as president and chief operating officer. Ms. Benedict testified that while she knew that Mr. Singh had her listed in these positions, her job was that of office manager. She was hired solely to do accounting work for the company. Mr. Saniga testified that he was chief operating officer for Rockfort but he was not the president of the company.

130The Rockfort Offering memorandum also included information about a credit and investment committee. The memorandum stated that this committee was set up to “review all proposals regarding investment decisions and to approve or reject such proposals”. Ms. Benedict and Mr. Saniga were listed as members of this committee. Both Mr. Saniga and Ms. Benedict testified that they had never heard of this committee and were not on this committee.

131The Greenview offering memorandum had a similar section referencing the company’s credit committee. Mr. Darryl Weinberg and Mr. Jumaal Khan were listed as members of this committee at Greenview. Mr. Khan testified that he was not a member of this committee and did not consent to being listed as a member of this committee.

132There is no direct evidence that Mr. Singh drafted all the above-mentioned documents. I am nonetheless satisfied beyond a reasonable doubt that Mr. Singh either drafted these documents or approved their content. Firstly, Mr. Singh was the owner of both companies. He controlled them and was the operating mind behind them. Secondly, Mr. Singh clearly knew about the content of the website, because in one of his proposed advertisements he encouraged people to look at Greenview’s website. Thirdly, Ms. Benedict testified that Mr. Singh showed her the biography that went into the offering memorandum. This supports the inference that Mr. Singh either created it or directed someone else to create it. Given his role with both companies, the only reasonable inference is that he either drafted or approved the content of the offering memorandum and the content included on the company website and as such knew about the misrepresentations included therein.

133In my view, the above misrepresentations were material misrepresentations in that they went directly to the skill set of the staff at Mr. Singh’s companies. There is no doubt in my mind that this was done to instill confidence in potential investors and entice them to invest in Rockfort and Greenview. Moreover, the misrepresentation about the credit committee was particularly egregious in that it suggested that there was a specialized committee focusing on obtaining mortgages and assessing risk when this never took place. In my view, the only reasonable inference to be drawn is that Mr. Singh did this in order to bolster the reputation of his companies and lure in more investors. I am satisfied beyond a reasonable doubt that these were material misrepresentations and that it was done intentionally knowing that it would entice investors to invest in a company that did not have the credentials investors thought it had and as such put the investors’ money at risk. I am therefore satisfied beyond a reasonable doubt that the offence of fraud by material misrepresentation has also be proven.

134In addition to the above identified misrepresentations, Mr. Gilks also argued that Mr. Singh committed material misrepresentations in the corporate profile reports. Multiple witnesses also testified that they did not occupy the corporate positions reflected in the corporate profile report. In my view, this is not a material misrepresentation that had the potential of depriving investors of their money. There is no suggestion that any of the investors knew whose name was on these reports or that this was used in any way to gain confidence or mislead investors.

135In light of my reasons outlined above, Mr. Singh is found guilty of all three charges before the court.

Released: November 9, 2021 Justice Mara Greene

1Mr. Gilks alleged a fourth route to fraud, that Mr. Singh committed fraud by other fraudulent means by diverting funds from the companies for his own personal expenses. In preparing this judgment some questions arose that require answers before I can make a determination on this particular fraud. Since a finding on this issue is not necessary to address the issue of whether a fraud has been committed, I will leave this to be addressed as a potential aggravating factor on sentence.

2She also did not find any mortgages in the name of Money Gate, a company that according to Mr. Singh held the mortgages for Rockfort.