ONTARIO COURT OF JUSTICE

CITATION: Re Application for a Production Order pursuant to s. 487.014 of the Criminal Code, 2019 ONCJ 236

DATE: 2019 04 03

FILE: OPP Project Gundy

RE:

IN THE MATTER OF AN APPLICATION FOR

A Production Order pursuant to s. 487.014 of the Criminal Code

Before Justice G.P. Renwick

Considered on 03 April 2019

Reasons released on 03 April 2019

REASONS FOR GRANTING A PRODUCTION ORDER

RENWICK J.:

[1] I have read and considered the application submitted to me earlier today (03 April 2019) by Detective Constable Martin Connell of the Ontario Provincial Police Serious Fraud Office for a Production Order in the “Project Gundy” investigation.

[2] The application consisted of the Information to Obtain (“ITO”) and related appendices. There was a “Judges [sic] Working Copy” which I have retained.

[3] After considering the sworn ITO and appendices I have determined that the ITO submitted by D.C. Connell meets all of the statutory prerequisites found in s. 487.014 of the Criminal Code for the granting of a Production Order. Specifically, there are reasonable grounds to support the affiant’s beliefs that a fraud over $5000 has occurred in relation to the Davies developments and evidence of the fraud will likely be found in the records which are in the possession of the court appointed receiver, KSV Kofman Inc.

[4] Although the statutory prerequisites do not require this, I find that it is in the best interests of the administration of justice to issue the Production Order for the following reasons (in no particular order):

i. There are several irregularities in the investment process involving syndicated mortgage investments of the Davies Developments as revealed in the “fourth report” of KSV Kofman Inc.;

ii. On their face, the information of the five investors (“Draper,” “Adamson,” “Lockhart,” “Schlanger,” and “Vanhevel”) is compelling and credible, and corroborates the KSV report;

iii. It is suspicious that there were monies raised for 11 different development projects involving the same individuals (Mr. Singh, Mr. Davies, and Mr. Harris), yet none of the projects was ever completed;

iv. There are multiple conflicts of interest involving the principals (Singh, Davies, and Harris) in the investment fundraising and trustee processes which were not disclosed to the investors;

v. Individual investors never received independent legal advice;

vi. Individual investors appear to have been misled in material respects about the nature of their investments:

a) Investors were never advised that Mssrs. Singh, Davies, and Harris (either directly or indirectly) held a financial interest in the developments;

b) Investors were never advised that their monies may be used for other investments and/or developments;

c) Investors were improperly advised about the priority of their claims/loans; and

d) Investors were improperly advised about the value of the assets of the developments in which they were investing;

vii. I am satisfied that there is little personal or biographical core data which is likely to be contained in the records sought for production;

viii. Given that there were multiple layers to the ownership of companies involved and the roles of the principals (Singh, Davies, Harris), the documents sought will likely assist investigators to learn how monies raised were diverted or spent and whether or not unlawful business practises had in fact occurred;

ix. There is a strong public interest to investigate potential frauds and “ponzi” schemes to determine illegality and to bring perpetrators to justice; and

x. The additional information included in this ITO does not detract or call into question the original beliefs of the affiant. If anything, not only do the original grounds continue to exist, but there are additional grounds for the affiant’s reasonable beliefs given the information about the ownership of Aeolian, TSSI, TSI, Memory Care Investments Burlington Ltd., and MCIL.

[5] I am satisfied that the affiant has attempted to outline the sources that ground his beliefs, that he is aware of credibility issues, and he knows of his duty to provide full, fair, and frank disclosure of the investigation.

[6] I have considered that the records sought are known to exist and they are confirmed to be in the possession of KSV Kofman Inc.

[7] For all of the above reasons, the Production Order is granted.

Released: 03 April 2019

Justice G. Paul Renwick