r V. GILBERT, 2012 QCCA 1179

Unofficial English Translation Autorité des marchés financiers c. Fournier 2012 QCCA 1179 COURT OF APPEAL CANADA PROVINCE OF QUEBEC MONTREAL REGISTRY No.: 500-10-004721-104 (500-36-005255-099) (500-61-244607-082) DATE : June 22, 2012 CORAM : THE HONOURABLE NICOLE DUVAL HESLER, J.C.Q. FRANÇOIS PELLETIER, J.A. JACQUES DUFRESNE, J.A. AUTORITÉ DES MARCHÉS FINANCIERS APPELLANT – Appellant – Prosecutor V. GILBERT FOURNIER RESPONDENT – Respondent – Defendant and BARREAU DU QUÉBEC INTERVENER JUDGMENT [ 1 ] The appellant appeals from a judgment of the Superior Court, District of Montreal (the Honourable Mr.

Justice Réjean F.

Paul) rendered on June 16, 2010, that dismissed the appeal from the judgment of the Court of Quebec, Criminal and Penal Division, District of Montreal (the Honourable Judge Claude Millette), rendered on October 28, 2009, that acquitted the respondent, Gilbert Fournier, of the offence of having refused to testify following a summons to testify before the investigator responsible for conducting the investigation begun by the Autorité des marchés financiers; [ 2 ] For the reasons of Dufresne, J.A., with which Nicole Duval Hesler, C.J.Q. and François Pelletier, J.A. agree, THE COURT : [ 3 ] OVERTURNS the judgment of the Superior Court rendered on June 16, 2010; [ 4 ] OVERTURNS the judgment of the Court of Quebec rendered on October 28, 2009; [ 5 ] FINDS the respondent, Gilbert Fournier, guilty of his alleged offence under section 195(4) of the Securities Act ; and [ 6 ] RETURNS the case to the Court of Quebec so that a judge can decide on the penalty.

NICOLE DUVAL HESLER, C.J.Q. FRANÇOIS PELLETIER, J.A. JACQUES DUFRESNE, J.A. Mtre Éric Downs Mtre Tristan Desjardins DOWNS, LEPAGE For the appellant

Mtre Serge Fournier BCF For the respondent Mtre Sylvie Champagne BARREAU DU QUÉBEC For the intervener Date of hearing: October 24, 2011 REASONS OF DUFRESNE, J.A. [ 7 ] The respondent, Gilbert Fournier, was acquitted by a judge of the Court of Quebec of the charge brought against him by the Autorité des marchés financiers (AMF) under section 195(4) of the Securities Act [1] (SA), for refusing to testify following a summons to testify before the investigator responsible for conducting the investigation begun by the AMF.

The appeal from that verdict to the Superior Court was dismissed. [ 8 ] Subsequently, a judge of this Court granted leave to appeal from that judgment of the Superior Court under

section 291 of the Code of Penal Procedure , [2] having seen in the motion for leave to appeal questions of law that warranted being submitted to the Court. He expressed those questions as follows: [ translation ] Did the judge of the Superior Court err in law in concluding that the respondent’s attorney could, in the forced examination, object to the questions the appellant was asked by the investigator and demand a ruling on the objections?

Did the judge of the Superior Court err in law in concluding that the respondent’s refusal to answer the questions of the appellant’s investigator when he was legally obliged to do so can be excused by the objections of his attorney? [ 9 ] A judge of this Court subsequently allowed the Barreau du Québec to intervene in this appeal to make known its point of view on the first of these questions of law.

THE FACTS [ 10 ] On January 26, 2006, the appellant ordered an investigation pursuant to sections 239 et seq. of the SA concerning Martin Tremblay of Dominion Investments Ltd., as well as of Dominion Investments (Nassau) Ltd. and companies having or having had activities related to the latter.

The investigation dealt with broker or advisor activities and the transactions of the directors, employees, representatives and mandataries of those companies [ 11 ] The same day, it appointed Germain Bénard, Gaétan Paul, Maud Morissette and Marie-Claude Séguin to conduct the investigation. [ 12 ] On January 14, 2008, investigator Paul served a summons compelling the respondent to appear before him for examination and to bring documents concerning the FOUG account bearing number 3499 at Avantages services financiers. [ 13 ] The examination took place a month later, on February 14, 2008.

The respondent was accompanied at the time by an attorney. The summons is not in question. [ 14 ] At the beginning of the examination, investigator Paul informed the respondent that the investigation concerned Dominion Investments [ 15 ] The respondent’s attorney asked to take cognizance of the AMF’s decision instituting the investigation. A redacted copy of the decision was given to him during the examination. [ 16 ] At the first question investigator Paul asked, the respondent’s attorney raised an objection on grounds of irrelevance. The question was as follows: [ translation ] Mr.

Fournier, do you currently hold a brokerage account? [ 17 ] An exchange ensued during which investigator Paul stated that the attorney could not raise objections and he insisted on obtaining an answer to his question. Since the investigator and the attorney stuck to their respective positions, the examination was suspended to allow time to call on an attorney from the AMF legal department. The respondent’s attorney proposed to submit the objection as soon as possible to a judge of the Superior Court. The appellant rejected that suggestion. [ 18 ] The examination resumed.

Objections were raised to other questions of the investigator. They were left unanswered. Noting the respondent’s constant opposition to answering his questions, investigator Paul terminated the examination. [ 19 ] On March 12, 2008, the appellant served the statement of offence at the root of the appeal.

Judgment of the Court of Quebec [ 20 ] The trial judge concluded that there was no proof of the actus reus since [ translation ] “….everything likely to reveal the nature of the investigation or the mandate of Mr. Paul [the AMF investigator] was redacted”. The judge acknowledged that it was normal for the respondent’s attorney to raise objections to the questions of the AMF investigator inasmuch as the investigator had not disclosed the purpose of his investigation.

Since the investigator did not disclose the exact nature of his mandate, the respondent was not able, according to the judge, to gauge the relevance of the questions asked. [ 21 ] The judge concluded that there was an absence of refusal to testify, within the meaning of

section 195 of the SA , and accordingly acquitted the respondent. Judgment a quo [ 22 ] The appeal in Superior Court of the Court of Quebec judgment was dismissed. [ 23 ] As he was of the opinion that [ translation ] “….the summons was deficient and the response of investigator Paul that no objection could be raised to the questions of the investigator was erroneous”, the judge of the Superior Court concluded that the appeal could not be allowed.

He expressed his firm opinion that the attorney assisting a person examined by an AMF investigator is entitled to raise objections to the questions his or her client is asked. [ 24 ] According to the judge, the attorney has the right, if not the duty, to intervene during the examination of his or her client in order to oppose the investigator’s questions. He added that [ translation ] “…if an attorney objects, he or she must be given, briefly or in detail, the reasons for the investigator’s decision”. He noted that, in this case, the investigator did not render a reasoned decision.

Surprised that the respondent was being criminally prosecuted for following the advice of his attorney, the judge’s conclusions were as follows: [ translation ] [25] It follows from all this that we have strayed from the basic principles governing the summoning of the respondent and that it was erroneously ruled that the attorney representing the respondent could not object to the questions. LEGISLATIVE PROVISIONS [ 25 ] It may be useful to recall the legislative provisions relevant to the consideration of the appeal. Securities Act [3] 195.

It is an offence … (4) to fail to appear after summons, to refuse to testify or to refuse to send or remit any document or thing required by the Authority or an agent appointed by it in the course of an investigation; . . . 239. The Authority may order an investigation: (1) to ascertain whether the Act and the regulations are complied with; (2) to repress contraventions to the Act or the regulations; (3) to repress contraventions to the securities legislation of another legislative authority; (4) within the scope of an agreement entered into under the second paragraph of

section 33 of the Act respecting the Autorité des marchés financiers (chapter A-33.2 ); (5) to ascertain whether it would be advisable to request the Superior Court to order the appointment of a receiver in accordance with

section 19.1 of the Act respecting the Autorité des marchés financiers . 240. The first paragraph of

section 6 , and sections 9 , 10 , 11 , 12 , 13 and 16 of the Act respecting public inquiry commissions (chapter C- 37 ) apply, with the necessary modifications, to investigations under this chapter. The Authority has, for the purposes of an investigation, all the powers of a judge of the Superior Court, except to order imprisonment. 241. No person called upon to testify in the course of an investigation or being examined under oath may refuse to answer or to produce any document on the ground that he might thereby be incriminated or exposed to a penalty or civil proceedings, subject to the Canada Evidence Act (Revised Statutes of Canada, 1985,

chapter C-5 ). 242. The Authority may require the submission or delivery of any document related to the object of the investigation. The Authority has the power to return the documents remitted to it or to determine whether or not it is advisable to do so. . . .

244. Investigations made under

section 239 are held in camera . 245. The Authority may forbid a person to disclose any information relating to an investigation to anyone but his advocate. 246. A person called on to testify at an investigation or on an examination may be assisted by the advocate of his choice. [Emphasis added.] Act respecting the Autorité des marchés financiers [4] (AAMF) 12. The Authority may, on its own initiative or on request, conduct any investigation if it has reasonable grounds to believe there has been contravention of

an Act referred to in

section 7 . The investigation is held in camera . 13. The Authority may authorize a person referred to in the first or second paragraph of

section 9 to exercise all or part of the powers conferred on it by

section 12. 14. The person the Authority has authorized to conduct an investigation is vested with the powers and immunity of commissioners appointed under the Act respecting public inquiry commissions (chapter C-37 ), except the power to order imprisonment. 14.1. The Authority may prohibit a person from communicating information related to an investigation to anyone except the person's lawyer. 14.2. A person called on to testify during an investigation or an examination may be assisted by a lawyer of the person's choice. [Emphasis added.] Act respecting public inquiry commissions [5] (APIC) 6.

The commissioners may, by all such lawful means as they may think best fitted to discover the truth, inquire into the matters referred to them for investigation. . . . 9. The commissioners or any of them may, by a summons under his or their hand or hands, require the attendance before them, at a place and time therein specified, of any person whose evidence may be material to the subject of inquiry, and may order any person to bring before them such books, papers, deeds and writings as appear necessary for arriving at the truth.

Every such person shall attend and answer all questions put to them by the commissioners touching the matter to be inquired into, and shall produce before the commissioners all books, papers, cheques, promissory notes, deeds and writings required of him and in his custody or control, according to the tenor of the summons. . . . 11. Any person refusing to be sworn when duly required, or omitting or refusing, without just cause, sufficiently to answer any question that may be lawfully put to him, or to render any testimony in virtue of this Act, is in contempt of court and shall be punished accordingly.

No answer given by any person so heard as a witness may be used against him in any prosecution under any Act, except in the case of prosecution for perjury or for the giving of contradictory evidence. ANALYSIS [ 26 ] As indicated earlier, the appeal centres on two questions. The first deals with the capacity of the attorney of the person examined to raise objections to the questions asked by the AMF investigator and to require a ruling on those objections.

The second is stated as follows: Can the respondent’s refusal to answer the investigator’s questions when he was legally obliged to do so be excused by the objections of his attorney? [ 27 ] The impact of the answer to these questions on the judgment of acquittal must also be gauged. But first, a few words about the AMF’s mission are in order.

The AMF’s mission [ 28 ] The AMF is the specialized body to which the Quebec legislator has entrusted the application of the SA and the AAMF, in the public interest and subject to the powers that the legislator has conferred on the Bureau de décision et de révision. [6] [ 29 ] On more than one occasion, the Supreme Court has had an opportunity to specify that securities legislation is aimed, above all, at protecting the investor, but also at ensuring, inter alia , capital market efficiency and public confidence in the system . [7]

[ 30 ] First, in Brosseau , [8] L'Heureux-Dubé J. states the following: Securities acts in general can be said to be aimed at regulating the market and protecting the general public. … This protective role, common to all securities commissions, gives a special character to such bodies which must be recognized when assessing the way in which their functions are carried out under their Acts. [ 31 ] Then, in Pezim , [9] the Supreme Court characterizes the British Columbia Securities Act as legislation that is regulatory in nature and part of a much more general system of regulation of the securities sector.

That qualification applies equally to the legislation administered by the AMF. [ 32 ] Judicial intervention targeting an investigation process will vary according to the nature of the investigation and its stage. In Irvine , [10] the Supreme Court provided the necessary nuances in that regard: Courts must, in the exercise of this discretion, remain alert to the danger of unduly burdening and complicating the law enforcement investigative process. Where that process is in embryonic form engaged in the gathering of the raw material for further consideration, the inclination of the courts is away from intervention.

Where, on the other hand, the investigation is conducted by a body seized of powers to determine, in a final sense or in the sense that detrimental impact may be suffered by the individual, the courts are more inclined to intervene. [11] [ 33 ] It is important to observe that the legislator has entrusted the AMF and its investigators with broad investigative powers in the public interest. First, the legislator enshrines the AMF’s power to investigate in its enabling legislation ( s. 12 of the AAMF ).

Next, the legislator determines the attributes of an investigation or an examination under oath, indicating that the person called to testify may not refuse to answer or to produce any document ( ss. 241 and 242 of the SA ). Finally, the legislator confers on them the powers set out in some of the significant provisions of the APIC , including sections 6 and 9 , in addition to granting the person examined almost complete immunity under

section 11 of that statute. [ 34 ] The examination at issue here occurred in that legislative context. Refusal to answer [ 35 ] The examination by investigator Gaétan Paul was in the nature of an administrative investigation, the purpose of which was to gather information about the activities of the natural and legal persons referred to in the mandate given by the AMF. [ 36 ] Here is what was said in the examination: [ translation ] GAÉTAN PAUL AMF investigator: Q. Hello, Mr. Fournier. My name is Gaétan Paul. I’m an investigator for the Autorité des marchés financiers. You have been called to appear here under a summons referring to AMF decision 2006-DAJS-005, rendered according to

section 24 of the Act respecting the Autorité des marchés financiers ordering an investigation regarding Dominion Investments. I have been appointed investigator under AMF decision 2006 ENQ-002. You are summoned as a witness and, as such, you are protected by the Canadian Charter of Rights and Freedoms and the Charter of human rights and freedoms . That means that anything you say cannot be used against you in possible criminal or penal proceedings, except in the case of perjury or contradictory testimony. Have you clearly understood? A. Yes. … Q. Mr. Fournier, do you currently hold a brokerage account?

Mtre STEPHANE DAVIGNON - I’m going to object to that broad question. I don’t see the relevance. GAÉTAN PAUL - Because, Mtre., you cannot object. That’s the problem. It’s that you can’t raise any objection. I can’t accept your objection. The witness must answer the question. … GAÉTAN PAUL Q. O.K. I’m going to begin the interview, the examination, again. The question was for Mr. Fournier: Do you hold or have you ever held a brokerage account? Mtre STEPHANE DAVIGNON So, on that question, Stéphane Davignon, attorney for Mr. Fournier, I objected and the reason for the objection is that I believe, since the

investigation is held under

section 239 of the Securities Act , I understand that the investigator is asking questions stemming from the powers attributed to him under the Act and I make particular reference to sections 240 and 241 of the Securities Act . But I believe nevertheless that the investigation must respect or must be limited to the confines of

section 239 of the Act and that, since there is no investigation, my client is not the subject of an investigation as such. It is Dominion Investments that is the subject of the investigation. It is my opinion that this type of question cannot be directed against the witness. So, I offer, in fact as I offered off the transcript—because I understand that we do not share the same opinion, the attorneys of the Autorité des marchés financiers and I—I offer the possibility of debating that question before a judge in chambers as soon as possible.

I am not available this afternoon but I would be available as of next week. So let us debate that question, i.e. what is the extent of the questions that can be asked to a witness summoned under

section 239, what is the extent of the questions that the investigator can ask him. That’s all. OBJECTION 1 [Full transcript.] [ 37 ] Considering the deadlock as of the first question, the investigator called upon an attorney from the AMF’s legal department. After her arrival, the examination continued, but no more successfully. She took care to verify Mr. Fournier’s refusal to answer the investigator’s questions. [TRANSLATION] Mtre FRANCE SAINT-DENIS For the AMF: Q. Mr. Fournier, do you refuse to answer the question? A. On the advice of my attorney, yes, I refuse. … GAÉTAN PAUL Q. Mr.

Fournier, do you know Michel Marcoux? A. No. Q. Do you know Normand Desailliers? A. No. Q. Do you know Martin Tremblay? A. Not personally, by name, but no. Q. Do you do or have you done business with Avantages Services Financiers? Mtre STEPHANE DAVIGNON - I’m going to object to that question on the same grounds as those I raised a moment ago in regard to the first question. OBJECTION 2 Mtre FRANCE SAINT-DENIS: Q. Mr. Fournier, do you refuse to answer the investigator’s question? A. On the advice of my counsel, yes, I refuse. - Ask the next question, Mr. Investigator. GAÉTAN PAUL: Q. Mr.

Fournier, do you have or have you had an account with Dominion Investments? MTRE STEPHANE DAVIGNON - I’m going to object on the same grounds. OBJECTION 3 Mtre FRANCE SAINT-DENIS

Q. Mr. Fournier, do you refuse to answer that question of the investigator? A. On the advice of my attorney, yes, I refuse to answer. - Mr. Investigator, ask your next question. GAÉTAN PAUL Q. Mr. Fournier, have you held or do you hold an account reportedly known as Foug? MTRE STEPHANE DAVIGNON - I’m going to object on the same grounds. OBJECTION 4 Mtre FRANCE SAINT-DENIS Q. Mr. Fournier, do you refuse to answer that question of the investigator? A. On the advice of my attorney, yes, I refuse. GAÉTAN PAUL Q. Mr.

Fournier, were you informed that money from the Foug account had been blocked by the Autorité des marchés financiers? Mtre STEPHANE DAVIGNON - Considering the objection to the preceding question, I’m going to object to this question as well. OBJECTION 5 Mtre FRANCE SAINT-DENIS Q. Mr. Fournier, do you refuse to answer the investigator’s question? A. On the advice of my attorney, yes.

Mtre STEPHANE DAVIGNON - What I might say at this stage is that I have the impression that this whole line of questioning about the suggestion I made that the objection be debated, I think that it could be grouped under one and the same objection, under one and the same theme, and therefore it would likely be the subject of one and the same debate. Mtre FRANCE SAINT-DENIS - Do you have any other questions, Mr. Investigator? GAÉTAN PAUL - I’m going to end this, given the failure to answer the questions I just asked. I’m going to note the refusal to answer and I’m going to end the interview.

Mtre STEPHANE DAVIGNON - Very well. [Full transcript.] [ 38 ] That was how the examination ended. It is now appropriate to answer the questions raised by the appeal. The right to raise objections to the investigator’s questions and to require a ruling thereon [ 39 ] The right to be assisted by the attorney of one’s choice is not in question here.

That right is in fact enshrined in the laws applicable to the investigations conducted by the AMF. [12] Rather, the appeal concerns the extent of the role of the attorney called to assist or advise a person subject to an examination under oath in camera by an AMF investigator under

section 241 SA . [ 40 ] The respondent contends that the person questioned has the sole obligation to answer the questions relating to the purpose of the investigation. By objecting on that ground, the respondent was not refusing to answer but defending his rights. The attorney who assists the person examined can therefore raise objections regarding the investigator’s jurisdiction and the relevance of the questions

asked. According to the respondent and, indeed, the intervener, the Barreau du Québec, the investigator must rule on the objections in a reasoned and reviewable decision. [ 41 ] The intervener, for its part, contends that the right to be assisted by an attorney implies the right, if not the duty, to raise objections to the questions of the AMF investigator to ensure the lawfulness of the questions asked and avoid fishing expeditions.

If no agreement is reached on the admissibility of the objections, they can be submitted to a judge of the Superior Court. [ 42 ] What is the situation here? [ 43 ] The summons to testify says nothing about the purpose of the investigation concerning which the investigator wished to examine him. It is limited to identifying the respondent’s account with a financial advisor, but doesn’t say a word about the purpose of the investigation. [ 44 ] The respondent appeared on the day and at the time indicated in the notice.

It was only during the examination, when the respondent’s attorney raised objections to the investigator’s questions, that the investigator disclosed in more detail the purpose of the investigation. He indicated at that point that the investigation was not about the respondent but about Dominion Investments and offered to give the respondent a copy of his mandate during the examination.

The respondent and his attorney seemed satisfied with the answer, since they did not insist on obtaining a copy immediately before going further. [ 45 ] Persons summoned to answer the questions of investigators designated by the AMF can be assisted by an attorney. With respect for the contrary opinion, however, attorneys who assist such persons cannot raise objections. How could they, when

section 241 SA prescribes that persons examined cannot refuse to answer? [ 46 ] Attorneys who are of the opinion that their client’s interest is at stake may choose to recommend that the client refuse to answer certain questions of the investigator, but in that case, these attorneys are opening up their clients to potential statements of offence for refusing to answer an investigator’s questions (s. 195(4) SA ). [ 47 ] Can these attorneys request, as the respondent’s attorney suggested at the time of the examination, that their objections to the questions of the investigator be submitted to a judge of the Superior Court?

I do not think so, especially since the examination was not related to any proceedings pending before the courts. [ 48 ] One cannot apply to the Superior Court for the sole purpose of a ruling on objections to questions by an AMF investigator without the questions having been asked in the framework of proceedings also before that Court. In short, there is no judicial review solely to rule on the objections to questions asked by an investigator mandated by the AMF under

section 239 SA . [ 49 ] However, if the person examined believes that the investigator exceeded his or her mandate or jurisdiction, or that the rules of natural justice or procedural fairness were violated, that person may bring proceedings before the Superior Court and ask a judge of that court to suspend the examination during the proceedings. But this was not the path taken here. [ 50 ] The person can also refuse to answer and contest in the Court of Quebec the statement of offence received because of the refusal to testify. It should be borne in mind that

section 195 SA states that the failure to appear following a summons, the refusal to testify and the refusal to disclose or provide exhibits or objects claimed by the AMF constitute violations of that statute. [ 51 ] Furthermore, the investigation in this case was administrative, not judicial or quasi-judicial. The examination was at the initial stage, where, to borrow a phrase from Irvine , supra, the purpose was “ the gathering of the raw material for further consideration”. [13] In no way was the examination part of an adversarial proceeding. [ 52 ] In Bellemare v .

Quebec (Chief Electoral Officer) , [14] Yves Alain, J. of the Superior Court stated that it was up to the person in charge of the investigation to rule on an objection raised during an examination or regarding a refusal to answer.

He wrote the following: [ translation ] [21] Thus, the Court is of the opinion that persons wishing to object to a summons or an examination that they consider to be illegal or irrelevant or that risks the disclosure of confidential or protected information must appear either alone or with counsel at the date and the time indicated, and upon being asked a question, they must raise an objection to the holding of the examination or refuse to answer while providing reasons for this objection, without the need for a written application for this purpose.

It is then up to the person responsible for the inquiry to decide. The decision can be contested, or the question asked can be changed for the sake of conformity. [ 53 ] This Court’s dismissal of the appeal from that judgment does not deal with the above obiter .

The Court of Appeal granted the motion to dismiss the appeal on the sole ground that the trial judge was correct in concluding that Bellemare’s proceeding was premature, while recognizing that [ translation ] “the summons issued by the Chief Electoral Officer was, on its face, valid and regular”. [15] [ 54 ] With respect, if “rule” means that an investigator abandons his or her question or modifies it further to comments or an objection by the person questioned or his or her counsel, or on the contrary, persists in asking it despite the opposition, so be it. But that is as far as it goes.

The AMF investigator need not render a reasoned decision on the objection. To require the opposite would unduly burden an administrative investigation held in camera for the sole purpose of gathering information. [16] If the person examined does not succeed in convincing the investigator not to insist on an answer or to be satisfied with the answer already given, the person must answer.

If the person refuses to answer, he or she must assess the consequences of the refusal and consider any paths open to him or her. [ 55 ] Of course, the questions asked must be related to the purpose of the AMF investigation, but doubts cannot be raised about their relevance at the least question. In this case, the repeated refusal to give any information whatsoever on the grounds of irrelevance testifies more to a systematic refusal to answer.

[ 56 ] The regulatory offence for refusing to testify under

section 195 SA is a strict liability offence. [17] Indeed, the parties agree on this point. [ 57 ] For the offence to be committed, the act or omission must be deliberate. In this case, the obligation to which the respondent was subject was clear and unambiguous.

Section 241 SA creates an obligation for a person summoned to testify by a duly mandated AMF investigator to answer the questions. The evidence of the actus reus is therefore established once the person summoned to answer the investigator’s questions refuses to do so. Defence of having followed the advice of his attorney [ 58 ] The actus reus having been proven in this case by the respondent’s repeated refusal to answer the investigator’s questions, the respondent raised a defence of due diligence.

He sought to exculpate himself by explaining that he refused to answer the AMF investigator’s questions on the advice of the attorney assisting him during the examination. Can that defence be accepted?

I do not think so. [ 59 ] The mere fact of taking advice from an attorney and following that advice is not sufficient to protect the summoned witness from being convicted of having refused to answer the investigator’s questions. [ 60 ] In contrast to the situation in La Souveraine , [18] ignorance of the law or an error in interpreting the law is not directly involved here, nor is, strictly speaking, being subject to the law. [ 61 ] Against the statement of offence, the respondent raises his diligence, which he explains by the fact that he followed the advice of his attorney.

The attorney allegedly recommended that he not answer, sometimes on the ground of the investigator’s absence or excess of jurisdiction, sometimes on the ground of the irrelevance of the question.

To succeed in clearing himself of the charge, it was not sufficient for the respondent merely to argue that he followed the advice of his attorney; rather, he had to establish that his refusal was justified by a valid reason or excuse, or in other words, on the basis of due diligence, not an error in law, even if confirmed by an attorney. [19] The examination was at the very preliminary stage of the initial questions and the respondent’s hiding behind the recommendations or the advice of his attorney as the ground for his refusal to answer cannot constitute a valid ground in the circumstances.

He demonstrated nothing in that regard. [ 62 ] In actuality, it quickly became clear that the examination was going nowhere and that the least question resulted in a refusal to answer, as the following excerpts illustrate: [ translation ] Do you hold or have you ever held a brokerage account? Do you do or have you ever done business with Avantage Services Financier? Did you have or have you had an account with Dominion Investments? Have you held or do you hold an account allegedly known as Foug?

Were you informed that money from the Foug account had been blocked by the Autorité des marchés financiers? [ 63 ] If his attorney poorly advised him and if the questions were validly asked, the respondent cannot plead that he showed due diligence. In short, the fact that he followed the advice of his attorney cannot, in and of itself, constitute a defence of due diligence. For such a defence to be accepted, it must also be demonstrated, for example, that the investigator did not have jurisdiction or exceeded his mandate, or that the rules of natural justice or of procedural fairness were violated.

In a nutshell, he had to establish that there was a valid reason in law to refuse to answer the questions asked. No such reason is found in this case. He argues only the fact that he followed the advice of his attorney, not the soundness of that advice, which is, in any case, absent here. That is not sufficient to constitute a valid excuse to set aside the respondent’s penal liability. CONCLUSION [ 64 ] The impact of the answers given to the preceding questions on the judgment of acquittal requires that the judgment be set aside.

The actus reus is established and no valid reason has been demonstrated for excusing the respondent’s refusal to answer the investigator’s questions. [ 65 ] Therefore, I would overturn the judgment of the Superior Court, overturn the judgment of the Court of Quebec, find the respondent, Gilbert Fournier, guilty of the alleged offence under subsection 195(4) of the SA and refer the case back to the Court of Quebec so that a judge may decide on the proper penalty in the circumstances in accordance with

section 202 of the SA . JACQUES DUFRESNE, J.A.