R. v. Singh, 2021 ONCJ 738

CITATION: R. v. Singh, 2021 ONCJ 738 DATE: 2021-11-09 Toronto O N T A R I O C O U R T OF J U S T I C E B E T W E E N : HER MAJESTY THE QUEEN — AND — DAVID SINGH Before Justice Mara Greene Reasons for Judgment released November 9, 2021 N. Gilks............................................................................ for the Ontario Securities Commission W. Gilmour......................................................................................................... for David Singh M. Greene, J: [1] Mr. Singh is charged with three offences under the Ontario Securities Act (OSA).

This matter started in March 2018. It has beenadjourned several times and the evidence has been presented in drips and drabs since March 2020. Mr. Singh did not have counsel at thestart of this trial. Part way through this trial, he retained counsel, Mr. Gilmour. At the close of the Crown’s case, Mr. Gilmour advisedthat 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 theCharter were violated by the fact that this matter proceeded virtually (over zoom). [2] Arguments 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 onthe trial proper. This matter was then adjourned to November 9, 2021 for my judgment. [3] In 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 [4] In the case at bar, Mr. Singh has argued that his rights as guaranteed by

section 11(

b) of the Charter have been violated as thismatter has taken three and a half years to complete which is well over the 18 month ceiling identified by the Supreme Court of Canada inR. 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 threeand a half years to complete, the delay is still constitutionally tolerable when one takes into account delay caused by Mr. Singh and thediscrete exceptional event of the Covid 19 pandemic. [5] The 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). ThenI must subtract any delay caused solely by the defence. If the net delay exceeds the presumptive ceiling of 18 months, it falls on theCrown to establish the presence of an exceptional circumstances to justify the additional delay in the case. This can be done byidentifying a discrete event or if the case is particularly complex.

If the Crown is able to establish the presence of an exceptionalcircumstance, then this time is also deducted from the overall delay for the purpose of determining if the presumptive ceiling has beenreached. If the remaining delay falls below the presumptive ceiling, the defence then must show that the delay was nonethelessunreasonable. [6] In the case at bar the overall time is well in excess of the presumptive ceiling. The information was laid on March 31, 2018 and thetrial evidence and submission ended on September 24, 2021. This amounts to 42 months, some two years more than the presumptiveceiling.

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 [7] Mr. 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. [8] After 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. [9] On September 9, 2019 Mr. Singh sought and was granted an adjournment. A new trial date of March 2, 2020 was set. [10] Six 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. [11] On 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. [12] When 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 [13] Defence 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. [14] The 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. [15] By 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. [16] The 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). [17] On September 9, 2019 Mr. Singh sought and was granted an adjournment of his trial.

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). [18] As 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). [19] As 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. [20] The 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 [21] The 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 ). [22] The 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). [23] This 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 . [24] Since 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. [26] Mr. 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. [27] If 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. [28] I will address each factual issue raised by Mr. Singh below.

a) That he failed to understand the severity of the charges that he faces [29] In 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”. [30] Mr. 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. [31] It 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. [32] The 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. [33] In 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. [34] The 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”. [35] While 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. [36] Even 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? [37] In 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. [38] One 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. [39] Mr. 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. [40] It 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 [41] Mr. 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. [42] To 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. [43] In 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 [44] Mr. 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 [45] There 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. [46] I 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. [47] While 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 [48] Mr. 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. [49] I 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, [23] In 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 [50] I 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. [51] In 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.

[52] I 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. [53] Finally, 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. [54] In 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. [55] Finally, 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. [56] During 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. [57] In 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 [58] Mr. 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. [59] In 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. [60] At 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. [61] At 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 [62] As 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. [63] The 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. [64] A number of employees of Rockfort testified at the trial. [65] Jean 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. [66] Mr. 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. [67] Michael 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. [68] Mr. 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. [69] George 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. [70] Mr. 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. [71] In 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. [72] While 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. [73] Mr. 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. [74] In 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. [75] In 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. [76] Nicholas 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 [78] As 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. [79] The 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 [80] Mr. 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. [81] In 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. [82] In 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. [83] I therefore find that that the trust ledgers are not admissible for their truth. [84] Mr. 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. [85] The 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? [86] The 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. [87] The 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. [88] Mr. 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. [89] Mr. 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.

[90] In my view all this evidence establishes beyond a reasonable doubt that Mr. Singh was the owner and operating mind behind Rockfort. [91] Similar 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. [92] Other 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. [93] In 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? [94] It 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. [95] In 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

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