Court of Appeal of Quebec

Desbiens c. Autorité des marchés financiers

November 06, 2017

200-10-003316-168

Rochette, Morin, Gagnon

Appeal from a judgment of the Superior Court dismissing the appeal from a guilty verdict rendered by the Court of Quebec under the Securities Act (CQLR, c. V-1.1). Allowed.

The appellant was convicted on four counts alleging that she aided a reporting issuer of which she was a director to distribute without a prospectus. The trial judge rejected the appellant’s defence of lack of mens rea, deeming that the offence here was one of strict liability. The Superior Court judge agreed and, based on an admission of counsel for the appellant in this regard, did not deem it necessary to consider the issue of actus reus.

This admission does not prevent the Court from finding that the essential elements of the offence charged against the appellant have not been proved beyond any reasonable doubt. Aid under s. 208 of the Securities Act must be both temporally and logically connected with the commission of the offence; it must in fact aid the principal, in this case the reporting issuer, commit the offence. Here, however, there is no such evidence. First, the appellant’s signature of the issuer’s corporate documents cannot, in the circumstances of this case, constitute “aid” in committing the offence in section 11 of the Securities Act. Second, the transactions took place without the appellant’s knowledge and without her doing or not doing something that resulted in aiding the issuer. In fact, the issuer should have been acquitted, as the person responsible for the transactions, the appellant’s spouse, acted without a mandate. That being the case, the summary conviction of the issuer by the trial judge on one count does not make the appellant complicit in the offences her spouse committed, with which she has not been charged.

*Summary by SOQUIJ
Text of the decision: Http://citoyens.soquij.qc.ca. This link open an external website in a new window.

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