August 02, 2017
St-Pierre, Hogue, Healy
Appeal from a judgment of the Superior Court dismissing an appeal from judgments rendered by the Court of Quebec convicting and sentencing the appellant. Dismissed.
The appellants, a physical person and the company in which he is a co-shareholder, were convicted of performing, or helping to perform, the unlawful distribution of a type of security, unlawfully acting as a securities dealer or a representative of a securities dealer, and providing false or misleading information.
The appellants’ argument that the loan contract is not an “instrument” within the meaning of paragraph 2 of section 1 of the Securities Act (CQLR, c. V-1.1), because the formalities required for its formation were not enforced, is not sound. First, the notion of “instrument” includes anything evidencing an investment through a loan of money (other than a bond), without any other stated formality. Second, it is clear that the investors accepted the appellant’s offer, thereby crystallizing the contract’s formation.
Moreover, the fact that the funds were not given to the appellant but to other companies is irrelevant insofar as the offence of unlawful distribution was committed the moment the process for approaching potential clients was implemented. In any event, if it were to be considered, it would change nothing because the amounts were paid out by the investors in accordance with the specific instructions of the appellant, who was acting as the appellant company’s authorized representative.
Furthermore, if the Superior Court judge committed an error by stating that ability to pay was not a factor to be considered in sentencing, this error had no impact on her judgment, in light of her limited power of intervention in sentencing and the evidence showing that the appellant was not penniless. Finally, she was right to conclude in the irrelevance of R. v. Topp (S.C. Can., 2011-0923), 2011 SCC 43, SOQUIJ AZ-50788196, 2011EXP-2880, J.E. 2011-1613.  3 S.C.R. 199, a case rendered under the Criminal Code (R.S.C. 1985, c. C-46), in which the necessity of showing financial capacity was justified by the risk of incarceration hanging over the defendant’s head in the event of non-payment.
*Summary by SOQUIJ
Text of the decision: Http://citoyens.soquij.qc.ca
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