Law Times

LAW TIMES / APRIL 28, 2008 NEWS PAGE 5 Lawyers back call for dedicated market crime Crowns BY ROBERT TODD Law Times S vid Wilson to form a team of pro- vincial prosecutors dedicated solely to market crime. "I'm really keen on the idea of dedicated investigators and dedi- cated Crowns for economic crime, and a better connection between them and the regulator," says Me- lissa MacKewn, who was senior litigation counsel at the OSC for before moving earlier this month to practise at Heenan Blaikie LLP. Wilson suggested in a recent speech to the Economic Club of Toronto that each province should create "a cadre of expert provincial prosecutors" as a means of strength- ening securities enforcement. "I would hope each of the ecurities lawyers are backing a call by Ontario Securities Commission chairman Da- larger provincial governments would move expeditiously to organize their resources in this way," said Wilson. MacKewn, who spent a year as chief enforcement counsel at Mar- ket Regulation Services Inc., says the creation of such a specialized group would prevent gaps or dupli- cation, "which is probably the big- gest problem." She says it would also be helpful for respondents. "There's a fairness there of some new but very carefully cir- cumscribed powers to investigate economic crime," said Wilson. "There's an awkwardness in having a situation where you have someone being investigated by the OSC, and the OSC can compel their testimony," she says. "And at • Improve information-sharing • • procedures between securities regulators and police, while balancing Charter restraints. Streamline assessment of cases Walker J.•Ontario Assessment Legislation 4/22/08 1:07 PM Page 1 powers to force the forfeiture to reduce wasted resources. Stronger use of statutory Ontario 'I'm really keen on the idea of dedicated investigators and dedicated Crowns for econom- ic crime, and a better con- nection between them and the regulator,' says Melissa MacKewn. the same time, you have a criminal investigation where the testimony can't be compelled. "It gives rise to inefficiency; knowing who you need to be deal- ing with when you're under inves- tigation." MacKewn says she had good experiences at the OSC with investigative teams, such as the RCMP's Commercial Crime Unit. "But the problem is it's a bit of a luck of the draw scenario — who happens to be available and what group has the budget? If there was streamlining, so that the expertise was all accessible in one place, that would be preferable." Andrew Fleming, a partner at Ogilvy Renault LLP with exten- sive experience in securities law, says it's essential that individuals with strong business acumen be involved in the prosecution of se- curities cases. "This is a different world. The the power to issue an investi- gative summons to third-party witnesses. 2008 Assessment Legislation Consulting Editors: Jack Allen Walker, Q.C. and Andy Anstett Legislation covered includes: • Assessment Act and regulations • Assessment Review Board Act and Rules of Practice and Procedure for the Assessment Review Board • Municipal Act, 2001 (Sections 305 to 389) and regulations • Municipal Freedom of Information and Protection of Privacy Act it gives rise to awkwardness and uncertainty. But I'm not sure the answer is additional powers of compulsion in the criminal law context, because there is a his- tory of Charter rights that has to be respected." In terms of the much-discussed • Municipal Property Assessment Corporation Act, 1997 • Municipal Tax Assistance Act and regulations • Payments in Lieu of Taxes Act • Provincial Land Tax Act • Statutory Powers Procedure Act • Ontario Rules of Civil Procedure, Rules 30, 31 and 53.08 … and more! of crime proceeds. Share highly skilled resources. • Create a common securities regulator. • • Look into giving investigators sources, the skills, and the ideas to make securities regulation more ef- fective," said Wilson. "Fortunately, I've seen the appetite for change within the enforcement mosaic. It seems all we need is the will to make it happen." "In this country, we have the re- LT Reduce your research time with these useful features: • concise Table of Contents with detailed Table for each Act • a thorough subject index • legislative history for each provision • bleed tabs to help you locate exactly what you need When you want a complete and handy source for Ontario assessment legislation, the logical place to turn is Ontario Assessment Legislation, 2008 Edition. This consolidation, offers the most thorough collection of laws available for this complex area New in this edition: • Legislation Act, 2006 • Provincial Tax Act, 2006 • O. Reg. 290/07 Fees INCLUDES! Updated Rules of Practice and Procedure for the Assessment Review Board Current edition only $79 • P/C 0836010000 • Multiple copy discounts available • ISSN 1198-3612 Perfectbound • 676 pp. • May 2008 • Standing order $69 • P/C 0836140000 securities regulatory world is just not the same as trying to investigate hit-and-runs, or break-and-entries, or murder, for that matter," says Fleming. "It's highly sophisticated, really reliant on technology, and I think we really do need people who . . . know how these things are done, and those are people who are familiar with the markets." Wilson said that "enforcement is to securities regulation what open-heart surgery is to health care," and that the bulk of the OSC's work in policing securities in the province is done in the areas of prevention and remediation. But he acknowledged that such activity rarely grabs headlines and that enforcement is the "big ham- mer" in the commission's set of tools used to regulate the market. He voiced support for federal Finance Minister Jim Flaherty's proposal to give police the power to compel third-party witness testi- mony as a means of strengthening enforcement. Wilson contrasted the fact that Canadian investigators can't force individuals who may have relevant testimony to talk, but securities regulators can. "I believe it's time to carefully study the idea of giving police creation of a common securities regulator, Wilson said, "While not a silver bullet, there is no doubt that a common regulator would improve enforcement in Canada." He added, "The debate about a common regulator is now squarely in the hands of politicians." MacKewn, who served as lead counsel on the Ontario Securities Commission v. Portus Alternative Asset Management Inc. case at the OSC, says she's familiar with the frustrations many people have voiced with the commission's en- forcement tools. "I have no doubt that there could be greater efficiency and co- ordination with a national securi- ties regulator," she says. "I think Portus is an example, and a good one, of circumstances where ev- eryone worked extremely hard to co-ordinate the many different moving parts. But I'm not sure that should have to be the case. I think we could be a lot more efficient if that was built into the system." Fleming says lawyers would benefit from the stability of a com- mon securities regulator. "In my practice, the fact that you deal with 13 securities com- missions is not perceived by me to be an opportunity to increase the amount of work involved in a particular transaction. Rather, it's simply an irritant which slows the process down," says Fleming. "So I don't see this as a nega- tive from the legal profession's perspective. I think we're going to end up dealing with a more robust regulatory process, and therefore there will still be the need for lawyers," he says. 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