Tariffs-Free Regulatory Importing?
Asad Akhtar
prosecutions in the OCJ allow for the imposition of criminal liability, the OSC has faced
challenges in obtaining successful prosecutions through this forum.
Traditional Challenges in Securing Criminal Charges
Higher Burden of Proof
In comparison to an administrative proceeding, OSC Staff face a higher burden of proof.
In a quasi-criminal proceeding, OSC staff must provide proof beyond a reasonable doubt as
opposed to on a balance of probabilities in an administrative proceeding.
Persuasiveness of Circumstantial Evidence
In cases of insider trading and tipping, a “mosaic of circumstantial evidence is
necessarily the foundation” to establish inferences.143 While circumstantial evidence is not
inadmissible simply on the basis that it is not direct, OSC Staff face a considerably high hurdle in
demonstrating that such evidence is sufficiently probative.144
Limited Investigative Resources
Finally, the OSC cannot rely on a primary investigative tool, its statutory power to
compel testimony, for these proceedings.145 Under a criminal law proceeding, a statutory power
to compel testimony can be viewed as operating contrary to an accused’s constitutionally
protected right against self-incrimination.146
3. The Creation of JSOT
The creation of the Joint Serious Offences Team (“JSOT”) was intended to address some
of these challenges. JSOT is a collaborative partnership between the OSC, RCMP’s Financial
Shane D’Souza & Rene Sorell, “OSC Accepts Circumstantial Evidence of Tipping and Insider Trading in
Important Decision” McCarthy Tetrault (April 10, 2015) online: McCarthy Tetrault < www.mccarthy.ca>.
144
Shara Roy & Constanza Pauchulo, “Circumstantial Evidence and Insider Trading” (2015) 44:1 The Advocates’
Quarterly 111 at 112-114.
145
Jordan Glick, “Sneaking and Peeking: The Future of Securities Investigation has Arrived” Weirfoulds LLP
(February 2014) at 2 online: Weirfoulds .
146
Ibid.
143
40